Legal development

Changes on the horizon for Queenslands Environmental Protection Act

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    What you need to know

    • The Environmental Protection and Other Legislation Amendment Bill 2022 (Qld) proposes a raft of changes to the Environmental Protection Act 1994 (Qld).
    • Proposed amendments include extended investigator powers, expanded executive officer liability, significant changes to transitional environmental programs, and changes to the contaminated land and EIS frameworks.
    • Submissions on the Bill close 26 October 2022.  

    What you need to do

    • Only two weeks have been allowed for consultation on the Bill.  Affected parties should urgently prepare submissions. 
    • The proposed amendments extend to much of the Act, from impact assessment and applications through to compliance and enforcement.  You should monitor the progress of the Bill, and be aware that its changes might affect your operations.

    The Environmental Protection and Other Legislation Amendment Bill 2022 (Qld) was introduced into Parliament on 12 October 2022, and proposes broad ranging amendments to the Environmental Protection Act 1994 (Qld).  The proposed amendments extend to much of the Act, and have the potential to impact both existing and proposed operations.

    According to Queensland Environment Minister Meaghan Scanlon, the proposed reforms will "provide greater certainty for the community and industry", including by providing "early certainty on clearly unacceptable projects".  Minister Scanlon said that the amendments were about "better protecting the environment, giving industry support by streamlining and providing greater certainty on processes, and ensuring the independent regulator can continue to be effective in its role".

    Some of the key changes proposed in the Bill are summarised below.

    Investigator powers 

    The Environmental Protection Act 1994 (Qld) currently gives "authorised persons" broad powers of entry and investigation.  The Bill proposes to further expand these powers, including as follows:

    New PowersComments
    New power to require a corporation to nominate a person to attend interviews and answer questions on its behalf.
    While investigators have historically sought to require this, there is currently no express statutory power for them to do so.
    Express authority for authorised persons to use drones and body-worn cameras while exercising their powers.
    In our experience this is already common practice.
    Expansion of the existing "special evidentiary provision", allowing an authorised person to give evidence about environmental nuisance that constitutes a non-compliance with an environmental authority, without the need to call further opinion evidence.
    This provision currently only extends to evidence of offences against the Act, rather than for contravention of an environmental authority.

    Transitional environmental programs 

    One of the key differences between a transitional environmental program (TEP) and other statutory tools has always been that a TEP is applicant driven – the applicant prepares and submits the TEP for the Department's approval.

    Under the Bill, this is set to change.  The Bill seeks to amend TEP provisions so that the applicant applies for a TEP, and the Department is responsible for drafting it.  Interestingly, despite this change the TEP application will still need to satisfy all of the existing TEP content requirements. 

    The Bill also proposes to introduce an express power to refuse a TEP application if the TEP may allow or cause serious environmental harm.  

    Contaminated land 

    Various changes to the contaminated land framework are proposed under the Bill.

    One of the key changes seeks to clarify the statutory notification obligation for contaminated land.  The requirement to notify upon becoming aware of "the happening of an event" involving a hazardous contaminant has caused uncertainty for some time.  Under the proposed amendments, notification will be required where a relevant person becomes aware of the presence of, or happening of an event involving, a hazardous contaminant.

    Other proposed amendments include:

    • introducing a process for voluntary inclusion of land on the environmental management register or contaminated land register; and
    • separating out the content requirements for contaminated land investigation documents.

    Other amendments

    The Bill proposes a range of other important amendments.  They include:

    • Changes to EIS process: A key change is the introduction of the "early no" step referred to by Minister Scanlon – a requirement that an EIS be refused where it is unlikely the project could proceed under the Act or another law.  This power will actually appear at three separate points in the process, including as early as the draft terms of reference stage.  The Bill also proposes lapsing periods for EIS reports, and modernising public notification requirements.
    • Increase to threshold amounts:  The "threshold amount" for material environmental harm will be increased to $10,000, and serious environmental harm to $100,000.  This is the first time these amounts have been changed since the Act commenced in 1994.  Going forward, the threshold amounts will also be indexed annually in accordance with CPI.
    • Expansion of executive officer liability: Under the proposed amendments, executive officers would be liable for the acts or omissions of a corporation that occur while they are in office, even if the associated offence occurs after they have left office.  This appears to be a response to the Court of Appeal's decision in R v Dumble & Ors [2021] QCA 161, which found against the Department on this point under the existing executive officer liability provisions.
    • Temporary authorities: The amendments introduce a new concept of "temporary authorities", which can be used to authorise the carrying out of environmentally relevant activities in "emergency situations".

    Next steps

    The Bill is currently before the Health and Environment Committee.  Only two weeks has been allowed for consultation, with submissions closing on 26 October 2022.  The Committee is then due to report by 25 November 2022.

    Authors: Paul Wilson, Senior Associate; Finley Harding, Graduate

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.


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