Rapid changes to environmental authority requirements
Our previous article, Reform to Queensland’s environmental enforcement laws – Jones Review and EPOLA Act, introduced the suite of reform underway for Queensland’s environmental legislation, and touched on the current response to the Jones Review into the adequacy of existing powers and penalties under the Environmental Protection Act 1994 (Qld) (EP Act).
This article examines the recommended changes relating to environmental authority (EA) processes, specifically EA conditions, arising from the Jones Review and Government response. Significantly, one of these recommendations is to give the Chief Executive or the Minister the power to amend an operator’s EA conditions to prevent environmental impacts.
Key findings and recommendations in relation to EA amendments
Firstly, the Jones Review made observations about EA conditions arising from the case studies, noting that EA conditions should be:
- consistent across the same or similar environmentally relevant activities and adequate to address that a serious contamination event might occur;
- expressed in quantitative instead of qualitative terms; and
- drafted to a high standard.
While not a matter for legislative amendment, the Jones Review considered that the drafting of conditions is a matter that should be brought to the attention of the Department of Environment and Science (Department) in the context of the above priorities.
In order for existing EAs to meet these three criteria, it would be necessary to amend existing EA conditions. There are already project teams activated within the Department to modernise EAs for certain environmental authorities, with ERA53(a) Organic material processing by composting being a priority project attracting significant industry interest.
Secondly, the Jones Review identified as a deficiency in the current regime that there is no provision which allows an amendment to an EA to be swiftly proposed because of a lack of appropriate mitigation or avoidance of environmental harm. EA amendments are usually applied for by the holder of the EA.
The current legislation also allows the Department to unilaterally amend a holder’s EA conditions in certain circumstances, which include for administrative matters, to correct errors, reflect new standard conditions, reflect reported findings, or to address an environmental offence.
The Jones Review recommended that a more proactive, broader power be introduced, based on similar provisions in the Northern Territory. The recommendation was that the Chief Executive or the Minister may have power to amend EA conditions where they consider that the environmental impact of an activity is not being appropriately avoided, mitigated, or managed. This is much broader than the current power in this regard, which currently contemplates that an offence has been committed to justify the EA condition amendment, rather than a lawful operation that fails to manage impacts. This suggested change is similar to the changes recommended in relation to establishing an offence for breach of the general environmental duty.
Queensland government response
The Government’s initial response to the Jones Review provided in principle support for the above recommendation and acknowledged the need for consultation and a regulatory impact assessment.
The Government’s position has shifted in the Consultation Paper. The proposal is now to promote the use of an Environmental Protection Order (EPO) (proposed to be rationalised with other notices to be an Environmental Enforcement Order) to respond swiftly to environmental harm, noting odour and emerging contaminants as key areas of concern. Specifically, the Government proposes to amend the EP Act to enable the use of an EPO to require action to address environmental harm even where a condition of an EA appears to authorise the harm. The EPO could then be used as a basis to amend and update EA conditions based on the outcomes of the EPO.
These proposed changes provide a two-step approach to amending an EA, which may provide a better process for an operator to provide input to permanent changes to its operating conditions than the Ministerial amendment process recommended by the Jones Review. However, the net effect for operators is likely to be similar, in that an EA will no longer provide certainty for business. The proposed changes are likely to particularly affect operations that deal with emerging contaminants in our economy, urban encroachment and reverse amenity and other external impacts.
Look out for our previous insight articles (as well as articles still to come) on the following topics:
- Reform to Queensland’s environmental enforcement laws – Jones Review and EPOLA Act;
- Enhancing the general environmental duty (GED) and creating a new offence for failure to comply with the GED;
- Transitional environmental programs;
- Powers of authorised persons, provisions for repeat offenders, and other miscellaneous provisions to enhance compliance functions;
- Waste legislation;
- Contaminated land; and
- Temporary environmental authorities.
Seminar | Unlocking the environmental regulator’s toolbox | 9 November 2023
On 9 November we will be hosting an in-person seminar at our Brisbane office where we examine the tools available to the regulator under the EP Act, how the regulator is using the tools, and provide practical tips to help you navigate the complexity of environmental compliance. We will also briefly touch on the recommendations and proposed changes following the independent review conducted by Judge Richard Jones and Barrister Susan Hedge.
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.