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The new General Environmental Duty: what is required and what is reasonably practicable?

On 1 July 2020, key components of Victoria’s new environment protection laws are intended to commence. The changes, contained in the Environment Protection Act 2017[1] (new EP Act), provide a new framework for environmental management in Victoria.

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regulation to a more proactive, preventative approach to environmental harm than the current Act, which will be repealed when the new EP Act comes into force.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[2].

What will be considered to determine ‘reasonably practicable’?
The likelihood of the risks eventuating
The degree of harm that would result if those risks eventuated
What the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks
The availability and suitability of ways to eliminate or reduce those risks
The cost of eliminating or reducing those risks

‘Reasonably practicable’ does not equate to taking every possible step to minimise harm, but rather to take steps which will achieve a position whereby the risks have been minimised and will provide a safe environment in which no further risks and harm will result.

What constitutes ‘reasonably practicable’ is an objective test, which requires all of the relevant matters to be considered and balanced to achieve the highest level of risk management that is possible and reasonable in the circumstances.

The GED is modelled on the general duty of protection provided by Victoria’s Occupational Health and Safety laws in the Occupational Health and Safety Act 2004 (Vic) (OHS Act), which provides a general duty to take ‘reasonably practicable’ measures to reduce the risk of harm. As a result, it is likely that case law analysis on the concept of ‘reasonably practicable’ in relation to the OHS Act will also be used by Courts to provide further guidance on the operation of the GED.

Conclusion

Although Victoria’s new environmental protection laws are not due to commence until 1 July 2020, now is the time to ensure that organisations review their internal environmental policies and procedures to ensure compliance with these new duties before they take effect.

[1] Introduced by the Environment Protection (Amendment) Act 2018 and not yet in force.

[2] Environment Protection Amendment Act 2018 (Vic) s 6.

AUTHORS
Sophie Jacobs | Senior Associate
+61 3 9258 3546
Sophie.Jacobs@maddocks.com.au
Maria Marshall | Partner
+61 3 9258 3551
Maria.Marshall@maddocks.com.au

On 1 July 2020, key components of Victoria’s new environment protection laws are intended to commence. The changes, contained in the Environment Protection Act 2017[1] (new EP Act), provide a new framework for environmental management in Victoria.

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[2].

What will be considered to determine ‘reasonably practicable’?
The likelihood of the risks eventuating
The degree of harm that would result if those risks eventuated
What the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks
The availability and suitability of ways to eliminate or reduce those risks
The cost of eliminating or reducing those risks

‘Reasonably practicable’ does not equate to taking every possible step to minimise harm, but rather to take steps which will achieve a position whereby the risks have been minimised and will provide a safe environment in which no further risks and harm will result.

What constitutes ‘reasonably practicable’ is an objective test, which requires all of the relevant matters to be considered and balanced to achieve the highest level of risk management that is possible and reasonable in the circumstances.

The GED is modelled on the general duty of protection provided by Victoria’s Occupational Health and Safety laws in the Occupational Health and Safety Act 2004 (Vic) (OHS Act), which provides a general duty to take ‘reasonably practicable’ measures to reduce the risk of harm. As a result, it is likely that case law analysis on the concept of ‘reasonably practicable’ in relation to the OHS Act will also be used by Courts to provide further guidance on the operation of the GED.

Conclusion

Although Victoria’s new environmental protection laws are not due to commence until 1 July 2020, now is the time to ensure that organisations review their internal environmental policies and procedures to ensure compliance with these new duties before they take effect.

[1] Introduced by the Environment Protection (Amendment) Act 2018 and not yet in force.

[2] Environment Protection Amendment Act 2018 (Vic) s 6.

AUTHORS
Sophie Jacobs | Senior Associate
+61 3 9258 3546
Sophie.Jacobs@maddocks.com.au
Maria Marshall | Partner
+61 3 9258 3551
Maria.Marshall@maddocks.com.au