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.

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.

Key takeaways

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. 

Our previous articles on environmental regulation include:

For related articles on the recent changes under the Powers and Penalties Act, see below: