---

Environmental Prosecutions

---

Environmental Prosecutions in Queensland

There are over 70 legislative Acts that are in place for the protection of the environment in both Queensland, and Australia. The primary Acts utilised for environmental crimes and offences are the Environmental Protection Act 1994 (Qld) (the EPA) and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBCA).

Prosecutions for causing environmental harm are commenced by the Department of Environment and Science and can carry significant penalties. If you or your business has received a notice of an investigation by the Department, or have charges before the Court, it is essential that you obtain effective legal advice at the earliest possible stage.  

What is an environmental crime or offence?

The Environmental Protection Act

Under the EPA a person can be found to be committing an environmental offence if they are found to damage the environmental value.

The term “environmental value” is defined to be:

1. a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or
2. another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation.

If it is found that you have caused damage to the environmental value, you may face charges of environmental harm or environmental nuisance.

Environmental Harm

Environmental harm is defined as any adverse effect on the environmental value and can be expanded to even include environmental nuisance. It can be the result of either a direct or indirect action towards the environment. Environmental harm can also be the result of one activity or the combined result of multiple activities or factors.

The charge of environmental harm is divided into two types:

1. material environmental harm; and
2. serious environmental harm.

The classification of the environmental harm depends on the damage done to the environmental value. This is assessed on a case-by-case basis as the environmental legislation covers a wide range of potential offences.

These offences include (but are not limited to) illegal:

• fishing;
• dredging;
• land and tree clearing;
• removal and dumping of waste;
• culling of native species of flora and fauna;
• damage to waterways;
• mining; and
• contamination of land and water.

Material environmental harm

Material harm to the environment is defined as harm:

1. that is not trivial or negligible in nature, extent or context; or
2. that causes actual, or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount but less than the maximum amount; or
3. that results in costs of more than the threshold amount but less than the maximum amount being incurred in taking appropriate action to—
4. prevent or minimise the harm; and
5. rehabilitate or restore the environment to its condition before the harm.

Following the review in 2023, the threshold amount is if the damage done equates to:

• $10,000 to $100,000 if charged with an offence that occurred before the financial year ending on 30 June 2023; or
• $10,740 to $107,400 if charged after the financial year ending on 30 June 2023.

These amounts increase every financial year.

The seriousness of the penalty imposed will be considered based on the potential long-term effects of any harm done.

If charged with material environmental harm a person may face a maximum penalty of 1,665 penalty units ($257,742) as of May 2024. In cases where the offending was done wilfully, a maximum penalty of two years imprisonment or 4,500 penalty units ($696,600) as of May 2024.

Serious Environmental Harm

Serious environmental harm is defined as harm:

1. that is irreversible, of a high impact or widespread; or
2. caused to—
   1. an area of high conservation value; or
   1. an area of special significance, such as the Great Barrier Reef World Heritage Area; or
3. that causes actual, or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount; or
4. that results in costs of more than the threshold amount being incurred in taking appropriate action to—
5. prevent or minimise the harm; and
6. rehabilitate or restore the environment to its condition before the harm.

The threshold amount for serious environmental harm is $107,400. This minimum increases every financial year.

If charged with serious environmental harm, a person may face a maximum penalty of 4,500 penalty units ($696,600) as at May 2024.

In cases where the offending was done wilfully, the maximum penalty is 5 years imprisonment or 6,250 penalty units ($967,500) as at May 2024.

If the court does not find guilt relating to Serious environmental harm, they can still be charged with material environmental harm.

Environmental Nuisance

Environmental nuisance relates to any unreasonable interference or acts that would be likely to cause interference.

If charged with material environmental nuisance, a person may face a maximum penalty of 600 penalty units ($92,880) as of May 2024. In cases where the offending was done wilfully, a maximum penalty of 1,665 penalty units ($257,742) as at May 2024 applies.

Regulation and enforcement of environmental crimes

Unlike most criminal matters, for environmental matters in Queensland, the Department of Environment and Science (the Department) handles regulating, enforcing and prosecuting Queensland’s Environmental Laws.

Under these laws, the Department is provided with several powers that they can use to remedy, deter or punish any damage to the environmental value or contravention the acts. These powers generally fall into one of the below categories:

1. An administrative notice and order made under legislation

The purpose of an administrative notice is to prevent or rectify a potential contravention of an Act. These notices are sent out for the purposes of investigating the cause.

An example of a notice sent to a business would be for the purpose of finding the cause of the illegal dumping of waste.

2. A warning letter

These are typically issued in the case of first-time offenders who contravene an Act. They are also issued for minor contraventions of an Act or in circumstances where a fine is not the appropriate option (for example where the contravention may be easily remedied).

3. The cancellation or suspension of a permit, licence, or authority

Each Act has specific requirements that need to be met in order to maintain a licence under the Act. This includes the payment of fees, and compliance with the eligibility and legislative criteria. If these terms are not met, a licence can be cancelled or suspended depending on the level of non-compliance. Should a licence be suspended or cancelled, the person can apply to have the decision reviewed.

We recommend that you contact Aitken Whyte Lawyers as soon as possible if your licence is at risk.

4. An Infringement notice

These notices are sent to deter and fine minor contraventions that are not serious enough to proceed via prosecution.

5. An enforceable undertaking

These undertakings are agreements which are made between the Department and the individual(s) responsible for the contravention. They are usually for the purposes of making the individual agree to undertake an action or task to either cease or rectify their contravention of an Act.

Failure to comply with these undertaking can lead to prosecution.

6. A court order made under legislation

These orders are usually made in the case of serious contravention of an Act. They are orders by the court to immediately cease or remedy a contravention.

Failure to comply with these orders can result in serious consequences.

7. Prosecution

The prosecution of environmental matters is used as a last resort by the Department. The need to prosecute is weighed up against the prospects of success and the potential public interest in the matter.

This option is usually only used in serious contraventions of the law or where other deterrents have failed.

Other Contraventions

It is important to note that any finding of a non-compliance with orders, notices, licences, plans, and most general provisions of the Environmental Protection Act can result in the following:

• in acts done wilfully or otherwise: 4,500 penalty units ($696,600); or
• in extreme cases: a maximum penalty of 5 years imprisonment, or 6,250 penalty units ($967,500).

If you have been provided with a notice it is critical for you to receive timely legal advice on how to move forward. Environmental prosecutions and investigations are complex. The team at Aitken Whyte Lawyers are well placed to assist you with navigating these matters, and to provide you with your best options moving forward.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au