Australia: New enforceable undertakings regime for environmental offences in Queensland

Last Updated: 6 October 2015
Article by Kathryn Pacey and Samuel Higgs

Key Points:

There's more information now about how Queensland's new enforceable undertakings regime as an alternative to prosecution for environmental offences will work.

On 30 September, a key change to the Environmental Protection Act 1994 (Qld) (EP Act) came into effect - the introduction of enforceable undertakings as an alternative to prosecution for environmental offences.

What are enforceable undertakings?

Enforceable undertakings are binding agreements between the administering authority and an alleged offender. They are entered into by the person as a way to support environmental outcomes in response to alleged contraventions of the EP Act that would generally be considered appropriate for prosecution. Depending on the matter, the administering authority may be a local government or the Chief Executive of the Department of Environment and Heritage Protection (DEHP).

Further guidance from the DEHP

DEHP has recently released a guideline on enforceable undertakings under the EP Act with information about the expectations and management of enforceable undertakings under the EP Act. It also provides key information for persons looking to prepare an enforceable undertaking, and explains the way in which the administering authority will consider and decide whether to accept or reject an enforceable undertaking.

When will an enforceable undertaking be accepted?

The administering authority must only accept an enforceable undertaking if the administering authority reasonably believes that the enforceable undertaking will secure compliance with the EP Act and enhance the protection of the environment.

The guideline outlines the requirements which must be met for an enforceable undertaking to be accepted by an administering authority, and provides a number of examples of when enforceable undertakings may be accepted, including:

  • inadvertent or accidental acts;
  • no serious prior non-compliance with environmental legislation or similar legislation;
  • an isolated previous event of non-compliance with environmental legislation or similar legislation;
  • non-compliance of short-term or medium-term duration;
  • remediation has been effective or partially effective, or a demonstrated genuine attempt at remediation has been made;
  • notification of the incident to the administering authority occurred within a reasonable timeframe;
  • there was no motivation or intention to derive a financial or material benefit from the non-compliance;
  • the impact or risk of impact resulting from the contravention was not reasonably foreseeable; or
  • the impact or risk of impact was not prevented by high standards of operation.

Under what circumstances will an enforceable undertaking be rejected?

The guideline also reflects the statutory requirement that enforceable undertakings cannot be accepted for alleged contraventions of the EP Act that are indictable offences, noting the following examples of when enforceable undertakings may be rejected:

  • the content of the enforceable undertaking does not address the alleged contravention(s) of the EP Act that are the subject of the enforceable undertaking, and does not address how this has been remedied or is being remedied;
  • serious contraventions of the EP Act or similar legislation, involving high or serious levels of culpability;
  • there was motivation or intention to derive a financial or material benefit from the non-compliance;
  • failure to notify the administering authority or notification outside of reasonable timeframes;
  • multiple contraventions that, due to repetitive, ongoing circumstances, or taken cumulatively, would be considered serious;
  • significant incidents involving considerable public interest;
  • the person has been the subject of previous prosecutions for an environmental offence of a serious nature (in Queensland or elsewhere);
  • the administering authority cannot be satisfied of ongoing compliance with the EP Act;
  • the likely outcome of the matter dealt with through legal proceedings would better achieve the objects of the EP Act;
  • the investigation or prosecution proceedings are at an advanced stage; or
  • the commitments contained in a proposed enforceable undertaking impose an unreasonable delay in environmental remediation.

Drafting an enforceable undertaking - getting it right

Importantly, the guideline also offers guidance on how an enforceable undertaking should be drafted and what generally needs to be included. Of particular note is the inclusion of a statement of regret that the alleged contravention occurred, and a statement of commitment that the acts or omissions and any other factors which caused or led to the alleged contravention have ceased and that all reasonable endeavours have been and will be made to ensure they do not reoccur. The guideline states that any terms which may set up defences for possible non-compliance with the enforceable undertaking will be unacceptable.

An enforceable undertaking must also identify key objectives, which are broad environmental outcome statements that guide the scope of the enforceable undertaking to ensure compliance with the EP Act and enhance the protection of the environment. The guideline provides some general examples of terms which meet a proposed objective.

The EP Act does not provide a timeframe for the administering authority to decide whether to accept or reject an enforceable undertaking, and will depend on a number of factors.

If accepted, the enforceable undertaking will be published on DEHP's website.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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