Companies need to be aware of Queensland Government’s tough new stance on environmental crime

The Climate Change and Sustainability Minister, Kate Jones, introduced new environmental legislation into parliament on 24 November 2010.

The Environmental Protection and Other Legislation Amendment Bill 2010 (Bill) has not yet been passed by parliament. However, corporations and businesses that are conducting environmentally relevant activities under the Environmental Protection Act 1994 and Environmental Protection Regulation 2008 need to be aware of these proposed amendments.

Environmental offences

The most significant change is that the Bill will allow authorised officers of the Department of Environment and Resource Management (DERM) to enter business premises suspected of an environmental offence without consent or a warrant.

The new provision will enable an authorised person to enter land not only when unlawful environmental harm has been caused by the release of a contaminant, but when they believe on reasonable grounds that unlawful environmental harm has been caused by the release of a contaminant.

This new provision will significantly increase the investigation powers of DERM. The explanatory notes to the Bill suggest that five business days written notice must be given under section 455 of the Environmental Protection Act 1994, and that the entry provisions do not apply to land where a building is erected. However, these provisions do not seem to be mirrored in the actual Bill.

The second significant change is an increase in the types of order that a court can impose for environmental offences under the Environmental Protection Act 1994. The new orders will apply to a range of offences.

These offences include:

• conducting environmentally relevant activities without the appropriate permit
• carrying out environmentally relevant activities (other than mining, petroleum and gas activities) without a registration certificate
• contravening conditions of either a developmental permit, an environmental authority or a standard environmental condition
• depositing prescribed water contaminants into waters.

The new orders that a court could impose include the following:

• Public Benefit Orders – to restore or enhance the environment in a public place or for a public benefit
• Education Orders – to conduct an advertising or education campaign
• Monetary Benefit Orders – to pay a sum up to the amount of the monetary benefit derived from the offences (for example, if an environmentally relevant activity has been carried out for a number of years without a development permit authorising the environmentally relevant activity, the amount of the annual fees for those years could be recovered by way of a Monetary Benefit Order)
• Publication and Notification Orders – to publish details of the offence and the orders made by the court either in newspapers or in the company’s annual report

These orders are in addition to, or a substitute for, the existing penalties under the Environmental Protection Act 1994. The maximum penalty for wilfully and unlawfully causing serious environmental harm, if successfully prosecuted, is $416,500 for an individual or five years imprisonment.

This is a penalty likely to be given to an executive officer of a corporation, or an individual who committed the offence. If the company is charged with the same offence, it faces a maximum penalty of $2,082,500.

The penalties are slightly lower for wilfully and unlawfully causing material environmental harm. The maximum penalty for an individual for that offence is $166,500 or two years imprisonment. The maximum penalty for a corporation for that same offence would be $832,500.

The introduction of the new range of orders a court may impose is hoped by the Minister to act as a further deterrent for companies that commit environmental offences. It is hoped that, by requiring companies to be named and shamed for the offences, this will be a larger deterrent than simply fining companies.

It is likely that companies charged with environmental offences will now face a publication order as part of the usual orders sought by DERM when prosecuting these offences.

Environmental permits

The Bill also introduces some less serious changes to the permit processes. For example, operators of approved mobile and temporary activities will now be required to keep a work diary to demonstrate that they have not been in one location for more than 28 days. This will apply for environmentally relevant activities such as mobile concrete batching, abrasive blasting, asphalt plants, and crushing and screening plants.

Amendments will also require a development permit to have taken effect before a business can apply for a registration certificate for an environmentally relevant activity (other than mining, petroleum and gas activities). A business cannot lawfully conduct an environmentally relevant activity (other than mining, petroleum and gas activities) without the registration certificate. This may cause delays to some businesses commencing their operations.

Coastal management

Amendments are also proposed in relation to coastal development. These amendments relate primarily to approvals in coastal areas that will fall under the proposed Queensland Coastal Plan. The Queensland Coastal Plan is likely to address sustainable development of Queensland’s coastal areas and includes provisions for managing social and economic risks of climate change, coastal hazards for planning for coastal dependent development and for the preservation of social and ecological values.

The government hopes that the amendments will ensure greater focus on coastal hazards in land use decisions near the coast as hazards become more significant due to climate change related sea level rise and increased intensity of storms and cyclones.

There is also a new provision included in the Bill in relation to renewing allocations for quarry materials in coastal areas. There is no requirement for an application to renew an allocation for quarry materials to be approved.

There are no merits based appeals or reviews available for decisions made under the proposed provision. This will mean that if a decision to renew the allocation of quarry materials is refused, there is effectively no appeal against that decision.

Conclusion

If this legislation is passed by the Queensland Parliament, the enforcement powers of DERM will have been significantly increased.

Businesses need to be aware of the changes, particularly in relation to the types of orders the court can now issue, together with the department’s power to enter land without a warrant or without the owner’s consent.

For those in certain industries, including businesses conducting mobile and temporary activities, or quarrying in coastal areas, changes have been proposed that will impact upon the business operator’s rights and businesses will need to familiarise themselves with these provisions if the Bill is passed.