Skip to content

  • Home
  • COVID-19 Guide
  • Podcast library
  • Client results
  • Expertise
  • News & Insights
  • People
  • Our DNA
  • Inclusion and Diversity
  • Join us
  • Contact Us
Home / NEWS & INSIGHTS / Insight / McR update: Chain of Responsibility
Insight 18 November 2016

McR update: Chain of Responsibility

WHO SHOULD READ THIS
  • Investors, owners, operators and decision-makers of projects with an environmental impact in Queensland.
THINGS YOU NEED TO KNOW
  • The draft Chain of Responsibility guideline has been released for public comment.
  • Five former executives of Linc Energy have been charged with various offences against the Environmental Protection Act 1994 (Qld).
  • The Strong and Sustainable Resource Communities Bill proposes to ban underground coal gasification and encourage local and regional employment.
WHAT YOU NEED TO DO
  • Consider providing comments on the draft Chain of Responsibility guideline and the Strong and Sustainable Resource Communities Bill.
Draft Chain of Responsibility guideline

On 14 November 2016, the Department of Environment and Heritage Protection (DEHP) released a draft statutory guideline regarding implementation of the Environmental Protection (Chain of Responsibility) Amendment Act 2016 (Qld) (CoRA).

The guideline is intended to clarify departmental decision making on matters such as whether a person has a relevant connection with a company, how regulators should decide whether to issue an environmental protection order (EPO) to related persons of the company, and which related persons to target.

Once it has been approved by regulation, the DEHP must have regard to the guideline when deciding to issue an EPO to a related person.

Some key principles from the guideline include:

  • the issue of a CoRA EPO will be explored where enforcement against environmental authority holders or operators will not achieve restoration or rehabilitation of the environment, or the protection of the environment from harm
  • being a related person does not of itself trigger the issue of a CoRA EPO. Culpability will be established prior to a related person receiving a CoRA EPO
  • DEHP will only consider issuing an EPO to a related person where a company has avoided, or attempted to avoid, its environmental obligations
  • there is no pre-determined order in which the DEHP will pursue related persons, and
  • a security or bank guarantee will not be required under an EPO where it relates to the same matter for which financial assurance is already held and is sufficient to cover the cost of complying with the requirements of the EPO.

Relevant connection

One of the critical points to be addressed in the guideline is clarification regarding the circumstances under which a person will be considered to have a relevant connection with the company by virtue of a significant financial benefit. The guideline provides that:

  • ‘significant’ means important, notable or of consequence, having regard to context
  • relevant considerations include:
    • the proportion of the benefit relative to the total assets or benefit available from the activities carried out under the EA, or
    • the proportion of the benefit, relative to the costs of restoring or rehabilitating the environment, or protecting the environment from harm, and
    • only significant financial benefits from the period of time relevant to the causation (and, if relevant, mitigation) of the issue or incident being investigated will be considered.

The guideline provides specific examples of when the DEHP may determine that a person has a relevant connection on the basis of significant financial benefit. Similarly, examples are provided in relation to persons with a relevant connection on the basis of position to influence the company’s compliance with environmental obligations.

Importantly, if it is determined that the related person was not culpable for a matter, or was culpable but took all reasonable steps in the circumstances, the DEHP will not issue the person with an EPO.

Stakeholders should review the CoRA guideline and consider whether it provides sufficient comfort and clarification regarding the implementation of CoRA and the factors influencing a decision to issue an EPO to a related person.

The draft guideline is available for public comment until 5pm, 25 November 2016.

Former Linc Energy executives face prosecution

Five former executives of Linc Energy (including former CEO Peter Bond), former general managers and former chief operating officers have been charged in relation to environmental offences including failure to ensure the company complied with the Environmental Protection Act 1994 (Qld).

The company itself is also facing five charges of wilfully causing serious environmental harm.

The charges relate to alleged contamination caused by Linc Energy’s underground coal gasification operation near Chinchilla.

As investigations continue, it is possible that additional charges could be laid.

New Bill – Strong and Sustainable Resource Communities

The Strong and Sustainable Resource Communities Bill 2016 was introduced to Parliament on 8 November 2016. The Bill proposes to make various amendments to the Mineral Resources Act 1989 (Qld) including to:

  • prohibit underground coal gasification activities
  • prevent new large resource projects operating with 100% fly-in fly-out employees where nearby regional communities have a capable workforce
  • prescribe a social impact assessment process for large resource projects, and
  • require large resource projects to consider local residents for employment.

The Bill is open for public submissions until 10am, 12 December 2016. For more information click here.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

About the authors

  • Stuart Macnaughton

    Partner
  • Melanie Simmonds

    Special Counsel

Tegun Middleton, Lawyer

In other news

Branding on trend: Certification of Australian Fashion

10 May 2022Insight

Verification of identity: a refresher

10 May 2022Insight

Categorising land for rating purposes used for both permanent residential and temporary tourist accommodation

4 May 2022Insight

Court of Appeal decision brings welcome relief to local councils

4 May 2022Insight

VIEW ALL NEWS & INSIGHTS

BRISBANE

Level 11, 66 Eagle Street
Brisbane QLD 4000
GPO Box 1855
Brisbane QLD 4001
Tel +61 7 3233 8888
Fax +61 7 3229 9949

 

GET IN TOUCH

    Contact form

    We handle your personal information in accordance with our privacy policy.

    Please do not send us any confidential information. By submitting this form, you agree that our review of the information you submit will not create a lawyer-client relationship between you and our firm (or any lawyer in our firm) and it will not prevent us from representing a party in any matter where the information you submit is relevant, even if that information could be used against you.

    sydney

    Level 32, MLC Centre
    19 Martin Place
    Sydney NSW 2000
    GPO Box 462
    Sydney NSW 2001

    Tel +61 2 8241 5600
    Fax +61 2 8241 5699

     

    GET IN TOUCH

      Contact form


      We handle your personal information in accordance with our privacy policy.

      Please do not send us any confidential information. By submitting this form, you agree that our review of the information you submit will not create a lawyer-client relationship between you and our firm (or any lawyer in our firm) and it will not prevent us from representing a party in any matter where the information you submit is relevant, even if that information could be used against you.

      melbourne

      Level 27, 101 Collins Street
      Melbourne VIC 3000
      GPO Box 2924
      Melbourne VIC 3001

      Tel +61 3 9067 3100
      Fax +61 3 9067 3199

       

      GET IN TOUCH

        Contact form

        We handle your personal information in accordance with our privacy policy.

        Please do not send us any confidential information. By submitting this form, you agree that our review of the information you submit will not create a lawyer-client relationship between you and our firm (or any lawyer in our firm) and it will not prevent us from representing a party in any matter where the information you submit is relevant, even if that information could be used against you.

        follow us

        CLIENT LOGIN

        newcastle

        92 Young Street
        Carrington NSW 2294
        PO Box 394
        Newcastle NSW 2300

        Tel +61 2 4914 6900
        Fax +61 2 4914 6999

         

        GET IN TOUCH

          Contact form


          We handle your personal information in accordance with our privacy policy.

          Please do not send us any confidential information. By submitting this form, you agree that our review of the information you submit will not create a lawyer-client relationship between you and our firm (or any lawyer in our firm) and it will not prevent us from representing a party in any matter where the information you submit is relevant, even if that information could be used against you.

          canberra

          Level 9, 2 Phillip Law Street
          Canberra ACT 2601

          Tel +61 2 6243 3669
          Fax +61 2 8241 5699

           

          GET IN TOUCH

            Contact form


            We handle your personal information in accordance with our privacy policy.

            Please do not send us any confidential information. By submitting this form, you agree that our review of the information you submit will not create a lawyer-client relationship between you and our firm (or any lawyer in our firm) and it will not prevent us from representing a party in any matter where the information you submit is relevant, even if that information could be used against you.

            © 2017 McCullough Robertson. Site map Disclaimer Privacy Policy Statement of Business Ethics Credit Reporting Policy

            X