New Qld Environmental Protection Act powers and penalties passed

Our previous alert discussed a number of proposed changes to the Environmental Protection Act 1994 (EP Act) by the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Bill 2024 (Bill).

On 11 June 2024 the Bill was passed by the Queensland Parliament without amendment and received royal assent on 18 June 2024.

The passing of the Bill followed a public hearing held on 18 March 2024 and a report by the Health, Environment and Agriculture Committee (Committee) dated 12 April 2024, recommending the Bill be passed.

In considering the submissions received in respect of the Bill, the Committee clarified a number of matters raised. Of particular interest was the following concerns raised by the Queensland Law Society (QLS) in relation to the proposed GED (general environmental duty) offence. These concerns included:

1. The amendments may have a retrospective effect on existing holders of development approvals or environmental authorities.
2. The statutory defence under s 319(3)(a)(b)(ii) will be difficult, if not impossible, to establish for persons yet to be issued a new authority or approval, because the person has no control over the conditions or measures set out in the approval.
3. The statutory defence under s 319(3)(a)(b)(ii) may not be available where an existing approval does not set out “specific measures”. In those circumstances, a person may not be able to point to any “reasonably practical measures” in the approval conditions despite acts being undertaken in compliance with an existing approval. In such circumstances where an environmental authority does not specify limits in relation to an activity or contaminant, the holder may be exposed to this new offence and an environmental enforcement order (EEO) could be issued notwithstanding that the activity is authorised by, and being undertaken in accordance with, an environmental authority.

By reference to a response prepared by the Department of Environment, Science and Innovation (DESI), the Committee report records that the new offence will not have any retrospective effect and will only apply to contraventions that occur after the amendment to the EP Act comes into effect. The Committee report highlighted that DESI did not respond directly to the concerns regarding the statutory defence under s 319(3)(a)(b)(ii). The DESI response did, however, suggest that EEOs would not be issued simply because DESI want to change conditions of an environmental authority (EA) unrelated to an enforcement matter.

The QLS submission also raised concerns in relation to the expansion of the duty to notify to situations where a person not only ‘becomes aware’ of, but where they 'ought reasonably to have become aware' of an event that requires notification. The QLS was generally supportive of expanding the duty, however queried whether the amendment might have the result of imposing the duty on third parties who are caught up in incidents or events caused by others. Again, in response to this the Committee turned to the DESI response which indicated that the amendments do not expand who the duty currently applies to and are not intended to require additional monitoring or oversight by someone without any role in the activity.

New information sheets have been produced by DESI to support the new powers, including with respect to the new GED offence (unfortunately which does not confirm its prospective operation or clarify how the defence will operate for existing EA holders), the new duty to restore the environment and also in relation to the new EEO compliance tool. It is hoped that further guidance material will be released to clarify how the administering authority intends to exercise its power to enter property allegedly affected by environmental harm (noting that the legislation as passed only requires two business days’ notice if consent cannot be obtained) in a way that balances responding to alleged environmental harm with protecting private property rights¹.  We also hope for clarity as to when an EEO might be issued on the grounds of securing compliance with the GED.

^1. Balance must be struck, hearing told”, Proctor, 19 March 2024