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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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ENVIRONMENT PROTECTION (SITE CONTAMINATION) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 17 October 2007. Page 1124.)

Clause 11.

The Hon. I.F. EVANS: I have reread the Hansard from last night. I want to ensure the minister understands the point I am trying to make. In response to one of my questions last night the minister said:

So, if what was done on the land 20 years ago was consistent with what the land was used for then, as I understand it, it would not now be considered to be site contamination by that previous person.

This is the nub of my question. The minister answered it in the context that the use of the land was going to change. I understand what happens when the use changes. The point I am trying to establish is: what happens if it does not change and then contamination is found? The way I understand the legislation, it goes back to the previous owner. That is what I want clarified and that my understanding is correct. I should clarify that neither the bill nor the act gives the previous owner an out by saying 'it was the practice of the day'. Nowhere in the act or the bill is that excuse provided to the previous owner, which is the context in which the minister answered it last night.

The Hon. J.D. HILL: I have been given a note which I hope clarifies this for the member for Davenport. I recognise that this is incredibly complex stuff, but let me just read this. Last night the honourable member raised a question as to who was liable for contamination in certain circumstances that relate to current ownership as against ownership at the time the contamination occurred. The honourable member raised a number of hypothetical situations. He considered, first, rezoning a farm, then just the farm land and finally builder's yards or other activities. I would like to commence by explaining how liability is determined. I would add before doing so that dealing with site contamination is always going to be difficult as we are dealing with historical pollution, and that is why the legislation is retrospective. In terms of the honourable member's suggestion in debate and in committee that the buyer should beware, that is just not so. Society moved well beyond that notion sometime ago. As I indicated yesterday, this bill provides a clear hierarchy of liability for site contamination.

If the honourable member turns his mind to what the bill says he can apply the framework to any scenario he wishes. Turning to his farm example, the honourable member can substitute any other activity he wishes, such as a builder's yard. So, if a person farmed the land (he may have owned the land or he may have just leased it), under the bill that person was the occupier of the land. If the farmer had a sheep dip or he dumped farm chemicals and other materials on the site and has caused either the site contamination or contributed to site contamination by placing the chemicals there, as the occupier the farmer is responsible for the contamination. The bill also deals with multiple occupancy over time. I now use three situations to explain to the honourable member how the bill works. First, the farmer still owns the land. Residential development now abutts this land. The sheep dip on the farm may now be posing a risk to the health and safety of the nearby residents. I think that is a key point. It is the risk to others that becomes the issue.

The EPA then determines whether an assessment order should be served. As the person who caused the contamination, under section 103C he or she is served with the order. In the second situation, if the farmer has sold the land and the EPA determines that an order should be served, that order is still served on the person who has caused the contamination—the farmer. Finally, if the order cannot be served on the original farmer because he or she has died or for other reasons as listed in section 103C(3), then the order is served on the current owner of the site subject to the test placed in this provision by the amendment of the Hon. Mark Parnell in the other place. Keeping in mind the simple hierarchy, the test for liability can be applied to any situation.

I repeat what I said: this is not ever going to be an easy process. The original polluter always remains the target. The question about whether something is site contamination very much depends on the context. As I understand it, if the pollution is controlled and not in danger of escaping or causing harm to any other person there is not a problem. If the land is to be developed for some other purpose, that triggers the notion of site contamination. I am trying to get some definitions for the honourable member. I think it gets down to what was lawful or unlawful practice at the time.

In relation to polluting activities that occurred in the past that may never have held an environmental authorisation, and arguments pertaining to the lawful operation of such activities, I am aware that arguments exist that an original polluter should not be held responsible if they were acting lawfully at the time. Regarding these arguments, it is important to remember that prior to the EPA (Environment Protection Act) other principal standards or laws were in force that created offences for polluting activities. Examples include the following. Common law principles state that a person cannot create a nuisance to others or impact others in a harmful way.

Under the 1873 Public Health Act offence, including penalties, provisions existed in relation to conditions endangering human health and of creating nuisance effects from many of the activities currently licensed by the EPA. Similarly, the Health Act of 1935 created offence provisions for causing insanitary conditions of land or waters as it related to public health. Part 3 of the 1987 Public and Environment Health Act provides for the protection of human health under various provisions, including pollution of water, discharge of waste in a public place, offence in relation to insanitary conditions of premises, and control of offensive activities.

Therefore, in the context of the laws mentioned, it is unlikely that many past activities were ever lawful. In this context it is wholly appropriate that the original polluter be accountable for making good now damage done in the past. In addition to this, it is widely accepted and recognised that those who derive benefit for a particular activity should also bear the cost of any associated damage from the benefit derived. To do otherwise is extremely inequitable. However, in recognition that some activities may have been lawful, the EP Act under section 104(2(b) may by way of regulation exempt classes of persons or activities from the application of the act or specify provisions of the act.

In relation to site contamination, this provision may be used to exempt a person's liability for site contamination. In relation to issuing such an exemption, the government will decide if regulations are required. Currently, no regulations are proposed at this time. If any particular activities were to be exempted under this process there would obviously be consultation with key stakeholders. So I hope that clarifies it.

The Hon. I.F. EVANS: I will not hold up the minister for long on this principle. I will have to go away and read what you said, but I think I have made my point. I just want to clarify one other issue and it may have been in that three pages you just read, I am not sure. What protection is there for those people who have been licensed by the EPA to pollute and then the licence expires? What is their position in relation to the contamination on the site that has been licensed? So the EPA has been aware of it. Are they exempted, or do they become subject to this?

The Hon. J.D. HILL: I am advised of the following. If the EPA grants a licence to a person to carry on a prescribed activity of environmental significance nothing in the licence entitles the person to contravene the general offences in part 9 of the act

The Hon. I.F. Evans: Could you speak a bit more slowly?

The Hon. J.D. HILL: Sorry; yes. If the EPA grants the licence to do something, a prescribed activity—so that would be to run a factory or do whatever it is they do—nothing in that licence allows the person to contravene the general offences in part 9 of the EP Act, namely, causing serious environmental harm, causing material environmental harm, or causing environmental nuisance. Such a licence is not a licence to pollute. Indeed, if a licence holder were to contravene those general offences they would face the same penalties as anyone else. Equally, if a licence holder was found to have caused site contamination, the provisions of this bill would and should apply to enable the EPA to issue the licence holder with a site contamination assessment order or a site remediation order.

As for works authorised by an act of parliament listed in section 7(3) of the act, for example pulp and paper mill works under the Pulp and Paper Mill Act of 1964, the act specifically excludes such activity from the application of the act and will continue to do so once the site contamination provisions have been incorporated. In other words, persons polluting or causing site contamination, pursuant to an act listed in section 7(3) of the Environment Protection Act, or as part of certain activities associated with petroleum exploration on mining leases, or licences listed under section 7(4) of that act, will be excluded from the application of part 9—general offences, and new part 10A—site contamination provisions, once these provisions have been incorporated into the act. So, as I understand that advice, a licence is not a licence to pollute; it is a licence to do something, and if you breach whatever the act says is an environmental harm then you are still responsible.

The Hon. I.F. EVANS: I have two more questions on this point and then we will move on to other issues. When you gave the first response with the three examples one answer ago, I might have not heard correctly, but I thought your first example was that, if someone developed the site next door to your property, that could trigger an obligation on the neighbouring property to clean up their property even though they are not developing it. I am just wondering what the Farmers Federation had to say about that particular point. Was that point highlighted to the Farmers Federation? I always understood the act only applied to the site under development and, in fact, not to a neighbouring site not under development.

I asked yesterday, in committee, when the proposed use kicked in, and I was told it kicked in at the point of the development application, but I thought it applied to only the site under the application for development and not to the neighbouring property. I think you have just told the house that if your neighbour is going to develop there might be an obligation on you to tidy up the land, even if you are not doing anything to your property other than what you have done for the last 100 years, if there is an issue with you dumping something there.

The Hon. J.D. HILL: This is very complex, but it is very much related to the law of nuisance, I would have thought, in that, if I do something on my property, there is a general common law provision that I can do what I like on my property as long as what I do does not affect somebody else. So, if I have a big fire on my property and the smoke blows into your house and causes you respiratory problems, then, under the tort of nuisance, you would have an action against me. Equally, if a branch falls off my tree onto your house you could potentially have an action, or if chemicals escape from my property into your property, the same thing would occur.

So, as I understand it, if any site contamination on property A starts to affect property B, it is consistent with the general law of tort. The site contamination on property A would only become an issue if it in some way was affecting, or had the potential to affect, property B. The most likely area in which that would be the case, as I understand it, would be if the watercourse were affected. If there was a body of water which was polluted by chemicals on a farm and there was a potential for that water to affect the property next door, I would have thought the site contamination issue would have been raised, regardless of whether the property was to be subdivided or the use of the adjacent property was to change.

The Hon. I.F. EVANS: My last question on this point, before we move onto other clauses of this section, relates to landfill. An old landfill site that is currently licensed which gets full, what is the obligation? Is it to clean up, or what is their exposure? Are they exempt? Because the mining industry is exempt. Is that one of the activities that are exempt?

The Hon. J.D. HILL: The same general principles would apply. If somebody were to build a house on top of a landfill site clearly this legislation could apply. In addition to that, changes to the act were made in 2005 which dealt with post-closure issues to do with landfill. So, landfills now have to develop landfill management plans which are potentially still licensed. There is a separate regulatory framework for landfill. But, in addition to that, I would imagine the same principles would apply if somebody wanted to change the use of a landfill site.

The Hon. I.F. EVANS: Can we move onto site remediation orders and those sorts of things? I just want to check how these work? The site remediation order can be issued to any person, I understand, usually the occupier or the owner or the person who contaminated, and if they refuse to do it then the EPA can get anyone to do it and charge the appropriate persons. That is the way I understand the provisions generally throughout this section. The person who is issued with a site remediation order gets 14 days to appeal. One assumes that the EPA cannot issue someone with a site remediation order and, while it is under appeal, get someone else to commence the remediation. For example: the EPA comes to me and says, 'Here is a remediation order.' I say, 'Thank you kindly for that. I am going to appeal it. I have got 14 days to appeal.' Under the act the EPA can actually get anyone to go and clean up my site and charge me. Can it do it while it is under appeal, because nowhere in the provisions do I see a prevention of that.

The Hon. J.D. HILL: The advice I have is no, the EPA would not be able to. It is a similar provision to an environmental protection order. So, the advice I have is no, that would not be able to happen.

The Hon. I.F. EVANS: This is an exceptionally long clause and we are dealing with a lot of the issues, and then it will just follow over. What prevents the EPA from using the emergency provisions to instruct someone to break the act, to disobey the act, and do that, if it wishes? Under this bill, the EPA has the power to instruct people to not obey this act. Clause 103J(8) provides:

The authority or an ... officer ... reasonably necessary ... in the circumstances, include in an emergency or other site remediation order [can order] a requirement for an act or omission that might otherwise constitute a contravention of this act and, in that event, a person incurs no criminal liability...

So, I think that gives the EPA an out clause in emergency situations to get anyone to clean up anyone's site while it is under appeal, because they can actually breach this act. I am wondering what is the purpose of those two clauses. What is the purpose of having a clause that says that you can breach the act under instruction?

The Hon. J.D. HILL: It is a 'clear and present danger' clause. If life is endangered or some significant harm is about to occur, the authority has powers to take action, in the same way that police have powers, theoretically, to break the law by breaking and entering and doing a whole range of things in order to look after the community's safety. That is, as I understand it, what that provision is about.

The Hon. I.F. EVANS: Do you think it is reasonable, minister, that that power should be able to be issued orally? Do you think it reasonable that an authorised officer should be able to issue an oral instruction to a member of the public to break the act? What protection is there for someone to do that? If you combine clauses 6 and 8, it is possible to issue an emergency site remediation orally. Clause 6 provides that 'an emergency site remediation order may be issued orally'. The remediation order in clause 8 can instruct the person to break the law, and I fear for the protection of citizens in those circumstances.

The Hon. J.D. HILL: The advice I have is that this is consistent with the powers that exist under the EP Act and they have been codified and worked through. It is really a power that is required in an emergency and, sometimes in an emergency, you just have to trust people to use their judgment. If they get it wrong, they are subject to discipline, and that is the way the system works.

The Hon. I.F. EVANS: I want to check something. Under the bill, are there any civil penalties that can be incurred by people who breach the act and, if so, why does clause 8 (the one we are talking about on page 16) only exempt them from criminal liability, not civil?

The Hon. J.D. HILL: The advice I have is that there are no civil penalties: there are civil remedies. The issue is that the contamination itself is not an offence. Contamination happens; that is fine. It might be an offence if it were done today and done deliberately—that is a different issue—but we are talking about historic events. So, to have contaminated a site is not necessarily an offence, at least in relation to this bit of legislation; there may be other legislative powers that create an offence, but this is not about that. Where there is an offence is when somebody fails to obey the order and then there is a penalty, which is a criminal penalty, and that is as I understand it.

The Hon. I.F. EVANS: You have three lawyers over there; I have none around me at the moment. The way I understand clause 8 is that it gives your officers the power to instruct people to breach the act in emergency situations, so the poor person who is instructed to breach the act has to breach the act otherwise they can get penalised. Let's say that I breach the act under instruction. I am protected from criminal liability but not from civil. There are no civil remedies against me. What are the civil remedies that can be put against the person who has been instructed to act against his wishes? That is what I am trying to establish. If there are any civil remedies, what are they? I want to know what the potential downside is for the person.

The Hon. J.D. HILL: There is a difference between a penalty and a remedy. A simple remedy would be something that I can do to cause something to happen that I want to happen; I have a remedy. I can seek an injunction to have something happen. It is not a penalty. A penalty would be if you received a fine—

The Hon. I.F. EVANS: Could the owner of the property sue me?

The Hon. J.D. HILL: Who knows?

The Hon. I.F. EVANS: Could the owner of the property sue me?

The Hon. J.D. HILL: You would have—

The Hon. I.F. EVANS: On what basis am I being instructed to take an action when I might be sued without protection by the Crown?

The ACTING CHAIR (Mr Koutsantonis): The minister is answering the question on civil liability, stick to that.

The Hon. J.D. HILL: There are no offence provisions here. There are no civil offences that are created under this legislation. You are getting into this area of hypothetical legalisms that are just not real issues. If somebody was instructed by an authorised officer to do something or other, and it is not illegal because it is in accordance with the directions of an authorised officer, then no offence has been created. I fail to see how that could create a civil offence. If someone attempted to sue somebody for that, it would be like suing a police officer who knocked down a door in order to rescue a baby from a burning house. If you were the owner of the property and then sued the police officer because he had damaged the door, you would be thrown out of court. That is the reality of it.

Clause passed.

Clauses 12 to 14 passed.

Title passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.

Mrs GERAGHTY: Mr Speaker, I draw your attention to the state of the house:

A quorum having been formed:

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