- The Environmental Protection Act 1994 was amended in June 2024, including to replace environmental protection orders, direction notices and clean-up notices with a single ‘Environmental Enforcement Order’.
- The amending legislation ensured the obligation to comply with existing orders and notices continued. However, in an unfortunate drafting error, it did not facilitate the issue of a penalty infringement notice for non-compliance.
- A Bill has been introduced to Queensland Parliament to rectify this issue and provide for amendments to the Environmental Protection Act 1994 to allow for the issue of penalty infringement notices.
- If enacted, this will provide local government with an appropriate suite of compliance action in respect of orders and notices it issued prior to June 2024.
In June 2024, the Environmental Protection Act 1994 (the EP Act) was significantly overhauled by way of the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Act 2024 (the Amending Act).
This included a change to the compliance tools available to local government in enforcing new and existing obligations of individuals and corporations under the EP Act.
The Amending Act introduced the concept of Environmental Enforcement Orders (EEOs) to the EP Act. EEOs replaced environmental protection orders and direction notices (the Old Instruments) as compliance tools available to be issued by local government.
Many Old Instruments issued before the Amending Act continue to operate to impose ongoing obligations on recipients.
The Amending Act ensured that obligations to comply with Old Instruments and the associated offence provisions for failure to comply continue (section 810 of the EP Act).
However, an omission in the Amending Act means that the power to issue penalty infringement notices (PINs) for non-compliance with Old Instruments no longer exists. The Amending Act amended the State Penalties Enforcement Regulation 2014 to the effect that only non-compliance with an EEO, and not non-compliance with an Old Instrument, is an infringement notice offence that can be the subject of a PIN issued by local government.
As a result, any non-compliance with an Old Instrument can currently only be dealt with by way of prosecution, the power which to continue and commence is provided for in section 811 of the EP Act.
Prosecution is of course not always an appropriate means to deal with less serious or first-time non-compliances.
To rectify this issue, the Nature Conservation and Other Legislation Amendment Bill 2025 (the Bill) has been introduced to Queensland Parliament by the current government. The Bill proposes, amongst a number of matters, to amend section 811 of the EP Act to:
- allow a PIN to be issued for an offence in respect of an Old Instrument; and
- validate any PINs that were issued in the period after June 2024 for an offence in respect an Old Instrument.
The PIN amount for an offence will be determined by reference to Schedule 1 of the State Penalties Enforcement Regulation 2014 in its form prior to the Amending Act. That is, the PIN amounts will be as follows:
- for non-compliance with an environmental protection order – 20 penalty units for an individual, 100 penalty units for a corporation
- for non-compliance with a direction notice – 15 units for an individual, 75 units for a corporation
The deemed validity of prior PINs is somewhat unusual. If you have any concerns in relation to compliance with existing orders or notices, including in respect of issued or proposed PINs, please get in touch.
In the meantime, we will monitor the progress of the Bill, which is currently being considered by the Health, Environment and Innovation Committee. The Committee’s report is due to be tabled on 2 May 2025.
