1. Kelly McIntyre LLB, BCom, LLM (Int. Trade)
Barrister-at-Law
ABN 37 482 386 031
Alfred Lutwyche Chambers
Level 27 East
Santos Place
32 Turbot Street
BRISBANE Q 4000
E&R UPDATE
T: (07) 3211 4014
E: kmcintyre@qldbar.asn.au
W: www.kmcintyre.com.au
C: www.alfredlutwychechambers.com
Energy & Resources Update 21 March 2016
Liability limited by a Scheme approved under professional standards legislation
DEHP’s extended powers to issue EPO’s to related
persons & amendments to Financial Assurance
On 15 March 2016, the Minister for Environment and Heritage Protection and
Minister for National Parks and the Great Barrier Reef, introduced the
Environmental Protection (Chain of Responsibility) Amendment Bill 2016 (the Bill)
for the purpose of ensuring that related parties, such as parent companies and
company directors, can be held responsible for taking action to prevent or clean up
environmental harm.
The Bill was referred to the Agriculture and Environment Committee which is due
to report by 15 April 2016.
The amendments will be contained in the Environmental Protection Act 1994 (EP
Act) and some aspects are proposed to act retrospectively.
ENVIRONMENTAL PROTECTION ORDERS
The insertion of a new Chapter 7 will provide the Department of Environment and
Heritage Protection (the DEHP) with extended powers to issue environmental
protection orders (EPO’s) against a party with a relevant connection to an
environmental authority (EA) holder. Such powers will capture related parties
including parent companies, company directors, underlying landholders and any
person that may have received a financial benefit from activities carried out under
an EA including via profit, income, revenue, dividend, distribution, priority or
preference whether direct or indirect, that is received, obtained, preferred or
enjoyed.
FINANCIAL ASSURANCE
The payment of financial assurance (FA) is a requirement either under the EP Act or
as a condition of an EA. The DEHP is required to decide the amount and form of FA
under s295 of the EP Act (the Original Decision). Such decision must be made
having regard to the prescribed guideline (ESR/2015/1758) which came into effect
on 4 March 2016. The Original Decision is subject to internal review and may
subsequently be appealed to the Land Court. The commencement of an appeal
does not stay the Original Decision. In order to obtain a stay of the Original
Decision, an application must be made. The ordinary principles regarding a stay
apply.
The Bill introduces ss 522A and 535B which prevent the grant of a stay of an
Original Decision, unless the EA Holder has given the DEHP security for at least 85%
of the amount of FA that was decided in the Original Decision. Arguably, this
requirement will significantly impact on an EA holder’s ability to pursue an Appeal
of the Original Decision, particularly in light of the recent significant increases in FA
assessments undertaken by the DEHP and the requirements of ESR/2015/1758.
For more information about the amendments and how they might impact your
clients please contact me at kmcintyre@qldbar.asn.au
What you need to
know …
 Proposed new Ch 7, Pt
5, Div 2 to allow DEHP
to issue an EPO to
related persons of
companies.
 Related Person of a
company includes a
holding company, a
company director, the
underlying landholder
and any person that
the DEHP decides has a
relevant connection
with the EA holder
including a person in
receipt of a financial
benefit.
 EPO may provide for
joint and several
liability.
 s522A and s535B
prevent a stay of a
decision about the
amount of FA required
under a condition of an
EA being granted
unless at least 85% of
the amount decided by
the DEHP is given as
security.