On 30 September 2015, the Environmental Protection Act 1994 (Qld) (EP Act) was amended to make provision for a new enforcement action, namely enforceable undertakings.
Broadly, an enforceable undertaking for the purposes of the EP Act is a published binding agreement between the Queensland Department of Environment and Heritage Protection (DEHP) and person/ company whereby the person/company agrees to undertake specific actions in relation to an alleged breach in return for the DEHP agreeing not to prosecute. Enforceable undertakings are a mechanism present in of other areas of law such as workplace health and safety, but are new to the EP Act.
An enforceable undertaking can be suggested by the DEHP or voluntarily applied for by a person/company where there has been an alleged breach or breaches of the EP Act, provided the breach or breaches are not indictable offences. Indictable offences are those offences which attract a maximum penalty of two years or more and, generally under the EP Act, relate to willful breaches of the EP Act.
For the reasons outlined bellowed, a decision to enter into an enforceable undertaking requires very careful consideration.
While such undertakings are intended to be an alternative to prosecution, they do not entirely guard against this. In making an application for an enforceable undertaking it is necessary to provide the DEHP with relevant information including:
- Details of the circumstances which led to the alleged contravention;
- A statement of regret that the alleged contravention occurred; and
- A statement of commitment that the acts or omissions and any other facts which caused or led to the alleged contravention have ceased and that all reasonable endeavours have been and will be made to ensure they do not reoccur.
It is important to appreciate that the DEHP can refuse an application for an enforceable undertaking and use the application information against the person/ company. While the making of an enforceable undertaking does not, of itself, constitute an admission of guilt, the information provided in applying for the enforceable undertaking can furnish the DEHP with sufficient information to successfully prosecute. There is no privilege or protection in respect of the admissibility of documents submitted and their use as evidence against the person in a prosecution for the original offence. This is in contrast to the protection that exists in section 351 of the EP Act in relation to the voluntary submission of a transitional environmental program.
It is difficult to guard against the prejudicial use of the application information. A guideline published by the DEHP in relation to enforceable undertakings under the EP Act indicates that an enforceable undertaking will be rejected if it includes any unacceptable terms, for instance, a denial of liability or terms which may set up a defence for possible non-compliance with the enforceable undertaking or contravention of the EP Act.
Consequences of non-compliance
Even if an enforceable undertaking is accepted in lieu of prosecution, the terms of the enforceable undertaking will be publicly available (published on the DEHP’s website) and form part of the compliance history of the person/company. If the enforceable undertaking is not complied with, the consequences are extensive, including that the DEHP may prosecute for breach of the enforceable undertaking and apply to the Magistrates Court for the undertaking to be enforced, and also prosecute the original alleged breach or breaches of the EP Act. Wilful contravention of an enforceable undertaking attracts a significant financial penalty and may led to five years imprisonment for an individual.
In light of the above, enforceable undertakings should not be seen as commensurate with other existing enforcement actions in the EP Act, such as transitional environmental programs. Enforceable undertakings should only be considered in response to major or serious contraventions that would otherwise be considered appropriate for prosecution, and, even then be considered very carefully.
The EP Act does not provide a timeframe for a person/company to apply for an enforceable undertaking or the DEHP to decide whether to accept or reject an enforceable undertaking. It is therefore possible to apply for an enforceable undertaking after a prosecution has commenced, however the status of the prosecution is relevant to the DEHP’s decision to accept or refuse the application. The DEHP’s guideline suggests by way of an example that an enforceable undertaking may be rejected if an investigation or prosecution proceeding is at an advanced stage.
Associate, HopgoodGanim Lawyers