The Environmental Protection and Other Legislation Amendment Bill 2022 (EPOLA) was introduced on 12 October 2022 and proposes a suite of administrative and regulatory amendments, primarily to the Environmental Protection Act 1994 (EP Act). The more significant changes proposed include:
Environmental authorities
Public notification will be mandatory for any major amendment to an environmental authority (EA) for a resource activity. Under the current provisions, the administering authority has a discretion to decide whether public notification is required. Whilst this amendment is stated to achieve the Government’s objective of increasing the opportunity for the community to participate in the amendment process of environmental authorities, it will add an additional step in the amendment process to all but minor changes to a resource EA.
Changes are proposed to facilitate EAs for trial, research, or innovative activities. Trial activities often have insufficient information to accurately describe or assess the extent of environmental impacts, and therefore obtaining an EA is difficult for a trial. The amendment reduces the scope of information required if the applicant demonstrates that sufficient information is unavailable. The amendment only applies for EA applications which are for a maximum term of three years.
Further, it is proposed to provide the administering authority the ability to issue temporary authorities where it is necessary or reasonable to respond to the impacts of an emergency situation, such as a flood event.
Environmental impact statements
EPOLA introduces proposed changes to the submission process and a new decision point for the administering authority for an environmental impact statement (EIS) prepared under the EP Act. A proponent for an EIS will now be required to submit, with the draft terms of reference, a summary of potential negative environmental impacts and the measures undertaken to avoid or minimise these.
After submission of a draft terms of reference, the chief executive must decide whether the EIS may proceed to public notification. At this stage the chief executive must determine that the EIS cannot proceed is satisfied that the project would:
- contravene a law;
- give rise to an unacceptable risk of serious or material environmental harm;
- have an unacceptable adverse impact on a matter of State environmental significance or a matter of national environmental significance;
- have an unacceptable adverse impact on an area of cultural heritage significance; or
- there is a regulatory requirement requiring the chief executive to refuse the draft terms of reference proceeding.
This would mean there is a significant onus on the proponent to demonstrate, at a very early stage, that the project does not fall within these narrow grounds for rejection. Notably, “cultural heritage significance” is given a broad definition and includes “an area or place of indigenous cultural significance, or aesthetic, architectural, historical, scientific, social or technological significance, to the present generation or past or future generations”.
It is intended that the early refusal will create a more effective process for the proponent and administering authority by not allowing an EIS to proceed further, if it is unlikely to gain the required approvals. The proposed new EIS process is not retrospective, and will only apply if the draft terms of reference is submitted after the commencement of EPOLA’s amendment of the EP Act.
If the EIS is not allowed to proceed to notification, a decision notice is provided which attaches a right to review or appeal the decision, and the ability for the proponent to resubmit the draft terms of reference within 20 days of receiving the notice of decision.
It is proposed that an EIS assessment report for a project lapses after three years. The chief executive may extend the EIS assessment report prior to its lapsing. If before the end of this period the proponent has made an application for an EA and that application is undecided, the EIS assessment report will lapse when the application is approved or when any review or appeal for a refusal is decided or withdrawn. The purpose of this provision is to ensure EIS assessment reports, which inform the EA assessment, are contemporary and reflective of current environmental legislation and regulations.
Officer and director liability
It is proposed that the scope of executive officer liability be expanded to include those who were not in office at the time an offence is committed, but were in office when the act or omission happened. This applies if the act or omission that caused an offence to be committed happens earlier than the time of the environmental harm. For example, if an act or omission by a business in 2023 results in serious environmental harm caused in 2025, then an executive officer who left the business in 2024 may be liable for the 2025 serious environmental harm. This amendment is responsive to the recent Queensland Court of Appeal decision in R v Dumble [2021] QCA 161.
Environmental investigation trigger for contaminated land
EPOLA will remove the requirement for a hazardous contaminant to contain a ‘concentration’ that is, or has the potential to, cause serious environmental harm or material environmental harm. The Government states that this amendment, which only applies to land recorded in the environmental management register or contaminated land register, has been proposed as certain containments – such as asbestos or biologically infectious substances – are hazardous regardless of ‘concentration’. The proposed reform provides the administering authority with the ability to require an environmental investigation be conducted and/or a site investigation report given if they are satisfied that or have reasonable grounds to suspect that a hazardous contaminant is contaminating the land.
The threshold amount for material environmental harm is also set to increase from $5,000 to $10,000 and the threshold for serious environmental harm from $50,000 to $100,000, with indexation from 30 June 2023.