Overview of the guide
This guide sets out practical steps for responding to an investigation notice, statutory notice or request to provide information or show cause notice in Australia by Commonwealth, state and territory environment protection authorities (EPAs) and other mining and petroleum regulators.
Key takeaways
When responding to an environmental show cause notice or investigation notice: provide accurate and complete information without speculation; meet the response deadline or seek an extension early; follow through on cleanup and remediation commitments; keep complying with approvals, licence conditions and management plans; check the statutory power, privilege and self-incrimination protections; engage constructively with the regulator; and consider an enforceable undertaking or voluntary remediation program as an alternative to prosecution.
Legislation and regulators
Each Australian jurisdiction has its own environmental, mining and petroleum regulator and legislation conferring notice and investigation powers.
Key examples include the Queensland Department of the Environment, Tourism, Science and Innovation (DETSI) under the Environmental Protection Act 1994 (Qld), the NSW Environment Protection Authority (EPA) under the Protection of the Environment Operations Act 1997 (NSW), and, at the Commonwealth level, the newly established National Environmental Protection Agency which regulates the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Mining and petroleum regulators with similar powers include the Queensland Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development under the Mineral Resources Act 1989 (Qld), Petroleum and Gas (Production and Safety) Act 2004 (Qld) and Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), and the NSW Resources Regulator under the Mining Act 1992 (NSW) and the Petroleum (Onshore) Act 1991 (NSW). The precise powers, offences and protections differ between these Acts, so the applicable legislation should always be checked.
Key matters to take into consideration in preparing a response
A show cause or investigation notice is often the first step before regulatory enforcement action, such as a warning letter, penalty infringement notice or prosecution for an environmental offence or pollution incident.
The quality of the response can shape whether the matter ends with a warning, penalty or prosecution. We set out below a number of key matters to guide the preparation of your response.
Accuracy, not speculation: Providing complete and truthful information
Answer what is asked, completely and truthfully. Providing false or misleading information is usually a separate offence. Be mindful that some answers may not be known and it may be necessary to explain this. Avoid speculation. Present mitigating facts and demonstrate remedial action already taken.
Time: Response deadlines and extensions of time
The notice will require the information to be provided by a particular date. Failure to respond within specified time frame may also be a separate offence. Where the deadline cannot be met, it may be possible to obtain an extension of time. There is never a guarantee of an extension, and if sought, should be sought early. Regulators are more receptive to reasonable, prompt requests.
Follow through on commitments and keep the regulator updated
It will often be the case in a finalised response that a statement will be made in relation to a future action or something that is ongoing or incomplete at the time the response is finalised. For example, laboratory test results have not been received. It is important that commitments made in responses are all followed through and a regulator updated in accordance with the commitment made in the response.
Continued compliance with approvals, licence conditions and management plans
It is not unusual for approvals, environmental licences and associated management plans to have processes and reporting associated with a breach, noncompliance or incident. Unless expressed to the contrary, a show cause or investigation notice will not suspend those obligations. Compliance may still be required, even if it may appear to involve a level of duplication.
Statutory power: Validity of the notice, legal professional privilege and self-incrimination
Understand the power being exercised. Identify the statutory provision relied upon (for example, the information-gathering powers in the Environmental Protection Act 1994 (Qld) or the Protection of the Environment Operations Act 1997 (NSW)), what is compelled, and whether privilege or self‑incrimination protections apply. Many environmental statutes modify the privilege against self-incrimination and as a general rule corporations cannot claim that privilege. Notices issued beyond power can also be challenged and there is inevitably a very small window of time in which that can occur.
Engage constructively with the regulator
Regulators can be more receptive to proponents who engage constructively. For example, through early, cooperative and transparent communication with the investigating officer.
Enforceable undertaking or voluntary remediation program as an alternative to prosecution
Depending on the incident, an enforceable undertaking or voluntary remediation program could resolve the matter and should be considered in the preparation of the response. Several Australian environmental statutes, including the Environmental Protection Act 1994 (Qld) and the Protection of the Environment Operations Act 1997 (NSW) allow the regulator to accept a written undertaking in lieu of a prosecution. An enforceable undertaking typically involves remediation works, improvements to environmental management systems, or funding for an environmental project. Consider such an approach early and as the matter evolves.
Frequently asked questions
What is an environmental show cause notice?
A show cause notice is a written notice from an environmental regulator inviting a person or company to explain why the regulator should not take a proposed action, such as issuing a penalty, varying or suspending a licence, or commencing enforcement proceedings.
Do I have to respond to an investigation notice to provide information?
Generally, yes. Where a notice is issued under a statutory power, failing to comply without a reasonable excuse, or providing false or misleading information, is usually an offence.
Can I get an extension of time to respond?
Regulators may agree to an extension, but it is not guaranteed. Requests should be made early, in writing, with reasons and a proposed new date.
Can I claim legal professional privilege or the privilege against self-incrimination?
Legal professional privilege is generally preserved unless the statute clearly removes it. Many environmental statutes modify the privilege against self-incrimination, and corporations cannot generally claim it. Legal advice should be obtained.
Does a show cause notice automatically result in a prosecution?
No. A show cause or investigation notice is often an early step, and a well-prepared response may lead to a warning, a penalty notice, an enforceable undertaking or no further action rather than prosecution.
What is an enforceable undertaking?
An enforceable undertaking is a written commitment given to and accepted by the regulator, such as to carry out remediation or improve environmental management, which can be enforced in court if breached and may be accepted instead of prosecution.
Do mining and petroleum regulators issue similar notices?
Yes. Mining and petroleum regulators have statutory powers to require information, conduct investigations and issue notices. The same principles of accuracy, timeliness, compliance and checking the statutory power apply.
This guide provides general information only and does not constitute legal advice. Specific advice should be obtained on receipt of any regulatory notice.