The Environment Protection Amendment Bill 2018 is the first major overhaul of Victoria's environmental law in almost 50 years. The Bill is expected to transform Victoria's environmental protection law, including by introducing a general environmental duty requiring all Victorian businesses, industry and community members to prevent environmental harm. Partner Jillian Button and Lawyers Elise Rutherfurd and Zainab Mahmood provide a high-level overview of the key changes.
How does it affect you?
- The Environment Protection Amendment Bill 2018 (the Bill) will repeal the Environment Protection Act 1970 (Vic) and insert a range of new substantial provisions into the Environment Protection Act 2017 (the Principal Act).
- The Principal Act currently deals only with the constitution and operation of the Victorian Environment Protection Authority (EPA). Upon the commencement of the Bill, the Principal Act will become Victoria's centrepiece environmental legislation.
- The Bill would result in a major expansion of the scope of Victoria's environmental protection regime: it will result in an increase on the environmental duties on companies, and strengthen the EPA regulatory, compliance and enforcement powers.
- Companies should therefore be aware of these impending changes to Victoria's environmental protection regime, including the introduction of a new 'general environment duty' (GED). This new duty, which is the centrepiece of the Bill, will impose a broad obligation on body corporates to take proactive steps to minimise risks of harm caused by any activities undertaken by that entity, so far as reasonably practicable. The new general duty is modelled on the equivalent duty in Victoria's occupational health and safety legislation. Failure to comply with this duty could result in civil, or even criminal, penalties of up to $1.6 million, with higher penalties for aggravated breaches.
- Other key proposed changes include:
- a new duty to notify the EPA when certain pollution incidents occur;
- reform of Victoria's waste-management framework through the introduction of duties for the management, control, containment, disposal and depositing of 'priority waste' and 'industrial waste';
- new duties regarding the management and control of contaminated land, including a duty to notify the EPA in relation to contaminated sites with a likely clean-up cost of more than $50,000;
- a new right providing affected community members with standing to apply directly to court for civil orders restraining a breach of an environmental duty;
- a more streamlined and cost-effective auditing process, including through the introduction of a 'Preliminary Risk Screen Assessment'; and
- the introduction of a tiered, risk-based framework for site licensing.
- Companies should review their policies and practices to ensure they are well-placed to respond to the proposed changes, which are expected to be fully implemented by no later than 1 December 2020.
- The strategic implications of the modernised legislation should not be underestimated; in many cases a comprehensive review of environmental risk management will be justified in preparation for the new regime coming into effect.
The reforms proposed in the Bill adopt a 'preventative approach' to environmental issues, 'focusing on preventing waste and pollution impacts rather than managing those impacts after they have occurred'.1 As part of this preventative approach, the Bill contains a number of new duties on individuals and companies. The key duties are summarised in the table below.
General environmental duty
Duties in relation to pollution incidents
Contaminated land duties
The Bill would revoke the current site licensing regime and would introduce three tiers of site-based permissions: registrations, permits and licences. The purpose of this reform is to allow for proportionate controls to be imposed based on the nature of the risks. The Bill imposes a framework that seeks to regulate the granting of permission for particular activities, with the various permissions operating as follows:
Tier 1: Registrations
Tier 2: Permits
Tier 3: Licence
Better environment plans
An additional reform proposed by the Bill is the introduction of 'better environment plans'. These plans are intended to 'enable persons to develop innovative ways to comply with' legislation or 'to exceed compliance with' legislation by facilitating 'voluntary collaboration'.23
Under the proposed legislation, a 'better environment plan' will be deemed as having satisfied the relevant duty or obligation under the legislation to which the plan responds, if the plan:
- 'makes provision for how the participant performs the duty or satisfies the obligation; and
- the participant complies with the better environment plan to the extent that the plan makes provision for performing that duty or satisfying that obligation.'24
Failure to comply with the 'better environment plan' could result in suspension, removal or revocation of the plan by the EPA.
It is expected that the EPA will issue guidelines issued by the EPA in relation to these better environment plans.25
As part of the increased sanctions, the Bill also introduces a transitional duty (which will be phased out after four years) in relation to material harm.26 A person must not engage in conduct that results in material harm to human health or the environment as a result of pollution or waste. This material harm offence is complementary to the GED, which means:
- a person who complies with the GED will not be liable for a contravention of the material harm offence; and
- a person charged with breaching the GED will not also be charged for a breach of the material harm provisions.27
The purpose of having this transitional offence is to ensure 'that the scheme can deal with environmental harm from the first day it commences'.28
More effective investigation, performance and compliance
Under the Bill, licence holders will have to make environmental information more available to the EPA. The information the EPA holds will be available to the public (unless it is restricted for privacy, security, legal or public safety reasons).
The EPA can share this information with other regulators and use the information in considering regulatory decision (such as granting a licence).
Site management orders
The Bill would also equip the EPA with an additional regulatory tool, the 'site management order', which can be issued if the EPA 'reasonably believes that long-term management of the site is necessary because land on the site is contaminated or there is harm or a risk of harm to human health or the environment from pollution or waste.'29
- A person subject to a 'site management order' may have to undertake to:
- develop or implement a plan for managing environmental risks on the site;
- install management infrastructure or monitoring equipment;
- carry out monitoring activities;
- conduct a specified course of action if a specified event occurs;
- carry out long-term or passive remediation actions.30
A 'site management order' operates for the period specified by the relevant order, and may operate indefinitely.31
The Bill would implement reforms to the environmental audit process by replacing the current 'one-size-fits-all assessment process' with a more flexible process. It would do so by introducing:32
- Preliminary Risk Screen Assessment (PRS): this is based on a desktop study and site inspection, to determine if a more detailed audit is necessary. This codified process is similar to the non-statutory risk screening process commonly required in the planning process; and
- Scaled audit: this is to assess and manage the risks of harm to human health and the environment from contamination or industrial activities, and are expected to be more cost effective than current audits.
Importantly, the separate concepts of a 'section 53V audit' and a 'section 53X audit' will be abolished and replaced with the single, more flexible, auditing mechanism.
New community rights for Victorians
The Bill introduces a new right for community members who are 'eligible persons' to apply directly to court for civil orders restraining a breach of an environmental duty, without EPA involvement. An 'eligible person' is defined to mean a person who is affected by the contravention or non-compliance, or a person who has the leave of the court to make the application.33) In the latter case, the court may only give leave for a third-party civil application where:
- the application would be in the public interest; and
- the applicant requested the EPA take action but the EPA did not take such action within a reasonable time.34
In advance of these reforms coming into force, all organisations would benefit from reviewing their internal procedures and practices for compliance in anticipation of the more extensive environmental protection duties proposed under the new regime.
In many cases, the implications of the new legislation will be far-reaching, and a fresh approach to environmental risk management will be required.
If you require advice in relation to the impact of the Bill on your business, please contact Jillian Button.
- Department of Land Water and Planning, Fact Sheet: Environment Protection Amendment Bill 2018 (Factsheet) 1.
- Environment Protection Amendment Bill 2018 (Vic) (the Bill), proposed s 25(1) of the Environment Protection Act 2017.
- The Bill 2018 (Vic), proposed s 25(4).
- The Bill, proposed s 25(5).
- The Bill, proposed s 25(2).
- The Bill, proposed s 27(1).
- Environment Protection Act 1994 (Qld), s 319.
- The Bill, proposed s 32.
- The Bill, proposed s 138.
- The Bill, proposed s 139(1).
- The Bill, proposed s 139(2)(a).
- The Bill, proposed s 139(2)(b).
- The Bill, proposed s 140.
- The Bill, proposed s 3.
- Explanatory Memorandum for the Environment Protection Bill 2018 (EM), 73.
- The Bill, proposed s 134.
- The Bill, proposed s 35.
- The Bill, proposed s 39.
- The Bill, proposed s 85.
- The Bill, proposed s 81.
- The Bill, proposed s 74.
- The Bill, proposed s 180.
- The Bill, proposed s 186.
- The Bill, proposed s 188.
- The Bill, proposed pt 3.3.
- EM 32.
- Factsheet, 4.
- The Bill, proposed s 275(1).
- The Bill, proposed s 275(7).
- The Bill, proposed s 275(8)
- EM, 3.
- The Bill, proposed 308(1).
- The Bill, proposed 308(2).
- The Bill, proposed s 2(4).
- The Bill, proposed s2(4).