On 14 September 2023, the Queensland Government released a consultation paper which proposes a number of amendments aimed at tightening regulatory powers and penalties under the Environmental Protection Act 1994 (Qld) (EP Act). The proposed reforms mark the second wave of changes to the EP Act this year and are likely to have widespread implications across a number of industries.
Background: Independent Review
The first wave of reforms to the EP Act occurred earlier this year, with the passing of the Environmental Protection and Other Legislation Amendment Bill 2022 (Qld) in March 2023 (EPOLA Amendments) (see our previous alert).
Separate to the EPOLA Amendments, in April 2022 the Queensland Government commissioned an independent review into the adequacy of existing powers and penalties under the EP Act (Independent Review). Ultimately, the review found that Queensland's environmental legislation generally has an adequate range of powers and penalties to enforce environmental obligations and reduce the risk of environmental harm, however there were areas for improvement. The final report, issued on 1 September 2022, contained 18 recommendations to strengthen the EP Act.
On 26 May 2023, the Government issued its response to the Independent Review and either supported, supported in-principle, or noted that the EPOLA Amendments had already addressed, each of the recommendations. Now, the Government has released its Consultation Paper, which serves as the blueprint for the next round of reforms.
The proposals under the Consultation Paper collectively aim to promote proactive action to prevent environmental harm, correct environmental harm that has occurred and reduce regulatory complexity.
Proposed reforms under the Consultation Paper
The most significant amendments proposed to the EP Act under the Consultation Paper are discussed in more detail below. They include:
- making it an offence to breach the general environmental duty (GED) in certain cases;
- introducing a new duty (and offence) related to restoring environmental harm;
- expanding the triggers for notifying the regulator of environmental harm; and
- consolidating a range of current statutory notices into one new enforcement tool known as an ‘environmental evaluation order’ (EEO).
Notably, while the Independent Review recommended the regulator be given broader discretion to amend environmental authority (EA) conditions where environmental harm has not been avoided or mitigated, the Government only supported this recommendation in-principle. The relevant proposals that have been put forward by the Government in the Consultation Paper are focused on clarifying and refining its existing powers to amend EAs, rather than introducing broad new powers.
1. New offence for breaching the GED
Currently, the EP Act requires a person to take all reasonable and practicable measures to prevent or minimise environmental harm when carrying out an activity that may cause harm – this is known as the GED. The GED has long been considered somewhat ineffective, as there is no offence for breaching it.
First, the Consultation Paper proposes to clarify that the GED test is “reasonably practicable measures”, not “reasonable and practicable measures”, to avoid any uncertainty. Second, the GED will become enforceable via the introduction of a targeted GED offence provision. Most notably:
- the GED will continue to apply to all persons, however the GED offence will only apply to persons doing an activity in the course of conducting a business or undertaking;
- the GED offence will not apply to an aspect of minimising environmental harm that is currently addressed through an environmental requirement (which includes, for example, an EA);
- the GED offence will focus on whether there has been a failure to take all reasonably practicable measures to prevent or minimise harm, as opposed to whether harm has actually occurred. If conduct triggers both the GED offence and an environmental harm offence, the most appropriate offence will be pursued in accordance with regulatory enforcement guidelines; and
- the GED offence provision will list examples of conduct which would amount to a breach of the GED, while also confirming that compliance with a Code of Practice would amount to compliance with the GED.
2. New duty to restore environmental harm
The EP Act does not currently contain a positive duty to restore environmental harm after it has occurred. Rather, a person’s obligation to restore or rehabilitate harm they have caused is dependent on the receipt of a notice or order issued by the regulator requiring them to do so.
The Consultation Paper seeks to flip the status quo by proposing a general duty to restore environmental harm, which would 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. This duty would:
- stand on its own (i.e. not be tied to whether the GED or other provisions of the EP Act have been breached);
- not apply to persons who have caused environmental harm authorised by an environmental requirement (such as an EA);
- include examples of matters a person must have regard to in determining if measures are ‘reasonably practicable’ to fulfil the duty; and
- give rise to an offence where the duty to restore is breached and the harm that occurred amounts to material or serious environmental harm.
We note this new duty is not one of the 18 recommendations made by the Independent Review and was instead suggested by the Government in its response to other recommendations.
3. New triggers for the duty to notify of environmental harm
The EP Act currently contains a duty to notify of environmental harm where, broadly, a person “becomes aware” of actual or threatened serious or material environmental harm. This requires the person to possess actual knowledge of real or potential harm before the notification obligation is triggered.
The Consultation Paper proposes to expand this duty by providing that the notification obligation applies to persons who “become aware of”, “reasonably believe” or “should in the circumstances reasonably believe” there is actual or threatened serious or material environmental harm. These new triggers have the potential to be very broad, noting no guidance has been provided in the Consultation Paper as to how they will be applied in practice.
4. New consolidated statutory enforcement tool
The regulator can currently issue a range of different statutory notices under the EP Act depending on the circumstances, including environmental protection orders (EPOs), direction notices (DNs) and clean-up (CNs) notices.
The Consultation Paper proposes to simplify notice requirements for both recipients and the regulator by combining the existing powers and scopes of EPOs, DNs and CNs into one new tool known as an EEO. Notably:
- an EEO will be able to be issued to the same persons, and for the same reasons, as an EPO, DN or CN can currently be issued (and we note the ‘chain of responsibility’ arrangements for EPOs will continue to apply, such that an EEO could be issued to a ‘related person’);
- recipients of EEOs will be required to notify buyers or transferees of the existence of an EEO when selling or disposing of the place or business to which the EEO relates; and
- the regulator will be able to recover costs from the EEO recipient where the regulator undertakes remedial work to give effect to the EEO, and conversely, a recipient that complies with the EEO but did not cause or permit the contamination incident that is the subject of the EEO will be able to recover costs from the person who caused or permitted the incident to happen.
5. Other amendments
Other amendments proposed by the Consultation Paper include:
- outlining key principles which should be had regard to in administering the EP Act, including the ‘polluter pays principle’, ‘precautionary principle’, ‘principle of primacy of prevention’, ‘principle of proportionality’ and other principles of environmental policy under the Intergovernmental Agreement on the Environment;
- clarifying that that human health, wellbeing and safety fall within the concept of ‘environment’ and ‘environmental value’; and
- clarifying that the regulator can initiate and decide amendments to transitional environmental programs, having regard to any submission by the existing holder.
What happens next?
Operators and individuals should consider how the proposed changes may impact their obligations and liability under the EP Act. Importantly, we consider the shift towards positive and enforceable duties has the potential to significantly change the way in which operations should be carried out to minimise risk.
The Government is currently seeking comments on the proposals under the Consultation Paper. Where potential concerns about the proposed amendments are identified, we encourage those concerns to be raised. Submissions can be sent via email to [email protected] until 5pm on 10 November 2023 and should address the matters, and take the form, set out on page 11 of the Consultation Paper.
Once submissions have been received and considered, draft legislation is expected to follow (likely in the first half of 2024). We will continue to monitor these reforms as they progress, noting the final form of any proposed amendments may change depending on the feedback received throughout the consultation process.
