Australia: Queensland Introduces Bill To Strengthen Regulatory Responses Under The Environmental Protection Act 1994 (Qld)

Snapshot

The Powers and Penalties Bill responds to recommendations from the Independent Review of the Environmental Protection Act 1994 (Qld) Report released in April 2022 which looked at the adequacy of existing powers and penalties under the Act (Review). The contents of the Bill had previously been set out in a Department of Environment, Science and Innovation Consultation Paper released in September 2023.

Our previous blog on the Review and Consultation Paper can be found here.

The Review was initiated, in part, due to the significant odour nuisance issues in the Swanbank industrial area associated with existing waste management activities.

The proposed amendments will, however, have a much broader application and include:

• An amended and expanded definition of "environment" to specifically include land, waters, atmosphere, climate, sound, odours and tastes.
• Establishing a new offence of contravening the general environmental duty (GED) (where currently compliance with the GED operates as a defence to unlawful environmental harm).
• Introducing a standalone duty to restore the environment where contamination resulting in environmental harm is caused or permitted, and a corresponding offence.
• Replacing environmental protection orders (EPOs), direction notices and clean-up notices with a new compliance tool known as an 'environmental enforcement order' (EEO), including linking that new instrument to the chain of responsibility provisions.
• Clarifying that despite a matter having prescribed characteristics of environmental nuisance, it may constitute serious or material environmental harm.
• Expanding the administering authority's powers to revise proposed amendments to environmental authorities (EAs) and progressive rehabilitation and closure plan (PRCP) schedules and allowing the administering authority to initiate and unilaterally decide amendments to transitional environmental programs (TEPs).
• Expanding the duty of a person to notify of serious or material environmental harm.

Key amendments

Environmental policy principles

The Powers and Penalties Bill strengthens the application of the polluter pays principle, proportionality principle, principle of primacy of prevention, and the precautionary principle. It does this by identifying these principles as environmental policy principles that underpin the administration of the EP Act, including the making of regulations, Environmental Protection Policies, guidelines, and codes of practice.

A new definition of "environment"

The definition of "environment" in the EP Act is proposed to be expanded to specifically include land, waters, atmosphere, climate, sound, odours and tastes. The explanatory notes explains this as reinforcing aspects of the environment that are already prescribed as environmental values through environmental protection policies, however we note that the definition, particularly by the specific inclusion of "climate" appears to be an attempt to expand the reach of the EP Act beyond the existing position.

Where many commercial agreements adopt the EP Act definition of "environment", the implications of this change in definition will need to be considered, as well as the potential implications for expanding the policies under the EP Act.

A new offence of failing to comply with the GED

The GED has always been a part of the EP Act, but operates as a defence to unlawful environment harm. The Bill introduces an offence for failing to comply with the GED where the failure to comply is likely to cause serious or material environmental harm.

To establish a defence, the person needs to show that either they complied with a code of practice, or that:

• a thing mentioned in section 493A(2) authorises the act to be done (this is most commonly an EA); and
• the thing provides for reasonably practicable measures to be taken in relation to the doing of the act.

The defence is likely to be particularly difficult to establish for older EAs that are less specific about mitigation and management measures. In our view, this provision will need to be carefully considered by the Health, Environment and Agriculture Committee, and the defence should instead reflect the existing section 493A(2).

A new duty to restore the environment

The Bill also proposed to establish a new duty to restore the environment and corresponding offence for non-compliance. This new duty requires that, if a person permits or causes contamination that results in environmental harm they must, as soon as and as far as reasonably practicable, restore the environment to the condition it was in before the harm occurred.

The duty to restore will apply where the environmental harm caused or permitted is unlawful. The administering authority is not precluded, however, from issuing an EEO requiring the clean-up of contamination where the authorising instrument does not set out requirements for managing or remedying the environmental harm. An offence for failing to comply with the duty to restore will apply where the unlawful environmental harm is serious or material in nature.

New compliance tool

The Bill replaces the existing powers and scope available under EPOs, direction notices and clean-up notices with a new compliance tool known as an EEO. This new compliance tool consolidates the functions of EPOs, direction notices and clean-up notices into one statutory notice.

The grounds on which an EEO may be issued are expanded to include to secure compliance with a TEP, temporary emissions licence, and the new duty to restore. Further, the proposed amendments also expand the circumstances in which an EEO may be issued to related persons under the chain of responsibility provisions. Under the EP Act, presently, a related person cannot be issued a direction notice (this power is limited to EPOs).

With the consolidation of the compliance tools, an EEO may be grounded in the contravention of prescribed provisions which are currently exclusively dealt with under direction notices, including the prohibition on carrying out an environmentally relevant activity without an EA, and unlawfully causing environmental harm. As a result, EEOs grounded in these types of contraventions may be issued to related persons. Although, an EEO grounded in a contamination incident may not be issued to a related person (consistent with the EP Act's current operation).

As with the existing compliance tools, the issuing of an EEO will be an original decision under Schedule 2 of the EP Act, subject to review and/or appeal rights.

The existing Chain of Responsibility guideline is proposed to continue under the Bill.

Other key amendments

The Powers and Penalties Bill also:

• Clarifies that despite a matter having prescribed characteristics of environmental nuisance (eg unreasonable interference from release of aerosols, fumes, light, noise, odour, particles or smoke), it may constitute serious or material environmental harm. Where these matters become serious or material environmental harm, those matters will not be devolved to local government (which has administrative responsibility for environmental nuisance).
• Provides the administering authority with the power to revise, after considering the operator's written submissions, proposed amendments to an EA or PRCP schedule without the need for further submissions or agreement. This will apply to the notice of proposed amendment (NOPA) process and is intended to prevent duplication of processes. For instance, recommencing the NOPA process where there is only a minor variation to the proposed amendments following consideration of written submissions.
• Provides the administering authority with a new power to initiate and unilaterally decide amendments to TEPs, having regard to any submission made by the TEP holder. TEP amendments that are initiated and decided by the administering authority are prescribed as original decisions in Schedule 2 of the EP Act which makes them subject to review and appeals.
• Expanding the duty of a person to notify of serious or material environmental harm to include circumstances where the person "ought reasonably to have become aware of the event" giving rise to the harm.

The Bill also expands the evidentiary provisions currently limited to criminal proceedings to be available in civil proceedings and makes several other administrative amendments.

Next steps

The Powers and Penalties Bill has been referred to the Health, Environment and Agriculture Committee. Submissions to the Committee are due at 10:00am on 4 March 2024. The public briefing on the Bill will be held at 11:30am on that same day.

The Committee is due to report on 12 April 2024.

If passed in its current form, the Bill will impact the duties and obligations for operators in Queensland. This may require a review of systems and procedures for operators around duties to notify, environmental offences and risk management. Where a number of commercial agreements define the "environment" by reference to the definition in the EP Act, the implications for those contracts of a change to the definition of "environment" may also need to be considered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.