The Victorian Government has introduced new environment protection legislation to the Victorian Parliament designed to replace the state’s current Environment Protection Act 1970 (EP Act) in 2020.
The Environmental Protection Amendment Bill 2018 (the Bill) will focus on establishing a more preventative and risk-based approach toward environmental protection. It will include new duties for Victorian business, industry and the community on preventing environmental harm, as well as greater flexibility in the administration of environmental controls. The Bill will also introduce increased penalties and enforcement against those who cause environmental harm.
The EPA legislation is part of a large scale reform of the environmental management regime for Victoria with the original Environmental Protection Act coming into force last year.
The legislation includes the introduction of the new general duty to minimise the risk of harm to health or the environment. The general duty requires that "reasonably practicable" steps must be taken to prevent harm from pollution and waste. The government has introduced criminal or civil penalties for failure to observe the duty.
Much like the Building Act, the full impact of the legislation depends very much on the regulations that support it. Statutory measures in the legislation such as ‘proportionality’ and demonstrating steps taken that are ‘reasonably practicable’ are discretionary terms and will need clarification as the legislation becomes operational. It appears highly likely that Codes of Compliance will be developed for different sectors and Master Builders will seek to be involved with this as a key stakeholder.
One concern that Master Builders has raised is that the Bill introduces third-party rights for the first time. This gives community members the opportunity to seek civil remedies to enforce the Environment Protection Act. Master Builders is opposed to such a broad extension of rights to third parties and has expressed its concern to the Liberal opposition who share our reservations and will raise the issue in parliament.
Below are key proposals of the Bill:
General environmental duty
Central to the Bill is the General Environmental Duty (GED) which will require people to undertake reasonably practicable steps to eliminate or, if elimination is not possible, minimise pollution or waste deemed harmful to human health. This is to allow for a more preventative, rather than reactive, approach toward environmental protection. Unlike other states and territories with similar laws, any breach of the GED could lead to criminal or civil penalties.
The Bill will introduce a three-tiered permissions framework allowing the EPA to impose proportionate controls on activities on the basis of its level of risk. This is a contrast to the current EP Act, where licensing is the only form of ongoing control the EPA has on high-risk activity. The proposed three-tiered permissions framework consists of
Waste management and duties
The Bill will introduce a new framework for waste management while also implementing stronger penalties for waste dumping and littering.
It will abolish the ‘one-size-fits-all’ industrial waste system as prescribed in the current EP Act. Under the Bill, tailored controls will be introduced for specific hazardous industrial wastes, and specified municipal and industrial waste that have resource recovery, recycling and reuse potential.
Designed as to reduce costs to consumers, businesses and government, the Bill will allow the EPA or anyone who manages or controls a site to have a more proportionate response towards risks associated with contaminated land (including groundwater). The Bill proposes the following duties for contaminated land:
- Duty to manage contaminated land
- Duty to notify of contaminated land.
The Bill will introduce a more flexible assessment process in place of the current one-size-fits-all approach. It will consist of a preliminary risk screen (PRS) assessment and a scaled audit.
Better Environmental Plans
The Bill includes ‘Better Environment Plans’ to enable the EPA to recognise innovative approaches to environmental protection. Businesses with effective approaches toward environmental protection when running their businesses can have these approaches endorsed by the EPA.
Better access of environmental information
The Bill will allow for greater transparency and accessibility for environmental information.
More effective investigation, enforcement and compliance
The Bill will propose new compliance and enforcement measures for the EPA including:
- Modernising, clarifying and strengthening powers for EPA Officers to enter premises and investigate breaches of the law.
- Improving investigation capability of the EPA.
- Higher penalties for obstructing, assaulting or impersonating an EPA Authorised Officer.
Increasing penalties and strengthening sanctions
The proposed Bill would increase penalties for environmental offences. Breaching the GED would attract a penalty of up to $317,000 for an individual or $1.6 million for a corporation. Intentional or reckless breach of the GED that results in material harm will attract a penalty of up to $635,000 and/or five years imprisonment for an individual, or $3.2 million for a corporation.
Illegal dumping of industrial waste will also attract penalties similar to the level associated with breaches of the GED.
A Victoria first, members of the community affected by breaches of environmental laws can seek direct action via the court process. This will allow the courts to enforce the proposed laws in the Bill without the EPA’s involvement.
Access to the Environment Protection Amendment Bill 2018 Fact Sheet can be found here.