An evaluation of compliance and enforcement mechanisms in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and their application by the Commonwealth

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) was heralded as a landmark in environment protection. It provides a range of innovative remedies and sanctions - administrative, civil and criminal - which include pecuniary penalties of up to $5.5 million for a corporation and $550,000 for an individual, and criminal penalties of up to seven years' imprisonment. Clearly, the Act was intended to be a major deterrent to those causing harm to the environment; yet, despite increasing environmental degradation, there has been a significant lack of enforcement by the Commonwealth. When action has been taken, the Commonwealth has preferred a negotiated settlement to adversarial proceedings. This article evaluates some of the most significant compliance and enforcement mechanisms in the Act and their application by the Commonwealth. It discusses some of the recommendations of an independent review for strengthening compliance and enforcement. It argues that Commonwealth lack of enforcement has not been due to a lack of enforcement mechanisms in the Act, but rather to its adherence to a policy of responsive regulation and the manner in which it has been applied.