Consultation closes this Friday, 20 September on the draft Compliance and Enforcement Policy (Draft Policy) of the Department of Water and Environmental Regulation (DWER). The closing date for submissions was extended from 16 August to this Friday.
Once finalised, the policy is expected to guide DWER’s actions in relation to compliance and enforcement for environmental and water-related regulation. The policy will also assist industry in engaging with DWER on such matters and understanding DWER’s approach and the likely consequences of non-compliances.
Background to the Draft Policy
The policy is intended to replace the previous compliance, enforcement and prosecution-related policies of the former Department of Environment Regulation (DER) and Department of Water (DoW), following those bodies’ amalgamation with the Office of the Environmental Protection Authority in July 2017.
The Draft Policy is similar in substance and structure to parts of the former DER ‘Enforcement and Prosecution Policy (July 2013)’. A key difference from DER’s previous policy is that the Draft Policy does not address in detail prosecutions for offences. Prosecution as an enforcement method will be the subject of a separate DWER guideline which is to be finalised.
The Draft Policy proposes a policy approach to water compliance and enforcement matters similar in part to DER’s previous policy. Some water-specific elements of DoW’s previous policy are not reflected in the Draft Policy (e.g. the relevance of the risk category assigned to water resources in compliance and enforcement actions) .
Key components of the Draft Policy
Endorsement of regulatory best practice principles
The Draft Policy endorses and expands upon the ‘compliance and enforcement principles’ in DWER’s ‘Compliance and Enforcement Policy (Interim)’ dated July 2017 relating to risk and evidence-based decision-making, transparency, collaboration, consistency, responsiveness and effectiveness. A risk-based approach to compliance and enforcement formed part of DoW’s previous policy.
We can reasonably expect these concepts to play a greater role in DWER’s actions in the future.
Focus on compliance
More guidance is provided about DWER’s approach to promoting and assessing compliance, including the establishment of compliance priorities for DWER’s activities. The Draft Policy does not indicate what those priorities will be but states that DWER will prioritise events or activities representing the greatest level of risk.
The Draft Policy also lists measures DWER will use in monitoring compliance, including inspections, reviews and audits, industry reporting (statutory and self-reporting), information obtained from other regulatory authorities, and community reports and complaints.
Enforcement principles and actions
The Draft Policy describes enforcement principles and the different types of potential enforcement actions and when they may be selected. This content is similar in substance to the previous DER policy, subject to some simplification in parts. The Draft Policy therefore does not indicate a vastly different approach to DWER decision-making in this regard being taken in the future, save that this approach will be applied to water regulation.
The key difference is the absence of detailed provisions relating to prosecutions. The Draft Policy refers to specific information being provided in DWER’s prosecution guideline which is to be finalised. Until this guideline is finalised, whether any changes will occur to DWER’s policy approach to prosecutions is unknown.
By Melanie Debenham, Senior Associate, and Emily Wilson, Senior Associate, Perth