Potentially significant changes to Queensland environmental legislation released for public consultation 

Proposal

Comments

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.