On 1 July 2026, the National Environmental Protection Agency (NEPA) was established as Australia’s new federal environmental regulator. The establishment of NEPA is expected to increase the number of enforcement investigations relating to compliance with the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
This raises a question for State regulators and project proponents: whether, and to what extent, a person can be investigated and prosecuted at both State and Commonwealth levels for the same conduct or incident.
Key takeaways
Yes. In Australia, a single environmental incident can expose a company or individual to investigation and prosecution under both State and Territory environmental laws and the EPBC Act. Section 4C(2) of the Crimes Act 1914 (Cth) allows a person to be prosecuted and convicted under either law, but prevents them being punished twice for the same act or omission. An enforceable undertaking given to a State regulator does not prevent NEPA from taking its own enforcement action.
The Commonwealth and the States both regulate the environment
Environmental regulation in Australia is a shared responsibility. The States and Territories carry primary responsibility for pollution control, land use, and mining and petroleum titles, and State environment protection authorities enforce the relevant laws.
The Commonwealth relies on its constitutional powers to regulate matters of national environmental significance under the EPBC Act. Because these regimes often regulate the same activities, one event may breach both State and Commonwealth laws and approvals.
Section 10 of the EPBC Act expressly preserves the concurrent operation of State and Territory laws. As a result, both State and Commonwealth offence regimes generally remain available for the same incident.
Does double jeopardy apply to environmental offences in Australia?
Partly. Regulation under both Commonwealth and State regimes does not mean the same conduct will be punished twice. Section 4C(2) of the Crimes Act 1914 (Cth) provides that where an act or omission is an offence under both a Commonwealth law and a State or Territory law, the offender may be prosecuted and convicted under either law but is not liable to be punished twice for the same act or omission. The protection is against double punishment rather than a complete bar on a second prosecution.
Does a State enforceable undertaking stop Commonwealth enforcement action?
No, not of itself. Generally, an enforceable undertaking accepted by a State regulator binds only the parties to it. It does not prevent a Commonwealth regulator from investigating or prosecuting the same incident. In addition, because an enforceable undertaking is not a conviction or a sentence, section 4C(2) of the Crimes Act 1914 (Cth) is unlikely to apply. NEPA may, however, take into account an enforceable undertaking accepted by a State regulator when deciding whether to take enforcement action. Businesses should not assume that resolving a matter with one regulator ends their exposure.
What should businesses do after an environmental incident?
Businesses should assume that both State and Commonwealth regulators may take an interest in the same incident. Practical steps include:
- assessing early whether the incident may involve a matter of national environmental significance under the EPBC Act;
- coordinating responses to State and Commonwealth regulators;
- managing legal professional privilege over internal investigations; and
- considering how any enforceable undertaking offered to one regulator may be viewed by the other.
Frequently asked questions
Can State and Commonwealth environmental laws apply to the same incident?
Yes. Section 10 of the EPBC Act preserves the concurrent operation of State and Territory laws, so one incident may breach both State and Commonwealth laws and approvals.
What is the National Environmental Protection Agency (NEPA)?
NEPA is Australia’s new federal environmental regulator, established on 1 July 2026. Its establishment is expected to increase the number of enforcement investigations relating to compliance with the EPBC Act.
Does a State conviction stop a Commonwealth prosecution for the same incident?
Not necessarily. A person may be prosecuted and convicted under either law, but section 4C(2) of the Crimes Act 1914 (Cth) prevents them being punished twice for the same act or omission.
(Do double punishment protections apply to civil penalties?
Not always. Section 4C(2) of the Crimes Act 1914 (Cth) is directed at offences and punishment. Civil penalty proceedings, enforceable undertakings and administrative sanctions are not criminal convictions, so they may proceed in parallel with, or after, criminal proceedings.
Which regulator investigates first?
It depends on the incident. State environment protection authorities usually respond first to pollution events, while NEPA is expected to lead on matters of national environmental significance under the EPBC Act.