Since our last update on the Government’s proposed reforms to the Environment Protection Act 1970, the Environment Protection Amendment Bill 2018 (the Bill) was passed by Parliament on 9 August 2018. This Bill represents the second phase of the Government’s substantial reforms to Victoria’s environment protection legislative framework.
The Bill represents a fundamental reform of the law relating to environment protection in Victoria and will form an amendment to the Environment Protection Act 2017, passed in 2017 to create the governance structure for the reformed EPA (new Act).
The key changes contained in the Bill are expected to commence operation no later than 1 December 2020, if not proclaimed earlier. This period allows time for the EPA to prepare a broad range of new statutory instruments and policies to replace those currently in force.
This update provides a high level summary of the key reforms that land managers should be mindful of.
Summary of key reforms relevant to Duty Holders
|Topic||Key relevant changes||Why are the changes important?|
|Compliance and Regulatory tools||
New duties and obligations
General Environmental Duty
The GED imposes a positive obligation on entities conducting activities that pose risks of harm to human health or the environment from pollution or waste. This means duty holders need to understand those risks and take reasonably practicable steps to minimise those risks.
The EPA will need to publish guidance on how it will exercise its prosecutorial discretion over the GED, given the significant penalties flowing from a contravention of it. However, the Bill identifies a range of measures that need to be considered, in deciding whether a contravention of the GED has occurred. These consideration are based on the tests applicable to the existing due diligence defence which is currently available only to corporate officers.
Aggravated or intentional contraventions of the GED will expose an individual to a maximum penalty of $634,000 and up to five years imprisonment. For a corporation the maximum penalty is $3.2 million.
Duties relating to pollution incidents
These duties will place a positive obligation on duty holders to proactively engage with EPA to deal with any pollution incidents. This includes duties to:
- take action to respond to harm caused by a pollution incident
- manage contaminated land
- notify of contaminated land.
A ‘pollution incident’ is defined broadly, relative to definitions in some other Australian jurisdictions, but excludes noise. A ‘notifiable incident’ is defined to include a pollution incident that causes or threatens to cause material harm to human health or the environment or a prescribed notifiable incident.
The new Act also introduces a new duty to ‘investigate alternatives to waste disposal’. This will require a duty holder who has the management and control of ‘priority waste’ to take reasonable steps to identify and assess alternatives to waste disposal. We anticipate that EPA will provide guidance on the criteria that must be met in order to meet this obligation.
Obligations relating to public infrastructure
The new Act gives the EPA the ability to direct councils to take particular actions on land or infrastructure it manages, to minimise risks of harm to human health or the environment from pollution or waste. This compulsion can be done by government gazette notice. Such actions can extend to:
- taking specified action on the relevant land or infrastructure managed
- taking into account a specified matter when managing land, managing or operating infrastructure or planning the management of land or infrastructure
- complying with a specified document, code, standard or rule, subject to any modification specified in the order, when managing land, managing or operating infrastructure or planning the management of land or infrastructure.
Where to from here?
The Government’s intention is to adopt a new approach to environmental issues with a focus on preventing waste and pollution impacts as opposed to the current ‘reactive’ approach to managing those impacts after they have occurred. However, it is unclear at this stage how certain new concepts will be implemented. In time, EPA will provide guidance on several new concepts including on how:
- to meet the new obligation to manage contaminated land
- to comply with the new GED.
We recommend duty holders start reviewing their internal policies and practices to ensure they are well placed to respond to the changes.
In the near future, Maddocks will be offering seminars to its clients to explain the implications of the new Act in greater detail. If you are interested in learning more about the new Act, please contact Thy Nguyen (Associate) Barnaby McIlrath (Special Counsel) or Maria Marshall (Partner).
|Barnaby McIlrath | Special Counsel
T +61 3 9258 3614
|Thy Nguyen | Associate
T +61 3 9258 3503