A Quick Guide
to the
Environmental Protection Act Qld

The Environmental Protection Act (1994) is primarily concerned with environmental pollution. While the legislation has an extremely broad objective "to achieve ecologically sustainable development in Queensland" in practice the legislation concentrates primarily on point-source pollution and land contamination. This is partly due to the existence of a range of other legislation (most notably the Nature Conservation Act) which deals with protection of other aspects of the environment.

The EP Act seeks to achieve its objective by setting out a program for the identification and protection of important elements of the environment (environmental values) and by creating a range of regulatory tools for controlling the activities of individuals or companies. The Act was also originally intended to provide public notification and appeal rights for proposed developments which have the potential to harm the environment. For a number of reasons, these public involvement provisions were never proclaimed. There are now some opportunities for public involvement under the Integrated Planning Act although it is unclear what licences will fall under these provisions.

The EP Act permits the Department of Environment & Heritage to prepare Environmental Protection Policies (EPPs). EPPs are subordinate legislation which contain detailed requirements for protecting a part of the environment or controlling a type of activity. These are intended to complement the more general provisions in the EP Act. The EPPs which have been proclaimed to date are the EPP (Water), the EPP (Air), and the EPP (Noise). Each of these either sets quality standards for the aspects of the environment or outlines processes for determining the appropriate standard in a particular set of circumstances. For example, the EPP (Water) refers to the Australian Water Quality Standards which classify water into a range of categories from pristine through to water which is unfit for any use. When considering the effect of an activity on a body of water it is necessary to determine the appropriate water quality standard and conduct the activity in a way, which should not result in the water being below the standard.

The EP Act creates a general duty for all people, companies and government bodies to take all reasonable and practicable steps to avoid harm to the environment. However, there are various exceptions to this duty (eg. if the harm occurs as a result of an activity which is authorised by a licence issued under the EP Act or by an EPP).

Under the EP Act it is an offence to cause serious or material environmental harm. The relevant sections of the Act state that harm is "material environmental harm" if it causes costs of more than $5,000 and "serious environmental harm" if it causes costs of more than $10,000. While most attention has focused on these figures, harm can also be considered serious or material if the harm is widespread, is irreversible or affects an area of high conservation value. It is also an offence not to notify the authorities if you are carrying out an activity and become aware that it is causing environmental harm or breaching licence conditions.

The EP Act establishes a system of licences and approvals for conducting particular activities. These activities are referred to as "Environmentally Relevant Activities" and are listed in the Environmental Protection Regulation. The purpose of this system is to allow the authorities to set conditions for conducting the activity which should prevent or minimise the risk of harm to the environment. Conducting an Environmentally Relevant Activity without the relevant licence or approval or failing to comply with conditions of your licence or approval are criminal offences. However showing that you were acting in accord with the conditions of your licence or authority is a defence against a charge of causing environmental harm.

In addition to licences and approvals, regulators have other tools to enforce the EP Act. These include:

Environmental Management Programs: An Environmental Management Program sets out the actions which an individual must take to prevent or minimise environmental harm. As with licences, complying with an EMP is a defence against a charge of causing environmental harm. EMPs are frequently used when someone voluntarily discloses that their actions are causing environmental harm and establish a time frame for resolving the problem.
Environmental Protection Orders: An Environmental Protection Order can be issued when an individual's actions cause or threaten unlawful environmental harm and can require that person to either take certain action or refrain from their current unlawful activities.
Environmental Evaluations: If a regulator believes that anyone is not complying with the conditions of a licence or an EMP or that an activity is causing or threatening environmental harm, they may require the licensee or the individual conducting the activity to investigate whether environmental harm has occurred or could occur and how to minimise or prevent the harm. This investigation needs to be rigorous and independent of the person carrying out the unlawful activities.

Environmental Management Programs, Environmental Protection Orders and environmental evaluations can all be applied to any person whose actions cause or threat environmental harm - not just to people who hold licences or approvals.

Environmental Restraining Orders:  If a member of the public believes that an activity is causing or threatening to cause unlawful environmental harm, they may apply to the Magistrate’s court for a restraint order. This requires the person undertaking the activity to cease the activity or to take other action to comply with the Environmental Protection Order. While this may seem to be a very powerful provision, its practical use is very limited. This is because before applying to the Court, a person seeking a restraining order must first write to the Minister requesting them to take action and give them reasonable time to respond. In practice, the offence has usually been committed and the evidence disposed of before this requirement can be met. A further serious deterrent is that, if the request for a restraining order is unsuccessful, the applicant may be required to pay the legal costs of the offender and may also be liable to pay them damages.