As part of our series on the recent changes introduced by the Environmental Protection (Power and Penalties) and Other Legislation Amendment Act 2024 (Powers and Penalties Act), we highlight the addition of a new ‘enforcement tool’: an Environmental Enforcement Order.
Environmental Enforcement Order
An Environmental Enforcement Order (EEO) is a new compliance tool which aims to respond to events that have caused, or are likely to cause, environmental harm.
Essentially, it combines the powers previously available to the administering authority under environmental protection orders, direction notices and clean-up notices into one statutory notice (which has some broader and additional powers).
Policy objectives
The proposed amendments are aimed at providing a more flexible and responsive mechanism for environmental compliance and preventing environmental harm.
Issuing EEOs
An EEO can be issued in circumstances where the administering authority believes:
- an enforcement ground exists; or
- a person is a prescribed person for a contamination incident.
The form and content of an EEO is similar to that for an Environmental Protection Order (EPO) in the pre-amendment Environmental Protection Act 1994 (Qld) (EP Act), being that the EEO must include details about the relevant matter, the enforcement grounds, and the actions that must be undertaken by the person.
The grounds for issuing an EEO largely reflect those previously available for EPOs and direction notices (i.e., securing compliance with environmental authorities and the EP Act). However, there are new grounds for issuing this enforcement action, including for securing compliance with transitional environmental programs (TEPs) and temporary emissions licences, as well as compliance with the new ‘duty to restore the environment’, which was introduced in the Powers and Penalties Act.
The amendments also expand the circumstances in which an EEO may be issued to related persons under the chain of responsibility provisions. For example, a related person could not previously be issued a direction notice (this was only available under EPO).
The administrating authority must also consider the ‘standard criteria’ under the EP Act before issuing the EEO, except in specific circumstances. The standard criteria broadly includes environmental policy, the precautionary principle, environmental assessments, the character and values of the receiving environment, submissions made, best practice environmental management, financial implications on the holder, and the public interest. This ensures that EEOs are issued based on a broader evaluation of the circumstances.
For acts relating to emission of aerosols, fumes, light, noise, odour, particles or smoke, the administering authority must consider further criteria before issuing the EPO. This includes consideration of the characteristics of the emission, their duration, and their impact on the environment or persons.
The actions an EEO can require a person to take to remedy or remediate the issue are not expressly limited, provided they relate to the relevant matter forming the basis for the EEO. The time given for a recipient to take action under an EEO must be reasonable, considering the nature of the action, risks to human health, the environment, or property, and how long the person has been aware of the matter.
EEO applies regardless of environmental authority
Notably, an EEO may be issued to a person in relation to an activity even if the person is the holder of an environmental authority that authorises, or purportedly authorises, the activity.
The explanatory memorandum for the Power and Penalties Act provides that the intent of this proposed provision is to clarify that an environmental authority is not a barrier to issuing an EEO to address environmental harm or the risk of environmental harm where such harm is not explicitly authorised or otherwise regulated by the environmental authority.
From the authority-holder perspective, we expect this amendment introduces an element of compliance unpredictability, given that the environmental authority is intended to be the site-specific authority regulating matters addressing the risk of environmental harm. However, this addition generally reflects the recent legislative amendments, which are aimed at requiring operators to adopt a more proactive and comprehensive environmental management practice, underpinned by the recent focus on the ‘general environmental duty’.
Offences for non-compliance
There are two new offences for non-compliance with an EEO, carrying penalties of 600 penalty units for non-wilful contravention and 1,655 penalty units for wilful contravention of an EEO.
Review process
Recipients of EEOs maintain internal review and appeal rights similar to those for EPOs, direction notices, and clean-up notices under the pre-amendment EP Act (although noting that incidents involving contamination causing serious or material environmental harm still cannot be internally reviewed, to ensure clean-up is not unduly delayed).
Key takeaways
This new compliance tool reflects the emphasis on a proactive approach to environmental management and ongoing actions to prevent risks of environmental harm.
We will continue to monitor the implementation of EEOs and their impact on our clients to see how this new tool is being used in practice.
If you would like to learn more about the changes, contact our Planning and Environment Team, or register your interest for a seminar or webinar on the Powers and Penalties Act changes here.
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;
- Environmental protections strengthened with new Powers and Penalties Bill; and
- Changes to the forced EA amendment process.
- From clean-up to compliance – new amendments to the contaminated land provisions
Our previous articles on environmental regulation include: