Queensland strengthens environmental protection with new enforcement powers and enhanced environmental duties

Overview of key changes

The amendments of the EP Act are primarily responsive to the Independent Review of the adequacy of the powers and penalties under the EP Act. The Independent Review found that the existing powers and penalties under the EP Act tend to be reactive in nature, rather than proactive. The legislative amendments aim to facilitate a more proactive approach to environmental risk management and ensure timely and effective regulatory responses to environmental harm.

Notable changes to the EP Act include the following:

New offence where there is a breach of the "general environmental duty"

The general environmental duty (GED) requires all persons that carry out an activity that causes, or is likely to cause, environmental harm to take all reasonable and practicable measures to prevent or minimise the harm. Under the unamended provisions of the EP Act, it is not an offence where a person fails to meet the GED. Also, where there has been compliance with the GED this can be used as a defence to a person causing certain unlawful acts (such as causing environmental harm or contravening noise standards). The amending legislation does not change the description of the GED or the application of the associated defence provisions.

The new GED offence will apply where a person contravenes the GED while undertaking an activity and the contravention causes, or is likely to cause, serious or material environmental harm. Significant penalties apply where there is contravention of the GED, with wilful contravention carrying a maximum penalty of 4,500 penalty units or two years' imprisonment and a contravention otherwise having a maximum penalty of 1,655 penalty units.

In deciding whether the GED is contravened, regard may be had to whether a person fails, for example, to do any of the following in carrying out an activity:

• install, use and maintain plant, equipment, processes or systems in a way that minimises risks of environmental harm that may arise in connection with the activity;
• use and maintain systems for the identification, assessment and control of risks of environmental harm that may arise in connection with the activity, and for the evaluation of the effectiveness of controls;
• use and maintain systems to ensure that all substances are handled, stored, used or transported in a way that minimises risks of environmental harm that may arise in connection with the activity;
• use and maintain systems to ensure that information, instruction, supervision and training is provided to any person engaging in the activity in a way that minimises risks of environmental harm that may arise in connection with the activity.

GED offences will not apply to an aspect of minimising environmental harm that is currently addressed through an environmental requirement, for example, an environmental authority, or where a person has complied with an applicable Code of Practice.

Environmental Nuisance can be Material or Serious Environmental Harm

Previously, the EP Act definitions of 'material environmental harm' and 'serious environmental harm' expressly excluded environmental nuisance. These definitions have been updated to enable environmental nuisance to be considered serious or material environmental harm. The objective of these amendments is to ensure that where instances of environmental nuisance are of such a magnitude or severity that they meet the definition of material or serious environmental harm, there are sufficient tools are available to address this.

Environmental nuisance will still be lawful if it is authorised under an approval (for example under an EA).

In circumstances where environmental nuisance meets the definition of material or serious environmental harm, the Department of Environment, Science and Innovation will assume responsibility for administration and enforcement. Otherwise, the local government will continue to be the administering authority.

Introduction of Environmental Enforcement Orders (EEOs)

EEOs will replace environmental protection orders, direction notices and clean-up notices. This consolidation was recommended in the Independent Review to address inefficiencies in the decision-making process where one incident may trigger multiple enforcement tools. Under the transitional provisions, environmental protection orders, direction notices and clean-up notices issued prior to the EEO amendments commencing will continue to have effect and their requirements will still be enforceable.

An EEO can be issued to the holder of an environmental authority irrespective of whether it authorises, or purportedly authorises, the activity causing harm. Failure to comply with an EEO is an offence.

Before issuing an EEO the administering authority must consider the standard criteria, other than in certain limited circumstances, for example, where the EEO relates to a contamination incident. There are additional matters that the administering authority must consider before issuing an EEO relating to particular emissions of aerosols, fumes, light, noise, odour, particles or smoke.

An EEO may:

• require the recipient to start, or stop, a stated activity indefinitely or for a specified period;
• require the recipient to carry out activities subject to time restrictions or conditions;
• state reasonable steps the administering authority considers necessary to remedy or rectify a certain matter or environmental harm;
• state reasonable steps the administering authority considers necessary to avoid contravention, or further contravention of the EP Act; or
• require the recipient to take action to prevent or minimise issues of contamination, rehabilitate and restore the environment, assess the nature and extent of environmental harm and keep the administering authority informed on incidents of action under the order.

An EEO can be issued to secure compliance with the new duty to restore environmental harm, discussed below.

New general duty to restore environmental harm

The amendments introduce a new general duty to restore and rehabilitate following environmental harm, consistent with the 'polluter pays' principle.

The duty will require a person who permits or causes contamination that results in environmental harm to, as far as reasonably practicable, restore the environment to the condition it was in before the incident occurred. The duty to restore is intended to make it clear that a person must be proactive in taking steps to rehabilitate harm that may have been caused by their activities and not wait for the administering authority to issue a notice to require clean-up or remediation.

The duty to restore will not apply to persons who have caused environmental harm authorised by an environmental requirement, such as an EA. Failure to comply with the duty to restore environmental harm will be an offence where the environmental harm that occurred was material or serious and penalties apply.

The duty to restore the environment applies in relation to harm that happens after the commencement of the amendments and does not have retrospective effect.

Expanded duty for notification of serious or material environmental harm

The amendments expand the duty to notify to situations where a person not only becomes aware, but where they ought reasonably to have become aware of an event that requires notification. This duty previously was based on the person’s knowledge alone which may present issues in the administering authority determining when the person became aware of a circumstance, and therefore whether they complied with the duty when required.

This amendment allows for the circumstances surrounding the event or contamination, or observable indicators of environmental harm, to be considered in determining when notification ought to have occurred.