Jurisdiction - Singapore
News
Singapore – Clearing the Air: Tougher Measures In The Transboundary Haze Pollution Bill.

16 July, 2014

 


Introduction

 
The issue of haze pollution has been a much disputed issue in the ASEAN region, particularly with the worsening of haze conditions in recent years. While the main cause of the haze has been identified as the clearing of land in Indonesia through open burning, stopping such burning has proven to be far more difficult. As recently as 2013, Singapore experienced its worst haze in history. Regional discussions and diplomatic action, including the signing of the 2002 ASEAN Agreement on Transboundary Haze Pollution, have had a limited effect in solving the haze problem, leaving governments searching for alternative measures.

 
On 7 July 2014, the Transboundary Haze Pollution Bill (the “Bill”) was introduced in the Singapore Parliament. The Bill aims to tackle the haze issue through the introduction of punitive measures against the corporate entities responsible for the fires causing the haze. A draft Bill was earlier released for public feedback, and the ensuing changes aim to increase the scope of the Bill as well as its punitive bite.

 
In this Update, we examine the main features of the Bill, including the scope of the Bill, the elements of an offence under the Bill, and the penalties involved. We also discuss the potential problems of the Bill, and its effectiveness in combating the haze issue.

 
Key Provisions Of The Bill

 
Scope

 
In recognition of the fact that the haze is a transboundary issue, the Bill provides for extraterritorial application, meaning that it covers conduct which contributes to haze pollution in Singapore, whether or not such conduct occurs within or outside Singapore.

 
The Bill targets companies and entities which cause or contribute to the haze in Singapore by having fires on their land. Additionally, the Bill has been extended to cover not just landowners, but also those engaged to start the fires, as well as those participating in the management of an offending entity. This reflects the wide-ranging responsibility of the various entities involved in the process of land clearing by fire.

 

Elements Of Offence

 
An entity is guilty of an offence under the Bill if it engages in conduct or condones any conduct which causes or contributes to haze pollution in Singapore. As stated above, an entity is also liable if it participates in the management of an offending company.

 
To balance the liability of these entities, the alleged conduct must coincide with the occurrence of haze pollution in Singapore at or about that time. The Bill also sets out certain defences which may be relied on, such as showing that the haze was caused by other factors, or that the alleged conduct was by another individual or entity without the consent of the accused, or that reasonable measures had been taken to prevent such conduct or reduce the detriment to the environment.

 
Penalties

 
Notably, the penalties for offences under the Bill have been greatly increased following public feedback. Entities may now be liable to a fine of up to SGD 100k for each day of haze pollution in Singapore. This means that a higher penalty will be incurred the longer the period of the haze. Additionally, entities will be liable to a fine of up to SGD 50k for each day that it fails to comply with any preventive measures notice that may be issued, thus further penalising direct refusal to prevent or control fires.

 
The maximum fine for each stretch of haze pollution is SGD 2m, which is a dramatic increase from the SGD 300k maximum figure proposed before the public consultation.

 
Civil Liability

 
Of particular interest is the statutory recognition of civil recourse against the entities. The Bill makes clear that an offending entity may be liable for any personal injury, disease, incapacity or death that results from its breach of duty. The entity may also be liable for any damage to property or economic loss.

 
Significantly, the Bill also clarifies that the Singapore courts will have jurisdiction over such a claim whether or not such a claim is actionable elsewhere. This removes potentially difficult questions of the appropriate forum for such a claim.

 

Effect Of The Bill

 
The enhanced measures in the Bill clearly indicate the strict stance being taken against those responsible for the haze pollution in Singapore and across the region. The wide scope of the Bill recognises the integral roles of all the players in the clearing of land, from landowners to managers and facilitators. The increased penalty reflects the seriousness of the offence in question, as well as the punitive bite necessary to have a preventive effect on offenders who have proven to be recalcitrant.

 
One of the issues raised during the public feedback was whether the provisions of the draft Bill could be effectively enforced overseas and, in particular, the challenge of gathering evidence overseas. In response to this, the new Bill grants the authorities enhanced powers to obtain evidence from overseas entities, such as the power to order the production of documents and information, or to examine and secure the attendance of individuals. Through the possibility of civil recourse, the general public could also take the initiative to file claims against the companies or entities responsible for the haze.

 
The Singapore government has of course recognised that the Bill cannot act in isolation; it requires the effective cooperation and collaboration between governments, as the haze is very much a regional problem. Nonetheless, the Bill signals a move towards holding firms responsible for the haze pollution accountable for their actions.

 

Rajah & Tann

 

For further information, please contact:

 

Paul Tan, Partner, Rajah & Tann
paul.tan@rajahtann.com

Comments are closed.