The Environmental Protection and Other Legislation Amendment Bill 2022 (Qld) finally sees the sunshine
On 12 October 2022, the Environmental Protection and Other Legislation Amendment Bill 2022 (Qld) (EPOLA22 Bill) was introduced in Queensland parliament, following an unusual consultation process conducted with select groups under strict confidentiality arrangements. The majority of the proposed amendments have been excluded from the regulatory impact assessment during the legislative process to date.
Snapshot of key proposed amendments
The EPOLA22 Bill proposes to amend the Environmental Protection Act 1994 (Qld) (EP Act), and other legislation, in a number of ways. Several of the amendments proposed by the EPOLA22 Bill would have implications (both positive and negative) for individuals and operators across various industries including resources, agribusiness, property development and extractive and heavy industries. There are also notable changes proposed to the enforcement and compliance regime.
Significant broad changes proposed by the EPOLA22 Bill include:
1 increasing the monetary thresholds relevant to defining ‘material’ and ‘serious’ environmental harm (which have not changed since the EP Act’s inception) to $10,000 and $100,000 respectively in the financial year ending June 2023, and subsequently increasing automatically with CPI;
2 amending the contaminated land framework, including expanding the grounds for including land in the environmental management register or contaminated land register, and providing a new process for owners to voluntarily seek their land be listed on a register;
3 changes to the environmental impact statement process (EIS), including allowing for an early decision a project is ‘unacceptable’, particularly in terms of its environmental or cultural heritage impacts, and providing that EIS assessment reports generally lapse after three year; and
4 a reduction to the information requirements for an EA application required for research and development, provided the EA is sought for a term of 3 years or less.
Amendments specific to the resources industry
Some of the key proposed changes would only affect resource activity environmental authority (EA) holders. In particular, these include:
5 making public notification mandatory for all major EA amendment applications, removing the Department’s existing discretion;
6 where an approved proposed progressive rehabilitation and closure plan (PRCP) schedule is required but not in place, the EA holder will have five years (from commencement) to submit a proposed PRCP for assessment. This change will allow holders who have not been issued PRCP transition notices by 31 October 2022, or who have not complied with a transition notice or have had a proposed PRCP refused, to make a PRCP application where there would otherwise have been a legislative gap; and
7 small shifts to the ERC regime, primarily to allow for changes to an ERC application that is on foot.
Changes to the compliance and enforcement regime
Proposed amendments under the EPOLA22 Bill relevant to compliance and enforcement include:
8 expanding executive officers’ liability to clearly capture acts or omissions occurring during their tenure, even where the environmental harm that constitutes an offence arises at a later date, and the office has changed hands by that time;
9 an overhaul of the transitional environmental program (TEP) regime, notably giving the pen to the Department to draft a TEP in response to an application for its issue, rather than approve a TEP submitted by the applicant; and
10 including a new process allowing applications for, and the grant of, ‘temporary authorities’ during emergency situations.
While the submission period has not yet been specified, it may be relatively short given a legislative gap will arise in relation to PRCPs from 1 November 2022 and exist unless and until the EPOLA Bill22 has passed and at least partially commenced.
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.