Wednesday, 30 September 2015

Commencement of enforceable undertakings in Queensland

From today, legislation passed by the former State Government allowing enforceable undertakings (EUs) to be entered into under the Environmental Protection Act 1994 (Qld) (EP Act) will commence. 

The EUs add to the suite of enforcement mechanisms already available to the Department of Environment and Heritage Protection (EHP), including:
  • warning notices and letters
  • penalty infringement notices
  • environmental evaluations
  • environmental protection orders
  • clean-up or direction notices
  • suspension or cancellation of licence, permit or authority, and
  • prosecution.  

EUs are binding agreements with EHP in relation to a contravention, or alleged contravention, against the EP Act.  The undertaking should deal with remedying or preventing non-compliances, or other actions proposed to achieve legislative compliance, as well as measures for enhancing the protection of the environment.

The legislation allows an operator in Queensland to propose an EU to EHP, which can accept or reject the proposal.  An EU can be accepted even if prosecution proceedings have been started, so long as they have not concluded.  Once accepted, an EU prevents the commencement of proceedings for so long as it is complied with (existing proceedings must be discontinued after acceptance).  All accepted EUs will be published on EHP’s website. 

Failure to comply with an EU will amount to a separate offence against the EP Act, in addition to any underlying conduct, which is immediately actionable in the Magistrate’s Court. 

The EHP has added a guideline on EUs to its set of compliance guidelines, providing a clear policy indication of circumstances in which an EU will not be accepted (similar to amendments made to the Guidelines for Transitional Environmental Programs recently). 

For Queensland operators, EUs provide a viable alternative to prosecution or the suspension or cancellation of an authority under the EP Act.  The legislation specifically provides that entering into an EU is not an admission of guilt.  Given some of the requirements surrounding EUs, however, we consider they are unlikely to be a practical or popular alternative to lower order enforcement or for relatively minor non-compliances.  EUs have been used by operators and regulators in NSW for some time following non-compliance.  We anticipate that they will be used in similar circumstances here in Queensland.  

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