Important amendments to the Environmental Protection Act 1994 (Qld) (EP Act), made by theEnvironmental Protection and Other Legislation Amendment Act 2014 (Qld) (EPTLA Act) as part of the Newman Government’s ‘Greentape Reduction Project’, came into force on 30 September 2015.
One of those changes is the introduction of a new way in which the Department of Environment and Heritage Protection (DEHP) can seek to enforce the EP Act – by entry into an ‘enforceable undertaking’.
What is an enforceable undertaking?
An enforceable undertaking is essentially an agreement between the proponent and the DEHP which sets out how the proponent will secure compliance with the EP Act and enhance the protection of the environment.
A proponent may submit a proposed enforceable undertaking to the DEHP. The DEHP must then either accept or reject the proposed enforceable undertaking, and may only accept the enforceable undertaking if it reasonably believes that the undertaking will secure compliance with the EP Act and enhance the protection of the environment. Once an agreement has been entered into, it can be varied, so long as any variation does not relate to a different alleged contravention of the EP Act. The DEHP can also amend or suspend the enforceable undertaking in certain circumstances.
All enforceable undertakings are public documents, and must be published on the DEHP’s website.
Contravention of an enforceable undertaking is an offence and significant penalties, and possible imprisonment, can be imposed.
What are the benefits?
The primary incentive to enter into an enforceable undertaking is that it prevents the DEHP from initiating proceedings in relation to the alleged contravention if the person is complying, or has complied, with the undertaking. Additionally, if proceedings have been initiated but not concluded, an enforceable undertaking can be entered into and the DEHP must take all reasonable steps to have the proceedings discontinued.
Entry into an enforceable undertaking does not constitute an admission of guilt by the proponent making the undertaking. However, the agreement and any documents submitted in relation to the undertaking are not privileged, and therefore may be used as evidence. It should be noted in this respect that the prescribed form requires certain acknowledgements, including that the alleged contravention occurred.
When can an enforceable undertaking be used?
The DEHP has published a guideline to assist proponents in determining whether an enforceable undertaking will be accepted by the DEHP. Examples given include:
- Inadvertent or accidental acts;
- No serious (or only an isolated) prior environmental non-compliance;
- Non-compliance is short term or medium term;
- There is a genuine attempt to rehabilitate;
- Initial notification to the DEHP occurred within a reasonable timeframe;
- The impacts could not be reasonably foreseen or prevented by a high standard of operation.
Where to from here?
The future success of the use of an enforceable undertaking as an enforcement option for the DEHP will be determined by how the DEHP and the proponents manage those undertakings going forward. For example, unlike the Office of Fair and Safe Work Queensland, there appears to be no dedicated advisory service enabling without prejudice communications about possible undertakings. Further, although the guideline published provides useful guidance as to the DEHP’s views on when an enforceable undertaking should be used, currently the scope appears to be relatively narrow. Accordingly, while the concept of an enforceable undertaking appears to be an active step to reduce ‘greentape’, in practice, it is difficult to envision a significant number of undertakings being sought or agreed to in the short term.