New environmental protection reforms in Victoria and the national state of play: Part one - Waste Management

Victoria's long awaited and deferred environment protection reforms commence on 1 July 2021 when amendments to the Environment Protection Act 2017 (Vic) (New EP Act) come into effect.¹

In a special four part series of insights, Corrs' Environment and Planning team examine key elements of the New EP Act and compares them to the approach taken in other Australian jurisdictions. In many ways, Victoria's new proactive environment protection regime will be similar to well-established concepts that operate in other States, particularly Queensland and New South Wales.

This article focuses on the cornerstone of Victoria's New EP Act, the 'general environmental duty' or GED, which is modelled on the duties under the Occupational Health and Safety Act 2004 (Vic). The GED will operate in conjunction with a range of other duties introduced under the New EP Act relating to contaminated land and pollution incidents which will be the subject of further Corrs insights over the coming weeks.

Victoria's new general environmental duty

The GED will apply to anyone whose activities may give rise to risks of harm to human health or the environment from pollution or waste. It applies to all Victorians and is not limited to commercial or industrial activities.

The broad reach of the GED is reflected in:

the ordinary meaning of 'activity', which the New EP Act confirms includes the relatively passive storage or possession of waste or other substances;
the scope of relevant risks of harm, which focus on both human health and the environment; and
the breadth of 'waste' which is defined to include any matter disposed of into the environment that alters the environment and any unwanted or surplus matter.

The GED requires a person engaging in such activities to minimise the risks of harm to human health or the environment so far as reasonably practicable. This concept is drawn from the Occupational Health and Safety Act 2004 (Vic), and requires a person to eliminate the risk, and if this is not reasonably practicable, to reduce the risk so far as reasonably practicable.

Determining what is 'reasonably practicable' is a balancing act. This will depend on the likelihood of a risk eventuating and the degree of harm that might result, balanced with what the person knows or ought reasonably know about ways to eliminate or reduce the risk, the suitability of methods to do so and the associated cost. In industry guidance, these latter considerations are described by the Environment Protection Authority Victoria (EPA) as the 'state of knowledge'.

The EPA explains that obtaining this knowledge means drawing on reliable, reputable sources and staying abreast of developments over time as new technology, systems and processes develop or where there is an emerging risk.

Organisations will need to take, so far as reasonably practicable, a range of positive steps in order to comply with the new GED, including:

maintaining plant, equipment, processes and systems in a manner that minimises risks of harm;
maintaining systems for identification, assessment and control of risks of harm;
maintaining systems to ensure that if a risk of harm eventuates, the harm will be minimised;
handling, storing, using and transporting substances in a manner that minimises the risks of harm; and
providing information, instruction, supervision and training to any person (for example, employees) to enable them to comply.

A unique feature of the Victorian regime, which differs to the approach taken in other states, is that non-compliance with the GED amounts to an offence attracting significant penalties.

Failure to comply with the GED can attract a civil penalty, and if the non-compliance happens in a business context, it is an indictable offence. Either way, significant penalties of up to $363,000 can be imposed on individuals and up to $1.817 million for corporations.

There are higher criminal penalties for intentional or reckless breaches of the GED which result in material harm to human health or the environment (including, for individuals, up to five years imprisonment).

Interstate comparisons

Queensland

A GED has been in place in Queensland since 1995 under the Environmental Protection Act 1994 (Qld). Under the duty, all persons must not carry out any activity that causes (or is likely to cause) environmental harm, unless they take all reasonable and practicable measures to prevent or minimise the harm. A number of factors are relevant in considering the measures which should be taken, including the nature of the potential harm and the sensitivity of the environment in which the activity is occurring.

Unlike the position in Victoria, non-compliance with the GED is not itself an offence. However, any action that causes or threatens material or serious environmental harm will constitute an offence, and compliance with the GED may be used as a defence to this and any other offences which relate to environmental harm.

There is no equivalent defence under Victoria's New EP Act, except in relation to a transitional duty relating to material harm which will expire on 1 July 2025 at the latest. However, evidence of compliance with the Victorian GED may ultimately prove relevant to establishing other defences under the New EP Act (such as the due diligence defence in relation to certain offences by officers of a body corporate).

New South Wales

In NSW there is no general overarching duty to avoid or minimise harm to the environment. However, the Protection of the Environment Operations Act 1997 (NSW) sets out broad environment protection offences which criminalise a range of activities which are likely to harm the environment. The fact that these offences can arise in circumstances where there is no actual harm to the environment means that, like Victoria's new laws, there is a focus on prevention of harm.

For instance, it is an offence to wilfully or negligently dispose of waste that harms or is likely to harm the environment. Similar to Victoria, 'waste' is very broadly defined and includes anything which is left in an environment which would cause a change in the environment. The offence can capture activities ranging from tossing a used coffee cup on to the road to dumping truckloads of demolition waste on land.

Western Australia

The regime in WA remains similar to Victoria's reactionary (rather than preventative) approach under the soon to be repealed Victorian Environment Protection Act 1970. There is no GED in WA. Rather, the Environmental Protection Act 1986 (WA) protects the environment through offences in relation to 'environmental harm', once harm has occurred. A scale of 'environmental harm' exists with increasing penalties applied for material and serious environmental harm.

What will the new GED mean for Victorians?

Victorians should actively consider the impact of the GED on their activities and how compliance with the duty may best be achieved. In particular:

Organisations should revisit (or undertake) risk assessments to ensure that all relevant risks associated with business activities and processes are identified, noting that this must encompass risks of harm to both human health and the environment.
Businesses will need to reframe their policies and procedures and, where applicable, environmental management plans to include positive steps to eliminate, or otherwise reduce risks, wherever reasonably practicable.
Organisations will need to review their activities and possibly seek technical advice on how to minimise risks of harm 'so far as reasonably practicable'.
In a contractual setting, consideration should be given to how the negotiated terms facilitate, manage and coordinate compliance with the GED, which may be owed by multiple parties in relation to the same activities.

Footnotes

¹Under the Environment Protection Amendment Act 2018 (Vic).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.