Statutory background

Until recently the principal legislation with respect to the environment in Victoria was the Environment Protection Act 1970 (1970 Act). Some readers will be aware that in 2017 the Victorian Parliament passed the Environment Protection Act 2017 (2017 Act). The Environment Protection Amendment Act 2018 (Amending Act) substantively amends the 2017 Act so that the 2017 Act will become the principal environmental legislation in Victoria and the 1970 Act will be repealed.

Section 1 of the Amending Act provides its purposes and these include:

  • to provide for a new General Environmental Duty in relation to risks of harm
  • a new permissions scheme for licences, permits and other permissions
  • new civil penalties and remedies.

General Environmental Duty

Part 3.2 provides for the General Environmental Duty which, if contravened, attracts fines in the case of a natural person of 2,000 penalty units and in the case of a body corporate 10,000 penalty units. The body corporate offence is an indictable one. At the time of writing, one penalty unit is $161.19.

Part 3.4 provides for duties relating to Pollution Incidents and relevantly incorporates a duty to take action to respond to harm caused by a Pollution Incident, and a duty to notify the EPA of Notifiable Incidents. Section 40 provides for the Duty to Notify of Contaminated Land and it attracts an offence of 120 penalty units in the case of a natural person and 600 penalty units for a body corporate.

Contaminated land is defined at section 35 as being land for which a waste chemical or prescribed substance is present on or above the surface of the land at a concentration above background levels and which creates a risk of harm to human health or the environment. Section 35 provides for the background level of waste or substances. ‘Harm’ is defined at section 4 to relevantly include harm to human health or the environment, being an adverse effect on human health or the environment. One anticipates litigation and expert evidence on the technical question as to whether or not background levels have been exceeded.

Notifiable contamination is defined with some certainty in section 37. It provides that contamination is notifiable if the cost of contamination remediation is likely to exceed $50,000 or a prescribed amount. We understand the Victorian Government is likely to increase the threshold by regulation. Whilst there may be debate as to whether or not the cost of contamination remediation exceeds $50,000, the financial threshold is nonetheless a relatively precise measure.

The manner and form of notification is in accordance with EPA requirements: section 41.

Interestingly, throughout the Act provisions appear in which the privilege against self-incrimination is expressly abrogated.

It is interesting to consider these particular provisions in light of the statement made by the Responsible Minister in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Charter) when the Environment Protection Amendment Bill 2018 (Vic) was introduced into the Victorian Parliament. With respect to the right against self-incrimination enshrined in section 25 of the Charter, the statement provides that any information given by a person as part of the notification is not admissible in evidence in a proceeding. The Responsible Minister’s view was that the provisions were therefore compatible with the privilege against self-incrimination in the Charter.

It will be interesting to see whether the relevant provisions of the statute are tested in Charter-based litigation. One can envisage a scenario in which a person is prosecuted for not notifying of contamination, with that person then claiming in defence that the notification was not made due to the self-incrimination Charter right and at common law, and that the relevant provisions of the Amending Act, which established the duty, are contrary to the Charter. Readers familiar with the Charter will know that in those circumstances statutory provisions can be read down so as to be consistent with the Charter, or the Supreme Court may make a Declaration of Inconsistent Interpretation.

Permissions

The various licences and other statutory authorisations that previously existed under the 1970 Act are now consolidated around the concept of ‘Permissions’. Permission is defined by section 6 to mean a Development Licence, an Operating Licence, a Pilot Project Licence, a Permit or a Registration. These Permissions comprise the only forms of statutory authorisation that now exist. Works Approvals (previously issued under section 19B of the 1970 Act) and Licences (previously issued under section 20 of the 1970 Act) are no longer issued. Works Approvals are broadly replaced by Development Licences and Licences are broadly replaced by Operating Licences.

Section 77 provides for Pilot Project Licences, which are a new form of permission directed at the issue of a licence for a research development or demonstration activity. One can envisage these types of licences being sought to expedite the permission where the proposal relates to research and development.

‘Registrations’ are another new form of Permission also. These would be automatically granted and are suited to organisations posing significant risks but where simpler controls exist which can be standardized across the sector.

Chapter 4 sets out requirements to obtain certain forms of Permission before certain activities are undertaken, and if this does not occur an offence is established for which penalties are prescribed. Part 4.3 makes provision for, amongst other things, notice of applications and clarifies the EPA’s power to issue Permissions with conditions.

Transitional provisions at Part 16.3 provide that the new forms of Permission are equivalent to the old permissions, and that a person is taken to hold the new Permission on and from the commencement day:

Section 56 provides for the transfer of Licences or Permits. 

Section 60 provides for the suspension of Permissions in certain circumstances such as where the EPA or a Council believes the holder of the Permission has contravened the Act. Section 61 provides that the EPA or a Council may revoke a Permission in similar circumstances. It is interesting that this power to suspend and revoke Permissions is extended to Councils, which are defined as being local government Councils.

Part 4.7 establishes a regime to prohibit persons from engaging in prescribed activities. Accordingly persons with a history of environmental offences may be unable to undertake certain activities. Interestingly a prohibited person also includes a person who has been convicted in the preceding 10 years of an offence that includes fraud, dishonesty or violence. Accordingly, there is the potential for persons with criminal records to be impacted, notwithstanding those persons may have no history of environmental compliance issues.

Voluntary Better Environmental Plans

Part 8.2 provides for Better Environmental Plans, which are essentially voluntary plans entered into to improve environmental conditions for a site or area. This is a new mechanism that previously did not exist. We expect these to be used, for example, in an industrial area where there are dust or issues whereby several industries work together to prepare a plan.

Environmental assessment: Environmental Audits and Preliminary Risk Screen Assessments

Section 204 provides for a new form of environmental assessment being a Preliminary Risk Screen Assessment which contrasts with the more extensive Environmental Audit function which has been retained from the previous regime and is enshrined at section 208.

The Preliminary Risk Screen Assessment is a low cost, rapid, voluntary assessment undertaken to assess the likelihood of the presence of contamination. It is important to be aware that pursuant to section 205 an environmental auditor engaged for the purposes of a Preliminary Risk Screen Assessment must send a copy of the assessment to the EPA. Given that requirement, this may give rise to some reluctance by some parties to undertake Preliminary Risk Screen Assessments.

Notices

Chapter 10 makes extensive provisions for the various types of notices that can be issued by the EPA. These include Improvement Notices: section 271; Prohibition Notices: section 272; Notices to Investigate: section 273; Environmental Action Notices: section 274; Site Management Orders: section 275 and other kinds of notices.

Complex corporate structures: redirection of corporate obligations

Part 10.7 provides for the redirection of corporate obligations. The intent is to provide the EPA with the power to direct a body corporate of a related entity to undertake the requirements of the notice or order. This will generally be used in the case of complex corporate structures which may have been designed so as to avoid liability to undertake remediation. Penalty offences are created at Part 10.8 with respect to notices and orders.

Company director liability

Part 11.8 sets out provisions that seek to make company directors responsible for the acts of their companies and make those directors liable for environmental offences. Director liability will only apply if the director failed to exercise due diligence to prevent the commission of the offence: section 349. As this essentially requires the director to have positively exercised due diligence, the defence is, in the writer’s opinion, a very limited one. The scheme will create a real risk for company directors.

Cleanup and Cost Recovery Powers

Part 10.9 provides for Cleanup and Cost Recovery Powers. The EPA may take any action to clean up and recover the cost of doing so. The EPA may sue the person responsible, the owner or occupier, a previous owner or occupier, or a person issued with a notice. This largely replicates the provisions of the 1970 Act, save that the EPA’s cost recovery powers may now extend to a previous owner or occupier of the place or premises who may not have been the polluter. There is a requirement that the ‘relevant circumstances existed, at the time the relevant circumstances first came into being.’ It is not clear what that wording specifically entails and perhaps it will be the subject of litigation but clearly the broader scheme behind the cost recovery powers is to extend the EPA’s powers widely to enable cost recovery against a range of interested parties. Unrecovered costs can become a charge on the property: section 298.

Civil remedies: third party enforcement

Part 11.4 provides for civil remedies. This introduces the new concept of allowing an interested person to seek a Court order restraining a person from engaging in certain conduct that is not in compliance with the 2017 Act or relevant Permissions: section 309.

There is a standing requirement for ‘eligible person’. Section 308 provides an eligible person is a person whose interests are affected by the non-compliance and who has leave from the Court to make the application. The Court must not grant leave unless it is satisfied that it would be in the public interest to do so and the person first requested the EPA to take enforcement action. Court is defined by section 6 so as to mean the County Court, the Magistrates Court or the Supreme Court. Accordingly, civil remedies must be sought in one of these Courts, not VCAT. As was the case with standing requirements around third party challenges to Works Approvals and Licences, a body of jurisprudence will likely develop over coming years in relation to standing requirements on the question of who can be an eligible person to seek a civil remedy.

One matter that needs to be kept in mind is the need to first request the EPA to take enforcement action. In the absence of that step, leave will almost certainly be refused. It is unsurprising that the legislature has sought to provide prior opportunity to the EPA to take the enforcement, and indeed it is the EPA’s duty to do so.

The balance of Part 11.4 also contains some interesting provisions including providing Courts with the power to make Ancillary Orders and Compensation Orders. Accordingly the civil remedies provisions could be used so as to provide a private person with a direct cause of action to seek compensation from a polluter. The Amending Act therefore provides a statutory cause of action that previously did not exist. Previously plaintiffs were generally restricted to common law causes of action such as nuisance.

Part 11.5 provides for civil penalties which the EPA may seek in addition to or as an alternative to a criminal proceeding. The relevant penalties are listed in a table at Part 11.5. Other remedies available to the EPA include Adverse Publicity Orders: section 330; and General Restoration and Prevention Orders: section 331.

Review of decisions – ‘community rights’

Chapter 14 sets out the means of merits review of the various decisions to VCAT. Of interest is that third parties may now seek review on the merits of a reviewable decision: section 434. Departmental publications on the new provisions describe them as a new ‘community right’ to ensure the EPA is held to account in the way it enforces the laws.

Also of interest is the provision enabling a person to apply to VCAT for a declaration: section 436. The declaratory power under the 1970 Act was the subject of litigation as to its scope. The wording of section 436 is very wide and should, in the writer’s view, extend to seeking declarations in relation to all manner of matters.

General

  • Principles of Environmental Protection Part 2.3 provides for Principles of Environmental Protection and they are similar to the Environmental Protection Principles that previously existed in the 1970 Act.
  • Information sharing Section 455 provides for a requirement for the EPA to establish and maintain a Public Register. This accords with a stated desire for greater transparency and sharing of interagency information and information with the public in relation to environmental issues.
  • Noise complaints and enforcement Interestingly the provisions for noise offences may now be enforced by a person claiming to be directly affected by the alleged offence: section 170. Accordingly persons who claim to be affected by noise in residential contexts can now enforce the Act directly. Of course, the enforcement provisions also apply to police officers and certain EPA officers.
  • Transitional provisions Part 16.3 provides for transitional provisions and relevantly Part 16.8 provides that if a matter is already proceeding before VCAT under the 1970 Act that application for review will continue as if the 1970 Act were still in force.
  • Waste and Resource Recovery Infrastructure and Planning Framework Chapter 13 sets out provisions for the Waste and Resource Recovery Infrastructure and Planning Framework which generally accords with the provisions of the 1970 Act, save that the framework now reflects the General Environmental Duty which would require waste producers to identify and implement measures to avoid waste generation and reduce waste risks.
  • Enforceable undertakings and infringement notices Chapter 11 provides for enforcement proceedings and commences with the concept of enforceable undertakings. Readers may be familiar with the concept of enforceable undertakings in other jurisdictions. Whilst an enforceable undertaking is in force, no criminal proceedings can be commenced: section 303.
  • Infringement notices Part 11.3 provides for infringement notices.
  • Financial Assurances Section 218 provides for Financial Assurances as security for the costs and expenses of remediation and clean up activities.
  • Advisory Panels and Conferences of Interested Persons Part 8.5 provides for Advisory Panels and Conferences of Interested Persons who may provide advice to the EPA on any matter arising from the Act or regulations. Accordingly these mechanisms will replace the previously utilised ‘section 20B conferences’ under the 1970 Act.
  • Authorised officers and powers of entry Part 9.2 provides for the appointment of ‘Authorised Officers’ and contains the usual provisions in relation to powers of entry and inspection, and limitations upon entry to residential premises without the consent of the occupier. Section 255 provides the EPA with a power to issue Information Gathering Notices. Authorised Officers may also apply for search warrants: section 261.
  • Practical EPA guidance Chapter 5 provides for Environmental Reference Standards, Compliance Codes and Position Statements. These provisions were introduced to seek to provide more practical guidance from the EPA to the community and business.