NSW EPA concedes more protection for individuals subject to “special executive liability”Author : Patrick Boardman (Partner) and Gemma Dehn (Special Counsel)

Environmental Financial Lines

In recent years, the issue of environmental protection has grown in importance.  As a result, the powers of the NSW Environmental Protection Authority (the EPA) to investigate and prosecute environmental offenders (including corporations and individuals) are being increasingly applied.

Last month in Fordham v EPA [2018] NSWCA 167, the EPA clarified that any responses provided by individuals during interviews as part of their investigations of a “special executive liability” offence, cannot be used against the individual in criminal proceedings (if the individual seeks protection under s.212 (3)), which is a reassuring development for affected individuals. However, it is important to note that protection provided by this section is not automatic, and extends only to criminal, not civil, proceedings.

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