Environmental protections strengthened with new Powers and Penalties Bill
On 11 June 2024, the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Bill 2024 was passed (Powers and Penalties Bill). The changes in the Powers and Penalties Bill arise from the recommendations of the Jones Review published in 2022. As the name suggests, the amendments seek to change the powers and penalties provisions of the Environmental Protection Act 1994 (Qld) (EP Act). Refer to our previous article here. These amendments are significant to all environmental operators in Queensland.
We will be publishing a series of articles on the practical outcomes of the recent EP Act amendments, discussing what these changes mean for operators. There have been many changes made to the broader legislative framework in recent years, including the compliance, enforcement and penalty provisions.
In this article, we outline some of the key changes to the compliance and enforcement provisions of the EP Act.
New offence for breach of the general environmental duty
One of the most significant amendments in the Powers and Penalties Bill is to create an offence in section 319 of the EP Act for failure to comply with the general environmental duty (GED). Breaching the GED is now an offence where the failure is likely to cause serious or material environmental harm.
The GED requires that reasonable and practicable measures must be undertaken to minimise risks of environmental harm. For example, this might include proper installation and use of equipment, or training staff to handle chemicals in a way that is appropriate to minimise environmental risk.
Previously, compliance with the GED could be used as a defence to any compliance allegations made relating to environmental harm. An operator could claim they took all reasonable and practicable measures to prevent harm while carrying out a lawful activity as approved in an environmental authority. There was no ‘breach provision’ or direct consequence for not adhering to the GED.
The offence will only be made out where serious or material environmental harm is considered to have been caused or is likely to be caused. Wilful contravention of the GED carries a maximum penalty of 4,500 penalty units or two years imprisonment, and a contravention otherwise carries a maximum penalty of 1,655 penalty units.
Notably, a person will not be considered to have committed the offence if the act causing the contravention was authorised under an instrument identified in section 493A(2) of the EP Act. Such instruments include environmental authorities, transitional environmental programs, or other specified regulatory documents. However, this will only apply to the extent the instrument provides reasonably practicable measures that ought to be taken.
A similar ‘defence’ can be raised if the person or entity was acting in compliance with a code of practice or industry-specific guideline (provided that the guideline reflects best practice).
New section 319B also provides legal protections to prevent double jeopardy, ensuring that a person cannot be charged with this new GED offence if they have already been charged with another related environmental harm offence for the same conduct.
An offence for failing to prevent risk is not a completely novel concept – for example, a GED offence is present in Victorian environmental legislation, and equivalent concepts for offences for failing to prevent risk are inherent in Queensland work health and safety laws. There are now similar strict penalties in Queensland for failure to take proactive measures to reduce the risk of environmental harm. It demonstrates the stance that careless practices and failure to take environmental responsibility will not be tolerated by the regulator.
Powers during inspections
The EP Act now gives additional powers to the regulator when performing inspections, including:
- allowing criminal history reports to be obtained;
- utilising drones for inspection purposes; and
- using body-worn cameras when exercising entry powers.
Repeat offenders
There is new provision in the EP Act for dealing with repeat offenders. If a person is convicted of a serious environmental offence, after having been convicted of another serious environmental offence on at least two other occasions in the previous five years, the Court can make an order prohibiting the person from carrying out an environmentally relevant activity, in order to prevent any further offences.
Repeat offences may also impact the authority holder’s ability to be a ‘suitable operator’, which could also affect any environmental approvals held by it or related entities (at various sites and locations).
Expanding executive officer liability
Executive officer liability provisions have also been reinforced. Executive officers of a company that commit an environmental offence can be held personally liable for acts or omissions that occur during the time that person was in office, as well as offences that occur after that person has left office, if they are found to have contributed in some way to the offence. This change was prompted largely by the outcome in the Linc Energy case, and the Court of Appeal’s decision in R v Dumble [2021] QCA 161.
Key takeaways
We are considering the impact of these new provisions on our operator clients, including advising on any preparations and amendments to site practices that might need to be undertaken now to ensure compliance with the GED.
Operators must assess the practical implications of these changes on their day-to-day operations and consider necessary adaptations to ensure seamless compliance. By adopting proactive measures and fostering a culture of compliance, operators can effectively mitigate risks and navigate the complexities of Queensland’s changing environmental regulatory framework.
We will be publishing more articles on changes to environmental legislation. For related articles on the recent changes under the Powers and Penalties Act, see below:
- New offences and proactive approaches – what to expect from the new Environmental Protection Bill;
- Changes to the forced EA amendment process; and
- Introducing the Environmental Enforcement Order: A new compliance tool.
- From clean-up to compliance – new amendments to the contaminated land provisions
Our previous articles on environmental regulation include:
- Reform to Queensland’s environmental enforcement laws – Jones Review and EPOLA Act;
- Rapid changes to environmental authority requirements; and
- New offences for general environmental duty and duty to restore.
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.
