The Environmental Protection (Powers and Penalties) and Other Legislation Amendment Bill 2024 (Bill) was introduced into State Parliament on 13 February 2024.
The Bill is directed at implementing recommendations contained in the independent review1 of the Environmental Protection Act 1994 (EP Act) undertaken by retired Judge Richard Jones and Ms Susan Hedge of counsel in 2022 (published by the Department of Environment and Science on 26 May 2023).2
Amendments of note proposed by the Bill include:
1. Changing the definitions of material and serious environmental harm to enable environmental nuisance to be considered as serious or material environmental harm.
References to “(other than environmental nuisance)” are proposed to be removed from Sections 16 and 17 of the EP Act.
In circumstances where environmental nuisance meets the definition of material or serious environmental harm, the Department will assume responsibility for administration and enforcement. Where the instances of environmental nuisance do not meet the definitions, the local government will continue to be the administering authority.
There is no proposed amendment to Section 493A of the EP Act meaning that environmental nuisance will still be lawful if authorised to be done under, for example, an environmental authority.
New section 440A proposes that in a proceeding for an offence of serious or material environmental harm, the Court may find a defendant guilty of an environmental nuisance offence. This however will only apply to proceedings started after the commencement of the amended Act.
2. Replacing environmental protection orders, direction notices and clean-up notices with a new tool called an Environmental Enforcement Order (EEO).
It is anticipated that the Department will provide further guidance material on this new statutory notice, including through amended enforcement guidelines.
Transitional provisions confirm that environmental protection orders (EPOs), direction notices (DNs) and clean-up notices (CNs) issued prior to the amendments being in effect will continue to have effect and their requirements will still be enforceable. Further, that proceedings can be continued or started if a person commits an offence against of the offence provisions associated with EPOs, DNs and CNs.
Like EPOs, an EEO can be issued to a related person of a company. A transitional provision provides for the “Issuing ‘chain of responsibility’ environmental protection orders’ guideline to continue in effect until a new guideline for EEO is approved, where references to EPO are read as a reference to an EEO.
New section 363 of the Bill provides that in deciding whether to issue an EEO there will be some limited circumstances where the administering authority will not be required to consider the standard criteria, for example, where an investigation shows that obligations under the EP Act have not been complied with.
There is a specific new section 364 which outlines the matters the administering authority must consider before issuing an EEO for contravention of Section 440 of the EP Act (offence of causing environmental nuisance).
It is proposed that an EEO can be issued to secure compliance with the new duty to restore environmental harm.
3. Introducing a new duty to restore environmental harm
It is noted that this was not a recommendation of the independent review and is proposed by the State to complement the polluter pays principle (proposed to be enshrined in new section 6A) and the general environmental duty.
This new duty in Section 319C applies if a person permits or causes contamination that results in unlawful environmental harm. The duty will require that person to, as far as reasonably practicable, rehabilitate or restore the environment to the condition it was in prior to the incident occurring.
Importantly, like the general environmental duty, this is drafted as a continuous and proactive obligation and persons should not wait to receive correspondence or notices from the Department before taking actions.
There is an associated offence with contravening the duty to restore the environment where the contravention relates to environmental harm that is serious or material.
Transitional provisions clarify that the duty does not have retrospective application. It will only apply in relation to an incident involving contamination that happens after the commencement of the amended Act.
4. Introducing a new offence associated with the general environmental duty
The words of the general environmental duty (GED) as currently appear in the EP Act remain unchanged. As such it retains its role as a defence and persons may still rely on the GED as a defence to causing a relevant act. Importantly, new Section 319B(3) provides that any information obtained from a person using the GED as a defence can not result in self-incrimination or a subsequent charge of contravening the GED.
The offence appears in new sub-paragraphs to Section 319. Importantly, the offence only applies where serious or material environmental harm is caused, or likely to be caused.
The Bill proposes limitations in new Section 319B for prosecutions of this GED offence where other environmental harm offences are charged for the same, or substantially the same, conduct.
Explanatory material indicates that the intention of the GED offence is to permit intervention before actual harm occurs, with an emphasis on prevention rather than waiting for harm to occur.
It is noted that the question of whether there ought to be an offence for breaching the GED was discussed by the author in a paper in May 2019.3
5. The duty to notify has been modified to require notice of serious or material environmental harm in circumstances where the person “ought reasonably to have become aware of the event’ giving rise to the harm.
The EP Act currently contains a duty to notify once a person “becomes aware” of an event causing environmental, or a change in the condition of contaminated land. The proposed amendment shifts this test for determining whether notification should be made to when a person reasonably believed or should have believed that a notifiable event has occurred. This altered awareness will apply to all categories of persons notifying under the EP Act, including as an employee, employer, other persons to particular owners and occupiers, auditors and local government notifying the administering authority.
This change requires a consideration of whether the person was aware of the consequences as a result of carrying out an activity, the circumstances surrounding the event or contamination and observable indicators of environmental harm.
A public hearing on the Bill will be held on 18 March 2024 (after the date for written submissions closes on 4 March 2024) and the report of the Health, Environment and Agriculture Committee in respect of the Bill is due to be tabled by 12 April 2024.
If you would like any assistance to understand the potential amendments to the EP Act on your activities, please contact Olivia Williamson, Special Counsel in HopgoodGanim’s Planning and Environment team.
1. https://environment.des.qld.gov.au/__data/assets/pdf_file/0016/311902/independent-review-ep-act-report.pdf
2.Noting that some recommendations, such as an increase the threshold amounts for serious and material environmental harm, were implemented through the Environmental Protection and Other Legislation Amendment Act 2023 which was passed in March 2023.
3.https://www.hopgoodganim.com.au/icms_docs/308616_should-breach-of-the-general-environmental-duty-contained-in-the-environmental-protection-act-1994-constitute-an-offence.pdf