Amendments to the EP Act: Background

In 2022, an independent review, led by retired Judge Richard Jones and former Senior Crown Prosecutor Susan Hedge, was initiated to assess the adequacy of powers and penalties under the Environmental Protection Act 1994 (Qld) (EP Act). The review was in part prompted by community concerns around odour nuisance in the Swanbank industrial area.

While the review found that the EP Act has an adequate range of powers and penalties to enforce environmental obligations and reduce the risk of environmental harm, it also identified areas for improvement. The review made 18 recommendations aimed at better preventing environmental harm, providing appropriate tools to address environmental nuisance and better protecting community health and wellbeing.

The Queensland Government has announced support for the majority of the review's recommendations. A September 2023 consultation paper set out proposed amendments to the EP Act to reflect these recommendations. The stated aims of the amendments is to:

• promote proactive action to prevent environmental harm by introducing an offence provision for breach of the existing general environmental duty;
• correct environmental harm that has occurred by making it clear that if a person’s actions cause environmental harm or contamination, there is a general duty to restore the environment or clean up the contamination without the need for a notice to be issued; and
• streamline the number of statutory notices to reduce regulatory complexity and improve response timeliness, particularly with reference to Environmental Protection Orders (EPOs), Direction Notices and Clean-up Notices.

Key proposed reforms

The key reforms proposed in the consultation paper are outlined below, with reference to the review recommendation number.

Recommendation 15 – New offence for breaching GED

The EP Act imposes a general environmental duty (GED) on all persons to take all reasonable and practicable measures to prevent or minimise environmental harm. Under the EP Act, it is not an offence to breach the GED. Its content codifies 'due diligence' defences found in many pieces of environmental legislation.

In an effort to encourage more proactive prevention of environmental harm, the Government has proposed an amendment to include an offence provision for breach of the GED in Chapter 8, Part 3 of the EP Act. This follows the introduction of a GED offence in Victoria in 2021.

Relevantly, as proposed:

• a breach of the GED may occur even if no environmental harm has occurred;
• the offence would only be applicable to persons who are engaged in an activity as part of conducting business or an undertaking, rather than in a domestic setting;
• the offence would not apply to an aspect of minimising environmental harm that is currently addressed through an environmental requirement, for example, an environmental authority (EA). EAs will generally include a standard condition requiring the EA holder to take steps to prevent or minimise harm when carrying out the activity authorised by the EA;
• a distinction is made between a contravention and a wilful contravention of the GED for the purposes of penalties.

The Government has acknowledged the need to provide further guidance on how persons may demonstrate compliance with the GED.

Recommendation 6 – New duty to restore harm

Building on the GED offence, the consultation paper also proposes a new duty to restore environmental harm. This would require a person that permitted or caused environmental harm to, as far as reasonably practicable, restore the environment to the condition it was in before the incident occurred. Failure to comply with the duty to restore environmental harm will be an offence where the environmental harm that occurred was material or serious. Again, the stated driver behind this amendment is to encourage proactive remediation of harm, rather than as a response to an enforcement notice.

Recommendation 12 – Power to amend EA conditions

A key issue identified in the review was the lack of provisions to allow fast amendments to EA conditions to address harm. The review considered an expanded power to amend EA conditions without agreement where the Minister or Chief Executive considers that the environmental impact of an activity is not being appropriately managed. Appropriate caveats were recommended to balance the potentially significant adverse impacts of these powers.

The Government's consultation paper does not propose a broad EA amendment power. However, it does contemplate amendments that would make it clear that compliance with an EA condition is not a barrier to issuing an EPO or environmental evaluation to respond to or investigate some environmental harm that has occurred. This would trigger a power under section 215 of the EP Act to amend the conditions of the EA to respond to the particular issue causing the harm.

The Government has indicated that this amendment would be subject to consultation and regulatory impact assessment.

Recommendation 6 – New enforcement tool

To address inefficiencies in the decision-making process where one incident may trigger multiple enforcement tools, the Government consultation paper proposes to replace EPOs, Direction Notices, and Clean-up Notices with a single tool, being a new Environmental Enforcement Order (EEO). The EEO will aim to ensure compliance with general environmental duties and address contraventions causing or risking environmental harm. The EEO would be subject to existing 'chain of responsibility' provisions that apply to EPOs.

Other recommendations and reforms

Other more administrative proposed reforms include:

• Amendment of ss 8 and 9 to more clearly include the concept of "human health, safety and wellbeing" in the definitions of environment and environmental value.
• Amendments to cement the 'precautionary principle, 'polluter pays principle', 'principle of primacy of prevention' and the 'proportionality principle' in a new section in Chapter 1, Part 2 of the EP Act. However, there is no proposal for these principles to override or limit specific provisions of the EP Act or to require decision makers to have regard to these principles.
• Amendment of ss 15, 16 or 17 to clarify that environmental harm causing a nuisance at low levels may also be considered material and serious environmental harm if it meets the definitions of those terms. This aims to address difficulties in dealing with significant impacts caused by odour, dust, or fumes. The amendment would not change the overall scope of environmental harm but would clarify available remedies, duties, and criminal offences proportionate to the harm's impact.

Next steps

Consultation on the proposed amendments closed on 10 November 2023. We expect the Government will introduce amending legislation in the first half of 2024.

Industry will need to keep abreast of these changes. While the Government has indicated that there should be low regulatory impact for those meeting existing legislative requirements, the proposed offence provisions will make it all the more important for operators to have robust and defensible environmental management systems to prevent and mitigate environmental harm.

Please reach out if you would like to discuss the proposed amendments.