Balance must be struck, hearing told

QLS solicitor Wendy Devine, Planning and Environmental Law Committee committee member Claire Meiklejohn and Chair Michael Connor at the hearing.

Finding the “appropriate balance between responding to environmental damage and protecting private property rights” was one of the issues raised by Queensland Law Society (QLS) representatives at Monday’s public hearing on the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Bill 2024 (Bill) before the Health, Environment and Agriculture Committee.

QLS Planning and Environmental Law Committee Chair Michael Connor and committee member Claire Meiklejohn, along with QLS principal policy solicitor Wendy Devine, spoke at the hearing, informing the committee that “QLS is broadly supportive of the policy intent underpinning the Bill but considers some technical legal drafting issues require additional consideration”.

QLS recommended the committee consider further potential unintended consequences, avoiding retrospective effects and impacts upon third parties, including imposing administrative burdens on local governments.

Wendy referred to the Bill’s new offence of contravening the General Environmental Duty, saying “QLS is concerned the practical effect of some of the aspects of the offence will be unfair and potentially retrospective”.

“The drafting of the Bill means that holders of authorities or approvals might not be able to rely on their existing authority to prove the defence in the Bill,” she said. “We have recommended amendments to Clause 13 in the Bill to avoid this outcome and provide for a fairer position.

“The effect of the Bill is to extend the existing duty [to notify] so third parties who are not responsible for an activity causing harm but are caught up in incidents or events caused by others might now be subject to an obligation to actively monitor potentially affected land.”


Claire highlighted the amended duty to notify in the Bill was quite burdensome for land owners, occupiers and local governments.

“Even though they are not carrying out the primary activity that leads to the harm, and are not routinely engaging with the entity carrying out the activity, the Bill will make it an offence if they fail to notify when they ought reasonably to have become aware of environmental harm occurring,” she said. 

Michael said the “vast majority” of people who had environmental authorities in Queensland were “law-abiding business owners”.

The Bill will enable unilateral amendments to existing environmental authorities and QLS is concerned about the impact on existing authority holders.

“Most regulatory legislation assumes there is a wrong-doer and they need to be punished, but if we think about the vast majority of Queenslanders that have environmental authorities, they will be doing the right thing,” he said.

“They will have a business; they would have set themselves up in terms of where plant and equipment is placed and where other things are put in place to ensure they comply with their environmental duty, and now this can be changed.”


Wendy said QLS also had concerns around the amendments to the powers of entry provisions in the Environmental Protection Act, saying the changes did not offer much time to an affected third party owner or occupier.

“Two business days is an incredibly short period of time and it may well be that in urgent circumstances two business days is what’s needed to catch the damage and repair it as quickly as possible,” she said.

“But not every situation will be like that and what we are actually looking at with these provisions is a statutory authority authorising a private entity to enter on to another third party’s property.

“So we are not speaking about a police officer executing a warrant; and we are not speaking about a government official exercising a statutory power. The issuing of the authority actually permits the person carrying out an activity which has caused harm to enter on to a third party’s property to fix that harm.

“We recognise in some circumstances that harm needs to be corrected quickly but in our submission we suggested there needs to be more of a balance, and more of a spectrum … so if it’s not an urgent situation two business days is incredibly short, and we would suggest up to 10 business days being the period of time and notice that should be given if consent can’t be obtained.”

Wendy said QLS also recommended these powers to enter a third party’s property should be exercised by a government agency not and by the individual authority holder.


“So if that authority holder is being asked to repair damage that their activity has caused, that authority holder should be working with a government agency or officer to negotiate that access, and that authority to enter should not rest with the private sector,” she said.

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