Legal development

Potentially significant changes to Queensland environmental legislation released for public consultation 

Look out towards Blue Mountains gorge

    Key insights

    • The Queensland Government have sought feedback on proposed amendments to the Environmental Protection Act 1994 (Qld) that aim to promote proactive environmental management and facilitate the timely regulatory response to environmental harm.
    • Potentially significant proposals include the expansion of enforcement tools to authorised activities, establishing a new offence provision and amending the existing duty to notify.
    • The Government is in the process of reviewing the feedback which will inform the drafting of the proposed legislative amendments.

    Consultation Paper

    In September 2023, the Queensland Government released its Consultation Paper Improving the powers and penalties provisions of the Environmental Protection Act 1994. The paper sought feedback on proposed amendments to the Environmental Protection Act 1994 (Qld) which seek to implement the recommendations made by the Independent Review of the Environmental Protection Act 1994 (Qld) Report.

    According to the Consultation Paper, the proposed changes aim to facilitate "a more proactive approach to environmental risk management" and to "remove barriers to the timely regulatory response to manage and correct harm". As a result, a number of the proposed amendments are likely to expand statutory obligations and potential regulatory exposure for industry.

    Some of the key proposals are summarised below.



    Expansion of enforcement tools to authorised activities

    One of the key changes is the proposed expansion of the environmental protection order and environmental evaluation provisions, to allow these enforcement tools to be issued "even if there is a condition of an EA appearing to authorise the relevant harm". The Consultation Paper confirms that the issue of such notices would then provide grounds for amending relevant environmental authority conditions.

    This is a significant change that would not only allow the Department of Environment and Science to issue statutory notices in respect of lawful activities, but would also allow it to use those notices as a basis for triggering the process to unilaterally amend relevant environmental authority conditions.

    This appears to go beyond the recommendations of the Independent Review, which simply referred to taking swift action in response to a lack of appropriate mitigation or avoidance of environmental harm. More importantly, it presents a potentially significant risk to the certainty and stability of existing approved projects.

    A new offence for breaching the general environmental duty

    The general environmental duty in section 319 of the Act requires all persons carrying out activities that will, or are likely to, cause environmental harm to take all reasonable and practicable measures to mitigate the harm. However, there is currently no offence under the Act for failure to comply with the duty, so the duty is not separately enforceable.
    The Consultation Paper proposes the introduction of an offence for contravention of the general environmental duty.

    This would bring Queensland in line with other jurisdictions such as Victoria. Guidance about meeting the duty may be provided in the offence provisions and through external materials such as EPPs and codes of practice.

    The Paper notes that whether harm actually occurs "is not an element of the GED offence". Instead, the focus will be the failure to manage an activity in a way that prevents or minimises material or serious environmental harm. This is consistent with the Victorian approach.

    Amendment of the duty to notify

    Under the proposals, the current duty to notify will be expanded beyond when the person "becomes aware" to when the person "reasonably believes" or "should in the circumstances reasonably believe" that a notifiable event under section 320A of the Act has occurred.

    This would not only expand the scope of the statutory notification provisions, but would also introduce potentially significant uncertainty about when notification is required.

    Human health, safety and wellbeing

    Proposed amendments would include the concept of "human health, wellbeing and safety" in the definitions of "environment" and "environmental value" under sections 8 and 9 of the Act.

    Currently, human health is regulated indirectly under the Act. As a consequence of the proposed definitional changes, the reach of environmental harm offences will also expand to circumstances where an activity has caused adverse effects on human health, safety and wellbeing.

    This change will be particularly relevant for those with operations in or close to residential or commercial areas, as it will increase potential exposure to harm offences under the Act.

    Other proposals

    Other proposed changes include:

    • enshrining the polluter pays, proportionality, primacy of prevention and the precautionary principles into the Act;
    • combining existing statutory enforcement tools of environmental protection orders, direction notices and clean-up notices into one Environmental Enforcement Order; and
    • establishing a duty to restore environmental harm.

    Consultation on the proposed reforms closed on 10 November 2023. The Government is in the process of reviewing the feedback which will inform the drafting of the proposed legislative amendments. At this stage, no timetable has been set for release of the proposed amending legislation.

    Authors: Paul Wilson, Partner; and Lydia O'Neill, Paralegal.

    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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