Queensland Numbered Acts Queensland Numbered ActsChapter 7 , part 5 , division 1 —
omit, insert—
358 Definitions for part In this part—
"contamination incident" see section 360.
"enforcement ground" , in relation to an environmental enforcement order, see section 359.
"place" , in relation to a contamination incident, means premises, another place on land or a vehicle.
"prescribed person" , for a contamination incident, see section 361.
"related person" , of a company, see section 369N.
"relevant matter" , for an environmental enforcement order, means—(a) for an order issued on an enforcement ground—the matter forming the basis for the ground; or(b) otherwise—the matter forming the basis for the issuing of the order.
359 Meaning of enforcement ground Each of the following is a ground (an
"enforcement ground" ) on which to issue an environmental enforcement order to a person—(a) the person has not complied with a requirement to conduct or commission an environmental evaluation and give or submit a report about the evaluation to the administering authority;(b) the person has not complied with a requirement to apply for the issue of a transitional environmental program;(c) it is necessary to issue an environmental enforcement order to secure the person’s compliance with the general environmental duty;(d) it is necessary to issue an environmental enforcement order to secure the person’s compliance with the duty to restore the environment;(e) it is necessary to issue an environmental enforcement order to secure the person’s compliance with—(i) an environmental protection policy; or(ii) a condition of an environmental authority; or(iii) a development condition of a development approval; or(iv) a prescribed condition for carrying out a small scale mining activity; or(v) a condition of a site management plan for relevant land; or(vi) a PRCP schedule; or(vii) an audit notice; or(viii) a surrender notice for an environmental authority; or(ix) a rehabilitation direction; or(x) a regulation; or(xi) an agricultural ERA standard; or(xii) a transitional environmental program; or(xiii) a condition of a temporary emissions licence;(f) the person is contravening any of the following provisions, or has contravened any of the following provisions in circumstances that make it likely the contravention will continue or be repeated—(i) section 426;(ii) section 440;(iii) section 440Q;(iv) section 440ZG;(v) a provision of chapter 8, part 3E or 3F.
360 Meaning of contamination incident A
"contamination incident" is—(a) an incident involving contamination of the environment that the administering authority is satisfied has caused or is likely to cause serious or material environmental harm; or(b) the carrying out of an activity on contaminated land, the happening of an event on contaminated land, or a change in the condition of contaminated land that the administering authority is satisfied has caused or is likely to cause other land to become contaminated land; or(c) a combination of matters mentioned in paragraph (a) or (b).
361 Who is a prescribed person for a contamination incident For this part, each of the following persons is a
"prescribed person" for a contamination incident—(a) a person causing or permitting, or who caused or permitted, the incident to happen;(b) a person who, at the time of the incident, is or was—(i) the occupier of a place at or from which the incident is happening or happened; or(ii) the owner, or person in control, of a contaminant involved in the incident;(c) for a contamination incident under section 360(b)—a prescribed responsible person for the land to which the incident relates;(d) if an environmental enforcement order is issued to a corporation (the
"first corporation" ) in relation to the incident and the corporation fails to comply with the order—(i) a parent corporation of the first corporation; and(ii) an executive officer of the first corporation.
362 When environmental enforcement order may be issued(1) The administering authority may issue an order (an
"environmental enforcement order" ) to a person if the authority believes an enforcement ground exists for the person.(2) Also, the administering authority may issue an environmental enforcement order to a person—(a) whom the authority believes to be a prescribed person for a contamination incident; or(b) in the circumstances stated in division 4.(3) To remove any doubt, it is declared that the administering authority may issue an environmental enforcement order to a person in relation to an activity even if the person is the holder of an environmental authority that authorises, or purportedly authorises, the activity.
363 Standard criteria to be considered before issue of environmental enforcement order(1) Before deciding to issue an environmental enforcement order, the administering authority must consider the standard criteria.(2) However, the administering authority is not required to consider the standard criteria before issuing an environmental enforcement order—(a) on an enforcement ground mentioned in section 359(a), (b) or (f); or(b) under section 362(2)(a).
364 Matters to consider before issuing environmental enforcement order relating to particular emissions(1) This section applies to a contravention of section 440 involving an emission of aerosols, fumes, light, noise, odour, particles or smoke.(2) Before deciding to issue an environmental enforcement order in relation to the contravention, the administering authority must—(a) consider the general emission criteria stated in subsection (3); and(b) if the emission is of noise, consider the noise emission criteria stated in subsection (4); and(c) having regard to those criteria, consider whether it would be appropriate to issue the order or to first try to resolve the matter in another way.(3) The general emission criteria, for a particular emission, are as follows—(a) the emission’s characteristics or qualities;(b) the emission’s amount or rate;(c) the duration and time of the emission;(d) whether the emission is continuous or fluctuating;(e) the characteristics and qualities of the receiving environment, including the types of emissions that could reasonably be expected in the receiving environment;(f) the emission’s impact on the receiving environment;(g) in relation to each affected person for the emission—(i) any views of the affected person about the emission of which the administering authority is aware, including views about the degree of interference caused, or likely to be caused, by the emission to lawful activities at the place occupied by the affected person; and(ii) the order of occupancy between the person causing the emission and the affected person; and(iii) for the period during which the person causing the emission has occupied the place from which the emission is generated and the affected person has occupied the place affected by the emission—(A) any structural or other changes to either of those places; and(B) any change to the activities conducted at either of those places by the person causing the emission or the affected person;(h) any mitigating measures that have been taken or could reasonably have been taken by the person causing the emission.(4) The noise emission criteria are as follows—(a) if the administering authority has measured a sound pressure level for the noise—that level;(b) the audibility of the noise;(c) whether the noise is continuous at a steady level or whether it has a fluctuating, intermittent, tonal or impulsive nature;(d) whether the noise has vibration components.(5) In this section—
"affected person" , for an emission, means a person who the administering authority knows to be affected by the emission.
365 References to taking action A reference in this subdivision to taking an action includes achieving an outcome.Example—An environmental enforcement order may state, as an action that must be taken, that the recipient must ensure contaminated water does not reach the aquifer.
366 Form and content of environmental enforcement order(1) An environmental enforcement order must—(a) be in the form of a written notice; and(b) specify the person to whom it is issued; and(c) state details about the relevant matter for the order; and(d) if the order is issued under section 362(2)(a), state—(i) a description of the contamination incident; and(ii) the place at or from which the administering authority believes the incident is happening or has happened; and(e) state the actions the recipient must take to remedy or otherwise address the relevant matter for the order; andNote—See also section 367.(f) for each action stated under paragraph (e)— state the time by which the action must be taken; andNote—See also section 368.(g) state the review or appeal details; and(h) state that it is an offence to fail to comply with the order unless the person has a reasonable excuse; and(i) state the name, address and contact details of the administering authority; and(j) be served on the recipient.(2) The order may include any other information the administering authority considers appropriate.Example—The order may state how the administering authority proposes to monitor compliance with the order, including through the exercise of powers under chapter 9.
367 Actions stated under environmental enforcement order(1) This section applies in relation to the requirement under section 366(1)(e) for an environmental enforcement order to state the actions the recipient must take under the order.(2) Without limiting the actions that may be stated, an environmental enforcement order may—(a) require the recipient to not start, or stop, a stated activity indefinitely, for a stated period or until further notice from the administering authority; or(b) require the recipient to carry out a stated activity only during stated times or subject to stated conditions; or(c) state the reasonable steps the administering authority considers necessary to—(i) remedy or otherwise address the relevant matter, including, for example, requiring a person to clean up, fix or rectify environmental harm; or(ii) avoid contravention or further contravention of a provision of this Act; or(d) if the order is issued on an enforcement ground mentioned in section 359(d) in relation to an incident involving contamination or under section 362(2)(a)—require the recipient to take stated action to do all or any of the following—(i) prevent or minimise contamination;Example—action to contain, remove, disperse or destroy the contaminants(ii) rehabilitate or restore the environment because of the incident, including by taking steps to mitigate or remedy the effects of the incident;(iii) assess the nature and extent of the environmental harm, or the risk of further environmental harm, from the incident, including by inspecting, sampling, recording, measuring, calculating, testing or analysing;(iv) keep the administering authority informed about the incident or the actions taken under the order, including by giving to the administering authority stated reports, plans, drawings or other documents.
368 Time for taking action must be reasonable(1) This section applies in relation to the requirement under section 366(1)(f) for an environmental enforcement order to state a time for taking a stated action.(2) The time stated in the environmental enforcement order must be reasonable having regard to—(a) the nature of the action that must be taken; and(b) the risk to human health or the environment, or risk of loss or damage to property, posed by the relevant matter; and(c) how long the person has been aware of the relevant matter, for example, because an authorised person has previously made an oral requirement that the relevant matter be remedied or otherwise addressed.
369 Other provisions relating to issuing environmental enforcement orders(1) If an environmental enforcement order is issued to 2 or more recipients, a copy must be given to each recipient.(2) If, for any reason, it is not practicable to make a requirement of a person to remedy or otherwise address an enforceable matter by issuing an environmental enforcement order, the requirement may be made orally and confirmed by an environmental enforcement order as soon as practicable.Note—Whether an oral requirement is made before issuing an environmental enforcement order may be relevant to the time by which the person may be required to remedy or otherwise address the relevant matter for the order. See section 368(2)(c).(3) In this section—
"enforceable matter" means a matter that could form the basis for the issuing of an environmental enforcement order.
369A Offence not to comply with environmental enforcement order(1) The recipient of an environmental enforcement order must not wilfully contravene a requirement of the order unless the person has a reasonable excuse.Penalty—Maximum penalty—(a) if the order was issued on a prescribed ground or under section 362(2)(a)†”6,250 penalty units or 5 years imprisonment; or(b) otherwise—1,655 penalty units.(2) The recipient of an environmental enforcement order must not contravene a requirement of the order unless the person has a reasonable excuse.Penalty—Maximum penalty—(a) if the order was issued on a prescribed ground or under section 362(2)(a)†”4,500 penalty units; or(b) otherwise—600 penalty units.(3) In a proceeding for an offence against subsection (1), if the court is not satisfied the defendant is guilty of the offence charged but is satisfied the defendant is guilty of an offence against subsection (2), the court may find the defendant guilty of the offence against subsection (2).(4) In this section—
"prescribed ground" means—(a) an enforcement ground mentioned in section 359(c) or (d) involving serious or material environmental harm; or(b) an enforcement ground mentioned in section 359(e)(ii), (iii), (iv), (v), (vi), (xii) or (xiii) or (f)(i).
369B Defences for particular proceedings(1) This section applies in relation to an environmental enforcement order issued under section 362(2)(a).(2) In a proceeding for an offence against section 369A(1) or (2), it is a defence for the recipient of the environmental enforcement order to show—(a) that the recipient is not a prescribed person for the contamination incident; or(b) that—(i) the contamination incident was caused by a natural disaster; and(ii) the recipient had taken all measures it would be reasonable for the recipient to have taken to prevent the incident, having regard to all the circumstances including the inherent nature of the risk and the probability of the natural disaster; or(c) that—(i) the contamination incident was caused by a terrorist act or other deliberate act of sabotage by someone other than the recipient; and(ii) the recipient had taken all measures it would be reasonable for the recipient to have taken to prevent the incident, having regard to all the circumstances including the inherent nature of the risk and the nature of the recipient’s connection with the incident; or(d) if the recipient is a prescribed person mentioned in section 361(d)(i), that the person took all reasonable steps to ensure the first corporation complied with the notice served on the first corporation; or(e) if the recipient is a prescribed person mentioned in section 361(d)(ii), that—(i) the person took all reasonable steps to ensure the first corporation complied with the notice served on the first corporation; or(ii) the person was not in a position to influence the conduct of the first corporation in relation to its compliance with the notice served on the first corporation.(3) In this section—
"first corporation" see section 361(d).
369C Notice of disposal by recipient in particular circumstances(1) This section applies if the recipient of an environmental enforcement order proposes to dispose of the place or business to which the order relates to someone else (the
"buyer" ).(2) Before agreeing to dispose of the place or business, the recipient must give written notice to the buyer of the existence of the order.Penalty—Maximum penalty—50 penalty units.(3) If the recipient does not comply with subsection (2), the buyer may rescind the agreement by written notice given to the recipient before the completion of the agreement or possession under the agreement, whichever is the earlier.(4) On rescission of the agreement under subsection (3)—(a) a person who was paid amounts by the buyer under the agreement must refund the amounts to the buyer; and(b) the buyer must return to the recipient any documents about the disposal (other than the buyer’s copy of the agreement).(5) Subsections (3) and (4) have effect despite anything to the contrary in the agreement.(6) Within 10 business days after agreeing to dispose of the place or business, the recipient must give written notice of the disposal to the administering authority.Penalty—Maximum penalty for subsection (6)—50 penalty units.
369D Notice of ceasing to carry out activity(1) This section applies if—(a) the relevant matter for an environmental enforcement order relates to the carrying out of an activity; and(b) the recipient of the order ceases carrying out the activity.(2) Within 10 business days after ceasing to carry out the activity, the recipient must give written notice of the ceasing to carry out the activity to the administering authority.Penalty—Maximum penalty—50 penalty units.
369E Procedure if recipient is not the owner of land on which action is required(1) This section applies if an environmental enforcement order requires the recipient to take action on land that the recipient does not own.(2) The recipient, or person taking the action for the recipient (the
"contractor" ), may enter the land to take the action only—(a) with the consent of the owner and occupier of the land; or(b) if the recipient or contractor has given at least 2 business days written notice to the owner and occupier.Note—See also section 369G.(3) The notice under subsection (2)(b) must inform the owner and occupier of—(a) the intention to enter the land; and(b) the purpose of the entry; and(c) the days and times when the entry is to be made.(4) Nothing in this section authorises the recipient or contractor to enter a building used for residential purposes.
369F Taking action in place of recipient(1) This section applies if—(a) the recipient of an environmental enforcement order fails to take an action stated in the order within the time stated in the order; or(b) the operation of the decision to issue an environmental enforcement order is stayed under section 539A or 539B.(2) An authorised person, or person acting under the direction of an authorised person (the
"contractor" ), may take the action stated in the order.(3) For subsection (2), the authorised person or contractor may enter land on which the action is required to be taken—(a) with the consent of the owner and occupier of the land; or(b) if the authorised person or contractor has given at least 2 business days written notice to the owner and occupier.Note—See also section 369G.(4) The notice under subsection (3)(b) must inform the owner and occupier of—(a) the intention to enter the land; and(b) the purpose of the entry; and(c) the days and times when the entry is to be made.(5) Subsection (3) does not limit another provision of this Act under which an authorised person may enter land.Note—See also sections 452 and 458 for other powers to enter a place to take the action.(6) Nothing in this section authorises the authorised person or contractor to enter a building used for residential purposes.
369G Provision about taking action on land(1) This section applies in relation to—(a) a recipient or contractor who, under section 369E(2), enters land on which action is required to be taken; or(b) an authorised person or contractor who, under section 369F(3), enters land on which action is required to be taken.(2) In taking the action, the recipient, authorised person or contractor must take all reasonable steps to ensure the recipient, authorised person or contractor causes as little inconvenience, and does as little damage, as is practicable in the circumstances.(3) If a person incurs loss or damage because of action taken by the recipient, authorised person or contractor, the person is entitled to be paid by the recipient, authorised person or contractor reasonable compensation for the loss or damage—(a) as agreed between the recipient, authorised person or contractor and the person; or(b) failing agreement under paragraph (a), as decided by a court having jurisdiction for the recovery of amounts up to the amount of compensation claimed.(4) Subsection (3) does not apply to loss or damage incurred by a company of whom a recipient is a related person.(5) The court may make an order about costs it considers just.
369H Cost recovery by recipient of environmental enforcement order in particular circumstances(1) This section applies in relation to an environmental enforcement order issued under section 362(2)(a).(2) To the extent that the recipient of the environmental enforcement order complies with the order but did not cause or permit the contamination incident to happen, the recipient may recover as a debt, from another person who caused or permitted the contamination incident to happen, the amount of loss or expense incurred by the recipient in complying with the order.
369I Obstruction of recipient complying with environmental enforcement order(1) A person must not obstruct the recipient of an environmental enforcement order in the taking of action to comply with the order, unless the person has a reasonable excuse.Penalty—Maximum penalty—165 penalty units.(2) In this section—
"recipient" , of an environmental enforcement order, includes a person acting for the recipient of the order.
369J Administering authority may issue cost recovery notice(1) The administering authority may issue a written notice (a
"cost recovery notice" )—(a) to the recipient of an environmental enforcement order if—(i) the recipient fails to comply with the order; and(ii) an authorised person or contractor acts under section 369F in relation to the order; or(b) to the recipient of an environmental enforcement order if—(i) the operation of the decision to issue the order is stayed under section 539A or 539B; and(ii) during the period of the stay, an authorised person or contractor acts under section 369F in relation to the order; and(iii) the appeal ends and—(A) there is no decision under section 530 or 539; or(B) the effect of the decision under section 530 or 539 is to confirm the decision to issue the order to the extent the order required the recipient to take the action that was ultimately taken by the authorised person or contractor under section 369F; or(C) the effect of the decision under section 530 or 539 is to issue an environmental enforcement order requiring the recipient to take action for the same purpose as the action that was ultimately taken by the authorised person or contractor under section 369F; or(c) to a person whom the administering authority believes to be a prescribed person for a contamination incident, if an authorised person, or person authorised under section 467(1)(b), acts under section 467 in relation to environmental harm caused or likely to be caused by the incident.(2) A cost recovery notice may claim an amount for costs or expenses reasonably incurred in—(a) for a notice issued under subsection (1)(a) or (b)—(i) taking an action stated in the environmental enforcement order; or(ii) monitoring compliance by the recipient with the environmental enforcement order; or(b) for a notice issued under subsection (1)(c)—taking the action under section 467.(3) A cost recovery notice must state the following matters—(a) the name of the recipient of the notice;(b) the reasons why the administering authority is issuing the notice;(c) if the notice relates to a contamination incident—the place at or from which the administering authority is satisfied the incident happened;(d) the amount claimed;(e) a description of costs and expenses giving rise to the amount claimed;(f) that, if the recipient does not pay the amount claimed to the administering authority within 30 days after the day the notice is issued, the administering authority may recover the amount from the recipient as a debt;(g) the name, address and contact details of the administering authority;(h) the review or appeal details.(4) Subject to section 369K, if the recipient of the cost recovery notice does not pay the amount to the administering authority within 30 days after the day the notice is issued, the administering authority may recover the amount from the recipient as a debt.(5) A reference in this section to an authorised person includes a person acting under the direction of an authorised person.(6) In this section—
"costs and expenses" includes labour, equipment and administrative costs and expenses.
369K When amount claimed under cost recovery notice is not payable(1) This section applies if a cost recovery notice is issued to the recipient of an environmental enforcement order that was issued under section 362(2)(a).(2) The amount claimed under the cost recovery notice is not payable—(a) if the recipient is not a prescribed person for the contamination incident; or(b) if both of the following apply—(i) the contamination incident was caused by a natural disaster;(ii) the recipient had taken all measures it would be reasonable for the recipient to have taken to prevent the incident, having regard to all the circumstances including the inherent nature of the risk and the probability of the natural disaster; or(c) if both of the following apply—(i) the contamination incident was caused by a terrorist act or other deliberate act of sabotage by someone other than the recipient;(ii) the recipient had taken all measures it would be reasonable for the recipient to have taken to prevent the incident, having regard to all the circumstances including the inherent nature of the risk and the nature of the recipient’s connection with the incident; or(d) for a recipient who is a prescribed person mentioned in section 361(d)(i), if the recipient took all reasonable steps to ensure the first corporation paid the amount claimed under the notice served on the first corporation; or(e) for a recipient who is a prescribed person mentioned in section 361(d)(ii), if—(i) the recipient took all reasonable steps to ensure the first corporation paid the amount claimed under the notice served on the first corporation; or(ii) the recipient was not in a position to influence the conduct of the first corporation in relation to its paying the amount claimed under the notice served on the first corporation.(3) To the extent that the recipient pays an amount in compliance with the cost recovery notice but did not cause or permit the contamination incident to happen, the recipient may recover the amount as a debt from another person who caused or permitted the contamination incident to happen.(4) In this section—
"first corporation" see section 361(d).
369L Several recipients of a cost recovery notice If a cost recovery notice is issued to 2 or more recipients—(a) a copy of the notice must be given to each recipient; and(b) the amount claimed under the notice is payable by the recipients jointly and severally.