The report of the Independent Inquiry (Inquiry) into the Environment Protection Authority Victoria (EPA) has recently been released. It contains 48 recommendations to improve the EPA's ability to address future challenges and meet community, industry and government expectations. The Victorian government has indicated that it will respond to the recommendations later this year.
The Inquiry was asked to consider the EPA's role, governance and funding, powers and tools. Its key recommendations are considered below.
Role, governance and funding
One in four submissions to the Inquiry included comments on the EPA's governance arrangements and the way the organisation operates. A key problem identified by the Inquiry is that the Environment Protection Act 1970 (EP Act) specifies that the EPA's Chairman is the 'Authority' with sole oversight and responsibility for the body's regulatory activity. A significant overhaul of the EP Act is recommended by the Inquiry to reduce this concentration of power and modernise the EPA's structure.
The Inquiry also recommends the introduction of two new acts:
- an EPA (Establishment) Act, to more clearly set out the EPA's objective, functions, governance structure and decision-making principles; and
- an Environment Protection (Integration and Co-ordination) Act, to enhance the EPA's collaboration with other government departments and agencies that work in environment protection. This act would set shared objectives, clarify the roles of the various agencies, and establish a formal mechanism to support whole-of-government consideration of environmental issues.
Chief Environmental Scientist
The Inquiry notes that as a science-based regulator, the EPA needs to be able to effectively deploy its scientific expertise. The Inquiry recommends the appointment of a Chief Environmental Scientist whose role would include commissioning and reviewing advice from the EPA's scientific team and providing a key point of liaison within the EPA for the government.
The Inquiry notes that the EPA's current funding model is insufficient for it to fulfil its role in the future, and that the EPA is perhaps already under-resourced. It proposes the development of a new funding model to provide greater revenue certainty and stability.
Powers and tools
Increased enforcement and an enhanced toolkit
The Inquiry notes that the EPA initiates relatively few prosecutions and is widely perceived as risk averse. Indeed, many Inquiry participants commented that the EPA was not making full use of the tools available to it. The Inquiry recommends strengthening procedures and resourcing for prosecutions to ensure that polluters are held to account.
However, the Inquiry also recommends addressing a number of gaps in the statutory toolkit, including through:
- the introduction of a general duty to take reasonably practical steps to minimise risks of harm to human health and the environment. This would be similar to the general duty under Victoria's workplace safety legislation, which requires employers to provide a safe working environment;
- strengthening the licensing regime by:
- expanding the cohort of activities requiring EPA works approval and licences to include all activities with significant impacts on human health or the environment, regardless of the type of hazard posed;
- imposing fixed terms for new licences; and
- requiring periodic review of licences to ensure existing facilities are held to the same standards as new facilities;
- increasing maximum criminal penalties;
- introducing civil penalties as an alternative to criminal prosecutions;
- amending the EP Act so that it provides a statutory basis for monetary benefits orders, which allow courts to impose penalties that reflect the benefits received by the offender as a result of non-compliance; and
- simplifying environment protection standards by replacing state environmental protection policies (SEPPs) and waste management policies (WMPs) in favour of standalone instruments which can be regularly updated.
Involvement in strategic land use planning
Strategic land use planning is important to avoid undesirable public health and liveability impacts arising from pollution. However, the EPA is currently limited in its ability to have a say in strategic planning decisions.
The Inquiry proposes the introduction of a statutory trigger that would require responsible authorities to seek early advice from the EPA during strategic planning processes that involve significant human health or environmental risks or close proximity to a licensed facility.
Third party rights
Third party rights provide the community with the ability to contribute to environmental justice outcomes, but should be balanced against certainty and timeliness of decisions for industry. As a result, no change is recommended to the restrictions on classes of decisions that invoke third party rights. However, the Inquiry does recommend amending the EP Act to:
- clarify the test for standing for third parties so that it aligns with section 5 of the Victorian Civil and Administrative Tribunal Act 1998; and
- allow third parties to institute civil proceedings and seek court orders to restrain or remedy breaches of the EP Act, as is permitted in South Australia, New South Wales and Queensland.
The Inquiry recommended prioritisation of the EPA (Establishment) Act, which is likely to establish the position of Chief Environmental Scientist. Other recommendations, not requiring new legislation, such as initiatives involving the Department of Environment, Land, Water and Planning are also likely to come forward in the short term.
In the longer term, work is likely to commence on updating (and probably redrafting) the EP Act, which is long overdue. We will continue to monitor developments as the Inquiry recommendations are implemented and provide further updates as these developments take place.