15 May, 2016
The Queensland Government's controversial
Environmental Protection (Chain of Responsibility) Amendment Bill 2016 has now been passed, after a marathon Parliamentary session that extended into the early hours of this morning.
The Bill amends the Environmental Protection Act 1994 (Qld) (EP Act) to allow environmental obligations to be imposed not only on environmental authority holders, but also on a broad range of "related persons". A number of important amendments were made to the Bill before it was passed.
Key amendments relevant to industry are summarised below.
- Power to amend environmental authorities: the amended Bill expands the circumstances in which the Department of Environment and Heritage Protection (DEHP) may amend an environmental authority (for example, to amend or impose conditions requiring financial assurance). The circumstances now allow the DEHP to make such amendments not only where another entity becomes the holder of the environmental authority, but also where another entity becomes the holding company of a holder of the environmental authority.
- Statutory guidelines for exercise of powers: the amended Bill provides that the DEHP may make guidelines about:
- whether a person has a "relevant connection" with a company; and
- whether to issue a related person with an environmental protection order (EPO), and if so, which related person to issue with the EPO.
If guidelines are in force, the DEHP must have regard to them in deciding whether to issue an EPO to a related person. Minister for Environment and Heritage Protection, Dr Steven Miles, indicated that the statutory guidelines were intended "to provide operators with greater clarity regarding the manner in which the department will administer the provisions".
- Additional considerations for related person EPOs: before imposing an EPO on a related person, the Bill now provides the DEHP may consider whether that related person took "all
- reasonable steps" to ensure a company complied with its environmental obligations. According to Minister Miles, this will "provide reasonable operators with the reassurance that they will not be mistakenly captured by the new legislation".
- Reduction in amount of financial assurance required for stay: the Bill originally required 85% of a financial assurance amount to be submitted before a court could stay a financial assurance decision. In response to submissions, the required amount has been reduced to 75%.
- Amendments to "related person" test: in response to submissions on the very broad scope of the "related person" definition, the amended Bill now excludes from the definition of "related person":
- landowners not connected with mining or petroleum activities;
- the beneficiaries of native title or cultural heritage agreements, conduct and compensation agreements and make good agreements; and
- entities that have not "significantly benefited financially" from the relevant activities (more detail as to what constitutes a "significant" financial benefit is to be provided in the statutory guidelines).
While these amendments address a number of issues raised by submitters, it is worth noting that:
- despite assurances from Minister Miles – on a number of occasions during the course of his second reading speech – that "those who are diligent in their environmental responsibilities have absolutely nothing to be concerned about", the drafting of the amendments is not equally reassuring. Provisions relating to the determination of "related persons" and "relevant connections" remain broad and flexible, such that industry and investors may not be fully placated; and
- other controversial aspects of the Bill – including fundamental changes that will require an individual to answer an authorised officer's questions even where answers might tend to incriminate the individual – remain unchanged.
For further information, please contact:
John Briggs, Partner, Ashurst
john.briggs@ashurst.com
