Australian Government Solicitor No. 3

PFAS contamination on Commonwealth land

Communities potentially affected by PFAS contamination are concerned about what it means for their health and livelihood.

PFAS have been detected on and surrounding some Commonwealth sites, such as Defence properties and a number of federally leased airports across Australia. AGS has been working with the Defence Special Counsel Team and numerous federal agencies to address community concerns.

This is not only a Commonwealth concern, as PFAS are also known to be present in a large number of State-controlled and private areas as well.

So what are PFAS?

PFAS, or per- and poly-fluoroalkyl substances, are a group of manufactured chemicals that have been widely used, globally, since the 1950s in the manufacture of household and industrial products that resist heat, stains, grease and water. Because they are heat-resistant, as well as film-forming in water, some have also been used as very effective ingredients in fire-fighting foams, as well as non-stick cookware, fabric, furniture and carpet stain protection, and even food packaging.

While we know these chemicals can persist in humans, animals and the environment, there is currently no consistent evidence that PFAS are harmful to human health. However, the possibility cannot be excluded. Therefore, as a precaution, the Government recommends that exposure be reduced wherever possible while research into any potential health effects continues.

The Australian Government has been working to reduce the use of certain PFAS since 2002.

A documentary about the issues aired on ABC TV's Four Corners on Monday 9 October 2017.

Legal challenges

Defence Legal's Defence Special Counsel Team, led by Defence Special Counsel Michael Lysewycz, has as one of its projects, management of legal aspects of contamination, including all issues to do with PFAS. So, the demands on the team are enormous.

The community at Williamtown, near Newcastle in New South Wales, and the community in Oakey, Queensland, have commenced class actions against the Commonwealth.

Michael's Defence team is working with AGS Dispute Resolution lawyers, led by Senior Executive Lawyer Chris Behrens, on the Williamtown class action.

'While Defence have taken the lead – and Defence Legal in particular have been active in response to the litigation and getting other agencies involved,' Chris said, 'the policy response has been shared between Environment, Health and, more recently, the Department of the Prime Minister and Cabinet, who have created a Taskforce to examine response options.'

AGS has also had a central role in assisting Defence with PFAS contamination issues since 2016.

The Defence Estate and Infrastructure Group is heavily involved in remediation at the sites, testing soil samples and negotiating with people in the local community.

Managing 40 years of Commonwealth records

Chris explains some of the complexity involved in the case: 'We've been grappling with the collection of Commonwealth records on PFAS, some of which have been around for 40 years in archives and seeking records of about 15 agencies across the Commonwealth. The documents have to be found, reviewed and assessed to be added into the database, which currently numbers more than a million documents,' he said. 'It's a massive project.'

'We have been able to use the assistance of artificial intelligence and predictive coding to identify the usefulness of some documents, but there is no escaping the need for a large team of reviewers, including external barristers and a team of 20 from AGS Dispute Resolution.'

The AGS litigation team has strategy meetings with Defence weekly. They recently attended a site inspection at RAAF Base Williamtown, along with counsel and our Defence instructors.

'We have a close working relationship with the Office of Defence Special Counsel team of 5 or 6 lawyers and paralegals who instruct the AGS litigation team of 5 Dispute Resolution lawyers – but don't forget our 20 reviewers as well,' said Chris.

Numerous advices

There has also been a team of lawyers from AGS's Office of General Counsel (OGC) involved since the first approach by Defence Legal in late 2015 when questions about PFAS contamination were just emerging.

OGC's Deputy General Counsel Damian Page and acting Senior General Counsel Helen Chisholm have led the OGC team's response. Senior General Counsel Greg Prutej advised on lands acquisition and Senior General Counsel Olivia Abbott has been assisting the PFAS Taskforce with advice on options for the government response. Outposted Senior General Counsel Hilary Manson has been working with the Department of Transport and Infrastructure, specifically on the airport issues in relation to PFAS contamination.

'Defence has been on the front line for complaints from residents. But, broadly, our role has been to advise on what the Commonwealth can do, in terms of a government response,' Damian said. 'Our advice has centred on the application of State environmental pollution laws to the Commonwealth, in particular, Defence bases and Defence land, as well as Commonwealth-owned airports.'

'There's been a lot of advices about it, including what we called "the Survey", where with Defence we identified a whole lot of State laws that were relevant to PFAS pollution and then needed to advise on whether they applied to the Commonwealth. That involved essentially 2 elements: whether the provisions applied in their terms, as a matter of statutory interpretation; or whether they were prevented from applying for constitutional reasons, such as being inconsistent with Commonwealth law.'

'Another aspect is whether there needs to be legislative authority for a Commonwealth response,' he said.

Certain issues have required advice to be obtained from the Solicitor-General, where AGS briefed the Solicitor-General on Defence's and Transport's behalf.

Damian agrees that there has been an easy relationship with the Office of Defence Special Counsel team. 'It's worked very well as a model for obtaining legal advice and providing assistance in developing the options. Defence got us involved early and we've provided high priority to their needs.'