This Developing InSight deals with the enhanced compliance and enforcement measures under the Vegetation Management and Other Legislation Amendment Bill 2018 (VMOLA Bill).

1. Developing InSight
22 March 2018
Enforcement changes under Queensland’s vegetation clearing laws
VMOLA series update 2
This second Developing InSight deals with the
enhanced compliance and enforcement measures
under the Vegetation Management and Other
Legislation Amendment Bill 2018 (VMOLA Bill).
Our previous Developing InSight in our VMOLA Bill
series discussed other changes, including an overview
of the VMOLA Bill, and can be located via our
SlideShare.
Power to enter place on reasonable
belief of vegetation clearing offence
A notable change with respect to how suspected
vegetation clearing offences are investigated comes
with the introduction of the new section 30A to the
Vegetation Management Act 1999 (VMA).
Essentially, the new section 30A allows an authorised
officer to enter and re-enter a person’s property without
the occupier’s consent or a warrant to investigate a
vegetation clearing offence. The power may be
exercised at any time, using the help and force that is
necessary and reasonable in the circumstances.
At first glance, the new power of entry resembles very
closely the power given under a warrant but without
any judicial oversight. Anyone thinking that is not
wrong. However, for the reasons discussed below
there is an argument the use of this power will not
become widespread or common.
The statutory checks in exercising the new power
As with all powers of entry exercised by investigating
officers, there are a number of checks that must first be
met before the discretion on whether to exercise the
power can be made. These requirements include:
1 The officer must have a belief on ‘reasonable
grounds’ that a vegetation clearing offence is
happening or has happened at the place; and
2 The time, help and force used in exercising
the power must be ‘necessary and
reasonable in the circumstances’; and
3 Written notice of the proposed entry under the
section must be given to an occupier at least
24 hours before the entry.
The first requirement can likely be satisfied by the
officer reviewing readily available satellite imagery and
conducting a search for vegetation clearing
permits/notifications.
The second and third requirements will restrict the use
of the power and ensure an occupier is not caught by
surprise, allowing an opportunity to permit free access
to avoid damage to the property.
Although the above requirements seem to be capable
of being satisfied with relative ease, it is still critically
important they are satisfied in each case the power is
contemplated.
For example, an officer who purports to enter a
property under this power without ensuring proper
written notice has been given runs the real risk of not
satisfying the third requirement and entering the
property unlawfully. It will therefore be important an
officer satisfy themselves to a very high level of
satisfaction that the written notice has been given.
A failure to comply with the requirements will expose
the Department of Natural Resources, Mines and
Energy (DNRME) to civil claims/penalties, including
under trespass. Further, the improper exercise of the
power will likely be harshly criticised by the Courts
given there are well established channels (ie. warrants)
to permit entry to a property without a person’s consent
and/or using force.
A balanced approach and practical constraints on
overuse
With all uses of power it will necessarily involve the
exercise of judgement on how to approach an
investigation and enter a property.

2. GOLD COAST ENVIRONMENT AND PLANNING TEAM CONTACTS
EMAIL: firstname.lastname@minterellison.com
Michelle Pennicott Carolyn Salam Steve Amundsen Genevieve McCracken Nick Lichti Tammy Tye Harley Day Monika Volarevic
PARTNER PARTNER CONSULTANT SENIOR ASSOCIATE SENIOR ASSOCIATE LAWYER PARALEGAL (PLANNING QUALIFIED) LAW CLERK
T: +61 7 5553 9433 T: +61 7 5553 9432 T: +61 7 5553 9431 +61 7 5553 9453 +61 7 5553 9509 +61 7 5553 9409 +61 7 5553 9420 +61 7 5553 550
With initiatives such as the Early Detection System, the
DNRME have made it clear the preferred method of
resolving potential vegetation clearing offences is
through communication and early engagement with
landowners/occupiers.
Cooperation by landowners/occupiers with DNRME’s
enquiries can quickly evaporate and instill a strong ‘us
vs them’ mentality if the new power is perceived as
being overused or abused.
Also, as the power does not permit entry to any private
residence it restricts the type of evidence an officer can
collect (eg. receipts or contracts for clearing). In most
cases, a warrant will likely be a better investigative tool.
A final practical constraint on the use of this power will
likely be DNRME’s strong commitment to officer safety.
The July 2014 shock death of a New South Wales
environmental officer serving a notice while
investigating suspected unlawful vegetation clearing
had a profound effect on how investigations are carried
out in Queensland. From a practical perspective, if
there are any indications that there could be hostility
towards DNRME’s investigation the default position
has been (and will likely remain) to obtain a warrant
and seek the assistance of local police.
As the power operates in much the same way as a
warrant but without judicial oversight, it will be
important DNRME use the power only in the ‘right’
cases.
No return of ‘reverse onus’ on occupier
or exclusion of mistake of fact defence
From 28 March 2003 to 23 May 2013 the VMA
contained controversial ‘reverse onus’ and defence
exclusion sections. Essentially, the two sections
repealed by the Newman Government made it so
that any unlawful vegetation clearing was deemed to
have been done by the occupier unless there was
evidence to the contrary and occupiers could not
rely on the defence of mistake of fact.
The Minister for Natural Resources, Mines and
Energy, while introducing the VMOLA Bill, said they
had listened to stakeholder feedback when deciding
not to reintroduce the provisions.
The introduction of Enforceable
Undertakings as an alternative to
prosecution
The new compliance tool is an option that can be
entered into voluntarily with DNRME by a person
who has unlawfully cleared vegetation. The effect
of entering into the arrangement means:
▪ Any proceeding (including a prosecution)
already commenced by DNRME is to be
discontinued as soon as practicable;
▪ No proceeding (including a prosecution) is to be
commenced against the person; and
▪ The person does not admit guilt.
Enforceable undertakings (EU) are not uncommon in
other legislation but the most recent example of their
introduction in an environmental context was in 2014
when they were introduced to the Environmental
Protection Act 1994 (EP Act). Although they
received some discussion when they were
introduced under the EP Act they remain rarely used
by the Department of Environment and Science
(DES). There is currently only one EU listed in the
enforcement register, which is required to be
published by DES.
If the one EU under the EP Act is anything to go by,
the circumstances where an EU will be accepted by
DNRME will be exceptional. The reasons for
granting the EP Act EU included:
▪ Prompt notification to DEHP (as it was then) of
the incident;
▪ The incident was caused in part by heavy rain,
causing severe local flooding which was not
foreseen;
▪ Since the incident, there has been significant
implementation of short and long-term
improvements;
▪ There are significant public interest
considerations that weigh against a decision to
prosecute (eg. onerous responsibilities and the
local residents would ultimately pay any
penalty/costs imposed by the Court);
▪ The implementation of the works will have a
benefit for the community; and
▪ Any penalty or costs imposed by the Court would
be more effectively used in progressing the works
program for rehabilitation.
It is unknown how EUs will be used by DNRME in
their compliance and enforcement strategy but it’s
likely anyone seeking to have an EU accepted will
be required to rehabilitate or offset the vegetation
that has been cleared as a bare minimum.
‘Unlawful clearing’ not an offence but is it a
Category A area?
Typically, an area of vegetation that has been
unlawfully cleared is shown on a regulated vegetation
management map as a Category A area. This ensures

3. GOLD COAST ENVIRONMENT AND PLANNING TEAM CONTACTS
EMAIL: firstname.lastname@minterellison.com
Michelle Pennicott Carolyn Salam Steve Amundsen Genevieve McCracken Nick Lichti Tammy Tye Harley Day Monika Volarevic
PARTNER PARTNER CONSULTANT SENIOR ASSOCIATE SENIOR ASSOCIATE LAWYER PARALEGAL (PLANNING QUALIFIED) LAW CLERK
T: +61 7 5553 9433 T: +61 7 5553 9432 T: +61 7 5553 9431 +61 7 5553 9453 +61 7 5553 9509 +61 7 5553 9409 +61 7 5553 9420 +61 7 5553 550
the area is protected from re-clearing and gives it an
opportunity to be restored to its previous state.
The VMOLA Bill puts in place an ‘interim period’,
starting 8 March 2018 and ending immediately before
the date of assent. During this period, the offence
provisions (ss162 (prohibited development) and 163
(assessable development without permit)) under the
Planning Act 2016 (PA) do not apply.
There are no specific VMOLA Bill provisions that make
vegetation cleared during the interim period a Category
A area.
Therefore, the question is will areas of vegetation
cleared during this interim period be categorised as a
Category A area under the VMA?
As outlined below, the answer is not immediately clear
but there is an easy ‘work around’ to avoid any
ambiguity.
Section 20AL of the VMA makes an area a Category
A area under certain circumstances. When it comes
to unlawfully cleared vegetation, the area becomes a
Category A area in one of three ways, namely:
▪ Having been ‘unlawfully cleared’;
▪ DNRME believes it has been unlawfully cleared
and decides it is a Category A area; or
▪ Is, or has been, subject to a ‘restoration notice’
when an official believes it has been unlawfully
cleared.
Has the area been ‘unlawfully cleared’?
Unlawfully cleared is defined under the VMA as an
area of vegetation cleared in contravention of a number
of specific sections. For the purposes of the VMOLA
Bill interim period, however, the only relevant sections
are 162, 163(1), 164, 165 or 168(5) of the PA.
An area of vegetation is unlawfully cleared under the
VMA if it is done in ‘contravention’ of those sections.
Under the VMOLA Bill, however, sections 162 and 163
‘do not apply’ to a person carrying out ‘unlawful
clearing’ (defined under the PA to mean clearing that
constitutes an offence as a result of VMOLA Bill
amendments).
Under the Acts Interpretation Act 1954 the meaning of
the term ‘contravene’ includes ‘fail to comply with’.
It is difficult to reconcile on the one hand sections 162
and 163 not applying and the clearing not being an
offence and on the other hand classifying the clearing
as being in contravention of, and a failure to comply
with, either section 162 or 163.
The argument would need to be that the clearing was
still a contravention of section 162 or 163 despite the
sections not applying to the person during the interim
period. However, how can a person fail to comply with
something that does not apply to them?
The same issue arises when we consider the second
way an area can be categorised as a Category A area.
Under section 20BA of the VMA, DNRME may make
the area a Category A area if there is a reasonable
belief a ‘vegetation clearing offence’ is or has been
‘committed’. Whether an offence has been committed
when sections 162 and 163 do not apply may also be
subject to argument by those facing such a
categorisation.
How these sections of the VMOLA Bill and the VMA
will be interpreted and applied by DNRME is unknown
and further consideration is needed.
From a practical perspective, however, we do not need
to worry too much about reconciling the wording of the
provisions because there is an easy work around for
DNRME (discussed below).
The area is subject to a restoration notice
The VMOLA Bill makes specific provision for the issue
of restoration notices for clearing carried out during the
interim period. This would put the previous issues
discussed beyond argument if a restoration notice is
issued for each area cleared during the interim period.
As this step is an administrative decision that can be
made by DNRME unilaterally it is the easiest way to
ensure areas are categorised as Category A areas.
What happens from here?
The VMOLA Bill has been referred to the State
Development, Natural Resources and Agricultural
Industry Development Committee for inquiry, with the
Committee’s report due back to Parliament by 23 April
2018. The Government then has 3 months to respond
to the report’s recommendations (if any). Submissions
on the VMOLA Bill have closed.
The information contained in this update is intended as a guide only.
Professional advice should be sought before applying any of the
information to particular circumstances.