Much of the focus of discussion on amendments made by Environmental Protection (Chain of Responsibility) Amendment Act 2016 (CoRA) have been in relation to amendments that broaden who can be exposed to receiving environmental protection orders from the Queensland Department of Environment and Heritage Protection. This Developing InSight discusses another, less talked-about, but significant, amendment that came in with CoRA that has implications for how individuals and companies should deal with investigations under the Environmental Protection Act 1994.

1. Developing InSight
No more privilege against self-incrimination under the Environmental Protection Act 1994:
You do not have the right to remain silent. Anything you say cannot be used against you
Key tips
While the amendments under the Environmental
Protection (Chain of Responsibility) Amendment Act 2016
(CoRA) sparked a lot of discussion about ‘related
persons’ and guidelines, we think the real topic for
discussion ought to be about the amendment to section
476 of the Environmental Protection Act 1994 (EP Act).
With the amendment to section 476 (failure to attend or
answer questions) it is increasingly important for
individuals:
1. To understand their rights when answering questions;
2. To consider whether they are required to answer
individual questions put to them; and
3. If they are speaking on behalf of a company, to
understand what can be done with the answers they
are compelled to give.
The above considerations are not easy and both
individuals and companies should seek prompt legal
advice from experts who have the experience to help
guide them through the process.
Right to remain silent?
A significant amendment to the EP Act has removed
the right to refuse to answer questions on the ground
of self-incrimination when compelled to attend and
answer questions about suspected offences.
The power
Section 465 of the EP Act empowers the administering
authority (DEHP) to compel a person (including a
corporation) to answer questions about a suspected
offence under the EP Act.
The amendment
Up until 27 April 2016, the EP Act allowed an individual
(as distinct from a corporate entity) to refuse to answer
questions if answering them might tend to incriminate the
individual.
This privilege against self-incrimination has been in every
version of the EP Act since its enactment and is a
fundamental common law right.
On 27 April 2016, all that changed when CoRA came into
force.
An individual now cannot refuse to answer questions on
the basis that the answer might tend to incriminate them.
In short, a person is now forced to answer questions they
could have previously refused to answer.
A person can still refuse to answer a question if they have
a reasonable excuse (but that excuse cannot be on the
basis the answer might tend to incriminate them).
Examples of questions that do not need to be answered
include:
1. Questions seeking information that is not relevant to
the offence being investigated.
2. Questions that the individual does not know the
answer to (a person is not required to guess).
The rationale
The Explanatory Notes to the CoRA are clear as to why
the common law privilege against self-incrimination was
removed from the EP Act:
This limitation has created unnecessary difficulties in
investigating companies suspected of offences under
the EP Act. The amended provision will require a
person to answer a question even if the answer might
incriminate them.
31 March 2017

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The trade-off
The amendment brought with it additional subsections that
make it so that ‘incriminating evidence’ is not capable of
being used against an individual in civil or criminal
proceedings (unless it relates to the answer being false of
misleading).
Incriminating evidence means evidence of, or directly or
indirectly derived from, the answer. This would include a
scenario where an answer led to the discovery of a
document, the document could not be used as evidence
against the individual.
Its use
In our experience, DEHP investigators are using this
power far more frequently than any other change made
under CoRA.
It is likely this trend will continue given that it is such a
powerful investigation tool and removes a significant
roadblock to obtaining evidence.
Implications for companies
A notice under section 465 may be issued to a ‘person’,
including a company. The company (either the board or
sole director) must then decide who it will send as its
representative to answer questions. Often times this will
be a company director or manager who has day-to-day
oversight of the matters being investigated.
It is important to understand that whatever answers the
individual gives can be used against the company. The
protection provided by the trade-off discussed earlier does
not extend to companies, only individuals.
The individual who the company nominates to answer
questions, however, does gain the benefit of the trade-off.
This is because although they are there as a
representative of the company, the answers given are
their own, individual answers and not those of the
company.
The choice of who will attend is an important one. DEHP
will expect that the company representative will be able to
answer questions about the alleged offence(s) but you
should also consider who may most be at risk of facing
charges against them personally and who may most
benefit from the protection provided by the trade-off.
Conclusion
When issued with a notice to attend and answer questions
you should pay close attention to whom the notice has
been issued.
If it has been issued to a company, it ought to choose the
nominated company representative carefully. Further,
when giving answers to questions the individual should be
cautious, ensure they consider their rights when
answering each individual question and decide whether
they are required to answer it.
If the notice has been issued to an individual, the same
careful consideration should be given to each individual
question before answering. The protection provided by the
trade-off, however, does provide some comfort to
individuals.
Ultimately, if a question is asked that is outside the scope
of the power or if you have a reasonable excuse then you
can rightly refuse to answer.