The Environmental Protection and Other Legislation Amendment Bill 2022 (Qld) (EPOLA Bill) was passed yesterday.
The EPOLA Bill amends the Environmental Protection Act 1994 (Qld) (EP Act) with wide ranging implications for Queensland operators, in particular for the resources sector. It also makes minor amendments to the Waste Reduction and recycling Act 2011 (Qld) and the Wet Tropics World Heritage Protection and Management Act 1993 (Qld).
- The changes to the EP Act proposed by the EPOLA Bill were passed without amendment on 29 March 2023. Our original blog summarising the amendments can be found here.
- Liability of executive officers has been extended to executive officers who were not in office when the environmental offence was committed (the offence of failing to ensure a corporation complies with the EP Act), but who were executive officers when earlier acts/omissions happened that caused the relevant offence to be committed.
- Other key amendments include requiring public consultation for all major amendments to environmental authorities for resource activities and allowing early refusal of clearly unacceptable projects.
Extended Executive Officer Liability
Submissions made on the EPOLA Bill raised a number of concerns with the proposed extended liability including:
- there may be a significant time gap between acts/omissions and the offence being committed during which events may occur to exacerbate or improve the situation even though former executives would have no influence;
- the existing defences were inadequate in certain circumstances: as former executives may not or could not have known it would be an offence against the EP Act; former executives may no longer have access to company information making it difficult to establish defences; and, potentially the defences may not apply where an executive officer resigns in protest due to fears of environmental harm but is unable to change the corporation’s course of action.
The Bill was referred to the Health and Environment Committee which tabled its report on 25 November 2022.
The Minister for the Environment and the Great Barrier Reef and Minister for Science and Youth affairs referred to the Linc Energy case and despite the Committee’s recommendation to reconsider the adequacy of the defences, the Minister determined that the existing defences were still reasonable and not in need of amendment. All existing defences will still be open to executive officers.
Other key amendments
- Increased threshold amounts for material and serious environmental harm to $10,000 and $100,000 respectively, increasing by CPI each following year;
- Changes to:
- the environmental impact statement (EIS) process including allowing early refusal of a clearly unacceptable project; and
- the duty to notify triggers;
- New environmental authorities for trial activities and emergencies;
- An overhaul of the contaminated land provisions;
- Mandating public notification for all major environmental authority amendments for resource activities;
- Resolving implementation issues with estimated rehabilitation cost and progressive rehabilitation and closure planning frameworks; and
- Increased compliance and enforcement powers, including the use of body cameras and drones.
Once the legislation commences it will have implications for industry in relation to how they conduct their operations, approvals strategies, environmental compliance and ramifications for executive officers.
For more information on how this will affect businesses or executive officers, please contact Kathryn Pacey, Partner, or Madeline Simpson, Special Counsel, or any other Herbert Smith Freehills contact.
For further reading see our earlier blog: here.
By Kathryn Pacey, Partner, Madeline Simpson, Special Counsel, and Samuel Colwell, Paralegal.