After passing the first wave of environmental reforms through the Environmental Protection and Other Legislation Amendment Act 2023 (Qld) last year (see our previous alert), on 11 June 2024 a second wave of environmental reforms were passed by the Queensland Parliament in the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Bill 2024 (Qld) (Bill). These reforms tighten the regulatory powers and penalties under the Environment Protection Act 1994 (Qld) (EP Act) and introduce new duties and associated offences, which will have widespread implications across all industry sectors.
Background: Consultation Paper
In 2022, the Queensland Government commissioned an independent review into the adequacy of existing powers and penalties under the EP Act (Independent Review). The Independent Review report was released in September 2022, containing 18 recommendations.
By September 2023, the Government had released a Consultation Paper outlining proposed amendments to the EP Act, which aimed to promote proactive action to prevent environmental harm, correct environmental harm that has occurred and reduce regulatory complexity.
As outlined in our previous alert, the proposed reforms in the Consultation Paper broadly included:
- making it an offence to breach the general environmental duty (GED), where a person is doing an activity in the course of conducting a business or undertaking;
- introducing a new duty (and offence) related to restoring environmental harm, resulting from an incident involving contamination of the environment;
- expanding the triggers for notifying the regulator of environmental harm;
- consolidating a range of current statutory notices into one new enforcement tool known as an ‘environmental enforcement order’ (EEO);
- outlining key principles which regard should be had 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 concepts of ‘Environment’ and ‘Environmental Value’; and
- clarifying that the regulator can initiate and decide amendments to transitional environmental programs.
What’s changed since the Consultation Paper was released?
Nearly all the reforms proposed in the Consultation Paper made their way into the Bill which was introduced into the Queensland Parliament by the Minister for the Environment and the Great Barrier Reef, Science and Innovation (Minister) on 13 February 2024.
However, two of the reforms were amended prior to the Bill’s introduction and subsequent passing:
- the new offence to the GED has been expanded to encompass all activities, not just those done in the course of conducting a business or undertaking; and
- the specific words ‘human health, wellbeing and safety’ have not been included in the definition of ‘Environment’ or ‘Environmental Value’.
These are expanded upon below.
Expansion of GED
There has been no indication in the Explanatory Memorandum to the Bill as to why the GED offence has been expanded. However, during the Second Reading debate, the Minister noted:
“While I acknowledge submitters’ concerns about the defences available, the general environmental duty is a broad duty that has always applied to everyone, including environmental authority holders, and has been enforceable through statutory notices under the act. The bill does not propose to change the duty.”
So going forward, under section 319 of the EP Act, a person commits an offence if they contravene the GED and serious or material environmental harm is caused or threated, unless the activity is authorised via an approval or instrument listed in section 493A(2), or a code of practice.
Section 319(4) seeks to provide some further colour around the considerations the regulator will have regard to when deciding whether the GED has been contravened. These include the installation, use and maintenance of plant, equipment and processes to minimise harm and the operation of risk management systems more broadly to manage risk and ensure instruction, training and supervision is provided to personnel.
Change to ‘Environment’ and ‘Environmental Value’
The Explanatory Memorandum indicates that while the definitions of ‘Environment’ and ‘Environmental Value’ do not include the specific words ‘human health, wellbeing and safety’:
- the definition of ‘Environment’ includes human health, well-being and safety more clearly by specifying that the ‘physical characteristics of locations, places and areas’, and ‘physical surroundings of people’ are part of the Environment. Physical surroundings include the land, waters, atmosphere, climate, sound, odours and tastes that surround humans.
- the definition of ‘Environmental Value’ more clearly incorporates human health as an environmental value by including the words ‘a quality or physical characteristic of the environment that is conducive to public health, safety or amenity’. However, the term ‘public health’ is used in the provision, rather than ‘human health’, in keeping with existing wording in section 9.
Whilst the intention is to clearly include ‘human health, wellbeing and safety’, in not using the specific words, there may be issues in relation to the plain reading of this legislation in the future.
Where to from here?
Operators and individuals should familiarise themselves with the suite of amendments that have been made to the EP Act, noting the majority of amendments (including those referred to above) will commence upon assent.
The first wave of reforms to the EP Act (including indefinite executive officer liability) should be read in conjunction with these second wave reforms. Corporations and individuals concerned in the management of corporations should:
- ensure effective risk management and compliance systems are in place and are effective in response to new duties and penalties;
- keep accurate records with respect to acts, omissions and decisions, and roles played in relation to these matters, particularly in the context of environmental compliance; and
- monitor whether any amendments are made to the Department of Environment, Science and Innovation (DESI) Enforcement Guideline – this helps clarify when DESI will take action against a person, including executive officers, and it may be amended in due course to help clarify the expanded GED offence, as well as the new duty to restore, addition of key principles and changes to key definitions.
If you would like to understand more about these reforms, please contact us.
