On January 17, 2017, the Victorian Government (Government) released its response to the Independent Inquiry (Inquiry) into the Environment Protection Authority (EPA). In the main, the reform proposals put forward by the Inquiry were strongly endorsed by the Government, with 40 of the 48 Inquiry recommendations fully supported, 7 recommendations supported in principle and 1 recommendation supported in part. Details of the recommendations can be found in our earlier update.
The EPA's objective, principles and functions
The Government has supported the recommendation that an overhaul of the Environment Protection Act 1970 (EP Act) is necessary to deliver a modernised and fit for purpose legislative framework for environment protection in Victoria. Rather than establish a separate Act to set out the EPA's objective, functions and governance structure, as suggested by the Inquiry, the Government has elected to legislate the recommended establishment provisions within the EP Act itself.
The amendments will include a legislated objective that seeks to provide clarity in regard to the overarching purpose of the EPA.
As such, the EP Act will be updated in two stages:
- a bill to legislate establishment and governance provisions, which will be introduced to Parliament as soon as practicable in 2017 (Governance amendments); and
- a bill to give effect to the overhaul of the EP Act which is planned to be introduced to Parliament in 2018 (Overhaul Bill).
To ensure effective governance, the Government has committed to establish a multi member board to oversee the EPA. To support the board, the Inquiry proposed that it be legislated that the Chief Executive Officer (CEO) of the EPA possess science or engineering qualifications or experience. The Government elected not to adopt this recommendation for two primary reasons. First, it would potentially limit the pool of experienced executives and second, because the CEO would be supported by experts such as the Chief Environmental Scientist.
The EPA as a science-based regulator
The Inquiry's recommendation that a Chief Environmentalist Scientist be legislated within the senior executive structure of the EPA has been adopted. The position will be included within the Governance amendments, and an interim position will be advertised immediately.
The EPA's role within Victoria's environment protection regime and emergency management
The proposal to introduce an 'Environment Protection (Integration and Coordination) Act' to improve coordination and collaboration across government on environment protection and associated public health issues was supported in principle by the Government, with a decision to be made on whether separate legislation is required after the Overhaul Bill has been developed.
The Government supports the need to clarify which parties may apply for review of decisions made under the EP Act. Despite the Inquiry recommending that the test for standing under the EP Act match section 5 of the Victorian Civil and Administrative Tribunal Act 1999, the Government has determined that it will first need to investigate how this can be done without creating uncertainty in other jurisdictions. Further consideration will also be given to whether the rights for third parties to take civil action for breaches of environmental laws should be expanded.
The Inquiry identified that emergency management is a major and growing activity for state agencies. It has recommended that the Government confirm the EPA's role as a technical advisor and remove it as a control agency responsible for pollution of inland waters and transfer these responsibilities. As such, control agency responsibilities for pollution of inland waters will be transferred from the EPA to the Department of Environment, Land, Water and Planning (DELWP).
Taking a strategic approach to land use planning
The Inquiry identified that the EPA has limited opportunity to influence strategic planning decisions, despite it dealing with a large number of complaints about health impacts and amenity that have been caused by poor planning decisions. To address this concern, the Inquiry recommended the creation of a statutory trigger to require responsible authorities to seek advice from the EPA on planning processes that involve significant human health and environmental risks.
The Government has supported this recommendation. It proposes to create statutory mechanisms to ensure that the EPA is involved in strategic planning processes and will commence work this year to identify and implement the appropriate statutory mechanisms. Mechanisms will also be investigated to achieve appropriate buffer distances for existing and future industries and activities, including through changes to the Victorian planning framework.
The Inquiry identified the need to introduce a general duty to minimise risks of harm to human health and the environment. The Inquiry proposed that such a duty would , amongst other things, require a person to take reasonable steps to minimise risks of harm from pollution, that the introduction of its application should be staged and a breach of the duty should give rise to criminal penalties, civil penalties and/or civil remedies.
With regard to the health of Victorians and the environment, the Government believes that this reform will deliver a landmark shift toward preventing harm and intends to introduce the duty as part of the Overhaul Bill. It proposes that the preventative duty will deliver:
- increased clarity and guidance for industry about their environment protection responsibilities;
- greater flexibility for industry on how they manage environmental risks; and
- a more level playing field for regulated entities.
As part of these measures to strengthen prevention, the Government intends to adopt the Inquiry's recommendation to increase the EPA's regulatory role. This may possibly be done by expanding the cohort of activities requiring a works approval or licence, although further work will be done on this aspect in due course.
Holding polluters to account
The Inquiry identified that the EPA initiates relatively few prosecutions and that there is a need to develop an overarching strategy to strengthen its processes, procedures, and resourcing to facilitate timely prosecution. It was recommended that part of this strategy would include expanding the range and increasing the severity of sanctions.
The Government has elected to support this recommendation by committing $6.5 million for the EPA to develop a prosecution strategy in 2017. Although the Government supports the proposals regarding the severity of sanctions, it notes that its current standards are in line with what is expected of a modern regulator. As such, the Government has committed itself to determine an appropriate range and proportionate mix of offences to be legislated as part of the Overhaul Bill.
Strengthening mining regulation
As mining activities pose immediate and long term environmental threats when not managed properly, the Inquiry recommended that the EPA play a greater role in regulating the sector. It was proposed that this role would be formalised under the Mining Resources (Sustainable Development) Act 1990.
Although the Government agreed it was paramount that environment and public health risks associated with mining are effectively managed, it only supported the Inquiry's recommendations in principle. It determined that there was a need to establish clear and easy to use environmental standards under the EP Act. The Government however did not see the need to introduce changes under the Mining Resources (Sustainable Development) Act 1990, as changes to that Act were introduced in 2015 incorporating requirements for risk-based work plans and allowing the Minister for Resources to request various reports from operators.
A broader and more effective local response
Local government is uniquely placed to deliver timely responses to local concerns, but often lacks resources. To address this, the Inquiry proposed the establishment of a new statewide network of local government environmental protection offices to address local concerns. It was proposed that the network be funded by DELWP and for the EPA to provide training.
The Government has supported the grass roots project by committing $4.8 million to deliver a pilot local government protection officer project in 2017-18. It has also committed to ensuring that the EPA provide strategic coordination, technical support and further training.
Funding the reforms
The Government has committed $45.5 million over the next 18 months to implement its response to the Inquiry's recommendations, which is intended to be spent as follows:
- introducing the Governance Amendments and Overhaul Bill to Parliament
- $4.8 million to enhance Victoria's public health capability
- $2.1 million to appoint a Chief Environmental Scientist
- $4.8 million on the local government environment protection officers pilot
- $6.5 million to increase on ground resources and develop a prosecution policy, annnd
- $1.5 million to strengthen EPA's role in strategic government decisions, including land use planning.