The changes include a new general environmental duty, which is the focus of this article.

Other new duties include a duty to notify the EPA and take action in the event of a pollution incident or contamination and, as well as changes to the approvals and permissions system, the waste classification and management system and greater powers and flexibility for the EPA’s investigation, enforcement and compliance function. The significance of these changes have been variously described by the EPA as “a transformation” and “the single greatest overhaul” of environment protection legislation in Victoria. Overall, these shift the focus of environmental regulation to a more proactive, preventative approach to environmental harm than the current Act, which will be repealed when the new EP Act comes into force.

What is the General Environmental Duty (GED)?

The GED is a cornerstone of the new EP Act and introduces a broadscale, positive obligation on ‘a person who is engaging in an activity’ to proactively prevent and minimise risks of harm to the environment and human health from pollution and waste ‘so far as reasonably practicable’.

Failure to comply with the GED will be an offence which may attract civil penalties of up to $1.6 million. Intentional or reckless contraventions of the GED may attract civil penalties of up to $3.3 million and criminal penalties of up to five years’ imprisonment.

What does the GED require?

This duty requires duty holders to understand the risks associated with the use of land they control, and to take appropriate steps, on an ongoing basis, to manage risk before harm is created. A non-exhaustive list of actions that need to be undertaken in order to comply with the GED is contained in the new EP Act and includes:

• Use and maintenance of plant and equipment in a manner that minimises risks of harm to human health and the environment;
• Use and maintenance of systems for identification, assessment and control of risks of harm to human health and the environment; and
• Providing information, instruction, supervision and training to any person engaging in an activity to enable compliance with the GED.

Each of these obligations must be undertaken “so far as reasonably practicable”.

What is reasonably practicable?

What constitutes ‘reasonably practicable’ for the purposes of the new EP Act requires a contextual approach to assess if a person has satisfactorily minimised the risks of harm.