Environmental Protection Amendment Act 2018 in Victoria

With penalties of up to $644,000 and/or 5 years imprisonment for an individual, or $3.2 million for a corporation, the Environmental Protection Amendment Act 2018 is transforming environmental protection laws in Victoria by increasing criminal sanctions and penalties to polluters.

Until recently the principal legislation was the Environment Protection Act 1970. In 2017 the Victorian Parliament passed the Environment Protection Act 2017. The Environment Protection Amendment Act 2018 amends the 2017 Act so that the 2017 Act will become the principal environmental legislation in Victoria and the 1970 Act will be repealed.

Although the Victorian Government intended this new legislation would take effect from 1 July 2020, due to COVID-19, it will now take effect from 1 July 2021.

Two main amendments are:

• General Environment Duty (GED)
• Permissions

General Environmental Duty (GED)

This requires Victorian businesses, industry and the community to undertake reasonable steps to eliminate or reduce risks of harm to human health and the environment from pollution and waste.

Unlike similar laws around the country, a GED breach could lead to criminal or civil penalties. All Victorian citizens will have a legal obligation to take reasonable steps to eliminate or minimise risk to others or the environment. The model for GED is similar to that of Victoria’s Occupational Health and Safety Laws.

Breaching a GED will attract a penalty of up to $322,000 for an individual or $1.6 million for a corporation. For an intentional or reckless breach of a GED that results in material harm, a higher penalty of up to $644,000 and/or 5 years imprisonment for an individual, or $3.2 million for a corporation will apply. These fines are greatly increased where currently the maximum environmental infringement notice is for a company to be fined 50 units ($8261).

Permissions

Permissions are now the only forms of statutory authorisation and includes: Development Licences, Operating Licences, Pilot Project Licences, Permits or Registrations.

Works Approvals and Licences are no longer issued. Works Approvals are broadly replaced by Development Licences and Licences are broadly replaced by Operating Licences. Pilot Project Licences are a new Permission for a research development or demonstration activity.

Registrations are another new Permission that would be automatically granted to organisations posing significant risks but where simpler controls exist which can be standardised across a sector. Permissions work alongside the GED and there are three tiers of permissions based on the level of risk to human health and the environment:

1. Licences   =>   high risk
2. Permits   =>   medium risk
3. Registrations   =>   low risk

What does this mean for your business?

Company directors will now have direct liability to ensure their businesses reduce the risk of their activities potentially harming the environment or human health from pollution or waste. This is in much the same way that they already need to for Occupational Health and Safety Laws. Businesses will need be proactive to continually reduce risks to the environment, keep records and report certain pollution incidents to the EPA as soon as practicable.

Businesses also have a duty to manage contamination risks for land their business uses. Under the legislation they are known as ‘duty holders’. Duty holders need to assess the likelihood of contamination being present, and if there is contamination, to manage its risks. This is even if the contamination was not caused by your business.

In addition to reporting incidents to EPA directly, the community and third parties will now be able to have civil remedies to apply to the court directly if it’s their view that your business is not meeting GED. Third parties are community members, environmental interest organisations or other interested parties.

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