Mr. John Finnegan:

I thank the Senator. She made a very good point on the need for internal co-operation on both scrutiny and execution. This is because each of the nine new offences will require the expertise of other Departments for scrutiny. It is to ensure that the directive reaches its best possible form and that there is co-operation in enforcing it.

The first offence is the placement on the market of products that, in breach of mandatory requirements, cause substantial damage to the environment because of their use on a larger scale. The existing requirements that limit the use of certain materials are the responsibility of the Department of Enterprise, Trade and Employment. They are often enforced by the Health and Safety Authority, so we will have to scrutinise the provision with it. It would have to take a leading role in this. That is a good example of the structure in that the standards are in existing legislation — in this case, in the REACH directives and other measures on the use of chemicals and other raw materials in manufacturing. Certain things are forbidden on a civil or EU law basis. The directive under discussion does not change that standard; it just states certain egregious breaches of the existing standards will become a criminal offence.

The second new offence concerns serious breaches of chemicals legislation. Again, the existing standards, which are just being reinforced, will need to be scrutinised by the Department of Enterprise, Trade and Employment and the other existing stakeholders.

The third offence relates to ship recycling. There is existing legislation setting standards for the recycling of ships. It is the responsibility of my Department. We will have to examine closely the effects of imposing criminal sanctions for serious breaches.

The fourth offence concerns water abstraction and makes abstraction a criminal offence if it causes substantial damage. Again, this would have to be considered by the Department of Housing, Local Government and Heritage, which is responsible for existing legislation related to water and which would have primary responsibility for enforcement.

The fifth new offence, on the discharge of polluting substances from ships, will require scrutiny by the Department of Transport, which would have to be involved in enforcement.

The sixth, on placing illegally harvested timber on the EU market, would obviously require the scrutiny of the Department of Agriculture, Food and the Marine, which would have to take a leading role.

The seventh concerns serious breaches of rules concerning invasive species. This and other biodiversity matters are the responsibility of the Department of Housing, Local Government and Heritage. As the Senator mentioned, there are provisions to criminalise a failure to carry out proper environmental impact assessments in certain circumstances. That is part of our planning system. There are existing standards in this regard that are the responsibility of the Department of Housing, Local Government and Heritage and various bodies under its aegis.

The ninth offence primarily concerns my Department. The change made means that the release of fluoridated greenhouse gases into the atmosphere will become a criminal offence. The Senator made the very good point that this legislation will require whole-of-government scrutiny to ensure it works properly and whole-of-government action to enforce it.

The subject of environmental impact assessments is controversial, as the Senator suggested. We will be discussing with our colleagues who are responsible for that aspect of the planning system the best and most appropriate way to add criminal sanctions in a helpful way. I am afraid I cannot help the Senator very much with the details of the system and how it is currently working, but I am sure we can return to that. Colleagues in the responsible Department can answer specific questions on the current system.

The Senator raised a very interesting question that has been raised by member states. It concerns the distinction between a deliberate act and a negligent act. My colleague the attaché may join in on this. In summary, there have already been two days of discussion on the directive, at the end of last month. The first three articles were gone through. Exactly the kinds of questions being discussed have been raised. For example, is the definition of "unlawful" in the directive appropriate?

Is there a need for mens reafor something to be a criminal act? What should the distinction be between deliberate and negligent acts? What is the standard for negligence? These are very technical and very important legal principles, and we are working with the Department of Justice to ensure that what is implemented works well in our system. Certainly, the intention of the directive as it stands is that it covers deliberate acts and negligent acts. It covers natural persons and legal persons. What is needed now is the technical scrutiny to ensure the directive has its intended effect in a common law jurisdiction.