New offences for general environmental duty and duty to restore
In this article series, we focus on some of the key changes arising from the Jones Review, the Environmental Protection and Other Legislation Amendment Act 2023 (Qld) (EPOLA Act), and ongoing discussion in relation to environmental law reform.
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
- Rapid changes to environmental authority requirements
- 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.
General environmental duty – the current state of play
The Environmental Protection Act 1994 (Qld) (EP Act) places a general environmental duty (GED) upon environmental operators. This duty places a positive obligation upon a person to avoid carrying out any activity which causes, or is likely to cause, environmental harm, unless that person takes all reasonable and practicable measures to prevent or minimise the harm.
Currently, there is no specific offence for failing to fulfil the GED. Demonstrating compliance with GED can be used as a defence for offences relating to causing unlawful environmental harm. If a person can show that the harm occurred while carrying out an activity that is considered lawful, and they fulfilled their GED, then they will not be found guilty of the EP Act offence of causing unlawful environmental harm.
Findings of the Jones Review
The Jones Review recommended that consideration be given to creating an offence for breaching the GED. The Jones Review concluded that the current drafting of the EP Act does not properly emphasise the importance of preventing environmental harm. Further, it was noted that the EP Act does not sufficiently detail the consequence of breaching the GED, including a process for remedying any harm caused by a failure of the GED.
Preventing environmental harm
The review considered that the existing sanctions for causing environmental harm are generally reactive rather than proactive, and do not reinforce the GED.
The review recommended two ways that the GED may be reinforced more proactively in the EP Act, including:
- imposing a criminal offence where a business fails to discharge its GED; or
- the ability to seek restraint orders for breaches of the GED.
Queensland government’s response
The Government has indicated its support for the above recommendations, with the preferred option being to establish an offence for breaching the GED.
The Government’s response goes further and proposes to also introduce a continuous and proactive ‘duty to restore’ obligation and offence. The Government’s response identifies that clean up and remediation is generally responsive to a notice under the EP Act, rather than a pro-active step required of a person causing harm.
The proposed ‘duty to restore’ is intended to complement the GED offence provisions and enhancement of the ‘polluter pays’ principle. The duty is proposed to operate where a person causes contamination that results in environmental harm, but would not apply to environmental harm authorised under an environmental authority. This would be a significant and broad new obligation, albeit one that builds upon existing powers to require the clean-up of contamination and other action responsive to environmental harm.
If these recommendations are enacted, the breach of an environmental duty or duty to restore will be a criminal offence. This heightens the importance of having systems and resources in place to demonstrate your business or operation has taken all reasonable and practicable measures to prevent environmental harm, and then rehabilitate any such harm.
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.
You can register for the seminar via the registration link 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.