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Environment Protection Amendment
Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
Background
On 17 January 2017, the Andrews Labor Government released its response
to the Independent Inquiry into the Environment Protection Authority
(Government Response). The Government Response committed to
implementing changes to modernise the Environment Protection Authority
(referred to within this explanatory memorandum as either the "Authority"
or "EPA"), including its governance, legislative and regulatory framework.
The Government Response committed to two legislative packages--the
first comprising an Act to establish the Authority with a new governance
structure for a modern EPA, and the second comprising an overhaul of the
Environment Protection Act 1970 (referred to within this explanatory
memorandum as the "1970 Act").
The first tranche of reforms was brought forward by the Environment
Protection Act 2017 (referred to as the "Principal Act" in this explanatory
memorandum), which primarily established a new governance structure for
the Authority and a new objective of the Authority to protect human health
and the environment by reducing the harmful effects of pollution and waste.
The Environment Protection Amendment Bill 2018 ("the Bill") will form the
basis for the second tranche of reforms. The Bill delivers the government's
commitment to reform, modernise, and strengthen the legislative framework
for environment protection in Victoria by introducing significant reforms,
including establishing a legislative model based on prevention of harm.
This Bill will repeal the 1970 Act and introduce many key reforms to
Victoria's environment protection legislation.
581433 1 BILL LA INTRODUCTION 19/6/2018
Key reforms
The Bill establishes a new prevention-focussed regulatory scheme.
At the heart of the new scheme is the proposed general environmental duty.
The proposed general environmental duty is closely modelled on the general
duties at the core of Victoria's Occupational Health and Safety Act 2004
(OHS Act). The general environmental duty will require people engaging
in activities that may give rise to risks of harm to human health or the
environment from pollution or waste to understand those risks and take
reasonably practicable steps to minimise them.
Breach of the general environmental duty is the central offence within the
Bill. Putting a general duty at the centre of the environment protection
regulatory scheme is a significant innovation in delivering preventative
environment protection, returning Victoria to a position of international
leadership in environment protection legislation.
The Bill also provides a modernised and streamlined framework for EPA
granting permissions to engage in certain activities. This will provide EPA
with greater flexibility to apply proportionate, cost-effective regulatory
controls to high-risk activities through licensing, registrations and permits.
The Bill proposes that EPA will have access to a range and severity of
sanctions that is in line with what is expected of a modern regulator.
The maximum penalties for some breaches of the law are increased
significantly in the Bill when compared to the 1970 Act.
Other improvements in the sanctions framework in the Bill include a civil
penalty scheme that will allow EPA to take more timely and proportionate
enforcement action for moderately serious breaches, and empowering courts
to impose monetary benefits orders that reflect any financial advantage
gained as part of breaking the law.
Reforms to waste management regulation in the Bill supplement the
general environmental duty by improving the ability of EPA to apply
targeted regulatory controls to priority and industrial wastes, matching the
strong community expectation that risks from waste will be better managed.
These reforms are integral in providing EPA with proportionate oversight
over the passage of waste between multiple people and businesses, and
supporting the Government's objective of reducing our reliance on landfills
and encouraging resource recovery and reuse.
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The Bill also makes the value of the landfill levy for hazardous wastes
(known as "Prescribed Industrial Wastes" in the 1970 Act) subject to annual
indexation according to the Treasurer's rate. This change means that all
landfill levies will be subject to annual indexation in the future.
The Bill will introduce a new duty to manage contaminated land, clarifying
the obligation of the person in control and management of a contaminated
site to ensure that it is safe for its current or planned future use and to
prevent harm to neighbours. The Bill also requires a person who discovers
significant land contamination to notify EPA so that EPA can ensure risks
posed by the site are properly managed.
A reformed approach to the environmental audit process will increase
flexibility and reduce costs. The Bill replaces a one-size-fits-all approach to
environmental audit by introducing a Preliminary Risk Screen assessment
which provides for a rapid, low-cost assessment of the risks, and determines
whether a more detailed audit is necessary.
The Bill also provides for some important environmental justice initiatives.
These include significant improvements in transparency and access to
information for the community and new third party rights to seek civil
remedies for breaches of the environment protection law.
Other reforms
Other reforms in the Bill include--
• a new duty to notify the EPA when pollution incidents occur,
and a duty to respond to harm caused by a pollution incident
when it occurs;
• strengthened investigation and inquiry powers for EPA
authorised officers, and empowering EPA's use of modern
surveillance tools under the Surveillance Devices Act 1999;
• clarifying EPA's role in providing positive advice regarding
compliance with the law, as well as establishing an improved
range of notices and orders for situations where remedial action
is required;
• clarifying and improving the process for the review of EPA
decisions, providing for both internal reviews by EPA, and
merits review by the Victorian Civil and Administrative
Tribunal (VCAT);
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• Environment reference standards will set out the
environmental values (for example, safe drinking water) and
the environmental quality objectives necessary to protect those
environmental values;
• Better Environment Plans to provide a means for duty holders
and the EPA to agree on a voluntary pathway to compliance,
which also serve to support and encourage innovative ways of
complying with the law; and
• improvements to the way the EPA obtains, uses, discloses and
publishes information, maintaining existing protections over
personal and commercially confidential information.
Structure
The Bill makes substantial amendment to the Principal Act, and
consequential amendment to other Acts and is organised into four Parts.
• Part 1 of the Bill provides for preliminary matters, namely the
purposes, commencement of the Bill, and definitions for the
Principal Act.
• Part 2 of the Bill provides for the substantial amendment to
the Environment Protection Act 2017, by inserting, among
several technical amendments, reform Chapters 1 through 16
(see Table 1 below for a content outline of the chapters).
• Part 3 of the Bill provides for amendments to the Mineral
Resources (Sustainable Development) Act 1990.
• Part 4 of the Bill provides for consequential amendments to
other Acts and the repeal of the 1970 Act and this amending
Act.
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The Table below summarises the key aspects of the reform chapters inserted
in Part 2 of this Bill.
Chapter Title Summary
1 Preliminary
2 Principles of The overarching principles of environment
environment protection to be taken into account in the
protection administration of the Act.
3 Duties relating • The general environmental duty in
to environment relation to risks of harm to human health
protection or the environment from pollution and
waste, including an aggravated breach
of the general environmental duty;
• Transitional duty in relation to material
harm;
• Duties relating to pollution incidents;
and
• Duties relating to contaminated land.
4 Permissions • Issuing or granting licences, permits,
and registrations, as well as
administration of instruments;
• Prohibition from engaging in specified
or prescribed activities without a
permission;
• Application, transfer and amendment
processes for permissions; and
• Other provisions that relate generally to
permissions, or specifically to licences,
permits or registrations.
5 Environment • Making, preparation and review of
standards, environment reference standards;
compliance • Making of compliance codes; and
codes and
position • Making of position statements.
statements
5
Chapter Title Summary
6 Waste • Objects of the waste chapter;
• Powers and appointment of litter
enforcement officers;
• Offences in relation to the disposal and
removal of litter and other waste;
• Duties in relation to industrial waste;
• Duties in relation to priority waste; and
• Administration of the waste levy
scheme.
7 Environmental • Hazardous substance orders;
management • Orders for managers of land and
infrastructure;
• Authorisation of temporary discharge,
emission, deposit, storage, treatment or
handling of waste in the case of a
temporary emergency, public nuisance
or other specified circumstances;
• Order declaring issues of environmental
concern; and
• Unreasonable and aggravated noise.
8 Environmental • Better environment plans;
plans, audits • Environmental auditors, preliminary risk
and other screen assessments and environmental
matters audits;
• Financial assurances;
• Advisory panels; and
• Conference of interested persons.
6
Chapter Title Summary
9 Authorised • Powers to appoint authorised officers
officers, and analysts;
analysts and • Powers of entry and inspection;
other
appointments • Other powers of authorised officers,
including information gathering powers
and powers of direction; and
• Offence for obstructing, assaulting,
intimidating or threatening an authorised
officer.
10 Notices • Improvement and prohibition notices;
• Notices to investigate and
environmental action notices;
• Site management orders;
• Non-disturbance notices;
• Re-direction of body corporate
obligations; and
• Clean up and cost recovery powers of
the Authority.
11 Enforcement • Enforceable undertakings;
and • Infringement notices;
proceedings
• Civil remedies;
• Civil penalties;
• Powers of courts to make various
sentencing orders;
• Liability of officers of corporations and
liability of corporations in relation to the
conduct of its employees, agents or
officers; and
• A general defence to offences against
and contraventions of the Act.
7
Chapter Title Summary
12 Environment • Continuance of the Environment
Protection Protection Authority;
Authority • Application of the Public
Administration Act 2004;
• Remuneration and expenses of the
Authority; and
• Notifications by the Authority to IBAC.
13 Waste and • Operation and governance of Waste and
resource Resource Recovery Groups; and
recovery • Victorian Waste and Resource Recovery
infrastructure Infrastructure Planning Framework.
and planning
14 General • Review of decisions by the Authority,
authorised officers or other decisions;
• Power for the Authority to delegate its
powers and functions;
• Fees and penalties;
• Collection, use, disclosure and
publication of information;
• Public Register;
• Designation of specified responsibilities
to any Victorian Government agency in
areas that pose risk of harm to human
health or the environment;
• Power for the Authority to grant
exemptions; and
• Prohibition of impersonation of certain
persons, false representation,
interference with monitoring equipment
and providing false information.
15 Regulations • Powers of Governor in Council to make
regulations.
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Chapter Title Summary
16 Savings and • General transitional matters;
Transitional • Preservation of certain instruments
under the new Act;
• Provision for environmental audits
underway at the commencement day;
• Continuation of Waste and Resource
Recovery Groups;
• Transitional provisions relating to
financial matters;
• Preservation of certain existing
appointments;
• Transitional matters relating to VCAT;
and
• Transitional provisions relating to
regulations.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill, which are to reform
the legislative framework for the protection of human health
and the environment from pollution and waste; to amend the
Environment Protection Act 2017; to repeal the Environment
Protection Act 1970; to amend the Mineral Resources
(Sustainable Development) Act 2000; and to make
consequential amendments to other Acts.
Clause 2 sets outs when the provisions of the Bill come into operation.
Subclause (1) provides that, subject to subsections (2), (3),
and (4), this Act will come into operation on a day or days to
be proclaimed.
Subclause (2) provides a forced commencement day for Part 3
of 1 July 2019, if it has not come into operation before that day.
Subclause (3) provides that section 19 of this Act comes
into operation on the day this Act receives the Royal Assent.
New section 19 of this Act continues the operation of the
Environment Protection (Industrial Waste Resource)
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Regulations 2009 despite section 5 of the Subordinate
Legislation Act 1994.
Subclause (4) provides, if it is not proclaimed earlier, the Act
will come into operation with a default commencement date of
1 December 2020 (the forced commencement date), which is
more than 12 months from the date of the Bill's introduction.
The forced commencement date is intended to ensure that the
Authority, and members of the community, businesses, industry
and others who will be required to comply with the measures
contained in the Bill, have adequate time to prepare for the
commencement of the significant reforms in the Bill.
The forced commencement date also provides additional time for
the making of new regulations and other subordinate instruments
under the Bill, such as environment reference standards, which
will be required to ensure the effective implementation of the
new legislative framework.
Clause 3 provides that, in this Act, the Environment Protection Act 2017
is called the Principal Act.
Part 2--Amendments to the Environment Protection Act 2017
Clause 4 substitutes the heading to Part 1 of the Principal Act.
Clause 5 inserts additional purposes into the Principal Act and makes
minor technical amendments to section 1 of the Principal Act.
The new purposes inserted into section of the Principal Act are
to--
• set out principles of environment protection;
• set out the legislative framework for the protection of
human health and the environment from pollution and
waste;
• provide for a general environmental duty to prevent
or minimise risks of harm to human health and the
environment from pollution or waste;
• to establish a permissions scheme that enables the
Environment Protection Authority to issue or grant
development licences, operating licences, pilot project
licences, permits and registrations;
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• provide a framework for the management of waste;
• provide for waste and resource recovery infrastructure
and planning;
• enable the Environment Protection Authority and
authorised officers to ensure compliance with the Act
and require action to manage risks of harm to human
health and the environment from pollution or waste;
• provide for a system of criminal and civil penalties;
• provide for a system of civil remedies and compensation
orders available to the Court; and
• provide for the repeal of the 1970 Act.
Clause 6 inserts definitions into the Principal Act of various terms and
concepts used in the Bill and provides for various technical
amendments.
Subclauses (1)-(7) substitute references to sections of the
Principal Act with equivalent new sections as amended by Part 2
of the Bill.
Subclause (8) repeals the definition of commencement day
in section 3(1) of the Principal Act as a new definition of
commencement day is inserted by clause 10 of this Bill for the
purposes of section 5 of the Principal Act.
Subclause (9) inserts a suite of definitions into the Principal Act.
Many definitions from the 1970 Act have been retained in the
Principal Act and some have been amended. Explanations for
some of the important new and amended definitions are provided
below.
activity includes--
• the storage or possession of waste or any other
substance or thing; or
• anything prescribed to be an activity.
The general environmental duty and various other provisions of
the Bill are linked to a person engaging in an activity. In order
to ensure a broad application of the relevant provisions, the
definition of activity is necessarily broad and includes storage
or possession of waste or any other substance or thing.
11
associate, of another person, means any of the following
persons--
• a spouse, parent, brother, sister or child of the other
person;
• a domestic partner within the meaning of the
Relationships Act 2008;
• a member of the other person's household;
• a person who is in a partnership within the meaning of
the Partnerships Act 1958 with the other person;
• a person participating in the management of the same
unincorporated body as the other person;
• a trustee or beneficiary of the same trust as the other
person;
• a trustee of a trust of which the other person is a
beneficiary;
• a beneficiary of a trust of which the other person is a
trustee;
• if the other person is a body corporate, an officer or
member of the governing body of the body corporate;
• a shareholder of the other person if the other person is
a body corporate (other than a public company whose
shares are listed on a stock exchange);
• a person with whom a chain of relationships with the
other person can be traced under any one or more of the
above paragraphs;
• a prescribed person.
The definition of associate is relevant to new section 200 of the
Bill which makes provision for the suspension and revocation
of an appointment of an environmental auditor. Grounds for the
suspension or revocation of the appointment include where the
auditor is an associate of owner/occupier of the site for which
the audit is being conducted. Accordingly, the definition of
associate is broad and inclusive.
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authorised to receive industrial waste, in relation to a person or a
place or premises, means any of the following--
• authorised by a permission to receive that type of
industrial waste;
• exempt from a requirement to obtain a permission to
receive that type of industrial waste;
• authorised under section 157(1) to receive that type of
industrial waste;
• specified by operation of section 48 as not required to
obtain a permission to receive that type of industrial
waste;
• authorised by the regulations, or in accordance with a
process prescribed by the regulations, to receive that
type of industrial waste.
The new definition of authorised to receive industrial waste, is
intended to broaden the capacity of the Authority to specify how
industrial waste can be received. The definition is relevant to the
duties and offences created in Chapter 6.
better environment plan means a better environment plan
accepted by the Authority under new section 182. New
section 182 introduces the concept of a better improvement
plan as an alternative to other forms of compliance activity.
The definition is relevant to new sections 180--188.
civil penalty order means an order made under new Part 11.5.
civil penalty provision means a provision set out in the Table in
new section 314.
The definitions relating to civil penalties are relevant to the
civil penalty scheme established under new Part 11.5. They are
included as part of a broader suite of changes to improve the
general enforcement and deterrence concepts in the Principal Act.
clean up includes measures or activities--
• to investigate and assess the nature and extent of
pollution or waste, including any harm or risk of harm
to human health and the environment arising from the
pollution or waste;
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• to remove, disperse, destroy, dispose of, abate,
neutralise or treat pollution or waste; and
• to restore the environment to a state as close as
practicable to the state it was in immediately before
the discharge or emission of pollution or the deposit of
waste, or to any other state, for the purposes of new
Part 10.9; and
• for the remediation of contaminated land; and
• for the ongoing management of pollution or waste; and
• to do anything necessary for or in connection with in
relation to the measures set out in (above) paragraphs.
The definition of clean up modernises the definition in
section 4 of the 1970 Act. The definition is broad and includes
remediation of contaminated land.
conduct, in relation to a business or undertaking has the
meaning given in subsection (4), which is relevant to liability for
a criminal offence or a civil penalty contravention of the general
environmental duty under new section 25 or the duty to notify of
notifiable incidents under new section 32.
contaminated land has the meaning given in new section 35.
The Bill introduces the concept of contaminated land. This is an
important clarification compared to the 1970 Act, which did not
define the concept of contaminated land.
dangerous litter has the meaning given by new section 112.
Chapter 6 of the Bill introduces different litter and waste offences
including an offence for depositing dangerous litter.
deposit in relation to litter and waste means the act of parting
with the possession of litter or waste and includes the disposal of
litter or waste by burning. The definition of deposit is relevant to
Chapter 6 of the Bill. It includes disposal of litter of waste by
burning to remove any ambiguity as to the breadth of the
definition.
economic instrument means a measure that provides financial
incentives or disincentives for the purpose of encouraging
protection of human health and the environment in economic
activity, through incorporating the costs of harm and risks of
harm, including but not limited to a scheme in the nature of
14
a tradeable permit scheme or an environmental offset
(however described). This definition is relevant as the Authority
has power to make regulations with respect to administration,
implementation, compliance and enforcement of economic
instruments.
eligible person, in relation to an application under new Part 11.4,
has the meaning given by new section 308. New Part 11.4 of the
Bill introduces legal rights for an eligible person to apply to the
Court for certain orders.
environment means the physical factors of the surroundings of
human beings including the land, waters, atmosphere, climate,
sound, odours, tastes, the biological factors of animals and plants
and the social factor of aesthetics. The definition of environment
is unchanged from the definition contained in the 1970 Act.
environmental value means a use, an attribute or a function
of the environment. The Bill introduces the concept of an
environmental value. This concept is relevant to the making of
Environment Reference Standards under new Chapter 5 of the
Bill.
human health includes psychological health.
The general environmental duty and other duties in the Bill
concern risks of harm to human health and the environment.
The broad and inclusive definition of human health recognises
that pollution and waste have impacts beyond physiological
health, for example potential mental health impacts from odour
and noise.
industrial waste means--
• any waste arising from commercial, industrial or trade
activities or from laboratories; or
• waste prescribed to be industrial waste for the purposes
of this definition.
The Bill simplifies the definition found in the 1970 Act.
New Chapter 6 imposes duties in relation to the management of
industrial waste.
issue of environmental concern means an issue that is declared
to be an issue of environmental concern under new section 160,
which enables the Minister to propose that an issue be declared to
15
be an issue of environmental concern. The definition is relevant
to new sections 160-163.
land means any land, whether publicly or privately owned, and
includes any buildings or other structures permanently affixed to
the land and groundwater.
liable person has the meaning given by new section 144, which
provides for the waste levy scheme.
licence means a development licence; an operating licence or a
pilot project licence. The Bill introduces three licence categories.
These licences replace works approvals, licences, and research,
development and demonstration approvals from the 1970 Act.
litter has the meaning given by section 112.
litter authority includes--
• the Authority; or
• any other body created by or under an Act; or
• any government department; or
• any council; or
• the Secretary, being the body corporate established
by Part 2 of the Conservation, Forests and Lands
Act 1987; or
• any body declared by Order of the Governor in Council
under section 113 to be a litter authority.
The definitions of litter authority and litter enforcement officer
are relevant to Chapter 6 which provides that the litter scheme
is to continue to be administered by the Authority and litter
authorities.
litter enforcement officer means--
• a person appointed as a litter enforcement officer by the
Authority under new section 114(1); or
• a person appointed as a litter enforcement officer by a
litter authority under new section 114(2); or
• a person appointed by the Secretary as a litter
enforcement officer under new section 114(3); or
• an authorised officer; or
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• a police officer; or
• a protective services officer appointed under the
Victoria Police Act 2013 who is on duty at, or in the
vicinity of, a designated place within the meaning of
that Act; or
• a person appointed as an authorised officer under Part 3
of the Victorian Fisheries Act 2016 for the purpose of
this Act.
noise includes sound and vibration.
notifiable contamination has the meaning given by new
section 37 which introduces a duty on a person to notify the
Authority of "notifiable contamination".
notifiable incident means has the meaning given by new
section 30, which introduces a duty on a person to notify the
Authority of a "notifiable incident".
officer in relation to a body corporate means--
• a person who is an officer (as defined by section 9 of
the Corporations Act) of the body corporate; or
• a person (other than a person referred to in paragraph
(a)), by whatever name called, who is concerned in, or
takes part in, the management of the body corporate;
New Part 11.8 of the Act introduces officer liability provisions.
In specified circumstances, an officer may be liable to a criminal
or civil penalty. The definition of officer includes an officer
within the meaning of section 9 of the Corporations Act and any
other person concerned in the management of a body corporate.
The definition is intended to be broad and consistent with similar
Victorian laws. The definition of officer is also relevant to new
section 284, which provides for the redirection of liability for
clean-up from a body corporate to its officer(s).
participant, in a better environment plan, has the meaning given
by new section 179.
pollution includes any emission, discharge, deposit, disturbance
or escape of--
• any solid, liquid or gas, or a combination of solid, liquid
or gas, including but not limited to smoke, dust, fumes,
or odour; or
17
• noise; or
• heat; or
• a thing prescribed for the purposes of this definition.
but does not include a thing prescribed not to be pollution for the
purposes of this definition.
The Bill introduces a fundamentally different concept of
pollution to the 1970 Act. The 1970 Act contained pollution
offences in relation to waters, atmosphere and land--the concept
of pollution required evidence of change to the environment in a
specified manner. The Bill defines pollution as the occurrence of
a thing (such as discharge of a liquid) rather that the condition of
the environment that may have been caused by the occurrence.
This reflects the change in the key offence provisions in the Bill,
particularly the general environmental duty. A breach of the duty
is not constituted by the occurrence of pollution but by a failure
minimise risks of harm to human health or the environment from
pollution or waste, so far as reasonably practicable.
pollution incident has the meaning given by new section 29.
New Part 3.4 establishes duties to notify the Authority of certain
pollution incidents and to take action to respond to harm caused
by a pollution incident.
priority waste has the meaning given in section 138, which
introduces the concept of priority waste. This concept replaces
and expands the concept of "prescribed industrial waste" in the
1970 Act.
prohibited person has the meaning set out in section 88, which
introduces the concept that certain persons are prohibited from
engaging in particular activities. The definition of such person,
that is, prohibited persons is contained with section 88.
registered owner means--
• in relation to a motor vehicle--the person who is
registered under the Road Safety Act 1986 as
the registered operator of the motor vehicle or a
corresponding law of the Commonwealth, a State
or a Territory; and
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• in relation to a vessel--the person in whose name the
vessel is registered under the Marine Safety Act 2010 a
corresponding law of the Commonwealth, a State or a
Territory;
• in relation to any other vehicle--the person who owns
the vehicle (whether the vehicle is registered in any way
or not).
The definition of registered owner has been modernised to make
reference to a registration under any corresponding law of the
Commonwealth, State or Territory. This is necessary to ensure
that provisions which rely on the definition of a registered owner
irrespective of the jurisdiction of registration.
resource recovery in relation to waste, means preparation for
reuse of the waste; recycling the waste; reprocessing the waste;
recovering energy or other resources from the waste; anything
prescribed to be resource recovery in relation to waste but does
not include any anything prescribed not to be resource recovery
in relation to waste. The definition of resource recovery is broad
and reflects the cycle from waste to resource. The definition
enables the Authority to deal with any emerging manner of
resource recovery. The definition of resource recovery is
relevant to the definition of waste and in particular, new
section 140 which imposes a duty on a person to investigate
alternatives to disposal of priority waste.
reuse in relation to waste, means the use of the waste for a
purpose that is the same or similar to the purpose for which it
was used before it became waste.
unreasonable noise means noise that is unreasonable having
regard to the following--
• its volume, intensity or duration;
• its character;
• the time, place and other circumstances in which it is
emitted;
• how often it is emitted;
• any prescribed factors;
• unreasonable noise also includes noise that is prescribed
to be unreasonable.
19
The Bill introduces the concept of unreasonable noise.
This concept is important to the administration of the provisions
in Part 7.6 of the Bill.
waste includes any of the following--
• any matter, including solid, liquid, gaseous or
radio-active matter, that is deposited, discharged,
emitted or disposed of in the environment in a manner
that alters the environment;
• any greenhouse gas substance emitted or discharged
into the environment;
• any matter that is discarded, rejected, abandoned,
unwanted or surplus, irrespective of any potential use or
value;
• any matter prescribed to be waste;
• any matter or greenhouse substance included in
(the above) paragraphs, that is intended for, or is
undergoing, resource recovery.
The definition is based on the definition of waste contained in the
1970 Act, but clarifies that waste remains waste until the process
of resource recovery is completed.
waste management facility includes a landfill, a transfer station,
a composting facility, a facility to store or contain solid waste
and a resource recovery facility. The definition of waste
management facility is relevant to a decision made under
section 426, that is, in relation to resource recovery and waste
management infrastructure.
Subclause (10) substitutes section 3(2) of the Principal Act
by inserting new subsections (2)-(5), which clarify terms or
concepts located within the definitions.
New subsection (2) clarifies that a reference in this Act to a
person engaging in an activity includes a reference to a person
who is conducting, undertaking, managing or in control of that
activity.
New subsection (3) clarifies that a reference to waters includes
the bed and sub-soil lying beneath the waters, the air space above
the waters, and any open, piped or underground drain, but not a
20
drain that conveys waste or is part of any waste treatment works.
This definition of waters has been retained from the 1970 Act.
New subsection (4) clarifies the concept of when a person
conducts a business or undertaking. The concept of a person
conducting a business or undertaking is relevant to the question
of liability for an offence or a civil penalty for a contravention
of the general environmental duty and the duty to notify of
notifiable incidents.
Subsection (4) provides that a person conducts a business or
undertaking--
• whether or not the business or undertaking is
conducted for profit or gain; and
• whether or not the business or undertaking is
conducted by a government or public authority
(however described).
This clarifies that, in addition to persons conducting private
businesses for profit or gain, persons conducting not-for-profit
activities, or government or public activities, may also be
conducting a business or undertaking, and therefore may be liable
for an offence or civil penalty for breaches of the relevant duties.
Subsection (4) further provides that a natural person does not
conduct a business or undertaking merely because the person is
engaged in an activity--
• that is primarily domestic or private and not conducted
for profit or financial gain;
• subject to new Part 11.8, that is engaged in solely in the
person's capacity as an employee or officer of another
person or on a voluntary basis.
This makes clear that a person who is only engaging in a
primarily private or domestic activity that is not conducted
for profit or financial gain is not conducting a business or
undertaking for the purposes of this Act, and therefore is not
potentially liable for an offence or civil penalty for a breach of
the relevant duties. In addition, a person engaging in an activity
solely in the person's capacity as an employee, officer or
volunteer is not conducting a business or undertaking for the
purposes of this Act.
21
However, under new Part 11.8, if a body corporate contravenes
certain provisions, including the general environmental duty or
the duty to notify of notifiable incidents, an officer of the body
corporate can be taken to have committed the same offence or
civil penalty contravention (even if the officer was not
conducting a business or undertaking). Additionally, the
conduct of an officer or employee may be attributed to a body
corporate under new Part 11.8.
New subsection (5) provides, for the avoidance of doubt, that
any reference in the Principal Act to "under this Act" includes a
reference to regulations made under this Act, and this subsection
has a corresponding effect in relation to references to other Acts.
Clause 7 inserts new sections 4 to 9 and new Chapters 2 to 11 into the
Principal Act.
New section 4 defines harm, in relation to human health or the
environment, to mean an adverse effect on human health or the
environment (of whatever degree or duration) and includes--
• an adverse effect on the amenity of a place or premises
that unreasonably interferes with or is likely to
unreasonably interfere with enjoyment of the place or
premises; or
• a change to the condition of the environment so as to
make it offensive to the senses of human beings; or
• anything prescribed to be harm for the purposes of this
Act or the regulations.
For the above purposes, harm may arise as result of the
cumulative effect of harm arising from an activity combined
with harm arising from other activities or factors.
The concept of harm is fundamental to the entire scheme
created by the Principal Act and in particular the general
environmental duty. The entire scheme is based on the principle
of the prevention of harm to human health and the environment.
The intended effect of the definition of harm is--
• to include adverse effects on human health and the
environment;
22
• to provide that the duration and degree of the harm is
not relevant to whether or not something is harm--a
harm can be of a very short duration and create a very
slight degree of harm;
• to include an adverse effect on amenity (of a place or
premises) that (or is likely to) unreasonably interfere
with enjoyment. The word "unreasonable" is intended
to create an objective standard of interference--not all
interference as a result of an adverse effect on amenity
will be harm for the purposes of the Principal Act;
• to include an impact that is offensive to the sense of
human beings--this is also on objective standard that
is taken from the pollution of atmosphere offence
(section 41) of the 1970 Act. The Principal Act is
intended to continue to cover the pollution of
atmosphere circumstances (for example odour) that
are captured by section 41 of the 1970 Act;
• that it can arise from the cumulative effect of various
activities.
New section 5 defines material harm, in relation to human health
or the environment, to mean harm that is caused by pollution or
waste that--
• involves an actual adverse effect on human health or the
environment that is not negligible; or
• involves an actual adverse effect on an area of high
conservation value or of special significance;
• results in, or is likely to result in, costs in excess of
the threshold amount being incurred in order to take
appropriate action to prevent or minimise the harm or to
rehabilitate or restore the environment to the state it was
in before the harm.
Subsection (2) provides that harm may be material regardless of
the period of time in which the harm occurs and as a result of a
single occurrence of harm arising from an activity; or multiple
occurrences of harm arising from the same activity; or the
cumulative effect of harm arising from an activity combined with
harm arising from other activities or factors. Subsection (3)
clarifies for the purposes of new section 5(2) the threshold
23
amount is to be $10 000 or a higher amount prescribed by
regulations.
The effect of new section 5 is that material harm is a subset of
harm, defined under section 4. Not all harms will be material
harm.
The concept of material harm is relevant across various
provisions in the Principal Act. Harm that is material harm has
specific implications across the Principal Act (including new
sections 27, 28 and 30).
New section 6 explains the concept of minimising risks of harm
to human health and the environment. New section 6(1) requires
a person--
• to eliminate risks of harm to human health and the
environment so far as reasonably practicable; and
• if it is not reasonably practicable to eliminate risks of
harm to human health and the environment, to reduce
those risks so far as reasonably practicable.
New section 6(2) provides that to determine what is (or was at a
particular time) reasonably practicable in relation to the
minimisation of risks of harm to human health and the
environment, regard must be had to the following matters--
• the likelihood of those risks eventuating;
• the degree of harm that would result if those risks
eventuated;
• what the person concerned knows, or ought reasonably
to know, about the harm or risks of harm and any ways
of eliminating or reducing those risks;
• the availability and suitability of ways to eliminate or
reduce those risks;
• the cost of eliminating or reducing those risks.
New section 6 is based on section 20 of the OHS Act and
is particularly relevant to new section 25 (the general
environmental duty) and new section 39 (the duty to manage
contaminated land). The intended effect of new section 6 is
that a person with a duty to minimise risks of harm must first
eliminate those risks (if reasonably practicable). If it is not
reasonably practicable, then reduce those risks.
24
New section 7 provides for the application of the Principal Act,
which is to bind the Crown in right of Victoria and, so far as the
legislative power of the Parliament permits, the Crown in all its
other capacities. The Principal Act does not apply to a radiation
source within the meaning of the Radiation Act 2005 unless a
serious risk to human health or the environment from pollution or
waste has arisen or is likely to arise.
New section 8 explains the extent and application of the Principal
Act's jurisdiction. Specifically, the Principal Act extends to and
applies to, and in relation to, the territorial seas adjacent to the
coasts of Victoria. The Principal Act extends to, and applies to,
the discharge or deposit of pollution or waste into, or on to, the
waters of the River Murray from any place or premises that is in
Victoria and extends to, and applies in relation to, any permission
issued or any proceedings brought in relation to the discharge or
deposit.
New section 9 is an interpretive provision that provides that the
simplified outlines contained in any portion of the Principal Act
are intended to act only as a guide to readers as to its general
scheme and effect.
Chapter 2--Principles of environment protection
Part 2.1--Simplified outline
New section 10 provides a simplified outline of Chapter 2.
Part 2.2--Application of this Chapter
New section 11 provides for the application of the specified
principles of environment protection. The eleven principles are
set out in new sections 13-23. Subsection (1) provides that
this Chapter specifies the principles of environment protection.
Subsection (2) provides that it is the intention of Parliament
that in the administration of this Act regard should be given to
the principles specified in this Part. A note following new
section 201 explains that in making certain decisions under the
Act the Authority or the Minister must take into account the
principles of environment protection.
New section 12 provides that the Parliament does not intend by
this Chapter to create in any person a legal right or give rise to
any civil cause of action. It is intended, however, that a person
may seek judicial review of a decision if the Act requires the
25
decision maker to have regard to the principles of environment
protection, and the decision maker fails to do so.
Part 2.3--Principles of environment protection
New section 13 describes the principle of integration of
environmental, social and economic considerations.
This principle means that environmental, social and economic
considerations should be effectively integrated, or brought
together, in decision making.
New section 14 describes the principle of proportionality.
This principle means that any decision, action or thing directed
towards minimising harm or a risk of harm to human health or
the environment should be proportionate to the harm or risk of
harm that is being addressed. This principle recognises the
importance of a proportionate and risk-based approach to
regulation.
New section 15 describes the principle of primacy of prevention.
This principle means prevention of harm to human health and the
environment is preferred to remedial or mitigation measures.
This principle underpins the focus of the regulatory scheme in the
Bill on prevention of harm.
New section 16 describes the principle of shared responsibility.
This principle reflects that all levels of Government, industry,
business, communities, and the people of Victoria, have a shared
responsibility for the protection of human health and the
environment.
New section 17 describes the polluter pays principle.
This principle means that persons who generate pollution and
waste should bear the cost of containment, avoidance and
abatement. The principle reflects that polluters should take
responsibility for the external costs arising from their pollution,
including cleaning up the pollution.
New section 18 describes the principle of the waste management
hierarchy.
This principle means that wastes should be managed in the
following order of preference, so far as reasonably practicable:
avoidance; reuse; recycling; recovery of energy; containment;
disposal. The principle reflects that persons who are managing
waste should consider whether avoidance of the production of the
waste is reasonably practicable, and if not, whether reuse of the
26
waste is reasonably practicable, and if not, whether recycling the
waste is reasonably practicable, and so on.
New section 19 describes the principle of evidence-based
decision making. This principle means actions or decision made
under this Act should be based on the best available evidence in
the circumstances that is relevant and reliable.
New section 20 describes the precautionary principle.
This principle means that, if there exist threats of serious or
irreversible harm to human health or the environment, lack of full
scientific certainty should not be used as a reason for postponing
measures to prevent or minimise those threats.
New section 21 describes the principle of equity. This principle
comprises both intra-generational equity and inter-generational
equity. Subsections (1) and (2) describe intra-generational
equity. Intra-generational equity means that all persons,
irrespective of their personal attributes or location, are entitled
to live in a safe and healthy environment and should not
disproportionately bear the costs or impacts of environmental
harm. Subsection (3) describes inter-generational equity.
Inter-generational equity means that the present generation
should ensure that the state of the environment is maintained
or enhanced for the benefit of future generations.
New section 22 describes the principle of accountability.
This principle means that members of the public should--
• have access to reliable and relevant information in
appropriate forms to facilitate a good understanding of
issues of harm or risk of harm to human health or the
environment and of how decisions are made under this
Act; and
• be engaged and given opportunities to participate in
decisions made under this Act, where appropriate to do
so; and
• have their interests taken into account in decisions made
under this Act.
The principle emphasises the importance of procedural fairness,
transparency and access to information.
27
New section 23 describes the principle of conservation.
This principle means that biological diversity and ecological
integrity should be protected for purposes that include the
protection of human health.
Chapter 3--Duties relating to environment protection
Part 3.1--Simplified outline
New section 24 provides a simplified outline of Chapter 3.
Part 3.2--General environmental duty
The general environmental duty is a preventative duty and casts a
positive obligation on duty holders to proactively minimise risks
of harm to human health and the environment from pollution and
waste. New section 6 clarifies that a duty to minimise risks of
harm, so far as reasonably practicable, requires a duty holder to
eliminate risk where reasonably practicable, and then to reduce
any remaining risk so far as reasonably practicable. A breach of
the duty will occur if the duty holder fails to minimise, as
reasonable practicable, risks of harm to human health and the
environment. The duty holder will be subject to an offence or a
civil penalty for a contravention to the general environmental
duty, if they are conducting a business or an undertaking.
The general environmental duty (found in new section 25(1)) is
modelled on section 21 of the OHS Act. The structure of the
provision and the central concept of "reasonably practicable"
is based on the same principles found in the OHS Act.
Accordingly, the general environmental duty arises when the
risk of harm exists. A breach of the general environmental
duty occurs once a person fails to take reasonably practicable
measures to address the risk. It does not arise once the harm
has occurred. The general environmental duty is focussed on
prevention of harm because it requires the identification,
assessment and control of risks. This is a fundamental departure
from the pollution offences contained in the 1970 Act.
New section 25 provides for the general environmental duty.
Subsection (1) provides that a person who is engaging in an
activity that may give rise to risks of harm to human health or the
environment from pollution or waste must minimise those risks,
so far as reasonably practicable.
28
A note is inserted at the foot of the subsection referring the
reader to section 6 of the Act for explanation of the concept of
minimising risks of harm to human health and the environment.
New section 6(2) lists the matters relevant for a duty holder to
determine what is reasonably practicable.
The note also indicates that subsection (1) is a civil penalty
provision, with a civil penalty for contravening the provision set
out in the Table in section 314. The note also refers the reader to
section 314(3), which provides that a court may only award a
civil penalty for a contravention of new section 25(1) if the
person contravenes the provision in the course of conducting a
business or undertaking.
Subsection (2) provides that a person commits an offence if the
person contravenes subsection (1) in the course of conducting a
business or undertaking. The nature of the liability for an offence
against the general environmental duty is intended to be similar
to that imposed by the duty under section 21 of the OHS Act.
A penalty of up to 2000 penalty units for a natural person or
10 000 penalty units for a body corporate applies.
A person who contravenes subsection (1), other than in the
course of conducting a business or undertaking, is not liable for a
criminal offence or a civil penalty. However, compliance with
the general environmental duty can be enforced by the Authority
issuing an improvement notice to the person under Chapter 10.
Subsection (3) provides that an offence under subsection (2)
is an indictable offence. A note is inserted at the bottom of
subsection (3) to clarify that, despite being an indictable offence,
this offence may be heard and determined summarily.
Subsection (4) provides that, without limiting subsection (1), if a
person fails to do any of the actions provided at subsection (4)(a)
to (e), so far as is reasonably practicable, in the course of
conducting a business or an undertaking, that person will be
taken to have contravened subsection (1). The actions are as
follows--
• use and maintain plant, equipment, processes and
systems in a manner that minimises risks of harm to
human health or the environment from pollution and
waste;
29
• use and maintain systems for identification, assessment
and control of risks of harm to human health or the
environment from pollution and waste that may arise in
connection with the activity, and for the evaluation of
the effectiveness of controls;
• use and maintain adequate systems to ensure that if a
risk of harm to human health or the environment from
pollution or waste were to eventuate, its harmful effects
would be minimised;
• ensure that all substances are handled, stored, used or
transported in a manner that minimises risks of harm to
human health or the environment from pollution and
waste;
• provide information, instruction, supervision and
training to any person engaging in the activity to enable
those persons to meet the duty under subsection (1).
Subsection (5) removes any doubt that the general environmental
duty is of broad application by making specific provision for
its application in relation to certain 'upstream' duty holders.
It provides that a person who designs, manufactures, installs or
supplies substances, plant, equipment or structures are explicitly
subject to the general environmental duty. In addition to the
requirements imposed by new section 25(5), such a person is also
required to take the following actions specified in sections (5)(a)
and (b)--
• minimise risks of harm to human health and the
environment from pollution and waste arising from
the design, manufacture, installation or supply of the
substance, plant, equipment or structure when the
substance, plant, equipment or structure is used for a
purpose for which it was designed, manufactured,
installed or supplied;
• provide information regarding the purpose of the
substance, plant, equipment or structure and any
conditions necessary to ensure it can be used in
a manner that complies with the duty under
subsection (1).
30
New section 26 provides that multiple contraventions of the
general environmental duty can be charged as a single offence.
in certain circumstances. New section 26 is analogous to
section 33 of the OHS Act. The purpose of section 26 is to
enable the EPA, where it considers it appropriate, to prosecute
multiple offences within the single charge. This means the
Courts can impose a single sentence that deals with multiple
contraventions.
Subsection (1)(a) provides that the section applies to a
contravention of the general environmental duty. Subsection
(1)(b) provides that the section applies to a contravention of
the general environmental duty for which an officer of a body
corporate is liable (even if the officer represents the Crown), as
a result of the operation of Part 11.8.
Subsection (2) provides that, subject to any contrary court order,
two or more contraventions may be charged as a single offence
if the contraventions arise out of the same factual circumstances.
Subsection (3) provides that if two or more contraventions are
charged as a single offence, a single penalty only may be
imposed in respect of the contraventions.
New section 27 creates an offence for an aggravated breach of
the general environmental duty. The purpose of this offence is
to enable a Court to sentence a person that has exhibited a high
degree of culpability in breaching the general environmental
duty. Section 27 is conceptually similar to section 32 of the
OHS Act.
The elements of the offence are--
• the person intentionally or recklessly contravenes the
general environmental duty; and
• the contravention results in material harm or is likely
to result in material harm to human health or the
environment from pollution or waste; and
• the person knew or reasonably should have known
that the contravention would result in material harm or
would be likely to result in material harm to human
health or the environment from pollution or waste.
31
Unlike an offence for breach of the general environmental duty
under new section 25(1), the offence under section 27(1) can
be committed by any person, not only a person conducting a
business or undertaking.
Given the very serious nature of the offence, the penalties
are substantially higher than for a breach of the general
environmental duty. A maximum penalty of 4000 penalty units
or up to 2 years imprisonment, or both, for a natural person, or
20 000 penalty units for a body corporate, applies.
Part 3.3--Transitional duty relating to material harm
New section 28 creates a transitional duty in relation to material
harm. In particular, section 28 is to be repealed no later than
four years from the commencement of the Bill. Section 28 is
intended to work in a complementary manner to the general
environmental duty in section 25. In other words, a person who
complies with the general environmental duty will not be liable
for a contravention of section 28. Similarly, a person who has
been convicted of breaching the general environmental duty
cannot be then charged for a breach of section 28. To ensure
fairness, there is parity between the penalties for a breach of
section 25 and 28.
Subsection (1) provides that a person must not engage in conduct
that results in material harm or that is likely to result in material
harm to human health or the environment from pollution or
waste. A note is inserted at the foot of subsection (1) to clarify
that section 314 provides that a contravention of subsection (1)
is a civil penalty provision with a penalty set out in the Table in
section 314. A second note refers to section 5, which provides
for the definition of material harm.
Subsection (2) provides that a person commits an offence if the
person contravenes subsection (1). The offence is intended to be
a strict liability offence; however, a defence is available under
subsection (3). Subsection (2) also provides the relevant criminal
penalties if a natural person (2000 penalty units) or a body
corporate (10 000 penalty units) is found to have contravened
subsection (1).
Subsection (3) provides that, if a person contravenes subsection
(1), it is a defence if the person proves that, in engaging in the
conduct, the person did not contravene the general environmental
duty. This defence applies in criminal or civil proceedings.
32
Subsection (4) provides that an offence under subsection (2) is an
indictable offence. A note following subsection (4) clarifies that
the offence may be tried summarily.
Subsection (5) provides that, proceedings must not be
commenced against a person in relation to a contravention of
subsection (1), if the person has been convicted of an offence
against the general environmental duty constituted by conduct
that is the same or substantially the same as the conduct that
constitutes the contravention of subsection (1).
Subsection (6) provides for the opposite situation, that is,
proceedings must not be commenced against a person in relation
to a contravention of the general environmental duty if the person
has been convicted of an offence against subsection (2) that is
constituted by the same or substantially the same conduct.
Subsection (7) provides that this section is repealed on the earlier
of the fourth anniversary of the day on which it comes into
operation, or a day to be proclaimed.
Part 3.4--Duties relating to pollution incidents
New Part 3.4 imposes two duties relating to pollution incidents: a
duty to notify the Authority of notifiable incidents and a duty to
take action to respond to harm caused by a pollution incident.
The purpose of the notification duty in new section 32 is to
require the notification of notifiable incidents, and to bring the
Victorian environment protection laws into line with similar
Victorian and interstate laws. The absence of a statutory incident
notification provision in the 1970 Act was a substantial weakness
that undermined EPA's ability to respond to incidents.
New section 29 provides for a key definition of pollution
incident, which means an incident or a set of circumstances that
causes a leak, spill or other unintended or unauthorised deposit
or escape of a substance and as a result of which, pollution has
occurred or is occurring. However, a pollution incident is not an
incident or set of circumstances that solely involves the emission
of noise.
New section 30 provides for a key definition of a notifiable
incident, which means a pollution incident that causes or
threatens to cause material harm; or a prescribed notifiable
incident. A notifiable incident does not include incidents which
are excluded by the regulations.
33
New section 31 creates a duty to take action to respond to harm
caused by a pollution incident. This is a "no fault duty"--that is,
the person does not need to have contravened any provision of
the Bill to be responsible. New section 31 is aligned with the
principle of polluter pays (section 17) and makes clear that the
polluter must not wait for the EPA to issue a notice to compel
clean up and remediation before taking appropriate action.
Unlike new sections 25 and 28, a breach of new section 31 does
not make a person liable to an offence or a civil penalty, but
compliance with section 31 can be enforced by the EPA through
a notice issued under Chapter 10.
The duty requires that if a pollution incident has occurred as a
result of an activity (whether by act or omission) that causes or
is likely to cause harm to human health or the environment, a
person engaging in that activity must, so far as is reasonably
practicable, restore the affected area to the state it was in before
the pollution incident occurred.
New section 32 creates a duty to notify the Authority of
notifiable incidents.
Subsection (1) provides that this section applies to a person
who is engaging in or has engaged in, an activity that results in a
notifiable incident.
Subsection (2) provides that a person must notify the Authority,
as soon as practicable, after the person comes aware, or
reasonably should have been aware of the occurrence of a
notifiable incident. A note following subsection (2) indicates
that it is a civil penalty provision with a penalty set out in the
Table in section 314.
Subsection (3) provides that a person must notify the Authority
under subsection (2) regardless of whether the notifiable incident
is contained to a single place or premises that is occupied by or
under the management or control of the person.
Subsection (4) provides that a person commits an offence if the
person contravenes subsection (2) in the course of conducing a
business or undertaking. A penalty of up to 240 penalty units for
a natural person or 1200 penalty units for a body corporate
applies.
34
Subsection (5) provides that a person is not required to notify
the Authority under this section if the person is aware that a
notification of notifiable incident has already been made to the
Authority in accordance with section 32.
New section 33 provides for the manner and form of notifications
of notifiable incidents. Subsection (1) provides that a notification
under section 32 must be made in the manner and form approved
by the Authority.
Subsection (2) specifies the information and particulars that must
be provided to the Authority with the notification. Subsection (3)
provides that if any of the information prescribed is not known to
a person at the time the person notifies the Authority, that
information must be provided to the Authority as soon as
reasonably practicable after the person becomes aware of the
information.
New section 34 provides that the privilege against self-
incrimination does not apply to section 32. Subsection (1)
provides that a person is not excused from notifying the
Authority on the grounds that the information provided by the
person as part of the notification might tend to incriminate the
person or make the person liable to a penalty.
However, subsection (2) provides that any notification given by a
person as part of a notification under section 32 is not admissible
in evidence against the person in a proceeding for an offence
other than a proceeding relating to that person providing false or
misleading information (in relation to the notification).
Part 3.5--Duties relating to contaminated land
Division 1 provides for the core concepts of what contaminated
land is and what land the duty applies to.
New section 35 specifies what is contaminated land.
Subsection (1) provides that land is contaminated if waste, a
chemical substance or a prescribed substance--
• is present on or under the surface of the land; and
• the waste, chemical substance or prescribed substance
is present in a concentration above the background
level and creates a risk of harm to human health or the
environment.
35
Subsection (2) provides that land is not contaminated merely
because waste, a chemical substance, or a prescribed substance
is present in a concentration above the background level in water
that is on or above the surface of land; or if any prescribed
circumstances apply to the land.
New section 36 specifies what is the background level of waste
or substances. For the purposes of this Part, the background level
of waste, a chemical substance or a prescribed substance in
relation to land is--
• the background level specified in, or determined in
accordance with, the regulations or an environment
reference standard in relation to waste, chemical
substance or prescribed substance; or
• if the regulations or an environment reference
standard do not specify a background level for the
waste, chemical substance or prescribed substance--
the naturally occurring concentration of the waste,
chemical substance, or prescribed substance on or
under the surface of land in the vicinity of the land.
New section 37 defines notifiable contamination to mean
contamination that is--
• prescribed notifiable contamination; or
• if the Regulations do not prescribe notifiable
contamination by a particular waste, chemical substance
or prescribed substance, contamination for which the
reasonable cost of action to remediate the land is likely
to exceed $50 000 or another prescribed amount.
New section 38 provides that this Act applies to land that is
contaminated before, on or after the commencement of this Act.
This puts beyond dispute that the Principal Act applies to
contamination irrespective of when the events that caused the
contamination took place.
New Division 2 provides for the new duty to manage
contaminated land, which like new section 31, it is a "no fault"
duty. The existence of contaminated land rather than the actions
of the relevant person will give rise to the duty.
36
New section 39 creates a duty to manage contaminated land.
Subsection (1) provides that a person in management or control
of land must minimise risks of harm to human health and the
environment from contaminated land, so far as is reasonably
practicable. Subsection (2) provides that, for the purposes
of subsection (1), minimising risks to human health and the
environment from contaminated land includes (but is not
limited to) carrying out the following activities--
• identification of any contamination that the person
knows or ought reasonably to know of;
• investigation and assessment of the contamination;
• provision and maintenance of reasonably practicable
measures to minimise risks of harm to human health
and the environment from the contamination, including
undertaking clean up activities where reasonably
practicable;
• provision of adequate information to any person that the
person in management or control of the contaminated
land reasonably believes may be affected by the
contamination, including--
• sufficient information to identify the
contamination; and
• the results of investigation and assessment
referred to in paragraph (b); and
• the risks of harm to human health and the
environment from the contamination;
• provision of adequate information to enable
any person who is reasonably expected to
become a person in management or control of
the contaminated land to comply with the duty to
manage contaminated land.
Subsection (3) enables a person in management or control of land
to recover reasonable costs associated with complying with the
duties under section 39(1) or 40(1) from a person who caused or
contributed to contamination of the land. The costs are to be
treated as a debt due to the person in management or control of
the land.
37
New section 40 creates a duty to the Authority notify that land
is contaminated. Subsection (1) provides that a person in
management or control of land must notify the Authority, as soon
as reasonably practicable, if the land has been contaminated by
notifiable contamination. A note following subsection (1)
identifies that it is a civil penalty provision with a penalty set
out in the Table in section 314.
Subsection (2) provides that a person commits an offence if the
person contravenes subsection (1) and the person fails to notify
the Authority in accordance with section 41 after the person
becomes aware of, or reasonably should have been aware of, the
notifiable contamination. A penalty of up to 120 penalty units
for a natural person or 600 penalty units for a body corporate
applies.
Subsection (3) provides that, for the purposes of subsection (1),
whether a person in management or control of land becomes
aware, or reasonably should have been aware, of notifiable
contamination is to be determined having regard to the criteria
specified in subsection (3). Subsection (4) provides that
subsection (1) does not apply if the person who is required to
notify the Authority under subsection (1) is aware that a
notification has already been made to the Authority in accordance
with this section, or the notifiable contamination is prescribed to
be an exempt notifiable contamination.
New section 41 provides for the manner and form of notification
of notifiable incidents. Subsection (1) provides that a notification
under section 40 must be made in the manner and form approved
by the Authority. Subsection (2) specifies the information and
particulars that must be provided to the Authority with the
notification. Subsection (4) provides that if any of the
information prescribed is not known to a person at the time the
person notifies the Authority, that information must be provided
to the Authority as soon as reasonably practicable after the
person becomes aware of the information.
New section 42 provides that the privilege against
self-incrimination is abrogated in certain circumstances.
Subsection (1) provides that a person in management or control
of land is not excused from the duty to notify of notifiable
contamination on the grounds that the information provided
by the person as part of the notification might tend to incriminate
the person or make the person liable to a penalty.
38
Subsection (2) specifies the circumstances in which a notification
given by a person as part of a notification under this Division is
not admissible in evidence against the person in a proceeding for
an offence or for the imposition of a penalty. This provision is
only intended to affect the admissibility of evidence given as part
of a notification under section 40. It is not intended to affect the
admissibility of any evidence obtained in any subsequent
investigation by the Authority as a result of the notification.
Chapter 4--Permissions
The permissions framework is intended to better manage risks
of harm to human health and the environment. It complements
the general environmental duty in a way that seeks to benefit
businesses and the community by providing additional guidance
and support to better manage compliance and risk. Under the
1970 Act, works approvals and licences formerly applied to
'premises' only. The new permissions framework applies,
instead, to 'activities'. The classes of activity for each type of
permission will be prescribed by regulations. This is intended to
facilitate a more flexible and adaptive approach to regulation and
compliance. Chapter 4 introduces a permissions framework that
provides for three main types of permission--
• licences (divided into operating, development and pilot
project);
• permits; and
• registrations.
Chapter 4 provides for exemptions, fees and general offences
in relation to breach of the permissions framework and provides
for payment of the environment protection levy for prescribed
activities, as well as prohibiting certain persons from engaging in
prescribed activities.
Part 4.1--Simplified outline
New section 43 provides a simplified outline of Chapter 4.
Part 4.2--Permissions required for certain activities
New section 44 provides that development licences are required
for specified development activities. A development licence is
equivalent to a works approval in the 1970 Act. Subsection (1)
provides it is an offence for a person to engage in one or more of
the specified activities, except as authorised by a development
39
licence in respect of the activity. This offence is intended to be
a strict liability offence. Subsection (1) also provides for the
relevant penalties if a natural person or a body corporate is found
to have contravened subsection (1). Subsection (2) provides that
subsection (1) does not apply--
• in respect of any action or thing a person takes or does
to comply with a pilot project licence, authorisation,
exemption or requirement specified subsection (2); or
• in respect of any action or thing that a person is required
to take or do under an improvement notice or
environmental action notice; or
• if a prescribed exemption applies to the person.
Subsection (3) provides that an offence under subsection (1) is
an indictable offence.
New section 45 provides that operating licences are required
for prescribed operating activities. An operating licence is
equivalent to a licence under the 1970 Act.
Subsection (1) provides it is an offence for a person to engage
in a prescribed operating activity except as authorised by an
operating licence in respect of that activity. This offence is
intended to be a strict liability offence. Subsection (1) also
provides the relevant penalties if a natural person or a body
corporate is found to have contravened subsection (1).
Subsection (2) provides that subsection (1) does not apply--
• in respect of any action or thing a person takes or does
to comply with a pilot project licence, authorisation,
exemption or requirement specified in subsection (2); or
• in respect of any action or thing that a person is required
to take or do under an improvement notice or
environmental action notice; or
• if a prescribed exemption applies to the person.
Subsection (3) provides that an offence under subsection (1) is an
indictable offence.
New section 46 provides that permits are required for prescribed
permit activities. Subsection (1) provides it is an offence for a
person to engage in a prescribed permit activity except as
authorised by a permit in respect of that activity. This offence is
40
intended to be a strict liability offence. Subsection (1) also
provides the relevant penalties if a natural person or a body
corporate is found to have contravened subsection (1).
Subsection (2) provides that subsection (1) does not apply--
• in respect of any action or thing a person takes or does
to comply with a pilot project licence, exemption,
authorisation or requirement specified in subsection (2);
or
• in respect of any action or thing that a person is
required to take or do under an improvement notice or
environmental action notice; or
• if a prescribed exemption applies to the person.
Subsection (3) provides that an offence under subsection (1) is an
indictable offence.
New section 47 provides that registration is required for
prescribed registration activities. Subsection (1) provides it is an
offence for person to engage in a prescribed registration activity
or an activity subject to an Order under section 87(1) except as
authorised by a registration in respect of that activity. This
offence is intended to be a strict liability offence. Subsection (1)
also for provides the relevant penalties if a natural person or a
body corporate is found to have contravened subsection (1).
Subsection (2) provides that subsection (1) does not apply--
• in respect of any action or thing a person takes or does
to comply with a requirement or authorisation specified
in subsection (2); or
• in respect of any action or thing that a person is
required to take or do under an improvement notice or
environmental action notice; or
• if a prescribed exemption applies to the person.
Subsection (3) provides that an offence under subsection (1) is
an indictable offence.
New section 48 provides for the Authority to make a
determination that a person does not require a permission if
specified requirements are met. For example, a notice may
provide that an operating licence is not required if the specified
41
requirements are met, including a requirement to hold a permit
for the activity.
Part 4.3--General provisions relating to permissions
New section 49 provides for the application of Part 4.3.
The section provides that Part 4.3 applies subject to anything to
the contrary in Part 4.4, 4.5 or 4.6 of the Act.
New section 50 provides for the form and contents of
applications and for the manner in which applications that do
not comply may be dealt with.
Subsection (2) provides that the Authority or council must not
deal with an application that does not comply with this section;
and must advise the applicant it does not comply.
Subsection (3) provides that the Authority or council may require
an applicant to provide the Authority or council with information
relating to the application. Subsection (4) specifies that the time
in which the Authority or council must deal with the application
does not include the period of time specified in the subsection.
New section 51 specifies how an application may be dealt with
after expiry of the determination period. Subsection (1) provides
that this section applies if the Authority or a council does not
issue or refuses to issue the licence or permit within the period
during which the Authority or council must determine the
application. Subsection (2) provides that the Authority or council
may continue to deal with an application after the expiry of the
determination period.
New section 52 provides that notice of applications for
development licences are to be published. Subsection (1)
provides that, on receiving an application for a development
licence, the Authority must ensure that a notice is published in a
form of media or publication specified in the subsection.
Subsection (2) provides that a notice made under subsection (1)
must include the criteria specified in the subsection.
New section 53 provides that the Authority must develop a
Charter of Consultation and provides that the Charter of
Consultation must include the information specified in subsection
(2), and may at the Authority's discretion, also include other
matters. Subsection (3) provides that the Authority must publish
the Charter of Consultation on the Authority's website.
42
New section 54 provides for the Authority or a council to issue a
permission subject to conditions specified by the Authority.
The Authority or a council may specify that a permission is
subject to conditions of a type specified in subsections (2)
and (3).
New section 55 requires the holders of a permission to pay any
prescribed fee at the prescribed time or for the prescribed period.
This would allow, for example, the payment of annual fees for
operating licences consistent with the current annual licence fees
under the 1970 Act.
New section 56 provides for the transfer of a licence or permit.
Subsection (1) provides that a person may, with the agreement
of the holder of a licence or permit, apply for the transfer of that
licence or permit to the applicant.
Subsection (2) provides for the making of an application under
subsection (1). Subsection (3) provides that an application under
subsection (1) must meet the criteria specified in subsection (3).
Subsection (4) provides that, within 20 business days after
receiving an application, the Authority or council must determine
the application.
Subsection (5) provides that the Authority or council must
refuse to transfer a licence or permit if the Authority or council
considers that the applicant is not a fit and proper person to hold
a licence or permit. Subsection (6) provides that the Authority
or council must, as soon as practicable after making a decision
under subsection (4) give the applicant and holder of the licence
or permit written notice stating each of the matters specified
subsection (6).
New section 57 provides for the amendment of a licence or
permit on application to the Authority or, in the case of a permit
issued by a council, to that council. Subsection (3) provides
that an application under subsection (1) must meet the criteria
specified in subsection (3). Subsection (4) provides that, on
receiving an application, the Authority or council must determine
the application.
Subsection (5) provides that the Authority or council must
make a decision under subsection (3) within the periods of time
specified in subsection (5). Subsection (6) provides that when
determining whether to amend a licence or permit under this
43
section, the Authority or council must take into account the
matters specified in subsection (6). Subsection (7) provides that
the Authority must refuse to amend a licence under this section
if--
• the Authority considers that the activity as proposed
to be amended poses an unacceptable risk of harm to
human health or the environment;
• the Authority considers that, in the case of an
operating licence, the proposed amendments require a
development licence and the holder of the operating
licence does not hold a development licence for those
amendments;
• any prescribed circumstances exist.
Subsection (8) provides that the Authority or council must, as
soon as practicable after making a decision under subsection (4),
give the holder of the licence or permit written notice stating each
of the matters specified in subsection (8).
New section 58 provides for the amendment of a permission
on the initiative of the Authority or council for the purposes
specified in subsection (1). Subsection (2) provides that,
when determining whether to amend a licence or permit under
subsection (1)(c), the Authority or council must take into account
the matters specified in subsection (2). Subsection (3) provides
that the Authority or council must, as soon as practicable after
amending a permission under this section, give the permission
holder notice stating each of the matters specified in
subsection (3).
New section 59 provides for the surrender or revocation of
permissions on application to the Authority or, in the case of a
permit issued by a council, to that council. Subsection (3)
provides that an application must meet the criteria specified in
subsection (2). Subsection (4) provides that the Authority or
council, within 20 business days after receiving an application,
must determine the application.
Subsection (5) provides that the Authority or council may refuse
to consent to the surrender of a licence or permit, if the Authority
or council considers that the holder of the licence or permit, when
engaging in the licence activity or permit activity, has--
44
• contravened the general environmental duty or the duty
imposed under section 39; or
• failed to comply with a condition of the licence or
permit.
Subsection (6) provides that the Authority or council must refuse
to consent to the surrender of a licence or permit, if the Authority
or council considers that the holder of the licence or permit is
continuing to engage in the licence activity or permit activity.
Subsection (7) provides that the Authority or council must, as
soon as practicable after making a decision under subsection (4),
give the holder of the licence or permit written notice stating
matters specified in subsection (7). Subsection (8) provides that
the surrender of a licence or permit does not take effect unless the
holder of the licence or permit has met any conditions imposed
by the Authority or council on the surrender. Subsection (9)
provides that the Authority or council must revoke the following
permissions if the holder of the permission requests in writing
that it be cancelled--
• a registration; or
• a licence or permit that specifies an activity prescribed
for the purposes of this section.
Subsection (10) provides that the Authority or council must give
the holder of the permission written notice of a revocation under
subsection (9).
New section 60 provides for the suspension of permissions by an
Authority or council in relation to any or all of its permission
activities, if any of the criteria specified in subsection (1) applies.
Subsection (2) provides that if the Authority or council proposes
to make a suspension, the Authority or council must give the
holder of the permission written notice stating the matters
specified in subsection (2). Subsection (3) provides that the
Authority or council must consider any submission before
deciding whether or not to make a proposed suspension.
Subsection (4) provides that the Authority or council must give
the holder of the permission written notice stating the matters
specified in subsection (4). Subsection (5) provides during a
period of suspension, a permission is not in force in respect of
the permission activities to which the suspension relates, other
than for specified purposes. Subsection (6) provides that the
Authority or council may remove a period of suspension if the
45
Authority or council considers that the holder of the permission
has rectified any circumstances that gave rise to the suspension.
Subsection (7) provides that the Authority or council may extend
a period of suspension, if, on the date on which the suspension
expires, the Authority or council considers that the holder of the
permission has not rectified any circumstances on which the
Authority or council based its decision to make the suspension.
Subsection (8) provides that if the Authority or council extends
a period of suspension under subsection (7), the Authority or
council must give the holder of the permission a written notice
including matters in subsection (7).
New section 61 provides for the revocation of permissions on the
Authority or council's initiative if any of the grounds or criteria
specified applies. Subsection (2) provides that the Authority
or council may revoke a permission if the Authority or council
considers that the holder of the permission is no longer required
to hold the permission. Subsection (3) provides that if the
Authority or council proposes to revoke a permission, the
Authority or council must give the holder of the permission
written notice. Subsection (4) provides that the Authority or
council must consider any submission under subsection (3)(b)
before deciding whether or not to revoke a permission.
Subsection (5) provides that the Authority or council must give
the holder of the permission written notice stating the specified
matters. Subsection (6) provides that the Authority or council
must give the holder of the permission written notice of the
decision, the reasons for the decision and the date on which the
revocation takes effect as soon as practicable.
New section 62 provides that a person is taken to perform a duty
or satisfy an obligation under the Principal Act if the permission
provides for how the person is to perform the duty or satisfy the
obligation and the holder of the permission complies with the
permission to the extent that it provides for performing the duty
or satisfying the obligation. This does not mean that compliance
with a permission equates to compliance with, for example, the
general environmental duty. It only has that effect where the
permission sets out how a specified duty or obligation is to be
performed or satisfied and only to the extent of that duty or
obligation addressed in the permission.
46
New section 63 provides that a breach of a permission condition
is an indictable offence. Subsection (1) specifies the relevant
penalties that apply to a natural person and a body corporate
for breach of a condition of a licence issued to the person.
Subsection (2) specifies the relevant penalties that apply to a
natural person and a body corporate for breach of a condition of a
permit issued to the person. Subsection (3) specifies the relevant
penalties that apply to a natural person and a body corporate for
breach of a condition of a registration granted to the person.
Subsection (4) provides that subsections (1), (2), and (3) do not
apply to a breach of a condition of certain specified conditions.
Subsection (5) provides that an offence under subsections (1), (2)
or (3) is an indictable offence. These offences are intended to be
strict liability offences.
New section 64 provides it is an offence to breach prescribed
permission conditions in prescribed circumstances. This offence
is intended to be a strict liability offence. This section also
provides the relevant penalties that apply to a natural person and
a body corporate for breach of a prescribed permission condition.
New section 65 provides for the continuing effect of conditions
of a permission if a provision of the Act or the regulations
requires a person to comply with a condition of a permission.
New section 66 specifies the grounds and criteria for the
Authority or a council to determine whether a person is a fit and
proper person. Subsection (2) provides that the Authority or
council must not determine that a person is a fit and proper
person unless the Authority or council is satisfied that making
that determination is not contrary to the public interest.
New section 67 specifies that the Authority must not issue or
grant a permission in relation to a landfill site for the deposit
of priority waste prescribed as Category A priority waste.
This reflects the current ban on sending Category A priority
waste to landfill.
New section 68 provides for exemptions for transporting
reportable priority waste. Subsection (1) provides that the
Authority may, on application, grant an exemption from the
requirement to hold a permission in connection with the
transportation of reportable priority waste if the Authority is
satisfied that the person holds a valid authorisation to transport
the waste under the law of another State or a Territory.
47
Subsection (2) provides that an application for exemption under
subsection (1) must meet the specified criteria. Subsection (3)
provides that on receiving an application complying with
subsection (2), the Authority must, within 20 business days or
any shorter prescribed period after receiving the application
determine the application.
Subsection (4) provides that when determining whether to grant
an exemption, the Authority must take into account any
prescribed matter. Subsection (5) provides that an exemption
granted under subsection (3) may be revoked or amended by a
written notice Subsection (6) provides that an exemption granted
under subsection (3) has no effect unless the conditions to which
it is subject are complied with.
Part 4.4--Licences
Division 1--Development licences
New section 69 specifies the process for consideration of
applications for development licences to be followed by the
Authority. Subsection (1) provides that the Authority must,
not later than 4 months after receiving an application for a
development licence that complies with section 50--
• issue a development licence subject to any conditions
the Authority considers appropriate; or
• refuse to issue a development licence.
Subsection (2) provides that the Authority must refer an
application for a development licence to a prescribed agency
for comment in the prescribed circumstances. Subsection (3)
provides that when determining whether to issue a development
licence, the Authority must take into account specified criteria.
Subsection (4) provides that the Authority must refuse to issue
the development licence if the specified grounds apply.
Subsection (5) provides that a development licence must
specify the date on which it expires.
New section 70 provides for joint publication of applications.
This section provides that the notice of an application for a
development licence may be combined with--
• if the activity is public works, any notice required to be
given for public works under the Environment Effects
Act 1978; or
48
• if the activity requires a planning permit or the
preparation of an amendment to a planning scheme,
any notice required to be given for that permit or that
planning scheme amendment under the Planning and
Environment Act 1987.
New section 71 provides for the conditions of development
licences. This section provides that a development licence must
specify, if the development licence specifies an activity that
requires a planning permit or the preparation of an amendment to
a planning scheme, as a condition of the development licence that
it does not take effect until the applicant provides a copy of that
planning permit or amendment to the Authority.
New section 72 provides for the extension of the term of
development licences by the Authority, subject to any conditions.
New section 73 provides for the Authority to provide a
statement, on application, as to whether the activity specified in
a development licence is completed. Subsection (2) provides
that the Authority must provide a written statement within
20 business days after receiving the request.
Division 2--Operating licences
New section 74 provides for the process to be followed by the
Authority on receiving an application for an operating licence.
Subsection (1) provides that, subject to subsection (2), the
Authority must after receiving an application for an operating
licence that complies with section 50--
• issue the operating licence subject to any conditions
specified by the Authority; or
• refuse to issue the operating licence.
Subsection (2) provides that the Authority must issue or refuse
to issue an operating licence within certain period if specified
criteria apply. Subsection (3) provides that when determining
whether to issue an operating licence, the Authority must take
into account specified criteria. Subsection (4) provides that the
Authority must refuse to issue the development licence if the
specified grounds apply. Subsection (5) provides that nothing in
Chapter 4 prevents the person who has applied for an operating
licence from applying for a development licence or the Authority
from determining that applications for a development licence in
49
accordance with the requirements for issuing a development
licence. This section is relevant where a person applies for--
• an operating licence and the Authority refuses to issue
the licence because it considers that the application
relates to activity that requires a development licence; or
• an amendment to an operating licence and the Authority
refuses to amend the licence because it considers that
the proposed amendments require a development
licence.
New section 75 provides for the term of operating licences.
Subsection (1) provides that, subject to subsection (2), if the
Authority issues an operating licence after the commencement of
Chapter 4, the Authority must specify on the licence the period
during which the licence remains in force.
Subsection (2) provides that specified operating licence may
not remain in force for specified periods. Landfills may require
active management for many years after waste has stopped being
accepted at the landfill. Therefore, the maximum term for waste
management activities at a current or former landfill site may be
up to 99 years.
New section 76 provides for the review of operating licences.
The review process will apply whether or not the licence was
issued prior to the commencement of Chapter 4. Subsection (1)
provides that the Authority may, in accordance with any
regulations, review an operating licence after the operating
licence has been in force for 4 years; or for any longer period
determined by the Authority. Subsection (2) provides that, if the
Authority proposes to review a licence under subsection (1), it
must give at least 20 business days' written notice to the holder
of the licence. Subsection (3) provides that after reviewing a
licence under subsection (1), the Authority may vary the
conditions of the licence or revoke the licence. Subsection (4)
provides that, when determining whether to vary the conditions
of a licence or revoke a licence under subsection (3), the
Authority must take into account specified criteria.
50
Division 3--Pilot project licences
New section 77 provides for pilot project licences. A pilot
project licence is equivalent to a research, development or
demonstration approval in the 1970 Act. Subsection (1) provides
that a person may apply under section 50 for a pilot project
licence in respect of an activity that requires a development
licence, an operating licence or a permit. Subsection (2) provides
that the Authority must refuse to issue the pilot project licence
if the Authority is satisfied that the activity specified in the
application is not a research, development or demonstration
activity. Subsection (3) provides that when determining whether
an activity is a research, development or demonstration activity,
the Authority must consider specified criteria.
New section 78 provides for consideration of applications for a
pilot project licence. Subsection (1) provides that the Authority
must issue or refuse to issue a pilot project licence within 22
business days after receiving the application. Subsection (2)
provides that when determining whether to issue a pilot project
licence, the Authority must take into account specified criteria.
Subsection (3) provides that the Authority must refuse to issue
the pilot project licence to a person in certain circumstances.
New section 79 provides for the duration and effect of pilot
project licences. Subsection (1) provides that a pilot project
licence remains in force for the period specified on the licence
which must not exceed 5 years. Subsection (2) provides that the
holder of a project pilot licence is exempted from the requirement
to obtain a development licence, an operating licence or a permit
in respect of the activities specified in the licence.
Division 4--Licence exemptions
New section 80 provides for applications to the Authority for an
exemption from the application of specified provisions in respect
of a prescribed development activity or prescribed operating
activity. Subsection (3) provides that an application for
exemption must meet the specified criteria. Subsection (4)
provides that on receiving an application complying with
subsection (3), the Authority must, within 20 business days
after receiving the application make a determination on the
application. Subsection (5) provides that when determining
whether to grant an exemption, the Authority must take into
account any prescribed matter. Subsection (6) provides that an
51
exemption granted may be revoked or amended by a written
notice. Subsection (7) provides that an exemption granted has no
effect unless the conditions to which it is subject are complied
with.
Part 4.5--Permits
New section 81 provides for permits. Subsection (1) provides
that on receiving a compliant application for a permit, the
Authority or council must make a determination to issue or refuse
to issue the permit. Subsection (2) provides for the time in which
the Authority or a council must make a decision to issue or refuse
to issue a permit. Subsection (3) provides that when determining
whether to issue a permit, the Authority or council must take into
account any prescribed matter. Subsection (4) provides that the
Authority or council must refuse to issue a permit to a person if
certain specified criteria apply. Subsection (5) provides that a
permit remains in force for a period of 5 years or any shorter
period prescribed in relation to a particular activity or class of
activity.
New section 82 provides for permit exemptions to be granted
by the Authority on application in respect of a prescribed
permit activity. Subsection (2) provides that an application for
exemption must meet specified criteria. Subsection (3) provides
that, on receiving an application that complies with subsection
(2), the Authority must, within 10 business days (or any shorter
prescribed period) after receiving the application make a
determination on the application to grant or to refuse to grant
the exemption. Subsection (4) provides that the Authority must
take into account any prescribed matter when determining the
application. Subsection (5) provides that an exemption granted
has no effect unless the conditions to which it is subject are
complied with.
New section 83 provides for permit exemptions granted by
a council on application. Subsection (2) provides for the
particulars of the application for an exemption. Subsection (3)
provides that, on receiving an application that complies with
subsection (2), a council must, within 10 business days (or any
shorter prescribed period) after receiving the application make a
determination on the application to grant or to refuse to grant the
exemption. Subsection (4) provides that a council must take into
account any prescribed matter when determining an application.
Subsection (5) provides that an exemption granted under
52
subsection (3) has no effect unless the conditions to which it is
subject are complied with.
New section 84 provides for renewal of permits on application.
Subsection (2) provides application for renewal must be made at
least 15 business days before the day on which the permit is due
to expire. Subsection (3) provides for the particulars of an
application for renewal. Subsection (4) provides that on
receiving an application for renewal of a permit, the Authority or
council must renew the permit or refuse to renew the permit.
Subsection (5) provides for the time in which the Authority or a
council must make a decision to renew or refuse to renew a
permit. Subsection (6) provides that if a permit is due to expire
before the time for making a decision under subsection (5), the
permit is taken to remain in force until the end of that period.
This recognises that applications for renewal of a permit need to
be made at least 15 business days before expiry but the time to
make a decision to renew or refuse to renew for some permits
may be longer than 15 business days and the permit should not
expire in those circumstances. Subsection (7) provides that,
when determining whether to renew a permit, the Authority
or council must take into account any prescribed matter.
Subsection (8) provides that a permit may be renewed for a
period of not more than 5 years or any shorter period prescribed
in relation to a particular activity or class of activity. Subsection
(9) provides for a permit to be renewed more than once.
Part 4.6--Registrations
New section 85 provides for applications for registration of
prescribed activities to the Authority. Subsection (1) provides
that on receipt of compliant applications, the Authority is taken
to have granted a registration for that activity subject to any
standard conditions. Subsection (2) provides that within
10 business days after receiving an application for registration,
the Authority must notify the applicant that a registration
has been granted and the conditions to which it is subject.
Subsection (3) provides for the period of time that a registration
remains in force.
New section 86 provides for applications to renew registrations
to the Authority. Subsection (2) provides that an application for
renewal must be made before the day on which the registration is
due to expire. Subsection (3) provides for the particulars of an
application for renewal. Subsection (4) provides that when
53
determining whether to renew a registration, the Authority
must take into account any prescribed matter. Subsection (5)
provides that a registration may be renewed for specified periods.
Subsection (6) provides that a registration may be renewed more
than once.
New section 87 provides for registration of non-prescribed
activities. Subsection (1) provides for the Governor in Council
by Order to require a specified activity or class of activity to be
subject to section 85, for a period of not more than 3 years, as if it
were an activity prescribed to be subject to registration under that
section. Subsection (2) provides that an Order made under this
section may exempt persons from the operation of the Order in
specified circumstances or if the person meets specified
requirements.
Part 4.7--Persons prohibited from engaging in prescribed
activities
New section 88 provides that certain persons are prohibited from
engaging in particular activities. Some markets have attributes
that are attractive to rogue operators. These attributes include
low barriers to entry and exit, allowing mobility, difficulty in
detecting poor practices and the opportunity to make quick
financial gains, particularly if corners are cut. Prohibiting
certain persons from undertaking certain prescribed activities
can prevent rogue operators from being able to cause harm,
rather than being largely undetectable until harm has occurred.
Subsection (1) provides that a person is a prohibited person if--
• within the preceding 10 years, the person has been
convicted or found guilty of a specified offence; or
• the Authority has revoked a permission held by the
person under section 61(1); or
• any licence or permit issued to the person under a law of
another State or a Territory that the Authority considers
to be equivalent to a permission has been revoked on a
ground equivalent to section 61(1); or
• the person is an externally administered corporation
under the Corporations Act; or
• in the case of a body corporate one or more of the
officers is a specified person in subsection (1); or
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• one or more of the officers is or was an officer of
another body corporate that is or was a specified person
in subsection (1).
Subsection (2) provides the relevant penalties if a natural
person or a body corporate is found to have contravened this
section. This offence is intended to be a strict liability offence.
Subsection (3) provides that the Minister may only recommend
that an activity be prescribed for the purposes of this section if
the activity is not a permission activity and either the activity
relates to waste or resource recovery or the Minister is satisfied
that it poses a serious risk of harm to human health or the
environment. Subsection (4) provides that if, as the result of
the operation of Part 11.8, a person who is an officer of a body
corporate commits an offence against subsection (2), a sentence
of imprisonment must not be imposed on the officer in respect
of that offence unless the body corporate was prohibited from
engaging in the prescribed activity that is the subject of the
offence, because the officer is a prohibited person referred to in
subsection (1).
New section 89 provides for an additional or alternative penalty
if a prohibited person commits an offence against sections 45, 46
or 47. Subsection (1) provides that if a prohibited person who is
a natural person commits an offence against section 45, 46 or 47
and the permission activity that was the subject of the offence is
prescribed for the purposes of this section, a court may impose a
penalty of up to 2 years imprisonment in addition to or in lieu of
the penalty for that offence. Subsection (2) provides that if, as
the result of the operation of Part 11.8, a person who is an officer
of a body corporate commits an offence against section 45, 46
or 47 a sentence of imprisonment must not be imposed on the
officer in respect of that offence unless the body corporate was
prohibited from engaging in the prescribed activity that is the
subject of the offence, because the officer is a prohibited person
referred to in section 88(1).
New section 90 provides for applications by prohibited persons
to engage in prescribed activity. Subsection (1) provides that,
subject to subsection (4), a prohibited person may apply to the
Authority for authorisation--
55
• to engage in an activity prescribed for the purposes of
section 88; or
• to be an officer of a body corporate that engages in an
activity prescribed for the purposes of section 88.
Subsection (2) provides that an application under this section
must--
• be in the form and manner approved by the Authority;
and
• contain the information required by the Authority; and
• be accompanied by the documents required by the
Authority; and
• be accompanied by any prescribed fee.
Subsection (3) provides that the Authority must not later than
25 business days after receiving an application under this
section--
• accept the application; or
• refuse the application.
Subsection (4) provides that the Authority may accept an
application--
• if the Authority is satisfied that it is not contrary to the
public interest to do so; and
• subject to any conditions the Authority considers
appropriate to protect the public interest.
Part 4.8--Environment protection levy
New section 91 provides for the environment protection levy.
Subsection (1) provides that subject to this section, there is to be
charged, levied and collected by the Authority a levy at the rate
of 3 per cent of the fee prescribed for the purposes of this section
in respect of any activity--
• for which a permission is required under this Act; and
• that has been prescribed as an activity in respect of
which the levy is required to be paid.
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Subsection (2) provides that the levy is payable at the same
time as the prescribed fee is payable. Subsection (3) provides
that the Authority may, after having regard to a person's record
of compliance with the conditions applying to a permission, in
respect of that person's liability to pay the levy, exempt the
person in whole or in part from the payment of the levy.
Subsection (4) provides that if the levy is not paid at the same
time as the prescribed fee is payable, the Authority must suspend
the permission or the application of the permission to the extent
that it applies to that person until the levy is paid and the amount
of the levy which is outstanding bears interest at such rate as is
prescribed from time to time by section 172(2) of the Local
Government Act 1989.
Chapter 5--Environment standards, compliance codes and
position statements
Part 5.1--Simplified outline
New section 92 provides for a simplified outline to Chapter 5.
Part 5.2--Environment reference standards
This Part creates powers for the Governor, on the
recommendation of the Minister, to make environment reference
standards. Environment reference standards will modernise and
partially replace state environment protection policies and waste
management policies, made under the 1970 Act, to create a
simplified approach to standard setting. The purpose of an
environment reference standard is to set community goals for the
environmental outcomes that are sought to be protected and/or
achieved (for example on air quality, water quality or noise).
The Authority may have regard to an environment reference
standard in various aspects of its work--including, where
relevant, in its enforcement decisions, when preparing guidelines
and in its business and strategic planning activities.
New section 93 provides for making environment reference
standards to be used to assess and report on environmental
conditions in the whole or any part of Victoria. The Authority's
functions include providing the Minister with advice and
recommendations on the making of environment reference
standards. Subsection (2) provides that an environment reference
standard must identify environmental values that specify the
environmental condition and uses of the environment to be
achieved or maintained in the whole or any part of Victoria.
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Subsection (3) provides that an environment reference standard
must provide for specified elements. Subsection (4) provides that
for the purposes of subsection (3)(e) an environment reference
standard may provide one or more of the following indicators or
objectives--
• ambient environmental quality pollutant measures--
i.e. the general or desirable concentration or limit of a
pollutant in the environment, for example the desirable
maximum level of noise to provide for uninterrupted
sleep or the maximum level of E. coli in water to ensure
it is safe for swimming;
• ambient environmental quality ecological measures--
i.e. the general concentration of selected biota
(which are indicative of ecosystem health) in the
environment;
• measures of human health or the health of other
species--for example, the concentration of lead in
blood; and/or
• targets for emissions of pollutants--i.e. the desired
maximum volume of emissions of a certain pollutant
into a defined area over a defined period of time, for
example, tonnes of nitrogen to Port Phillip Bay in a
year, or tonnes of carbon dioxide to the Victorian
air-shed in a year.
New section 94 addresses the application of the Subordinate
Legislation Act 1994 to environment reference standards by
providing that section 12F(1)(a) of that Act applies to an
environment reference standard as if the reference to a significant
economic or social burden were a reference to a significant
impact. Section 12F of the Subordinate Legislation Act 1994
provides for when the responsible Minister may issue an
exemption certificate for proposed legislative instruments from
the requirement to prepare a regulatory impact statement.
Subsection (2) provides that the Subordinate Legislation
Act 1994 applies to an environment reference standard as if
a reference to a regulatory impact statement were a reference
to an impact assessment prepared under section 95(1).
Subsection (3) provides that sections 12H(1), 12H(2) and 12H(4)
of the Subordinate Legislation Act 1994 do not apply to
an environment reference standard. Section 12H of the
58
Subordinate Legislation Act 1994 provides for the content
of regulatory impact statements with respect to legislative
instruments. The content of impact statements for environment
reference standards will be different, as set out in new section 95.
Section 12H(3) of the Subordinate Legislation Act 1994
will still apply. This means that independent advice as to the
adequacy of the impact assessment will be required for a
proposed environment reference standard.
New section 95 provides for preparation of environment
reference standards. Subsection (1) provides that before
recommending that the Governor make an environment reference
standard, the Minister must ensure that an impact assessment is
prepared containing specified elements. Subsection (2) the
Minister must take into account the principles of environment
protection when determining whether to recommend the making
of an environmental reference standard.
New section 96 provides that environment reference standards
may incorporate National Environment Protection Measures, in
whole or any part, and other specified documents. Subsection (3)
provides that the Minister must consult with the National
Environment Protection Council before recommending an
environment reference standard be made, if the environmental
reference standard is to incorporate a measure that is more
stringent than a national environment protection measure.
New section 97 provides Minister must review of an
environment reference standard before the expiry of each review
period. Subsection (2) provides that before determining whether
to retain or revoke the environment reference standard under
subsection (1), the Minister must ensure a notice of review is
published. Subsection (3) provides that a notice of review under
subsection (2) must summarise the environment reference
standard, specify where a copy of the standard can be obtained,
and invite public comments or submissions within the time
period specified in the notice, being not less than 28 days from
the publication of the notice. Subsection (4) provides that after
considering any public comment or submissions received under
subsection (3), the Minister must make a decision to retain the
standard with or without amendment, replace the standard or
revoke the standard.
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Subsection (5) provides that replacement of an environment
reference standard under subsection (4) must be made in
accordance with section 95. Subsection (6) defines the review
period in this section to mean the 10-year period that begins on
the later of either the day on which the standard is made, or the
day on which the notice of a review of the standard is published
in the Government Gazette.
New section 98 requires the Minister to issue a notice of
review of a determination made under section 97 to revoke or
retain an environment reference standard without amendment.
Subsection (1) provides that if the Minister determines to revoke,
or retain without amendment, an environment reference standard,
the Minister must ensure that notice of that determination is
published in any publication the Minister considers appropriate
and given to any person who has made a submission under
section 97(3). Subsection (2) provides that notice under
subsection (1) must be given and published as soon as
practicable after the determination has been made.
New section 99 provides for consideration of environment
reference standards in decision-making. Subsection (1) provides
that the Minister must take into account any relevant environment
reference standard when making a decision on whether to
recommend the making of regulations under this Act, whether
to recommend the making of compliance codes, or whether to
declare an issue to be an issue of environmental concern.
Part 5.3--Compliance codes
New Part 5.3 provides for compliance codes. It addresses
the content, communication and effect of a compliance code.
The Authority will engage relevant stakeholders when it is
developing compliance codes.
New section 100 provides for the approval of a compliance code.
Subsection (1) provides that the Governor in Council may make
an order approving a compliance code for the purposes of
providing practical guidance to any person who has a duty or
obligation under the Act. Subsection (2) provides that an order
approving a compliance code takes effect on the day notice of the
order is published in the Government Gazette, or any later day
specified in the order.
60
New section 101 provides for the content of compliance codes.
A compliance code may apply, adopt or incorporate, with or
without modification, any matter contained in a document,
code, standard, rule, specification or method formulated, issued,
prescribed or published by any person or body, as in force at a
particular time or as amended, formulated, issued, prescribed or
published from time to time.
New section 102 provides for communication of compliance
codes. Subsection (1) provides that the Authority must publish
a compliance code made under section 100 on the Authority's
Internet site. Subsection (2) provides that the Authority must
also make a compliance code and any document applied, adopted
or incorporated within a code available for inspection.
New section 103 provides for the effect of compliance codes.
The section provides that a person is taken to perform a duty or
satisfy an obligation under the Act if a compliance code provides
for how a person performs the duty or satisfies the obligation
and the person complies with the code, to the extent that the
compliance code makes provision for performing that duty or
satisfying that obligation.
Similar to compliance codes under the Occupational Health
and Safety Act 2004, a compliance code, where published, will
provide a means of compliance with a duty or obligation under
the Act, and may be used as a standard by which the conduct is
assessed when a duty holder elects to achieve compliance by
other means.
New section 104 provides that a failure to comply with a
compliance code does not, in itself, give rise to any civil or
criminal penalty. This does not prevent criminal or civil
proceedings being taken for an offence or civil penalty if the
conduct constituting the failure to comply with a compliance
code is also a contravention of an offence or civil penalty
provision of the Act.
Part 5.4--Position statements
New Part 5.4 creates powers for the Authority to make position
statements and provides for how those statements are to be
communicated, what those statements are to contain, how
consultation is to be undertaken and the effect of those
statements. One purpose of a position statement will be to add
to the state of knowledge and awareness of risks of harm to
61
human health and the environment from pollution or waste for
the purpose of understanding the general environmental duty.
This may include setting out information that a duty holder ought
reasonably to know or information on the means of complying
with the general environmental duty. They may also be used
to set out how the Authority intends to administer the Act.
They will not legally bind the Authority, a natural person or a
body corporate.
New section 105 provides that the Authority may make position
statements. Subsection (1) provides that the Authority may make
a position statement by publishing a notice of the statement in the
Government Gazette. Subsection (2) provides that the position
statement takes effect on the day notice of the statement is
published in the Government Gazette, or on any later day
specified in the notice.
New section 106 provides that the Authority must publish any
position statement made under section 105 on the Authority's
Internet site.
New section 107 provides for the content of a position statement.
Subsection (1) provides that a position statement may state--
• the Authority's opinion on how a provision of the Act or
the regulations would apply to a class of persons or to a
set of circumstances; or
• how the Authority would exercise a discretion under a
provision of the Act or the regulations.
• Subsection (2) provides that for the purposes of stating
how the Authority would exercise a discretion, a
discretion is exercised if the Authority--
• forms an opinion as to the existence of a fact; or
• attains a state of mind; or
• makes a determination; or
• exercises a power; or
• refuses or fails to do any of those things.
New section 108 outlines the consultation process the
Authority must comply with when making a position statement.
Subsection (2) specifies the preparation and publication
62
requirements. Subsection (3) provides the Authority must
consider any comments received under subsection (2) and may
make the position statement in accordance with section 105 with
or without modifications to the draft position statement.
New section 109 provides that a position statement does not give
rise to a legal right, expectation, duty or obligation that would not
otherwise be conferred or imposed on any person, or any liability
of, or other claim against, the Authority, or any defence that
would not otherwise be available to any person. Subsection (2)
provides a position statement does not affect any matter specified
in subsection (1).
Chapter 6--Waste
Part 6.1--Simplified outline
New Part 6.1 provides a simplified outline and overview of
Chapter 6. The Chapter sets out requirements and duties in
relation to the management of waste, including in relation to
litter and other waste, industrial waste and priority waste.
Part 6.2--Objects
New section 111(1) provides that the objects of this Chapter
are--
• to minimise litter and waste disposal by encouraging the
management of waste in accordance with the waste
management hierarchy set out in new section 18;
• to promote waste reduction, resource recovery and
resource efficiency;
• to minimise the impact on human health and the
environment from waste generation and waste disposal.
Subsection (2) states that it is the intention of the Parliament that
in the administration of Chapter 6, regard is to be given to these
objects.
Part 6.3--Litter and other waste
New Part 6.3 sets out provisions that relate to litter and waste
generally. This Part substantially re-enacts, with amendments,
Part VIIA of the 1970 Act. Some provisions of the 1970 Act
relating to offences concerning material that may become litter,
such as junk mail, are not re-enacted in this Part. This is because
these provisions are more suitable for regulations and it is
63
intended that regulations will be made to provide for similar
matters.
Division 1 sets out preliminary matters to Part 6.3.
New section 112 sets out definitions applicable to Part 6.3.
Dangerous litter is litter comprised or partly comprised of
certain specified items. These include items that potentially pose
a danger to human health or the environment if deposited, such as
syringes.
Litter means a quantity of waste that is not in excess of 50 litres.
In this Part a place includes a receptacle. This is in addition to
the definition of place in section 3(1) of the Principal Act.
New section 113 provides that the Governor in Council may, by
Order published in the Government Gazette, declare a body to be
a litter authority for the purposes of this Part. Litter authorities
have certain powers under this Part. Certain bodies, such as the
Authority, councils and government departments, are defined to
be litter authorities under the definition of litter authority in
section 3.
Division 2 provides for the appointment of litter enforcement
officers. Litter enforcement officers have powers under this Part
in relation to compliance and enforcement of provisions relating
to litter and waste.
Under new section 114, litter appointment officers may be
appointed by the Authority, the Secretary established under
Part 2 of the Conservation Forests and Land Act 1987, or
another litter authority, subject to the restrictions specified in
subsections (2) and (3).
Division 3 sets out offences in relation to littering and other
waste.
New section 115 sets out general offences for the unlawful
depositing of waste, including litter. The offences and penalties
are tiered according to the type and quantity of waste that is
deposited. These offences are intended to be strict liability
offences. Subsection (1) provides that a person must not deposit
waste that is litter other than in accordance with subsection (5).
A penalty of up to 20 penalty units for a natural person or
100 penalty units for a body corporate applies. Subsection (2)
provides that a person must not deposit waste that is dangerous
64
litter other than in accordance with subsection (5). A penalty of
up to 60 penalty units for a natural person or 300 penalty units for
a body corporate applies.
Subsection (3) provides that a person must not deposit a
quantity of waste of more than 50 litres but less than 1000 litres
other than in accordance with subsection (5). A penalty of up to
100 penalty units for a natural person or 500 penalty units for a
body corporate applies.
Subsection (4) provides that a person must not deposit a quantity
of waste of more than 1000 litres other than in accordance with
subsection (5). A penalty of up to 240 penalty units for a natural
person or 1200 penalty units for a body corporate applies.
Subsection (5) sets out the circumstances in which a person
does not contravene subsections (1), (2), (3) or (4). These
circumstances include--
• depositing the waste in a place provided for the
waste that is appropriate for its size, volume and type
(for example, depositing general waste in a rubbish bin
suitable for the waste);
• depositing waste in a premises or place in such a
way that it cannot leave the premises or place without
human assistance, and the person owns, controls or is
in possession of the waste or has the consent of that
person;
• with authorisation by or under an Act (including this
Act) or a Commonwealth Act;
• depositing the waste as an unavoidable consequence of
a lawful activity;
• accidentally depositing the waste, and it is not
reasonably possible to retrieve the waste.
Subsection (6) provides that two or more deposits of waste may
be taken to be one deposit for the purposes of the offences in this
section if the deposits are part of a connected series of deposits.
For example, a person that unlawfully deposits 20 litres of waste
on three occasions could be taken to commit the offence in
subsection (3) (depositing more than 50 but less than 1000 litres
of waste) if the deposits are part of a connected series of deposits.
65
Subsection (7) clarifies that a reference to the deposit of waste
in this section includes waste that is blown from a premises or
place, or falls or escapes from a premises or place.
New sections 116 to 118 set out the liability of certain persons
for unlawful deposits of waste from or in connection with a
vehicle.
Section 116(1) and (2) provide that, subject to sections 117
and 118, if waste is deposited from a vehicle contrary to new
section 115, the driver of the vehicle, the registered owner of the
vehicle, and a person authorised to use the vehicle at the time of
the offence are all taken to have committed the relevant offence
under section 115.
Subsection (3) provides that the registered owner of a vehicle is
taken to have committed an offence under section 115 if a person
deposits waste at a premises or place contrary to that section, and
the person was seen arriving or leaving the premises or place in
the registered owner's vehicle.
Subsection (4) provides that a Court must not find a person
guilty of an offence as a result of section 116 unless the Court
is satisfied that no other person has been found guilty of the
relevant offence, and it is not practicable to discover who
deposited the waste, or it is not possible to file a charge-sheet
against the person who deposited the waste, or the filing of a
charge-sheet against the person who deposited the waste would
be unlikely to result in a finding of guilt.
Subsection (5) provides that, if the registered owner of a
vehicle is taken to have committed the offence as a result of the
subsection (1), a Court must not find the registered owner guilty
of the offence unless the Court is satisfied that it is not possible to
file a charge-sheet against the driver of the vehicle at the time of
the offence.
New section 117 provides for certain exceptions to liability under
section 116.
Subsections (1)(a) and (b) provide that a person specified in
section 116(2) is not taken to have committed an offence under
section 115 if the waste was deposited by a passenger of a
commercial passenger vehicle or a public transport vehicle that
was being used for a public purpose at the time of the offence.
66
Subsection (1)(c) provides that a person specified in
section 116(2) is not taken to have committed an offence
under section 115 if the person provides a written statement in
accordance with section 118.
Subsection (2) provides that the registered owner of a vehicle is
not taken to have committed the relevant offence if the registered
owner's vehicle was a stolen vehicle at the time of the offence.
New section 118 enables a person to make a written statement for
the purposes of new section 117(1)(c).
Subsection (1) provides that a person specified in section 116(2)
is not taken to have committed an offence against section 115 if
the person provides a written statement in accordance with this
section to a litter enforcement officer, or the litter authority that
appointed the litter enforcement officer.
Subsection (2) provides that a written statement under
subsection (1) must be in a form approved by the Authority and
must state that the person did not deposit the waste and either
saw another person deposit the waste, or saw another person who
was in or near the vehicle at the time the waste was deposited,
and must provide sufficient information to identify that person.
The statement must be provided within 10 business days of the
person being issued with an infringement notice or charge-sheet.
Subsection (3) provides that if a person specified in
section 116(2) is not a natural person, the person must provide
a written statement made by another person who was driving
the vehicle at the time of the offence.
Subsection (4) provides that a written statement that complies
with section 118 is admissible as evidence of the matters stated
in it in any proceedings.
Division 4 sets out provisions relating to the removal of waste
and other objects or things.
New section 119 provides that a litter enforcement officer may
ask a person who deposits waste in or on a place or premises to
remove the waste, if the officer reasonably believes the waste
was deposited in contravention of Part 6.3. Failure to do so is an
offence attracting a maximum penalty of 10 penalty units for a
natural person or 50 penalty units for a body corporate. This
offence is intended to be a strict liability offence.
67
New section 120 provides for Court orders relating to the
removal of waste.
Subsection (1) provides that if a person is found guilty of an
offence under this Part, the Court may, instead of or in addition
to any other penalty, and within a specified time and under the
supervision of a person nominated by the Court-
• order the person to clear away and remove waste
deposited by the person, or any other waste deposited
in or on any land or waters; or
• order the person to pay a sum of money as
compensation to another person or body for the
removal of waste from land or waters under the
management or control of that person.
Subsection (2) enables the Court to order a fine of up to
40 penalty units if the person contravenes an order under
subsection (1).
Subsection (3) provides that--
• if the person complies with an order under
subsection (1) the supervisor must notify the Court.
• if the person fails to comply with the order, the Court
may, on the application of the supervisor, issue a
summons to the person to show cause as to why the
penalty under subsection (2) should not be imposed, and
make any other order the Court considers appropriate.
Subsection (4) provides that an order under subsection (1)(b) to
pay compensation to a person or body is to be treated as a debt
due to the person or body.
New section 121 provides for the issuing of waste abatement
notices.
Subsection (1) provides that the Authority, any other litter
authority or a litter enforcement officer may issue a waste
abatement notice to a person based on a reasonable belief that
the person--
• has deposited waste so as to create a risk of harm to
human health or the environment, or so as to make a
premises or place disorderly or detrimentally affect its
proper use, or otherwise in contravention of this Part; or
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• has engaged in or proposes to engage in an activity
that causes, or is likely to cause the deposit of waste in
contravention of this Part, or the deposit of waste or
any other thing so as to make or be likely to make a
premises or a place disorderly or detrimentally affect
its proper use.
Subsection (2) clarifies that litter authorities other than the
Authority may only issue waste abatement notices in relation to
matters occurring on or in relation to land of waters of which
the litter authority has management or control. By contrast, the
Authority's power to issue a waste abatement notice is
exercisable in respect of any part of Victoria.
Subsection (3) specifies the actions that a waste abatement notice
may require a person to whom it is issued to take. Among other
matters these include removal or disposal of waste, and restoring
a place or premises to its state before being affected by the waste,
object, thing or activity.
Subsection (4) specifies the matters that must be contained in a
waste abatement notice.
Subsection (5) makes it an offence to refuse or fail to comply
with a waste abatement notice without reasonable excuse.
A penalty of up to 40 penalty units for a natural person or
200 penalty units for a body corporate applies. This offence
is intended to be a strict liability offence.
Subsection (6) provides that, if a person has deposited waste in
contravention of this Part and cannot be located, the Authority,
litter authority or litter enforcement officer may direct the
occupier of the place or premises to remove or dispose of the
waste.
Subsection (7) makes it an offence to fail to comply with a notice
under subsection (6) unless the person has a reasonable excuse.
A penalty of up to 40 penalty units for a natural person or
200 penalty units for a body corporate applies. This offence is
intended to be a strict liability offence.
Subsection (8) provides for the amendment or revocation of
waste abatement notices.
Subsection (9) clarifies that a reference to an object or thing in
this section does not include a reference to a fixture.
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New section 122 enables litter authorities, including the
Authority, to take certain actions following a failure to comply
with a waste abatement notice under section 121(1) or a notice to
an occupier under section 121(6).
Subsections (1) to (3) provide that if a person fails to comply
with the notice the Authority or litter authority may remove or
dispose of the relevant waste or object or thing, and may recover
its reasonable costs in so doing. The reasonable costs are to be
treated as a debt due to the Authority or litter authority payable
by the person who failed to comply with the notice.
Subsection (4) provides that the reasonable costs are not owed by
an occupier who had a reasonable excuse for failing to comply
with a notice under section 614(6).
New section 123 provides that an occupier may recover the
reasonable costs of complying with a notice under section 121(6)
or under this section. Any such costs are to be treated as a debt
due to the occupier payable by the person who deposited the
waste or object or thing.
Division 5 sets out the powers of litter enforcement officers and
other matters.
New section 124 sets out the powers of entry of litter
enforcement officers. Litter enforcement officers may enter
part of a premises or a place if the part of premises or place is
not being used as residential premises, and the officer reasonably
believes that a specified offence is being committed or is likely
to be committed.
New section 125(1) provides that a litter enforcement officer may
ask a person's name and address if the officer reasonably believes
the person is committing, has committed or is likely to commit an
offence against this Part.
Subsection (2) requires that the litter enforcement officer, in
making a request under subsection (1), inform the person of the
reasons for the officer's reasonable belief and give the person
sufficient information to enable the person to understand the
nature of the suspected offence or likely offence.
Subsection (3) makes it an offence to fail to comply with a
request made under subsection (1). A penalty of 20 penalty units
for a natural person applies. This offence is intended to be a
strict liability offence.
70
Subsection (4) provides that a person must not, in response to
a request under subsection (1), state a false name or address.
A penalty of 20 penalty units for a natural person applies.
Under subsection (5), a litter enforcement officer that reasonably
believes a person has done so may request proof of the person's
name or address.
Subsection (6) makes it an offence to fail to comply with a
request for such proof without reasonable excuse. A penalty of
up to 20 penalty units for a natural person applies. This offence
is intended to be a strict liability offence.
Subsection (7) provides that a person does not contravene
subsection (3) or (6) if the litter enforcement officer fails to
inform the person that it is an offence to fail to comply with the
officer's request.
New section 126 requires a litter enforcement officer to produce
proof of the officer's identity and official status if requested to do
so when exercising a power under this Part.
New section 127 provides for the issuing of waste information
gathering notices.
Subsections (1) and (2) provide that a litter enforcement officer
may issue a notice to a person the officer reasonably believes
previously had possession of waste or was responsible for
commissioning the production or distribution of material that
became waste. The notice may require the person to provide any
relevant information or class of information specified in the
notice.
Subsection (3) makes it an offence to refuse or fail to comply
with a waste information gathering notice without reasonable
excuse. A penalty of 10 penalty units for a natural person or
50 penalty units for a body corporate applies. This offence is
intended to be a strict liability offence.
Subsection (4) provides that subsection (3) does not apply if the
information sought is not within the person's knowledge or in the
person's possession. Under subsection (5), if this applies the
person must advise the litter enforcement officer if requested to
do so.
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Subsection (6) provides that a person must provide the
information sought by a waste information gathering notice in
writing, if the litter enforcement officer requests the person to do
so.
Subsection (7) provides that a person who fails to comply with a
request under subsections (5) or (6) is taken to have committed
an offence against subsection (3).
Subsection (8) provides that a reference to waste includes a
reference to any substance that constitutes waste regardless of
whether the substance was waste at the time it was in the person's
possession.
New section 128(1) sets out what must be included in a waste
information gathering notice.
Subsection (2) sets out further information that may be requested
under a waste information gathering notice.
New section 129 provides for a litter enforcement officer to
extend the time for compliance with a waste information
gathering notice.
New section 130 enables a litter enforcement officer to apply
to a Court for an order compelling compliance with a waste
information gathering notice, whether or not proceedings have
been commenced for an offence.
New section 131 provides for a person who sees another person
committing an offence under this Part to inform the Authority or
the relevant council of the offence by providing a signed written
report containing the specified details. Under subsection (2), on
receiving a report the Authority or council may take further
action against the person alleged to have committed the offence.
New section 132 prohibits supplying false or misleading
information or documents in--
• making a written statement under section 118; or
• responding to a request to provide the person's name
and address or to provide information in response to a
waste information gathering notice; or
• making a report of an offence under section 131.
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Subsection (2) makes it an offence to supply false or misleading
information in relation to the above matters. A penalty of
40 penalty units for a natural person or 200 penalty units for a
body corporate applies. This offence is intended to be a strict
liability offence.
Part 6.4--Duties relating to industrial waste
New Part 6.4 sets out duties relating to industrial waste.
These duties are intended to address the problem of unlawful
depositing or disposal of industrial waste by imposing obligations
on persons who have management or control of industrial waste,
including generators, producers, depositors, transporters and
consignors of industrial waste.
Industrial waste is defined in section 3(1) to mean waste
arising from commercial, industrial or trade activities or from
laboratories, or waste that is prescribed to be industrial waste.
New section 133 imposes duties on persons depositing industrial
waste. These duties are intended to ensure that industrial waste is
only taken to a place or premises that can lawfully receive the
industrial waste.
Subsection (1) provides that a person must not deposit or
abandon industrial waste at a place or premises, unless the place
or premises is authorised to receive industrial waste. The note
following subsection (1) directs the reader to the definition of
authorised to receive industrial waste in section 3(1). This term
is used throughout this Part. The definition provides that a
person, place or premises that holds a relevant permission or
authorisation, or to whom an exemption applies, is authorised to
receive industrial waste.
Subsection (2) provides that a person must not deposit
industrial waste at a place or premises that is authorised to
receive industrial waste without obtaining the consent of the
holder of the relevant permission, or the occupier or person in
management or control of the place or premises. A note
following subsection (2) identifies that subsections (1) and (2)
are civil penalty provisions with a penalty set out in the Table in
section 314.
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Subsection (3) makes it an offence to contravene subsection (1)
or (2). A penalty of up to 2000 penalty units for a natural person
or up to 10 000 penalty units for a body corporate applies.
This offence is intended to be a strict liability offence.
Subsection (4) provides that an offence under subsection (3) is an
indictable offence. A note following subsection (4) clarifies that
the offence is triable summarily.
New section 134 imposes a duty on persons who receive
industrial waste. The duty is intended to ensure that persons
who receive industrial waste are authorised to do so.
Subsection (1) provides that a person in management or control
of a place or premises must not receive industrial waste at the
place or premises unless authorised to do so. A note following
subsection (1) identifies that it is a civil penalty provision with a
penalty set out in the Table in section 314.
Subsection (2) makes it an offence to contravene subsection (1).
A penalty of up to 2000 penalty units for a natural person or up to
10 000 penalty units for a body corporate applies.
Subsection (3) provides that an offence under subsection (2) is an
indictable offence. A note following subsection (3) clarifies that
the offence is triable summarily.
New section 135 imposes a duty on persons involved in
transporting industrial waste. The duty is intended to ensure
that persons who provide industrial waste to other persons for
transport take reasonable steps to ensure the industrial waste will
be taken to a place or premises that can receive the industrial
waste.
Subsection (1) provides that the duty applies to persons who
have management or control of industrial waste and who propose
to hand over management or control of the industrial waste to
another person who will then transport the waste.
Subsection (2) provides that such persons must take all
reasonable steps to ensure that the waste is or will be transported
to and received at a place or premises that is authorised to receive
the industrial waste. A note following subsection (2) identifies
that it is a civil penalty provision with a penalty set out in the
Table in section 314.
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Subsection (3) makes it an offence for a person to contravene
subsection (2). A penalty of up to 2000 penalty units for a
natural person or 10 000 penalty units for a body corporate
applies.
Subsection (4) provides that an offence under subsection (3) is an
indictable offence. A note following subsection (4) clarifies that
the offence is triable summarily.
Subsection (5) sets out an inclusive list of reasonable steps for
the purposes of subsection (2). These include identifying
and classifying the industrial waste, providing appropriate
information to persons to whom the waste is given, and verifying
that the place or premises the waste will be taken to is authorised
to receive the waste.
Subsection (6) provides that a place or premises in another State
or a Territory is authorised to receive waste for the purposes of
subsection (2), if the waste may be transported to and received at
the place or premises under the law of that State or Territory.
This is intended to clarify that this section does not prevent
industrial waste from being taken to a place or premises in
another State or a Territory.
New section 136 provides for an additional imprisonment penalty
for repeat waste offenders. This section is intended to ensure that
courts can appropriately punish those who repeatedly breach
their obligations in relation to the depositing of industrial waste,
particularly those that are not deterred by pecuniary penalties.
The section if a natural person commits an offence against new
section 133 (which relates to depositing industrial waste), 134
(which relates to receiving industrial waste) or 135 (which relates
to transporting industrial waste) and has been convicted of any
of those offences (whether or not is the same offence) in the
preceding 5 years, the court may impose a penalty of up to
2 years' imprisonment in addition to, or instead of the penalty
for the offence.
New section 137 prohibits persons who have management or
control of industrial waste from providing certain false or
misleading information to the Authority or any other person
(for example, a person to whom the waste is transferred).
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Subsection (1) provides that such persons must not--
• provide false or misleading information or documents
about the type, properties and classification of industrial
waste or the risks of harm to human health or the
environment from the industrial waste, or conceal
such information or documents;
• falsely represent that the person is authorised to receive
the industrial waste; or
• provide false or misleading information in a document
required to be provided by the person under this Part or
the regulations.
A note following subsection (1) identifies that it is a civil penalty
provision with a penalty set out in the Table in section 314.
Subsection (2) makes it an offence to contravene subsection (1).
A penalty of up to 500 penalty units for a natural person or
2500 penalty units for a body corporate applies. This offence
is intended to be a strict liability offence.
Subsection (3) provides that an offence under subsection (2) is an
indictable offence. A note following subsection (3) clarifies that
the offence is triable summarily.
Part 6.5--Duties and controls relating to priority waste
New Part 6.5 sets out duties and controls relating to priority
waste.
New section 138 explains that priority waste is any waste,
including municipal or industrial waste, that is prescribed to be
priority waste for the purposes of eliminate or reducing risks of
harm to human health or the environment, ensuring the waste is
appropriately managed, or for facilitating waste reduction,
resource recovery and resource efficiency. Municipal or
industrial waste that is prescribed to be priority waste does not
cease to be municipal or industrial waste (as the case may be).
Industrial waste that is prescribed to be priority waste remains
subject to the duties relating to industrial waste in Part 6.4, in
addition to the duties and controls relating to priority waste in
Part 6.5.
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New section 139 sets out the duties of persons managing priority
waste. These duties are intended to ensure that priority waste is
managed appropriately and in accordance with the objectives of
Chapter 6.
Subsection (1) provides that a person who has management or
control of priority waste must classify the priority waste in
accordance with the Act and the regulations. The Act requires
priority waste to be classified for certain purposes, such as for
the purposes of determining an obligation to pay the waste levy
under Part 6.6. The regulations may provide more detailed
requirements for how a person is to classify priority waste.
Subsection (2) requires a person who has management or control
of priority waste to take reasonable steps to ensure that--
• the priority waste is contained in a manner that prevents
its escape;
• the priority waste is isolated in a manner that ensures
resource recovery remains practicable; and
• persons to whom the priority waste is given must be
given certain reasonably available information about
the nature and type of the waste, the risks posed by the
waste, and any other information reasonably necessary
to ensure the person can comply with duties under the
Act in relation to the waste.
A note following subsection (2) indicates that subsections (1)
and (2) are civil penalty provisions with a penalty set out in the
Table to 314.
Subsection (3) makes it an offence to contravene subsection (1)
or (2). A penalty of up to 120 penalty units for a natural person
or 600 penalty units for a body corporate applies.
New section 140 imposes a duty on persons with management
or control of priority waste to investigate alternatives to waste
disposal. Alternatives to waste disposal include the alternatives
identified in the waste management hierarchy in section 18:
avoidance, reuse, recycling, recovery of energy, and containment.
Subsection (1) provides that such a person must--
• take all reasonable steps to identify and assess
alternatives to waste disposal for the priority waste; and
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• in making any decision relating to management of the
priority waste, have regard to any alternatives identified
and assessed, any guidelines issued by the Authority
under section 141, and the objects of Chapter 6.
A contravention of subsection (1) does not make a person liable
to an offence or a civil penalty, but compliance with the duty
could be enforced through the issuing of an improvement notice
under section 271.
Subsection (2) sets out an inclusive list of reasonable steps for
the purposes of subsection (1)(a). These include considering
guidelines and other relevant publications, considering the
availability of resource recovery technologies, and seeking
expert advice.
New section 141 enables the Authority to issue guidelines setting
out alternatives to waste disposal. Any relevant guidelines must
be considered by a person to whom section 140 applies.
Subsection (2) requires the Authority to consult with
Sustainability Victoria before issuing guidelines under
section 141. This is intended to ensure Sustainability Victoria
can contribute its expertise on best practice management options
for waste.
Subsection (3) requires the Authority to publish any guidelines in
the Government Gazette and on its Internet site.
New section 142 imposes a duty on certain persons to notify of
transactions involving reportable priority waste. This is intended
to ensure transparency and facilitate oversight of transactions
involving certain priority wastes. The regulations will set out
what details need to be provided in what circumstances, and by
whom.
Subsection (1) requires a person undertaking a prescribed
transaction to record the prescribed transaction details in the
prescribed manner and form, and to provide those details to a
prescribed person in a prescribed manner and form. A note
following subsection (1) indicates that it is a civil penalty
provision with a penalty set out in section 314. The note also
clarifies that the Governor in Council may make regulations
prescribing additional controls for priority wastes. This alerts the
reader that there may be further controls applicable to the priority
waste.
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Subsection (2) makes it an offence for a person to contravene
subsection (1). A penalty of up to 240 penalty units for a natural
person or 1200 penalty units for a body corporate applies.
This offence is intended to be a strict liability offence.
New section 143 imposes a duty on persons transporting
reportable priority waste. This is intended to ensure that certain
priority wastes are only transported where authorised by a
permission.
Subsection (1) prohibits a person from transporting priority waste
except in accordance with a permission, or causing or permitting
the transport of priority waste unless the priority waste is
transported in accordance with a permission. A note following
subsection (1) indicates that it is a civil penalty provision with a
penalty set out in section 314. The note also clarifies that the
Governor in Council may make regulations prescribing additional
controls for priority wastes. This alerts the reader that there may
be further controls applicable to the priority waste.
Subsection (2) makes it an offence to contravene subsection (1).
A penalty of 240 penalty units for a natural person or 1200
penalty units for a body corporate applies. This offence is
intended to be a strict liability offence.
Subsection (3) provides that it is a defence to an offence
constituted by a contravention of subsection (1)(b) if the person
took all reasonable steps to prevent a contravention of that
subsection.
Subsection (4) clarifies that, for the purposes of subsection (1)(b),
causing or permitting the transport of reportable priority waste
includes consigning the waste for transport. A note following
subsection (4) directs the reader to section 68 which deals with
exemptions from the requirement to hold a permission in
connection with the transport of reportable priority waste.
Part 6.6--Waste levy scheme
Part 6.6 sets out the waste levy scheme. The waste levy creates a
further incentive for persons involved in waste management to
investigate ways to reduce the amount of waste they generate and
dispose of to landfill.
New section 144 sets out definitions applicable to this Part.
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A liable person under this Part is a person who holds or should
hold a permission that requires or authorises the person to carry
out a prescribed levy activity on premises subject to the waste
levy.
A premises subject to the waste levy means premises at which a
prescribed levy activity is conducted.
New section 145 sets out the requirement to pay the waste levy.
Subsections (1) and (2) provide that a liable person must pay to
the Authority a waste levy for each tonne of waste that is on to
land at the premises. Subsection (1) relates to priority waste and
subsection (2) relates to waste that is not priority waste.
Subsection (3) provides that the amount of waste levy payable
under subsections (1) and (2) is the amount specified in
Schedule 2. Schedule 2 contains two Tables specifying the rate
of levy for the relevant premises, type and category of waste.
Subsection (4) provides that the amount of waste levy payable for
priority waste that is not Category A, B or C waste or packaged
waste asbestos is--
• a prescribed amount not exceeding the amount payable
for Category C waste; or
• if no amount is prescribed, the amount that would be
payable under Schedule 2 if the waste were not priority
waste (that is, the relevant amount payable for
municipal or industrial waste).
Subsection (5) provides that the waste levy must be paid to the
Authority in accordance with new section 147.
New section 146 enables the Minister to waive the requirement to
pay the waste levy for the purposes specified in subsection (1),
which are the disposal of waste generated from a temporary
emergency, or the temporary relief of a public nuisance or a
community hardship. Subsection (2) specifies matters that must
be included in a waiver. Subsection (3) requires the waiver to be
published in the Government Gazette. Subsection (4) provides
that if a liable person fails to comply with a condition on a
waiver, the waiver is of no effect in relation to the person and
the Authority may take action against the person under new
section 152. Subsection (5) specifies when a waiver takes effect.
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New section 147 sets out the requirement to pay the waste levy
to the Authority. Subsections (a) and (b) require a liable person
to calculate the amount of the waste levy payable, deduct any
allowable rebate prescribed in regulations. Subsection (c)
provides that, if the resulting amount is positive, the person must
pay that amount to the Authority within the prescribed time or at
prescribed intervals (for example, quarterly or annually).
New section 148 provides for what happens if the calculation
under section 147 results in a negative amount. Subsection (1)
provides that the Authority must, within 21 business days of
receiving the prescribed information under new section 150, pay
that amount to the liable person. Subsection (2) provides that the
Authority is not required to pay any interest in respect of any
amount it is required to pay under this section. Subsection (3)
provides that, if the Authority has commenced an assessment
under new section 151, the period during which the assessment
is being conducted is not counted towards the time specified in
subsection (1).
New section 149 enables the Authority and a liable person to
agree to offset an amount owed by the Authority to the person
under new section 148. Subsection (2) provides that the amount
owed to the person may be deducted from any future payment to
be made to the Authority.
New section 150 requires a liable person to provide prescribed
information, including information relating to the calculation of
the amount of the waste levy payable and any allowable rebates.
Subsection (2) requires that the information be provided in a
form approved by the Authority at the time of making a payment
under new section 147.
New section 151 enables the Authority to conduct an assessment
relating to the waste levy. Subsection (1) provides that, at any
time, the Authority can assess a liable person's calculations of the
amount of the waste levy payable and any allowable rebate, as
well as assess any other matter relevant to determining the
person's liability to pay the waste levy (for example, assessing
how the person receives and classifies the waste, or how the
person keeps records about the waste). Subsection (2) requires
the Authority to notify the liable person after commencing an
assessment, and to issue a notice of assessment to the person after
completing an assessment.
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Subsection (3) provides for matters that must be included in a
notice of assessment, including the Authority's calculation of the
amount of the waste levy payable and any allowable rebate, and,
if the Authority's calculations differ from the liable person's, the
Authority's assessment of the amount owed by or owed to the
person. The notice must also include any other prescribed
information.
Subsection (4) provides that, in conducting an assessment the
Authority must have regard to any amount already paid by the
liable person under new section 147.
Subsection (5) enables the Authority to seek any information it
sees fit to verify the information provided by a liable person, or
to conduct, or cause to be conducted, an audit of the information
provided by a liable person or any other relevant matter.
Subsection (6) provides that, if after completing an assessment
the Authority determines that the liable person owes an amount
to it, the Authority may require under a notice of assessment
payment of that amount within 21 business days from the date
the notice of assessment is issued.
Subsection (7)(a) provides that if, after completing an
assessment, the Authority determines that it owes an amount to
the liable person and it commenced the assessment before paying
an amount it was required to pay the liable person under new
section 148(1), the Authority must pay that amount within
21 business days after receiving the information under new
section 150(1) less the number of days that had elapsed before
the Authority commenced its assessment.
Subsection (7)(b) provides that if, after completing an
assessment, the Authority determines that it owes an amount to
the liable person and section 148(3) does not apply, the Authority
must pay that amount within 21 business days from the date the
notice of assessment is issued.
New section 152 provides for the rights and powers of the
Authority if the waste levy is not paid.
Subsection (1) provides that, if a liable person fails to comply
with new section 150, the Authority may suspend the person's
permission, or the part of the permission that relates to the
premises subject to the waste levy, until the person complies
with that section.
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Subsection (2) provides that, if a liable person fails to pay any
amount required under this Part, the Authority may suspend the
person's permission or relevant part of the permission, until the
amount is paid, or recover the amount in the Magistrates' Court.
Subsection (3) provides that interest is to accrue on any payment
required under this Part. The interest is to be calculated in
accordance with the Penalty Interest Rates Act 1983.
Subsection (4) provides that the jurisdictional limit of
the Magistrates' Court specified in section 100(1) of the
Magistrates' Court Act 1989 does not apply to an order for
the payment of an amount under this section.
Subsection (5) provides that any outstanding amount required to
be paid under this Part is a charge on the land held by the liable
person.
Chapter 7--Environmental management
Chapter 7 provides new and updated measures to improve
environmental management, including establishing requirements
for managing environmentally hazardous substances, establishing
obligations of public land and infrastructure managers, approvals
to deal with emergency situations, the identification of issues of
environmental concern and managing unreasonable and
aggravated noise.
Part 7.1--Simplified outline
New section 153 provides a simplified outline and overview of
Chapter 7.
Part 7.2--Environmentally hazardous substances
New section 154 enables declarative orders to be made by the
Governor in Council relating to environmentally hazardous
substances. The Governor in Council, on the recommendation of
the Minister, may by order published in the Government Gazette
declare a substance which is highly hazardous or poses a serious
risk of harm to human health or the environment to be an
environmentally hazardous substance, and establish requirements
that prohibit, control or regulate that substance.
New subsection 154(3) establishes that an order must specify the
substance which is the substance of the order and declare it to be
an environmental hazardous substance. An order may--
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• specify that it applies to an area or class of person or
body;
• impose notification and reporting requirements;
• prohibit or impose requirements on the production,
storage, treatment, handling, use, supply, transport,
recycling, reuse or disposal of the hazardous substance;
• impose testing, assessment or detection requirements;
• adopt, with or without modification, the whole or part of
any national standard or code or other standard or code
related to the substance;
• require a financial assurance from persons or bodies;
• contain any prescribed information.
Subsection (4) establishes that an order may provide for the
exemption of persons or things (or a class of persons or things)
from any of the provisions of the order.
New section 155 provides penalties for failure to comply with
orders relating to environmentally hazardous substances.
This offence is intended to be a strict liability offence. A natural
person who fails to comply with an order is liable for 500 penalty
units. A body corporate that fails to comply with an order is
liable for 2500 penalty units. An offence against new section
155(1) is an indictable offence that may be heard and determined
summarily. It is also a civil penalty provision. The civil
penalties for contravention are set out in the Table at new
section 314 of the Principal Act. These orders may be made
in emergency situations and provide an avenue for rapid response
to emerging risk to human health and the environment from
hazardous substances.
Part 7.3--Obligations for managers of land or infrastructure
Part 7.3 provides for the specification of obligations that
managers of land or infrastructure may have to manage risks to
human health and the environment arising from the management
of public land and infrastructure. Such obligations will
supplement and operate concurrently with the general
environmental duty and other obligations established in the Act.
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New section 156 provides for the Governor in Council, by order
published in the Government Gazette, to require a council, public
sector body or infrastructure manager responsible for land or
infrastructure to take a specified action, take into account a
specified matter, or comply with a specified document, code,
standard or rule, subject to any modification specified in the
order.
Subsection (2) specifies that an order may apply to a specified
council, public body or infrastructure manager, to a class of
council, public body or infrastructure manager or to specified
land or infrastructure. Subsection (3) specifies that an order takes
effect on the day it is published in the Government Gazette or on
any later day specified in the order. Subsection (4) provides
definitions of infrastructure and infrastructure manager to
clarify which bodies and persons this section applies to.
Part 7.4--Authorisation of discharges or disposal
New section 157 provides that the Authority may authorise the
emergency storage and use of waste. Upon application, the
Authority may authorise the discharge, emission or deposit of
waste from any place or premises into the environment; or the
storage, treatment, handling or disposal of waste, on or from, any
place or premises. The Authority must not grant an authorisation
under this section unless it is satisfied that the authorised activity
will not have significant adverse effects on human health or the
environment. An authorisation must be for the purposes of
meeting a temporary emergency, providing for the temporary
relief of public nuisance or community hardship, or enabling the
commissioning, repair, decommissioning, or dismantling of any
item of plant or equipment.
Subsection (3) clarifies that an authorisation has no effect unless
the conditions to which it is subject are complied with. A person
acting outside the requirements of an authorisation is likely to be
in breach of the Act.
Subsection (4) provides that an application for an authorisation
under new section 157 must be made in the manner and form
approved by the Authority and must be accompanied by the
prescribed fee (if any).
Consistent with the emergency response context of this section,
subsections (5), (6) and (7) provide that the Authority must
determine an application under this section in a timely,
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efficient and fair manner, may do so with as little formality and
technicality as possible, and that the Authority may grant an
authorisation subject to such conditions as the Authority
considers appropriate. An authorisation expires at the specified
date up to a maximum of 120 days from the day on which the
authorisation is granted.
New section 158 provides that a person who complies with an
authorisation issued under new section 157 is taken to perform a
duty or satisfy an obligation to the extent that the authorisation
provides for how the person is to perform that duty or satisfy that
obligation.
Part 7.5--Issues of environmental concern
Part 7.5 provides for new instruments to be made to identify
and address matters of environmental concern. The notices of
proposed declaration and decisions enable the Minister to
proactively identify issues of environmental concern and explore
actions that may be taken by persons, or classes of persons, who
may be best placed to minimise risks of harm to human health or
the environment from that issue.
New section 159 provides for notice of a proposed declaration
and notice of a decision.
Subsection (1) allows the Minister to propose that an issue be
declared to be an issue of environmental concern, if the Minister
reasonably believes that the declaration would promote a purpose
or an objective of the Principal Act. Subsections (2) and (3) set
out notification requirements including that a notice must
describe the nature and scope of the issue, state the reasons for,
and the objectives of, the proposed declaration, describe the
persons or class of persons that would be required to address the
issue of environmental concern, and describe the operation and
impacts of the proposed declaration. The notice must invite
public comments or submissions within a timeframe of at least
20 business days.
Subsections (4) and (5) provide for the Minister to publish notice
of a decision to make or not to make a proposed declaration of
an issue of environmental concern after having considered any
comments received.
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New section 160 provides that the Governor in Council may
declare an issue of environmental concern. This new section
operates after the notice of a proposed declaration and notice of
decision has been made under new section 159. After a notice of
decision has been published, the Governor in Council may by
order published in the Government Gazette, declare that the issue
is an issue of environmental concern.
An order published under new section 160 must describe the
nature and scope of the issue and the operation and impacts of
the declaration. The order must also invite the submission of
a proposed better environment plan to address the issue of
environmental concern and set out the actions that may be taken,
if the issue of environmental concern is not addressed.
Subsections (3) and (4) provide that a copy of an order made
under new section 160 must be laid before each House of the
Parliament on or before the sixth sitting day after publication,
and that the order may be disallowed in whole or in part by either
House.
New section 161 provides for the amendment or revocation of a
declaration of environmental concern. The Governor in Council
may by order published in the Government Gazette revoke or
amend a declaration of environmental concern. Subsection (2)
requires that in addition to describing the nature and scope of
the issue and who the order applies to, an order must invite the
submission of a proposed better environment plan to address the
issues that are the subject of the order, and must describe the
actions that may be taken if the issues are not addressed.
(For more information on better environment plans, refer to
Part 8.2, below.)
New subsections 160(2), (3) and (4) do not apply to an order that
revokes an order; or makes only a machinery or administrative
amendment to an order. New subsections 160(2), (3) and (4)
do apply to an order that amends a declaration. This section is
intended to ensure Parliamentary scrutiny of amendments to the
declaration of environmental concern.
New section 162 provides for consideration of issues of
environmental concern when issuing remedial notices. This new
section applies if the Authority proposes to issue a remedial
notice to a person and the proposed notice would require the
person to carry out an action or do a thing to prevent or minimise
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a risk of harm to human health or the environment relating to an
issue of environmental concern the person is required to address.
For the purposes of determining whether to issue the remedial
notice, the Authority must take into account any better
environment plan that addresses the issue of environmental
concern. A definition of remedial notice is provided to clarify
the application of this section.
This section is intended to enable the Authority to work
consistently with the objectives of a better environment plan
and to respond with greater flexibility, if a person is creating a
nuisance or contributing to harm and remedial action needs to be
taken by that person. For example, a person responsible for an
event generating high volumes of noise may need to take actions
to limit the impact of noise in relation to the surrounding area, if
it is a declared issue of environmental concern. In the event
that person is party to a better environment plan, the person's
commitments under and compliance with the better environment
plan must also be considered by the Authority to inform its
compliance response.
New section 163 provides for a combination of a notice of
proposed declaration of an issue of environmental concern with
a notice of proposed statutory rule or legislative instrument.
In this situation, the notice of the proposed declaration required
under new section 159(2) may be combined with the notice
required under section 11 or 12I of the Subordinate Legislation
Act 1994. This section is intended to improve clarity by enabling
a single notice to identify related matters for public consultation.
New section 164 provides for a combination of notices of
decisions. This new section provides that notice of a decision
to make or not make a proposed declaration required under
section 159(4) may be combined with the notice required under
section 12 or 12J of the Subordinate Legislation Act 1994.
This section is intended to improve clarity by enabling a single
notice of decision for related matters.
Part 7.6--Control of unreasonable and aggravated noise
The general environmental duty and other obligations to be
established by the Act will apply to noise emissions, and will
operate in parallel with the provisions set out in Part 7.6. Part 7.6
provides the Authority, residential noise enforcement officers
and police with greater capacity to respond to unreasonable and
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aggravated noise in various contexts including residential and
commercial contexts. The definition of noise in the Principal Act
includes vibration and sound.
Division 1--Meaning of residential premises
New section 165 provides a definition of residential premises for
the purpose of applying and interpreting this Part.
Division 2--Unreasonable and aggravated noise
New section 166 prohibits unreasonable noise from a place or
premises that are not residential premises. A person must not
emit an unreasonable noise or permit an unreasonable noise to be
emitted from a place or premises that are not residential premises.
New section 167 prohibits unreasonable noise from residential
premises and provides penalties for contravention. A person
must not emit an unreasonable noise or permit an unreasonable
noise to be emitted from residential premises. This offence is
intended to be a strict liability offence. A natural person who
fails to comply is liable for 120 penalty units. A body corporate
that fails to comply is liable for 600 penalty units. A person is
taken to emit an unreasonable noise from residential premises
if the person uses a prescribed item, (except in a case of
emergency) at any time prescribed as a prohibited time and if
noise emitted by that item can be heard in a habitable room in
residential premises, other than premises in which the item is
being used. A definition of habitable room is provided for the
interpretation and application of new section 167.
New section 168 provides that a person must not emit, or permit
to be emitted, aggravated noise. This offence is intended to be a
strict liability offence. A natural person who fails to comply with
this section is liable for 500 penalty units. A body corporate that
fails to comply with this section is liable for 2500 penalty units.
New section 169 provides for the management of unreasonable
noise emitted from an entertainment venue. It confers powers on
a police officer to enter an entertainment venue and direct any
person apparently in charge of the venue to take any action
reasonably necessary to abate the unreasonable noise. This
offence is intended to be a strict liability offence. A person who
fails to comply with a direction given is liable for 120 penalty
units in the case of a natural person and 600 penalty units in the
case of a body corporate.
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Division 3--Enforcement
New section 170 specifies the types of persons who may
undertake proceedings for certain offences, despite anything
to the contrary in section 347. Subsection (2) provides that
proceedings for an offence against new section 167(1) dealing
with noise from residential premises may be taken by a person
claiming to be directly affected by the alleged offence, a police
officer, or a residential noise enforcement officer.
Subsection (3) provides that proceedings for an offence
against new section 175(4), dealing with directions in relation
to unreasonable noise, may be taken by a police officer, or a
residential noise enforcement officer.
Subsection (4) provides that proceedings for an offence against
new section 177, dealing with obstruction of a police officer, may
only be taken by a police officer.
Subsection (5) provides that proceedings for an offence against
new section 172(6), dealing with residential noise improvement
notices, may only be taken by a residential noise enforcement
officer.
New section 171 provides for the appointment of residential
noise enforcement officers by councils. A council may appoint
as a residential noise enforcement officer a person who is an
employee, or a member of a class of employee, of the council.
Such an appointment is subject to certain conditions or
limitations and may be varied or revoked by the council.
New section 172 provides for residential noise improvement
notices to be issued. This section is intended to confer improved
powers on councils to take effective enforcement action where
residential noise emissions need to be modified or remedied.
A council may issue a person with a residential noise
improvement notice, if the council reasonably believes that the
person has contravened or is likely to contravene a provision of
this Part or the regulations relating to the emission of noise from
residential premises, including in circumstances that make it
likely that the contravention is continuing or will re-occur.
A residential noise improvement notice may require the person
to whom it is issued to abate the noise, or to do any other thing
that the council reasonably considers necessary to prevent or
minimise the noise. A residential noise improvement notice must
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specify various details, including the grounds on which the notice
is issued, the actions that the person must take, and the time
within which the person must comply. The notice must also set
out the penalty for failing to comply, and state that the person
may apply to VCAT for review of the decision to issue the
notice. A council may, by notice in writing extend the period
during which the person must comply with the notice and revoke
or amend any requirement specified in the notice.
This offence is intended to be a strict liability offence.
A natural person who fails to comply with the notice is liable
for 120 penalty units. A body corporate that fails to comply
with the notice is liable for 600 penalty units.
New section 173 provides that proceedings for offences are not
affected by residential noise improvement notices. This new
section provides that the issue of a residential noise improvement
notice does not affect any proceedings for an offence against the
Principal Act in connection with any matter in respect of which
the residential noise improvement notice was issued.
New section 174 provides for injunctions relating to residential
noise emitted from residential premises to be sought by councils
and police officers.
On application, a Court may grant an injunction, in such terms
as the Court considers appropriate, if the Court is satisfied of the
specified matters. An order may restrain a person from engaging
in specified conduct that the Court reasonably considers to be the
source of, or contributing to, the emission of noise, or require a
person to do a specified act or thing that the Court considers
reasonably necessary to prevent, minimise or remedy the
contravention.
A council or a police officer may apply for an injunction under
new section 174 whether or not proceedings have been taken
for an offence against the Principal Act or the regulations, or a
contravention of a civil penalty provision. The power of a Court
to grant an injunction may be exercised whether or not the
conduct is likely to result in substantial damage to any person, or
is likely to result in an infringement of the rights of any person.
New section 175 provides for unreasonable noise directions to
be made by a police officer or a residential noise enforcement
officer.
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This section applies to a person who a police officer or residential
noise enforcement officer reasonably suspects is committing or
has committed an offence against new section 167, or is
apparently in charge of residential premises on which an offence
is being committed or has been committed. A police officer or
residential noise enforcement officer may direct a person to take
any action that the officer considers necessary to stop a suspected
offence, or to prevent a suspected offence from recurring.
A person must comply with a direction and it remains in force for
the period specified in the direction not exceeding 72 hours after
the direction is given.
This offence is intended to be a strict liability offence. A natural
person who contravenes this section is liable for 120 penalty
units. A body corporate that contravenes this section is liable for
600 penalty units.
New section 176 enables police officers to enter residential
premises to investigate and take effective enforcement action to
address unreasonable noise. This section provides for entry
orders to be made, enabling a police officer to use reasonably
necessary force to enter residential premises to investigate the
emission of unreasonable noise. An order may be made subject
to any conditions that the court considers appropriate.
On the application of a police officer who meets the specified
criteria, a court officer may make an order enabling the police
officer, using such force as is reasonably necessary, to enter
residential premises for the purpose of investigating the emission
of unreasonable noise. After entering residential premises and
investigating the emission of noise, the police officer may give
any direction considered necessary to abate the unreasonable
noise.
New section 177 prohibits obstruction of a police officer.
A natural person who contravenes this section is liable for
60 penalty units. A body corporate that contravenes this section
is liable for 300 penalty units.
Chapter 8--Environmental plans, audits and other matters
New Chapter 8 provides for better environment plans as a
form of voluntary agreement that may be used in a diverse
range of situations. It also provides for improvements to the
environmental audit system and financial assurance requirements,
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and for the appointment of advisory panels and the establishment
of conferences of interested persons.
Part 8.1--Simplified outline
New section 178 provides a simplified outline and overview of
Chapter 8.
Part 8.2--Better environment plans
Better environment plans are a form of voluntary agreement with
the Authority and enable--
• the support of innovative ways of achieving compliance
and improvements, including in relation to the
management of contaminated sites;
• efficient and flexible approaches to address complex
environmental problems involving multiple parties, or
relating to multiple sites with a single owner;
• consolidation of the approach to collaborative and
voluntary activity (as the successor to Neighbourhood
Environment Improvement Plans, Sustainability
Covenants and Industry Waste Reduction Agreements
under the 1970 Act);
• general support for environment improvement action by
individuals or groups.
New section 179 provides a definition of participant for this Part.
New section 180 provides for the purposes of the better
environment plans. A better environment plan may deal with
matters such as an area affected by contamination--for example,
where multiple properties (owned by one or multiple parties)
have similar or potentially related issues of risk management.
Better environment plans may also enable a group of duty
holders to work together collectively to facilitate a standard
of conduct that goes beyond basic compliance. A better
environment plan may also be developed to address an issue
that the Minister has proposed to declare, or has declared, to be
an issue of environmental concern (under Part 7.5).
New section 181 provides the requirements for submissions of
proposed better environment plans in order for them to be
accepted by the Authority.
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New section 182 provides that the Authority will have
30 business days to accept or refuse a proposed better
environment plan and must take relevant guidelines (under
section 188) and prescribed matters into account when making its
determination. In order to accept a proposed better environment
plan, the Authority will need to be satisfied that the objectives of
the proposed plan are consistent with new section 180 and will be
delivered. This new section also provides that the Authority can
request more information relating to the plan; the 30-business day
assessment period does not include the time that the Authority is
awaiting this further information. The Authority is required to
provide written notice to the person who submitted the proposed
plan of its decision to accept or refuse the plan.
New section 183 obliges a participant in a better environment
plan to notify the Authority, as soon as practicable, of a change
which materially affects any objective of the plan or the capacity
of any participant to comply with the plan.
New section 184 provides for a participant to apply for an
amendment to a better environment plan, and for the Authority
on its own motion to amend or revoke a better environment plan.
The new section states that if an amendment proposed by a
participant affects any action or responsibility that any participant
must undertake under the plan, then the Authority may only
amend the plan with the affected participant's written consent.
The new section further notes that the Authority is empowered
to amend or revoke a better environment plan, or remove a
participant from a better environment plan, on its own motion for
certain reasons.
New section 185 provides that a participant who wishes to
withdraw from a better environment plan must give at least
20 business days' notice to the Authority and all other
participants in the plan.
New section 186 provides the situations in which a participant
in a better environment plan will be taken to have performed a
duty or satisfied an obligation under the Principal Act or the
regulations.
New section 187 enables the Authority to suspend or revoke a
better environment plan, suspend a participant's participation in a
plan, or remove a participant from a plan, if the participant fails
to comply with their commitments in the plan.
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New section 188 provides for the Authority to issue guidelines
relating to better environment plans.
Part 8.3--Environmental audit system
New section 189 specifies the purpose of this Part, which relates
to the Authority's appointment and oversight of environmental
auditors and the operation of the environmental audit system.
Division 1--Environmental auditors
New section 190 provides for the functions of environmental
auditors and the matters they are to have regard to in carrying out
their functions.
New section 191 provides the application requirements for a
person who is seeking to be appointed by the Authority as an
environmental auditor. The section also provides the Authority
with the ability refer an application to an advisory panel and to
require the applicant to provide further information, appear
before the advisory panel or undergo an examination.
New section 192 empowers the Authority to appoint an advisory
panel to make recommendations to the Authority on applications
for appointment as an environmental auditor and to provide other
advice to the Authority. The section requires such an advisory
panel to have regard to any relevant guidelines issued under
section 203.
New section 193 lists the matters that the Authority must have
regard to when determining whether to approve or refuse an
application for appointment as an environmental auditor and the
grounds on which the Authority may refuse an application.
New section 194 requires the Authority to provide an applicant
with notice, and the opportunity to make submissions, if it
intends to refuse their application for appointment as an
environmental auditor.
New section 195 provides the notice requirements that the
Authority must comply with if it decides to approve an
application for appointment as an environmental auditor. It also
provides that a period of appointment cannot exceed 3 years.
New section 196 provides that a person appointed as an
environmental auditor must pay the prescribed fee unless the
person is exempted by the Authority.
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New section 197 provides for the Authority to impose, vary or
revoke any conditions on the appointment of an environmental
auditor at any time, provided the Authority does so via written
notice and after having regard to the guidelines issued under
section 203.
New section 198 describes the application requirements for
an environmental auditor to apply to the Authority for their
reappointment. It states that the Authority can require the
applicant to provide further information within a specified time
if the Authority considers it necessary for determining whether to
approve or refuse the application.
New section 199 specifies the grounds on which the Authority
may refuse an application for reappointment. These include the
same grounds (in section 193(3)) that also apply to appointment
decisions, and additional grounds relating to the work and
conduct of the auditor since they were appointed.
New section 200 provides that the Authority may suspend or
revoke the appointment of an environmental auditor in certain
circumstances. The grounds for suspension or revocation relate
to the conduct of the auditor, non-compliance by the auditor, the
quantity and quality of the auditor's work and circumstances
involving a conflict of interest.
New section 201 specifies the matters the Authority must
have regard to when deciding whether to suspend or revoke the
appointment of an environmental auditor, and the notice it must
provide to the auditor.
New section 202 specifies the period in which a suspension or a
revocation takes effect.
New section 203 empowers the Authority to make guidelines
relating to the appointment, reappointment, suspension,
revocation and performance of environmental auditors.
Division 2--Preliminary risk screen assessments
New section 204 provides that a person may engage an
environmental auditor to conduct a preliminary risk screen
assessment and the purposes of a preliminary risk screen
assessment.
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New section 205 specifies when an environmental auditor
is required to prepare a preliminary risk screen assessment
statement and a preliminary risk screen assessment report and
provide copies to the Authority and relevant planning authorities.
It is an offence if the auditor fails to provide copies to the
Authority and relevant planning authorities. This offence is
intended to be a strict liability offence.
New section 206 specifies the matters that must be included in a
preliminary risk screen assessment statement. It also provides
the Authority with the ability to review the proposed scope of an
environmental audit and to endorse it or determine a revised
scope for the environmental audit.
New section 207 specifies the matters that must be included in a
preliminary risk screen assessment report.
Division 3--Environmental audits
New section 208 sets out the purpose of an environmental
audit. These purposes encompass the nature of the two types of
environmental audits that are provided by sections 53V and 53X
of the 1970 Act. The section also sets out the requirement for
an environmental auditor to submit a proposed scope of the
environmental audit to the Authority. It enables the Authority
to review and endorse the proposed scope of audit. It provides
for the Authority to request further information from the
environmental auditor and describes how that will extend the
Authority's timeframe for assessing the proposed scope of the
audit.
New section 209 details the information that an environmental
auditor engaged to conduct an environmental audit is required to
provide to the Authority within 5 business days of receiving the
request to conduct the audit. It is an offence for the auditor to
fail to provide this information within the specified time.
This offence is intended to be a strict liability offence.
New section 210 describes when an environmental auditor is
required to prepare an environmental audit statement and an
environmental audit report, and when they are required to
provide a copy to the Authority and, in some circumstances,
to relevant planning authorities. It is an offence for the auditor
to fail to provide the environmental audit statement and
environmental audit report to the Authority within the specified
time. This offence is intended to be a strict liability offence.
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New section 211 sets out the information required in an
environmental audit statement.
New section 212 sets out the information required in an
environmental audit report.
Division 4--Offences and other matters
New section 213 specifies the circumstances in which an
environmental auditor may withdraw a preliminary risk screen
assessment statement or environmental audit statement to correct
or replace it with a new assessment or statement. It also specifies
who the auditor must notify in these circumstances. It is an
offence for the auditor to fail to notify the Authority and
specified planning authorities within the specified time.
This offence is intended to be a strict liability offence.
New section 214 imposes an obligation on the person in
management or control of a site about which a preliminary risk
screen assessment statement or environmental audit statement has
been issued to provide a copy of the statement to a person who
proposes to become the person in management or control of the
site. The new section allows recovery of reasonable costs against
the person who was in management or control of the site if they
do not comply with this section.
New section 215 establishes an offence against an environmental
auditor who issues any document (including a preliminary risk
screen assessment statement or environmental audit statement)
that is false or misleading. This offence is intended to be a strict
liability offence.
New section 216 establishes an offence for an environmental
auditor who fails to notify the Authority, as soon as practicable,
after they become aware, when carrying out their functions, of an
imminent state of danger, a circumstance that is likely to become
an imminent state of danger or any other prescribed matter.
New section 217 sets out the time in which an environmental
auditor must pay the prescribed fee to the Authority after
completing a preliminary risk screen assessment statement and a
preliminary risk screen assessment report, or an environmental
audit statement and an environmental audit report.
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Part 8.4--Financial assurances
New section 218 sets out the purposes of this Part. It notes that
financial assurances provide security for the Authority for the
costs and expenses of remediation or clean up activities.
New section 219 enables the Authority to require a financial
assurance from a person undertaking a particular permission
activity, or as a condition of a site management order or an
environmental action notice, if the Authority is satisfied, having
regard to the prescribed risk assessment criteria, that a financial
assurance is necessary. An Order relating to environmentally
hazardous substances may also require a person to provide a
financial assurance.
New section 220 provides for the Authority to determine the
form of the financial assurance having regard to the prescribed
risk assessment criteria. This may be a bank guarantee, a bond
or any other form of security that the Authority considers
appropriate.
New section 221 sets out the matters the Authority must have
regard to in setting the amount of the financial assurance.
New section 222 enables the Authority to require a person to
provide an independent assessment of a matter contained in the
prescribed risk assessment criteria. This is to assist the Authority
to determine the amount of the financial assurance under
section 221.
New section 223 provides where the Authority may publish the
method for calculating financial assurance amounts and when the
method takes effect.
New section 224 sets out the types of costs that a person required
to provide a financial assurance is responsible for.
New section 225 empowers the Authority to review the
requirement, amount and form of the financial assurance a person
is required to provide in certain circumstances.
New section 226 empowers the Authority to amend the amount
and form of the financial assurance a person is required to
provide following a review of the financial assurance.
New section 227 provides the situations in which the Authority
may make a claim on a financial assurance for any reasonable
costs incurred or likely to be incurred. These situations are
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where the person has failed to conduct required clean up or
remediation activities, or where the Authority has exercised
clean up powers in accordance with Part 10.8. The clause also
provides for any money recovered to be paid to the Consolidated
Fund.
New section 228 sets out the procedure the Authority must
comply with for a claim on a financial assurance, in the event of
a person's failure to remediate or clean up.
New section 229 sets out the notice requirements the Authority
must comply with in relation to a claim on a financial assurance,
in the event that the Authority has exercised clean up powers to
address an immediate or serious risk.
New section 230 permits the Authority to provide notice to a
person who provided a financial assurance to replenish the
amount following the Authority's claim on that financial
assurance.
New section 231 specifies the circumstances in which the
Authority is required to release all or part of a financial assurance
provided by a person and the related notice requirements.
New section 232 specifies the process by which a person who
has provided a financial assurance may apply to have all or part
of the financial assurance released and the matters which the
Authority is required to consider when determining such an
application. The new section also allows the Authority to
request further information and to extend the period in which
it is required to notify the applicant of its decision.
New section 233 sets out the circumstances in which the
Authority may transfer a financial assurance and the related
notice requirements. This could, for example, involve
transferring a financial assurance that was provided as a
condition of an operating licence so that, following the surrender
of the licence, the financial assurance instead fulfils a condition
of a site management order that applies to the same person.
The section also sets out the powers of the Authority to make
necessary changes to implement the transfer and the requirements
on the relevant person to provide a further amount as financial
assurance.
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New section 234 provides that the Authority may suspend a
permission or issue a prohibition notice if a person fails to fulfil a
requirement to provide a financial assurance or to increase or
replenish the amount of their financial assurance.
Part 8.5--Advisory panels
New section 235 empowers the Authority to establish an advisory
panel and to determine the procedures and terms and reference
for the panel. The section specifies further matters about the
membership of the advisory panel.
Part 8.6--Conference of interested persons
New section 236 provides that the Authority can establish a
conference of interested persons. Such conferences are to assist
the Authority in the just resolution of matters or decisions under
consideration. Conferences may also be used to provide the
Authority with an informal means to consider matters or
decisions. They provide an opportunity for interested persons
to express their views and perspectives, which helps to inform
balanced decision-making.
This new section also provides a definition of interested persons
for this section. An interested person can be any person, body or
public entity that the Authority considers may have an interest, or
hold technical or scientific expertise, in relation to the matter or
decision under consideration. It may also be a public entity that
has requested to be consulted.
New section 237 provides for the appointment of a convenor of
the conference of interested persons and the functions of the
convenor.
New section 238 specifies the information that may be
included in the recommendations and additional material that
the conference of interested persons provides to the Authority.
The new section 238 explains that any recommendation is not
binding on the Authority but that the relevant information must
be considered by the Authority when it takes action on the matter
that the conference was established in relation to.
New section 239 provides for the Authority to make and publish
rules for conferences of interested persons.
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New section 240 sets out that participation in a conference of
interested persons is voluntary and that a person may withdraw
from a conference at any time.
Chapter 9--Authorised officers, analysts and other
appointments
Part 9.1--Simplified outline
New section 241 provides a simplified outline and overview of
Chapter 9.
Part 9.2--Appointment of authorised officers and analysts
and appointments to specific roles
Division 1--Authorised officers
New section 242 provides that the Authority may appoint
authorised officers for the purposes specified in the instrument
of appointment. A person who is an officer or employee, or a
member of a class of officer or employee of the Authority, a
public sector body, a council, or the New South Wales (NSW)
or South Australia (SA) Environment Protection Authority
may be appointed as an authorised officer by the Authority.
New subsection (1) empowers the Authority to appoint a broad
range of persons as authorised officers (for the purposes of
the Principal Act, including employees of the NSW and SA
Environment Protection Authorities to ensure that there is an
appropriate coverage of enforcement at the Victorian borders.
New section 242(2) provides that a public sector body or council
to which the Authority has delegated a power or function under
section 237(1) may appoint an employee or class of employee as
an authorised officer.
New section 242(3) provides that an appointment by the
Authority, or a public sector body, or council, is subject to
conditions or limitations specified in the appointment and may at
any time be varied or revoked by the person or body who made
the appointment.
New section 243 provides for the issue of identity cards to
appointed authorised officers and for the content of the identity
card. Authorised officers are required to produce their identity
cards for inspection, if asked to do so when performing a
function or exercising a power.
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New section 244 empowers the Authority to give directions in
respect of authorised officers, which may relate to qualifications
and training, appointment procedure and conduct of an authorised
officer. A person or body given a direction under new
section 244 in relation to these matters must comply with the
direction.
Division 2--Other appointments by the Authority
New section 245 provides that the Authority may appoint
analysts and other prescribed roles for the purposes specified
in the instrument of appointment, subject to the specified
term of appointment and any conditions on the appointment.
An appointment may be suspended, varied or revoked by the
Authority. The Authority must not appoint a person unless
they have paid any prescribed fee. Section 245 modernises the
arrangements in section 57 of the 1970 Act with respect to the
appointment of analysts.
Part 9.3--Inspection and inquiry powers
This Part of the Bill introduces a new suite of inspection and
evidence gathering powers of the Authority and authorised
officers. The new powers provide authorised officers with a
modern, flexible and adaptive set of powers to enable them to
monitor compliance with the new legislation and enforce the law.
Division 1--Powers of entry and inspection
New section 246 provides that authorised officers may enter and
inspect any place or premises for the purpose of performing a
function or duty or exercising a power under the Principal Act.
Powers of entry are conferred on an authorised officer--
• to determine if a person has contravened the legislation
or the regulations;
• to monitor compliance with the legislation or the
regulations;
• to determine if there is a risk of harm to human health or
the environment from pollution, waste or contaminated
land, and
• to inspect or test any equipment or a vehicle.
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Powers of entry and inspection may be exercised at any
reasonable time and at any other time where an authorised officer
reasonably believes there is an immediate risk of material harm.
Material harm is defined in new section 3B of the Principal Act.
New section 247 provides for entry and inspection of a place or
premises when open to the public.
New section 248 sets out when an authorised officer may enter
a residential place or premises. This section specifies that an
authorised officer must not enter and inspect premises used only
for residential purposes except--
• with the consent of the occupier for the time being;
• under the authority of a search warrant; or
if the authorised officer reasonably believes--
• a person has contravened, is contravening, or is about to
contravene a provision of the Principal Act; or
• there is an immediate risk of material harm.
An authorised officer may only exercise a power to enter and
inspect, if the officer believes that it is necessary to enter and
inspect for the purpose of determining if a contravention of the
Principal Act has occurred, may occur, or is about to occur.
An authorised officer may also exercise the power, if the officer
has formed a reasonable belief that there is an immediate risk of
material harm.
New section 249 stipulates that authorised officers must
announce themselves upon entry to a place or premises under
this Division. This includes taking all reasonable steps to notify
the occupier (or the apparent occupier) of their presence.
An authorised officer must also produce their identity card for
inspection. The new section specifies the exceptions to the
notification requirements.
New section 250 empowers an officer to enable a person
assisting that officer to enter premises. New subsection (1)
contemplates that monitoring compliance with the Principal Act
will require assessment of complex and specialist information.
In doing so, an authorised officer may require the assistance of
another person. The new section ensures that such an assessment
is not frustrated because the authorised officer cannot facilitate
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entry of the other person onto the relevant premises. Subsection
(2) requires the occupier or person in management or control of
a place or premises to allow the person assisting the authorised
officer to access the place or premises. It is an offence to
contravene subsection (2). A penalty of up to 60 penalty units for
a natural person or up to 300 penalty units for a body corporate
applies. Subsection (2) specifies matters that apply if an
authorised officer uses the assistance of an interpreter.
New section 251 provides that, upon exercising the powers of
entry, an authorised officer may do, or cause to be done, any
thing or action the authorised officer reasonably believes is
necessary for the purpose of performing a function, or duty, or
exercising a power under the Principal Act. An authorised
officer may do any of the things specified in subsection (2)
that they reasonably believe is necessary for the purpose of
performing a function or duty or exercising a power under the
Principal Act.
Subsection (3) provides that for the purposes of subsection (2)(c)
and (f), an authorised officer may carry out, or cause to be carried
out, any testing and examination of a thing, including testing of a
thing that results in the destruction of that thing.
Subsection (4) provides that an authorised officer must take
reasonable steps to minimise disruption caused by entry and
inspection of a place or premises and of taking any action under
this section; and not remain longer than is reasonably necessary.
New section 252 specifies the powers of authorised officers
require production of documents upon entry to a place or
premises. Subsection (2) makes it an offence for a person to,
without reasonable excuse, refuse or fail to comply with a request
under subsection (1). This offence is intended to be a strict
liability offence. A penalty of up to 60 penalty units for a natural
person or up to 300 penalty units for a body corporate applies.
New section 253 provides that authorised officers may require
information or answers upon entry to a place or premises from a
person they reasonably believe has knowledge of a matter or
thing relevant to another person's compliance with the Principal
Act or the regulations.
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Subsection (3) makes it an offence to contravene subsection (1)
without reasonable excuse. This offence is intended to be a strict
liability offence. A penalty of up to 60 penalty units for a natural
person or up to 300 penalty units for a body corporate applies.
New section 254 provides that a report about the entry and
inspection of a place or premises is to be given to the occupier or
apparent occupier of the place or premises as soon as practicable
after the authorised officer leaves the place or premises.
Division 2--Information gathering notices
New section 255 provides that the Authority may serve an
information gathering notice on a person requiring the person
to do any of certain specified matters, including providing
information (or classes of information), or documents (or classes
of documents) specified in the notice. An information gathering
notice may also require a person to appear before the Authority to
give information orally or provide documents. Subsection (2)
makes it an offence to contravene subsection (1) without
reasonable excuse. This offence is intended to be a strict liability
offence. A penalty of up to 60 penalty units for a natural person
or 300 penalty units for a body corporate applies.
New subsection (2) ensures that a person served with a notice is
not unfairly liable to a sanction. For example, a person who does
not have possession of a document is likely to have a reasonable
excuse for not complying with the notice.
New section 256 specifies the form and content of an information
gathering notice.
New section 257 enables the Authority to extend the time to
comply with an information gathering notice, or to revoke or
amend a requirement in the notice.
New section 258 enables court orders to be made to compel a
person to comply with an information gathering notice.
Division 3--Power to ask a person's name and address
New section 259 empowers authorised officers to ask for a
person's name and address if the officer reasonably believes the
person may be able to assist with an investigation of an indictable
offence the Act, or if the person has committed, is committing or
is about to commit an offence against the Act. Subsection (3)
makes it an offence for a person to refuse or fail to comply with
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this section, or to state a false name that is false in a material
particular, or to state an address other than the person's full and
correct address. This offence is intended to be a strict liability
offence. A penalty of up to 20 penalty units applies.
Division 4--Power to give directions
New section 260 empowers an authorised officer to give
directions to a person to do, or cause to be done, something that
the officer reasonably believes is necessary to address the
existence, or likely existence, of an immediate risk of material
harm. Subsection (2) makes it an offence to fail to comply with a
direction under subsection (1) without a reasonable excuse. This
offence is intended to be a strict liability offence. A penalty of
up to 500 penalty units for a natural person or up to 2500 penalty
units for a body corporate applies. Subsection (4) provides than
an offence under subsection (3) is an indictable offence. A note
following subsection (4) clarifies that the offence may be tried
summarily. Subsection (5) provides that the Authority must pay
any reasonable costs incurred by a person in complying with a
direction given under this section, except when that person
caused or permitted the situation giving rise to the existence or
likely existence of an immediate risk of harm.
Division 5--Search warrants
This Division introduces a new power for authorised officers to
apply to the Magistrates' Court for search warrants.
New section 261 provides that authorised officers may apply to
a magistrate for a search warrant in the circumstances specified,
and such a warrant may be issued, if the magistrate is satisfied
by the evidence of the authorised officer's reasonable belief.
The search warrant may authorise entry to a place, or premises,
named or described, in the warrant and will enable a search to
be undertaken for the thing named or described in the warrant.
Subsection (4) specifies what the search warrant must state.
A search warrant must be issued in accordance with the
Magistrates' Court Act 1989 and in the form prescribed under
that Act. Rules under that Act apply to search warrants issued
under this section.
New section 262 provides that before executing a search warrant,
the authorised officer executing it must announce the officer's
authority to enter and search, and give any person at the place or
premises a chance to allow entry.
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Subsection (2) provides that subsection (2) does not apply if
the authorised officer reasonably believes that complying with
subsection (1) would frustrate the effective execution of the
search warrant.
New section 263 provides that a copy of the execution copy
of the warrant is to be given to the occupier and the authorised
officer must produce their identity card for inspection.
Division 6--Return and forfeiture of seized things
New section 264 provides for the return of seized things
unconditionally or subject to terms and conditions, unless one of
the circumstances in subsection (1) apply, including that the thing
is necessary to retain as evidence, or that it has been forfeited to
the Authority. If the Authority imposes terms or conditions on
the return of the thing, the owner must comply with the terms and
conditions. It is an offence to fail comply with subsection (3).
This offence is intended to be a strict liability offence. A penalty
of up to 60 penalty units for a natural person or up to 300 penalty
units for a body corporate applies.
New section 265 provides for forfeiture of seized things in the
circumstance specified in subsection (1), which includes that the
owner cannot be found despite making reasonable enquiries and
that it is necessary to retain to prevent the commission of an
offence. If a thing is forfeited to the Authority under subsection
(1)(c), the Authority must give the owner written notice and
set out how the owner may apply to VCAT for review of the
decision to forfeit the thing, unless the Authority cannot find
the owner despite making reasonable enquiries.
Division 7--Offences relating to authorised officers
This Division introduces offences in relation to obstruction and
assault in respect of authorised officers who are performing a
function or duty or exercising a power under the Principal Act.
New section 266 provides for offences in relation to obstruction
of an authorised officer who is performing a function or duty, or
exercising a power. These offences apply if a person hinders,
delays or obstructs an authorised officer (and includes any person
assisting the authorised officer) or conceals something from an
authorised officer. These offences will also apply where a person
uses abusive, threatening or insulting language to the authorised
officer and any person assisting the officer. A penalty of up to
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60 penalty units for a natural person or up to 300 penalty units for
a body corporate applies.
New section 267 introduces offences in relation to assaulting,
intimidating or threatening an authorised officer, or any person
assisting the authorised officer, where they are performing a
function or duty or exercising a power. A penalty of up to
240 penalty units or 2 years imprisonment, or both, for a natural
person or up to 1200 penalty units for a body corporate applies.
Division 8--General
New section 268 provides that it is a reasonable excuse for a
natural person to refuse or fail to give information, or do any
other thing that the person is required to do, if the giving of the
information would tend to incriminate the person. It is not a
reasonable excuse for a natural person to refuse or fail to
produce a document that the person is required to produce, if the
production of the document would tend to incriminate the person.
New section 269 provides that if a police officer or an officer
authorised under section 13 of the Road Safety Act 1986
lawfully stops a motor vehicle, the authorised officer may
conduct any inspection, measurement or test in relation to the
motor vehicle, for the purpose of performing a function or duty,
or exercising a power, under this Act.
Chapter 10--Notices
Part 10.1--Simplified outline
New section 270 provides a simplified outline and overview of
Chapter 10.
Part 10.2--Improvement and prohibition notices
Division 1--Improvement notices
New section 271 enables the Authority or an authorised officer to
issue a person with an improvement notice.
Subsection (1) provides that the Authority or an authorised
officer may issue an improvement notice if the Authority or
authorised officer reasonably believes that a person is
contravening or has contravened a provision of the Act, the
regulations or a subordinate instrument made under the Act, or
is not complying or has not complied with a permission granted
under the Act. The Authority or authorised officer can also issue
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an improvement notice if they reasonably believe that a person
has engaged in or proposed to engage in an activity that has
caused or is likely to cause harm to human health or the
environment from pollution or waste.
Subsection (2) provides that an improvement notice may
require the person to whom it is issued to take any action that the
Authority or authorised officer considers necessary to remedy
the contravention, or to remedy the activity that has caused or is
likely to cause harm to human health or the environment from
pollution or waste.
Subsection (3) provides that a requirement contained in an
improvement notice may direct the person to whom it is issued to
take measures to remedy the matters referred to in subsection (2),
including but not limited to clean up measures.
Subsection (4) specifies what must be included in an
improvement notice.
Division 2--Prohibition notices
New section 272 enables the Authority or an authorised officer to
issue a person with a prohibition notice.
Subsection (1) provides that the Authority or an authorised
officer may issue a prohibition notice if the Authority or the
authorised officer reasonable believes--
• that the person is contravening or has contravened a
provision of the Bill, the regulations or a subordinate
instrument made under the Bill, is not complying or has
not complied with a permission granted under the Bill,
or has engaged in or proposes to engage in an activity
that has caused or is likely to cause harm to human
health or the environment from pollution or waste; and
• that, having regard to the immediacy of the risk and
degree of harm that could occur, prohibiting the person
from engaging in an activity is necessary to prevent or
minimise any harm to human health or the environment
from pollution or waste.
Subsection (2) provides that a prohibition notice may prohibit
the person to whom it is issued from engaging in the activity,
and require the person to do any other thing that the Authority or
authorised officer considers necessary to prevent or minimise the
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harm or risk of the harm. Subsection (3) specifies what must be
included in a prohibition notice.
Part 10.3--Notices to investigate and environmental action
notices
Parts 10.3 and 10.4 introduce a suite of complementary notices
and orders that empower the Authority to regulate various
matters such as contaminated land and unlawful disposal of
industrial waste.
Division 1--Notice to investigate
New section 273 enables the Authority or an authorised person to
issue specific persons with a notice to investigate.
Subsection (1) provides that the Authority or an authorised
person may issue a person referred to in subsection (2) with a
notice to investigate if the Authority or an authorised officer
reasonably believes that land is or may be contaminated, a
pollution incident has occurred, industrial waste is at a place or
premises unlawfully, or there is a risk of harm to human health or
to the environment arising from pollution or the depositing,
storage or handing of waste.
Subsection (2) provides that a notice to investigate under
subsection (1) may be issued to the person reasonably believed to
have caused or permitted the relevant circumstances, the current
owner or occupier of the land currently, or when the relevant
circumstances first came into being, at which the relevant
circumstances exist.
Subsection (3) provides that the person to whom a notice to
investigate is issued may be required to do investigate whether
the relevant circumstances exist, or investigate the nature and
extent of the relevant circumstances, including the nature and
extent of any harm or risk of harm to human health or the
environment arising from them. the person may also be required
to report on, or provide information to, the authority regarding
the investigation, or conduct the investigation in the manner and
within the time specified by the notice.
Subsection (4) stipulates what must be included in a notice to
investigate.
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Division 2--Environmental action notice
New section 274 enables the Authority or an authorised officer to
issue specific persons with an environmental action notice.
Subsection (1) provides that the Authority or an authorised
officer may issue a person referred to in subsection (2) with an
environmental action notice if the Authority or the authorised
officer reasonably believes any of the following circumstances
exist--
• land is or may be contaminated;
• a pollution incident has occurred or is occurring that has
caused, or is likely to cause, harm to human health or
the environment;
• industrial waste is at a place or premises unlawfully;
• any other circumstances exist arising from pollution or
the depositing, storage or handling of waste that have
caused or are likely to cause harm to human health or to
the environment;
• a person referred to in subsection (2) was issued with a
notice to investigate and has failed to comply with that
notice.
Subsection (2) provides that an environmental action notice
under subsection (1) may be issued to the person reasonably
believed to have caused or permitted the relevant circumstances,
or the owner or occupier of the land currently or at the time the
relevant circumstances first came into being, at which the
relevant circumstances exist.
Subsection (3) specifies what must be included in an
environmental action notice. Subsection (4) provides that the
Authority may specify in an environmental action notice any
condition, requirement, restriction, performance standard or level
that it thinks fit.
Subsection (5) provides that an environmental action notice
applies notwithstanding anything to the contrary in the Planning
and Environment Act 1987 and the Building Act 1993 or any
instruments or permissions made or granted under those Acts.
Subsection (6) enables a person in management or control of
land to recover reasonable costs associated with complying with
an environmental action notice from a person who caused or
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contributed to contamination of the land. The costs are to be
treated as a debt due to the person in management or control of
the land.
Part 10.4--Site management orders
New section 275 enables the Authority to issue a site
management order in specific circumstances.
Subsection (1) provides that the Authority may issue a site
management order in respect of any site (other than a prescribed
site) if the Authority reasonably believes that long-term
management of the site is necessary because land on the site is
contaminated or there is risk of harm to human health or the
environment from pollution or waste.
Subsection (2) provides that the Authority may consider harm
that would be caused or would be likely to be caused if an
existing measure is not maintained or modified, a new measure is
not put in place or a specific event, activity or land use takes
place on the site.
Subsection (3) provides that a site management order may be
issued to the current owner or occupier of the site, or in the
case of a site that is on Crown land, the person that has the
management or control of the land for the time being.
Subsection (4) requires the Authority to consult with the
Minister administering the Mineral Resources (Sustainable
Development) Act 1990 before issuing a site management order
in respect to a mine or a site of extractive industry (for the
purposes of that Act).
Subsection (5) specifies what must be included in a site
management order. Subsection (6) provides for time frames that
may be included in a site management order. Subsection (7)
provides an inclusive list of the measures that may be set out in a
site management order.
Subsection (8) provides that a site management order operates
for the period specified in the order (if any) and may operate
indefinitely.
Subsection (9) provides that the Authority may vary or revoke
a site management order. Subsection (10) provides that the
Authority must revoke a site management order if it considers
that long-term management of the site is no longer necessary.
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Subsection (11) enables a person in management or control of
land to recover reasonable costs associated with complying
with a site management order from a person who caused or
contributed to contamination of the land. The costs are to be
treated as a debt due to the person in management or control
of the land.
New section 276 specifies the status and effect of site
management orders.
Subsection (1) provides that a site management order is binding
on the owner, occupier or person that has the management or
control of the land who is served with it, and each subsequent
owner, occupier or person with the management or control of
the land for the time being.
Subsection (2) provides that a site management order is a
statutory charge within the meaning of the Transfer of Land
Act 1958.
Subsection (3) provides that a site management order applies
notwithstanding anything to the contrary in the Planning and
Environment Act 1987 and the Building Act 1993 or any
instruments or permissions made or granted under those Acts.
New section 277 enables applications to be made to the Authority
to vary or revoke a site management order on specified grounds.
Part 10.5--Non-disturbance notices
New section 278 empowers the Authority or an authorised officer
to issue a non-disturbance notice.
Subsection (1) provides that the Authority or an authorised
officer may issue a non-disturbance notice to a person who is, or
appears to be, the occupier of a place or premises if the Authority
or the authorised officer believes it necessary to facilitate the
performance of functions or exercise of powers under the Act in
relation to the place or premises.
Subsection (2) provides that a non-disturbance notice may
require a person to stop the use or movement of, or interference
with, any specified plant, equipment, substance or other thing
at the place or premises, and prevent the disturbance of the
specified plant, equipment, substance or other thing or a specified
area of the place or premises where the plant, substance or other
thing is located.
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Subsection (3) provides that a non-disturbance notice must
specify the period (of no more than 7 days) for which it applies
and set out the obligations of the person to whom the notice is
issued, the penalty for contravening the notice, and how the
person may seek review of the issue of the notice.
Subsection (4) provides that the Authority or an authorised
officer may issue one or more subsequent non-disturbance
notices to a person.
Part 10.6--General matters relating to notices
New section 279 enables the Authority or an authorised officer
to give to the person, to whom a notice under Part 10.2 or 10.3
has been issued, a notice to extend the period during which
the person must comply with the notice (if the Authority or
authorised officer is satisfied that an extension is justified),
and revoke or amend any requirement specified in the notice.
New section 280 provides for notification of notices.
Subsection (1) provides that the occupier of any place or
premises to whom a notice or an order has been issued under this
Chapter and that is still in force must provide to any person who
proposes to become the occupier of that place or premises a copy
of the notice or order; and details of the steps which have been
taken to comply with the notice or order.
Subsection (2) provides if a person becomes the occupier of any
place or premises and the previous occupier did not comply with
subsection (1), the current occupier may, within 12 months of
becoming the occupier, recover from the previous occupier
reasonable costs incurred in complying with requirements
contained in a notice or an order issued to the previous occupier
that were not complied with.
New section 281 provides that the issue, variation or cancellation
of a notice or an order under this Chapter does not affect any
proceedings for an offence against the Act or the regulations in
connection with any matter in respect of which the notice or
order was issued.
New section 282 provides for the continuing effect of notices and
conditions issued under this Act.
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Subsection (1) provides that a notice or an order issued that
specifies a time by which, or period within which, the notice or
order, or a condition of the notice or order, must be complied
with continues to have effect until the notice, order or condition
is complied with even though the time has passed or the period
has expired.
Subsection (2) provides that a notice or an order that does not
specify a time by which, or period within which, the notice or
order must be complied with continues to have effect until the
notice or doer is complied with.
Subsection (3) provides that this section does not apply to the
extent that any requirement under a notice or an order is revoked.
Subsection (4) provides that noting in this section affects the
powers of the Authority with respect to the enforcement of a
notice or an order.
Part 10.7--Redirection of corporate obligations
Part 10.7 introduces new sections 283, 284 and 285.
New section 285 provides for redirection of obligations in a
specified environmental action notice or site management order
of related or associated entities to other persons specified in the
section.
The Authority may issue this direction where in a situation where
the entity is being or has been wound up within the 2-year period
before the direction is made, or has failed to comply with the
notice or order. The Authority also needs to be satisfied that the
body corporate or an officer of the body corporate--
• knew or ought reasonably to have known of the
circumstances that resulted in the issuing of the
environmental action notice or site management order;
• was in a position to influence the entity in relation to its
compliance with the notice or order; and
• in the case of a failure to comply with a notice or order,
failed to exercise due diligence to ensure that the entity
complied with the notice or order.
Subsection (2) provides that if the Authority gives a direction
under subsection (1) to a body corporate that is a corporation
within the meaning of section 57A of the Corporations Act,
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the body corporate must comply with the environmental action
notice or site management order (subject to any modification by
the Authority).
New section 284 provides for redirection of obligations in a
specified environmental action notice or site management order
to officers.
Subsection (1) provides that the Authority may, by notice in
writing, direct a person to comply with a specified environmental
action notice or site management order issued to a body corporate
if the body corporate is being or has been wound up within the
2-year period before the direction is made, or has failed to
comply with the notice or order.
The Authority also needs to be satisfied that certain
circumstances apply to the director.
Subsection (2) provides that if the Authority gives a direction
under subsection (1) to a person, the person must comply with
the environmental action notice or site management order,
subject to any specified modification.
New section 284(1)(b)(v) ensures that the obligation is not
unreasonably redirected to an officer of the body corporate.
For example, the Authority can take into account the financial
position and the role of the officer in the body corporate before
consideration a direction.
New section 285 provides for redirection of obligations to a
related or associated entity in case of a transfer of land.
Part 10.8--Offences relating to notices and orders
New section 286 provides for an offence for to non-compliance
with an improvement notice. Subsection (1) provides that a
person to whom an improvement notice is issued must not,
without reasonable excuse, fail to comply with that notice.
A natural person who fails to comply without reasonable excuse
is liable for a penalty of 500 penalty units. A body corporate that
fails to comply without reasonable excuse is liable for a penalty
of 2500 penalty units. Subsection (2) provides that an offence
under subsection (1) is an indictable offence.
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New section 287 provides for an offence for non-compliance
with a prohibition notice. Subsection (1) provides that a person
to whom a prohibition notice is issued must not, without
reasonable excuse, fail to comply with that notice. A natural
person who fails to comply without reasonable excuse is liable
for a penalty of 500 penalty units. A body corporate that fails
to comply without reasonable excuse is liable for a penalty of
2500 penalty units. Subsection (2) provides that an offence
under subsection (1) is an indictable offence.
New section 288 provides for an offence for failing to report to
the Authority if an improvement notice or a prohibition notice
requires the person to whom it is issued to report to the Authority
on a specified matter. A natural person who fails to comply
with that requirement is liable for a penalty of 60 penalty units.
A body corporate that fails to comply with that requirement is
liable for a penalty of 300 penalty units.
New section 289 provides for an offence for failing to comply
with a notice to investigate without reasonable excuse. A natural
person who fails to comply without reasonable excuse is liable
for a penalty of 120 penalty units. A body corporate that fails
to comply without reasonable excuse is liable for a penalty of
600 penalty units.
Subsection (2) provides that a person to whom a notice to
investigate is issued must not fail to comply with any reporting
requirement specified in that notice. A natural person who fails
to comply is liable for 60 penalty units. A body corporate that
fails to comply is liable for 300 penalty units.
New section 290 provides for an offence for failing to comply
with an environmental action notice without reasonable excuse.
A natural person who fails to comply without reasonable excuse
is liable for a penalty of 500 penalty units. A body corporate that
fails to comply without reasonable excuse is liable for a penalty
of 2500 penalty units.
Subsection (3) provides that a person to whom an environmental
action notice is issued must not fail to comply with any reporting
requirement specified in that notice. A natural person who fails
to comply is liable for 60 penalty units. A body corporate that
fails to comply is liable for 300 penalty units.
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New section 291 provides that it is a reasonable excuse to an
offence under section 289 or 290 if entry to land was necessary
for the person to comply with the notice and the occupier of the
land refused the person entry.
New section 292 provides for an offence for failing to comply
with a site management order without reasonable excuse.
A natural person who fails to comply without reasonable excuse
is liable for a penalty of 500 penalty units. A body corporate that
fails to comply without reasonable excuse is liable for a penalty
of 2500 penalty units.
Subsection (2) provides that a person who is bound by a site
management order must not fail to comply with any reporting
requirement specified in that order. A natural person who fails to
comply is liable for 60 penalty units. A body corporate that fails
to comply is liable for 300 penalty units.
Subsection (3) provides that an offence under subsection (1) is an
indictable offence.
New section 293 provides for an offence for failing to comply
with a non-disturbance notice without reasonable excuse.
A natural person who fails to comply without reasonable excuse
is liable for a penalty of 500 penalty units. A body corporate that
fails to comply without reasonable excuse is liable for a penalty
of 2500 penalty units.
Offences within this Part are intended to be strict liability
offences.
Part 10.9--Clean up and cost recovery powers
Division 1--Clean up powers
New section 294 specifies the powers of the Authority to require
a clean up.
Under subsection (1), if the Authority considers there is an
immediate or serious risk of harm to human health or the
environment arising from pollution, waste or contaminated land,
the Authority may take any action that the Authority considers
necessary to eliminate or reduce that risk, including, but not
limited to, conducting a clean up or causing a clean up to be
conducted.
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Subsection (2) provides that the Authority may take any action
the Authority considers necessary to conduct the clean up
activities required under the Act or the regulations, including but
not limited to, conducting a clean up or causing a clean up to be
conducted.
New section 295 requires the Authority to give notice of
intention to exercise clean up powers where a person has
provided a financial assurance in a specified manner and form.
New section 296 provides for the powers of the Authority to
enter land if the Authority takes action under this Division.
This section specifies the notice that must be given if it is
necessary for an authorised person or a person assisting an
authorised person to enter land, including if the land is private
land.
Division 2--Cost recovery powers
New section 297 empowers the Authority to recover reasonable
costs incurred in any taking any action under Division 1; issuing
an improvement notice under Part 10.2, a prohibition notice
under Part 10.2, an environmental action notice under Part 10.3,
or a site management order under Part 10.4; or any action taken
in connection with monitoring or enforcing compliance with a
notice or order, or any prescribed action.
Subsection (2) specifies the classes of person from whom the
Authority may recover reasonable costs under this section.
Subsection (3) specifies that reasonable costs in this Division
includes but is not limited to labour, administrative and overhead
costs, and legal costs, equipment costs and fees paid.
Subsection (4) requires that any costs recovered under this
Division are to be paid into the Consolidated Fund.
New section 298 provides that unrecovered costs imposed
under this Division become a charge on certain property and
for the procedure required for such costs to become a charge.
The section also specifies the process for notification of the
charge under the Transfer of Land Act 1958.
The section also specifies the procedure by which land may be
sold to satisfy the amount owing and requires that any money
recovered by the Authority under a charge under this Division is
to be paid into the Consolidated Fund.
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Chapter 11--Enforcement and proceedings
Part 11.1--Simplified outline
New section 299 provides a simplified outline and overview of
Chapter 11. The Chapter provides for various matters relating to
enforcement of the provisions of the Principal Act and court
proceedings.
Part 11.2--Enforceable undertakings
New section 300 provides that the Authority may accept an
enforceable undertaking from a person in connection with--
• any matter the Authority has a function in relation to; or
• any matter the Authority has a power over.
An enforceable undertaking may be withdrawn or varied by the
person who made it with the consent of the Authority.
New section 301 provides for enforcement of the undertaking,
if the Authority considers that a person has breached it.
The Authority may apply to the Court for a range of specified
orders. This includes, but is not limited to, orders to--comply
with the undertaking; take specified action to minimise risks of
harm to human health or the environment; pay an amount of
compensation to the Authority, or to another person who has
suffered loss or damage due to the breach; or revoke the
enforceable undertaking; and any other order the Court
considers appropriate.
New section 302 provides that if a person fails to comply with a
Court order to take specified action under section 301(2), the
Authority may take the specified actions itself. The Authority
must follow steps specified in the section in order to take this
action.
Subsection (3) provides that, in taking a specified action, the
Authority can do anything necessary or expedient to comply with
the order made under new section 301(2) and may publicise the
failure of the person to comply with an order made under new
section 301(2).
Subsection (4) provides for the Authority to recover any costs
reasonably incurred in carrying out an order made under new
section 301(2), where a person has failed to comply with an order
to take specified actions.
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New section 303 provides that if the Authority accepts an
enforceable undertaking and the enforceable undertaking is in
force, the Authority must not commence criminal proceedings
for an offence that is constituted by a contravention (or alleged
contravention) that the undertaking is given in relation to.
New section 304 provides that the Authority may commence
proceedings for an offence that is constituted by a contravention
(or alleged contravention) of this Act or the regulations against a
person who withdraws the enforceable undertaking before the
Authority is satisfied they have complied with the enforceable
undertaking.
New section 305 provides that if the Authority is satisfied that an
enforceable undertaking has been complied with, the Authority
must not commence criminal proceedings for an offence
constituted by the contravention (or alleged contravention) for
which the undertaking was given.
New section 306 provides that nothing in new section 302, in
relation to the Authority carrying out specified actions, prevents
proceedings for contempt of court against the person who failed
to comply with the Court order under new section 301(2).
Subsection (2) further provides that, if the person is found in
contempt of the Court, due to failing to comply with an order
made under new section 301(2), the Authority may do anything
that remains to be done under the order, and that is still
practicable, and may publicise the person's failure to comply
with the order.
Subsection (3) provides that the Authority may recover any costs
reasonably incurred in carrying out an order made under new
section 301(2), where a person has failed to comply with that
Court order and the Authority takes a specified action under
section 306.
Part 11.3--Infringement notices
New Part 11.3 provides for the issuing of infringement notices.
Infringement notices enable less serious breaches of suitable
offences to be dealt with expediently.
New section 307 provides that a prosecution officer may serve a
person with an infringement notice where the officer reasonably
believes that the person has committed a prescribed offence or
an offence against new section 64. New section 64 enables
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permission conditions to be prescribed as being capable of
enforcement by infringement notice.
New section 307(2) provides that an offence referred to in
subsection (1) is an infringement offence within the meaning of
the Infringements Act 2006. Subsection (3) provides that the
infringement penalty is the prescribed penalty in respect of that
offence. Subsection (4) defines prosecution officer for the
purposes of this section. Prosecution officers include persons
appointed by the Authority under section 347, residential noise
enforcement officers and police officers in relation to residential
noise offences, and litter enforcement officers in relation to litter
and waste offences under Part 6.3.
Part 11.4--Civil remedies
New Part 11.4 enables the Authority and certain other third
parties, referred to in this part as eligible persons, to apply to a
Court for civil orders to restrain or remedy a contravention of
the Principal Act, including a contravention of the general
environmental duty and non-compliance with a condition of a
permission.
New section 308 defines eligible persons in relation to an
application under this Part as persons whose interests are affected
by the contravention or non-compliance in relation to which the
application is made, or a person who has the leave of the Court
to make the application. A person whose interests are affected
would be determined by the Court in accordance with common
law principles.
Subsection (2) provides that the Court must not give leave to
make an application for the purposes of subsection (1)(b) unless
the Court is satisfied that the application would be in the public
interest, and that the person has requested the Authority to take
action in relation to the contravention or non-compliance, but the
Authority has not taken such action within a reasonable time.
These restrictions limit unmeritorious applications and ensure
that the Authority has been given reasonable notice and
opportunity to act first by using its powers under the Principal
Act.
Subsection (3) provides that an eligible person must not apply
for an order under this Part before the anniversary of the day on
which the Environment Protection Act 1970 is repealed.
This ensures that those who will be required to comply with the
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new requirements to be introduced by the Act, particularly the
general environmental duty, will have sufficient time to adjust to
the changes before there is a possibility of a proceeding for civil
remedies being instituted by a third party.
Subsection (4) clarifies that this Part does not prevent or limit an
eligible person from applying for any injunction or order under
any other Act or law.
New section 309 provides that the Authority or an eligible person
may apply to the Court for an order restraining a person from
engaging in specified conduct, or requiring a person to take
specific action, if the Court is satisfied that--
• a person is not complying or has not complied with a
permission; or
• a person is contravening or has contravened any other
requirement or duty under the Principal Act.
Subsection (2) provides that without limiting subsection (1), an
order under new section 309(1) may require a person to do a
specified act or thing reasonably required to prevent, minimise or
remedy the relevant contravention, or non-compliance, or make a
financial assurance as a condition of engaging in specified
conduct.
Subsection (3) provides that the Authority or an eligible person
may apply to the Court under subsection (1) whether or not
proceedings have been commenced for an offence under the
Principal Act or the regulations or for a contravention of a civil
penalty provision under the Principal Act.
Subsection (4) provides that the Court may make an order
under subsection (1) whether or not the contravention or
non-compliance is likely to result in harm to a person or the
environment, or is likely to result in an infringement of the rights
of any person.
Subsection (5) provides that an application under this section
may be made ex parte. That is, an application for an order may
be made even if the other party is not present or represented in
court.
New section 310 provides for interim orders to be made, pending
the determination of an application for a court order to restrain a
person from engaging in specified conduct or require a person to
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take any specific action under new section 309. Interim orders
may be made ex parte. The Court is not permitted to require the
Authority to give any undertaking as to damages or costs as a
condition of an interim order. However, the Court is not
restricted from requiring a person other than the Authority to
provide such an undertaking.
New section 311 provides that the Court may make an order
under new section 309, whether or not it is satisfied that the
conduct constitutes or would constitute a contravention or non-
compliance as required by new section 309, if all parties to the
proceeding consent to the order.
New section 312 provides for ancillary orders when the Court
makes an order under new section 309, 310, or 311.
New section 313 provides that, in a proceeding for an offence
against or a contravention of the Principal Act or regulations
(including a proceeding under new section 309), the Court may
make a compensation order, if the Court finds the contravention
proven and the Authority or another person (the injured person)
has suffered or may suffer injury, loss or damage as a result of
the contravention. Subsection (2) provides that without
limiting subsection (1), an order may require the person to pay
compensation to the Authority or the injured person for specified
matters, which include injury, loss or damage. In these
circumstances compensation may also include--
• costs incurred to take action to prevent, or minimise, or
remedy, any injury loss or damage; or
• costs incurred by the Authority to take action to prevent,
minimise or remedy any harm to human health or the
environment.
Part 11.5--Civil penalties
New Part 11.5 establishes a civil penalty scheme. This Part
enables the Authority to apply to a Court, on a civil basis, for
an order that a person pay a civil pecuniary penalty for a
contravention of a civil penalty provision. This provides the
Authority with an alternative to criminal prosecution to deal
with contraventions in a more timely manner in appropriate
circumstances.
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The Table in new section 314 sets out the provisions of the
Principal Act that are specified to be civil penalty provisions, and
the maximum pecuniary penalty that may be ordered by a Court
for a contravention of a civil penalty provision. Subsection (2)
provides that subject to Part 11.5, the Authority may apply to a
Court for a civil penalty order in relation to a contravention of a
civil penalty provision set out in the Table.
The provisions that are specified to be civil penalty provisions
are mostly moderately serious contraventions. These include a
breach of general environmental duty, a failure to notify the
Authority of a notifiable incident, and offences relating to
depositing of industrial waste. The most serious offence in the
Principal Act, being the offence for an aggravated breach of the
general environmental duty under new section 25, is reserved for
criminal prosecution only. Less serious offences that may be
suitable to be enforced by infringement notice (such as littering)
are generally not specified to be civil penalty provisions.
Subsection (3) provides that the Court may only make an order in
relation to a contravention of a civil penalty provision referred to
in item 1 (breach of the general environmental duty) or item 3
(failure to notify the Authority of a notifiable incident) of the
Table if the person contravenes the provision in the course of
conducting a business or undertaking, or a body corporate
contravened the provision in the course of a business or
undertaking and the proceeding is against an officer of the body
corporate as a result of Part 11.8. This aligns the scope of
liability for a civil penalty for these contraventions with the scope
of criminal liability for these contraventions, which is also
limited to a person conducting a business or undertaking.
New section 315 specifies the orders that the court may make
in relation to a person who has contravened a civil penalty
provision, being an order for a pecuniary penalty, which is not
more than the maximum referred to in column 3 or column 4
of the Table in new section 314, or any other order the Court
considers appropriate. Subsection (2) provides an inclusive
list of relevant matters the Court may have regard to when
determining the amount of a civil penalty order, which includes
the nature and extent of the contravention, any loss or damage
suffered, any prior contraventions of a civil penalty provision,
and any accepted enforceable undertaking under new section 300.
Subsections (3) and (4) provide that nothing in this section is to
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be construed as limiting any other power of the Court, and that
these proceedings are civil proceedings for all purposes (such as
for the purposes of evidence, standards of proof and procedure).
New section 316 provides that a person must not attempt to
contravene, aid, abet, counsel or procure a contravention,
induce a contravention, be in anyway directly or indirectly or
knowingly concerned in, or party to a contravention, or conspire
to contravene, a civil penalty provision. A person who does any
of these things is taken to have contravened the civil penalty
provision for the purposes of this Act.
New section 317 empowers the Court to make an order under
Division 2 of Part 11.6, against a person in relation to conduct
that may constitute the contravention of a civil penalty provision,
regardless of whether the Court has previously made a civil
penalty order against the person in relation to the contravention.
New sections 318 to 321 set out the interaction between civil
penalty proceedings and criminal proceedings.
New section 318 provides that the Court must not make a civil
penalty order against a person who has contravened a civil
penalty provision who has been convicted of an offence
constituted by conduct that is the same, or substantially the
same, as the conduct alleged to constitute the contravention.
New section 319 provides that proceedings for a civil penalty
order are stayed, if a criminal proceeding is instituted, or already
instituted, against the person for an offence, and that offence is
constituted by conduct that is substantially the same as the
conduct alleged to constitute the contravention. Subsection (2)
provides that if the person is not convicted, the civil penalty
proceedings may be resumed, and if the person is convicted,
the civil penalty proceedings must be dismissed.
New section 320 provides that criminal proceedings may be
instituted against a person for conduct that is substantially
the same, even if a civil penalty order has been made for
substantially the same conduct.
New section 321 provides that evidence given or produced by
an individual during a proceeding for a civil penalty order is not
admissible in criminal proceedings if the conduct alleged to
constitute the offence is substantially the same as the conduct
claimed to constitute the contravention. Subsection (2) provides
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that subsection (1) does not apply to criminal proceedings in
respect of the falsity of the evidence given by the person in the
proceedings for the civil penalty order.
New section 322 provides that if a person contravenes 2 or more
civil penalty provisions, proceedings for a civil penalty order
may be commenced for one or more of those civil penalty
provisions. Subsection (2) states that despite subsection (1), a
person is not liable to pay more than one civil penalty in relation
to the same conduct.
New section 323 provides that the Court may order a person to
pay a single civil penalty in relation to multiple contraventions,
if the contraventions are based on the same facts or multiple
contraventions form a series of contraventions of the same or
similar nature. Subsection (2) provides that a single civil penalty
order must not exceed the sum of maximum penalties that the
Court could impose if separate civil penalties were ordered for
each contravention.
New section 324 provides that multiple proceedings for civil
penalty orders can be heard together at the direction of the Court.
New section 325 provides that the jurisdictional limit for a
civil proceeding in section 100(1) of the Magistrates' Court
Act 1989 does not apply to a civil penalty order under this Part.
New section 326 provides that a civil penalty ordered for
contravention of a civil penalty provision is enforceable as a
judgement debt.
Part 11.6--Powers of courts
Division 1--Application of Part 11.6
New section 327 provides for the application of Part 11.6.
This Part sets out various additional or alternative orders that
the Court may make in proceedings in relation to offences or
contraventions of civil penalty provisions of the Principal Act.
Division 2--Orders
New section 328 allows the Court to make an order under this
Division in addition to or instead of any other penalty that the
Court may impose on a person under the Principal Act. A note
following section 328(1) clarifies that section 313 sets out a
further power for the Court to make compensatory orders, which
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can be made in any proceedings for an offence against or
contravention of the Principal Act.
Subsection (2) provides that the amount of money that the
Court may order a person to pay is not limited by the amount of
a penalty that may be imposed under the Principal Act, or the
jurisdictional limit of the Magistrates' Court under section 100(1)
of the Magistrates Court Act 1989. This is particularly relevant
to monetary benefit orders under section 329.
Subsection (3) provides that the Court may make an order under
this Division on application of the Authority or its own motion.
Subsection (4) provides that when the Court is making an order it
may specify a period for specified actions to be taken or impose
any other requirement that the Court considers necessary or
expedient to make the order effective.
New section 329 provides for the Court to make a monetary
benefit order. This is intended to remove any financial incentives
to contravene the provisions of the Principal Act by enabling the
Court to make an order to pay any monetary benefit obtained as a
result of the contravention.
Subsection (1) empowers the Court to make an order that a
person pay an amount not exceeding the amount representative
of any monetary benefits the person acquired as a result of the
commission of the offence, or contravention, in relation to which
the order is made. In doing so, the Court may take into account
the person's financial circumstances and any amount submitted
to the Court by the Authority under subsection (3) which the
Authority considers to be a reasonable estimate of the amount of
monetary benefits determined in accordance with a prescribed
guideline, method or protocol, or any other appropriate method.
Subsection (4) provides that the Court may assume an
amount submitted by the Authority under subsection (3) that is
determined in accordance with a prescribed guideline, method
or protocol represents the amount of any monetary benefits
acquired by the person. This is intended to facilitate the quicker
determination of the monetary benefit if a guideline, method or
protocol has been prescribed by regulations.
Subsection (5) provides that nothing in this section or an
order made under subsection (1) limits or otherwise affects the
operation of Part 8 of the Confiscation Act 1997, which provides
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for a separate scheme for forfeiture of financial benefits derived
from certain offences.
Subsection (6) provides that any amount received as payment
of an order made under subsection (1) must be paid into the
Consolidated Fund.
Subsection (7) provides the definition of monetary benefits for
this section. As well as direct monetary benefits, the definition
of monetary benefits includes avoided or delayed costs, such
as permission fees avoided by not applying for or holding a
permission, or avoided costs associated with the lawful disposal
of waste, or the costs of taking reasonably practicable measures
to minimise risks of harm if the person did not take such
measures.
New section 330 enables a Court to make an adverse publicity
order. The section provides that the Court may order a person do
one or more of the following--
• take any specified action to publicise the person's
offence or contravention, any impacts on human health
or the environment or other consequences, any penalties
imposed or other orders made, and any additional
information the Court considers appropriate;
• take any specified action that the Court considers
reasonably necessary to notify a specified person or
class of person of the matters above.
New section 331 empowers the Court to make general restoration
and prevention orders where the Court considers it reasonably
necessary to prevent, minimise or remedy any harm, or eliminate
or reduce the risk of harm, or prevent any continuation or
recurrence of the offence or contravention.
Subsection (2) provides that without limiting subsection (1), an
order under that subsection may require the person do one of
more of the matters set out in paragraphs (a) to (c) which
includes establishing an education and training program,
revising internal operations and making a financial assurance.
New section 332 empowers the Court to order a person to
carry out a project for the restoration or enhancement of the
environment in a public place or for the public benefit, whether
or not the project is related to the offence or contravention.
Such an order may require the person to pay an amount of money
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directly to a specified person or organisation, or the Restorative
Project Account, from which the money can be applied for the
purposes of restoration or enhancement of the environment.
New section 333 empowers the Court to order a person to engage
an environmental auditor to conduct a preliminary risk screen
assessment or an environmental audit.
Division 3--Enforcement of orders
New section 334 empowers the Authority to carry out an action
that remains to be done when a person is found in contempt of
court for failing to comply with an order made under Division 2.
Subsection (2) provides that, if a person fails to comply with an
order made under new section 330 or 333, the Authority may
give written notice of its intention to carry out specified actions,
unless the person can, within 10 days of the notice, satisfy the
Authority that it will carry out the actions within a period of time
acceptable to the Authority.
Subsection (3) further sets out that a person given notice
(as noted above) fails to give the Authority a satisfactory
response within 10 business days, or fails to comply with any
undertaking given to the Authority, the Authority may carry out
any action that remains to be done and is practicable to do, and
may publicise the person's failure to comply with the order.
Subsection (4) provides that nothing in subsection (2) or (3)
prevents contempt of court proceedings from being started or
continued against a person for failing to comply with an order
made under Division 2.
Subsection (5) provides that the Authority may recover any cost
incurred in taking action under subsection (1) or (3) as a debt due
and payable by the person against whom the order was made.
Division 4--Impact statements
New section 335 permits the Court, if it considers it appropriate,
to allow a person or organisation to make an impact statement for
the purpose of assisting the Court in determining the sentence,
the penalty, or whether the Court should make an order and any
conditions that should be imposed on the order. As well as
persons directly affected by an offence or contravention, this
section enables the Court to be given information about the
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impact of the offence or contravention on the environment or
on the broader community.
Subsection (2) provides that a statement under subsection (1)
may include any information relevant to the matters set out in
paragraphs (a) to (d), including the impact of the offence or
contravention, and the risk of harm to human health or the
environment.
Subsection (3) provides that nothing in this section limits a
person or body from making a victim impact statement under the
Sentencing Act 1991.
Division 5--Restorative justice processes
New section 336 provides that the Court on its own motion, or on
application of a party to a civil or criminal proceeding under the
Principal Act, may adjourn those proceedings for a restorative
justice process. A restorative justice process brings together the
relevant parties, which may include persons affected by the
offence or contravention or representatives of the environment
affected by the offence or contravention, to seek an agreed
resolution of a matter arising from the offence or contravention.
The Court may consider the outcome of a restorative justice
process when making a determination in the proceeding,
including for a sentence or penalty, or whether to make an order
under the Principal Act, or the conditions to be imposed on such
an order.
Subsection (4) defines relevant parties and restorative justice
process for the purpose of this section.
Part 11.7--Evidentiary and related enforcement provisions
New Part 11.7 sets out certain evidentiary matters and other
matters relating to enforcement of the Principal Act. The
evidentiary presumptions provided for in this Part are intended to
facilitate proceedings under the Principal Act being able to be
efficiently determined.
New section 337 provides for specific individuals, including
analysts, authorised officers and police officers, to give reports
or certificates in relation to an action they have carried out.
Such reports or certificates may have been prepared for the
purpose of an analysis, an inspection, a recording of noise
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emissions, an inspection of monitoring equipment, or an
observation or inspection of a motor vehicle.
New section 338 provides that in proceedings against a registered
owner of a vehicle or vessel, a certificate from a specified person
or body is evidence that the person was the registered owner of
the vehicle or vessel on the date specified on the certificate.
New section 339 provides that in proceedings under Part 6.3, a
certificate given by a litter authority stating that--
• on a specified date a specified person was a litter
enforcement officer; or
• on a specified date land or waters were under the control
of the litter authority--
is evidence of that fact.
All courts and persons acting judicially must take judicial notice
of the signature or seal of the litter authority and presume it is
properly affixed until the contrary is proven.
New section 340 provides that if a person (the accused) is
served with a summons to answer to a charge of an offence, the
summons must be accompanied by any report or certificate that
the prosecutor intends to use in the proceedings for the offence.
Subsection (4) provides that the accused must give at least
7 days' notice in writing before the hearing that they require
the author of the report or certificate to be called as a witness.
Failure to give the required notice means the report or certificate
is sufficient evidence of the facts stated in it.
New section 341 provides that a statement in writing purporting
to be signed by the Authority is prima facie evidence of the
matters stated in it, if it is to the effect of one of the matters
set out in paragraphs (a) to (i), which include that a specified
person was appointed as an authorised officer, analyst or to
take proceedings for offences against the Principal Act or the
regulations.
New section 342 provides that all courts and persons acting
judicially must take judicial notice of the signature or facsimile
signature of the Chairperson, any officer of the Authority to
whom for the time being the Authority has delegated power to
sign a document, and any authorised officer, and must until the
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contrary is proven presume that the signature was properly
affixed.
New section 343 provides rules in respect of the use of certain
kinds of evidence, including evidence obtained through the use
of monitoring equipment, the results of any analysis based on
analytical techniques, attributes of samples taken, a finding by a
court that an attribute of a sample was materially affected, and a
transport certificate relating to the transport of reportable priority
waste.
New section 344 provides for service of documents required to
be given or served under the Principal Act and how personal
service and service on a body corporate is affected.
Subsection (3) provides that if a document relates to a
contravention by a person, the addresses set out in paragraphs (a)
to (c) are taken to be the person's usual or last known residential
or business address, unless circumstances suggest an alternate
residence, or that the person carries on business elsewhere.
Subsection (4) provides for service on the master or owner of a
vessel.
Subsection (5) provides that if a person is charged with an
offence alleged to have been committed on board a vessel,
and the vessel is for the time being outside of the jurisdiction,
documents relating to the offence are taken to be served on the
person by being served on the agent of the vessel.
Subsection (6) provides that, subject to subsection (7), the
provisions of this section are in addition to, and do not derogate
from the Interpretation of Legislation Act 1984, the Electronic
Transactions (Victoria) Act 2000 and sections 109X
and 601CX of the Corporations Act.
Subsection (7) provides that section 8(2) of the Electronic
Transactions (Victoria) Act 2000 does not apply to service of a
notice or order, under new section 344. This applies in order to
vitiate the requirement for consent of the person receiving service
in writing.
Subsection (8) provides that in this section, a reference to a
contravention includes a reference to an alleged contravention.
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New section 345 provides for an alternative to attendance.
A person who has served a document under the Principal Act
may, instead of attending a proceeding, make an affidavit
attaching the original document in the manner specified in
subsections 345(1)(a) and (b), and send that affidavit for
production at the proceeding. A document purporting to be
an affidavit under this section is prima facie evidence of the
statements contained in that affidavit.
New section 346 provides that in proceedings under the Principal
Act, where the Authority is awarded legal costs, the court may
include in those costs the reasonable cost of work conducted
by the Authority. The section sets out what is evidence of the
reasonable cost of work conducted by the Authority. A definition
of work conducted by the Authority is also provided for the
purposes of this section.
New section 347 specifies who may take proceedings in
respect of offences against the Principal Act or regulations.
This includes an employee or officer of the Authority, and in
specified circumstances only, a municipal council, a litter
authority or litter enforcement officer, or a person who may
serve an infringement notice under new section 307(1).
New section 170 separately provides for who may take
proceedings for certain noise offences under Chapter 7.
New section 348 provides for the holder of the permission that is
a body corporate to be taken to have caused a contravention on
premises shared with a subsidiary of that body corporate in the
absence of evidence to the contrary.
Part 11.8--Officers' liabilities and conduct of employees and
agents
Division 1--Officers' liabilities
Division 1 provides for the liability of officers of a body
corporate that is a corporation within the meaning of section 57A
of the Corporations Act when the body corporate contravenes
specified provisions of the Principal Act. An officer of a body
corporate is defined in section 3(1) of the Principal Act, as
amended by clause 6 of this Bill, to mean a person who is an
officer of the body corporate under section 9 of the Corporations
Act, or any other person who is concerned in, or takes part in, the
management of the body corporate.
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New section 349 sets out the liability of an officer of a body
corporate where the officer fails to exercise due diligence to
prevent a contravention of a specified provision by the body
corporate. Subsection (1) provides that if a body corporate
commits an offence against a provision specified in subsection
(2), and an officer of the body corporate fails to exercise due
diligence to prevent the commission of the offence, the offence
is also committed by the officer of the body corporate.
The prosecution bears both the legal and evidential burden in
relation to proving that the officer failed to exercise due
diligence.
Subsection (3) provides for matters the court may have regard to
when determining whether an officer of a body corporate failed
to exercise due diligence.
Subsection (4) provides that, without limiting any defence which
may be relied upon by an officer of a body corporate, the officer
may rely on a defence available to the body corporate if the body
corporate were charged with the same offence, and in doing so,
the officer bears the same burden of proof as a body corporate
would.
Subsection (5) provides that an officer of a body corporate may
commit an offence against a provision specified in subsection (2)
whether or not the body corporate has been prosecuted for, or
found guilty of, an offence against that provision.
New section 350 sets out the liability of officers of bodies
corporate where the body corporate contravenes a specified
provision. It is a defence, the legal burden of proving which lies
with the officer, that the officer exercised due diligence to
prevent the commission of the offence by the body corporate.
New section 350 provides that, if a body corporate commits an
offence against any of the provisions specified in subsection (2),
an officer of the body corporate also commits an offence against
that provision.
Subsection (3) provides that it is a defence to a charge, for an
officer of a body corporate to prove they exercised due diligence
to prevent the offence by the body corporate.
Subsection (4) provides what the court may have regard to in
determining whether an officer of a body corporate exercised due
diligence.
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Subsection (5) provides that without limiting any defence which
may be relied upon by an officer of a body corporate, the officer
may rely on a defence available to the body corporate, if the body
corporate were charged with the same offence, and in doing so,
the officer bears the same burden of proof as the body corporate
would.
Subsection (6) provides that an officer of a body corporate may
commit an offence against a provision specified in subsection (2)
whether or not the body corporate has been prosecuted for, or
found guilty of, an offence against that provision.
New section 351 sets out how accessorial liability applies to
officers of a body corporate. The section provides that, if a body
corporate commits an offence against a provision of the Principal
Act, other than a provision specified in new section 349(2)
or 350(2), an officer of the body corporate also commits an
offence against that provision, if the officer--
• authorised or permitted the commission of the offence
by the body corporate; or
• was knowingly concerned in any way (whether by act or
omission) in the commission of the offence by the body
corporate.
Subsection (2) provides that without limiting any defence which
may be relied upon by an officer of a body corporate, the officer
may rely on a defence available to the body corporate if the body
corporate were charged with the same offence and in doing so,
the officer bears the same burden of proof as the body corporate
would.
Subsection (3) provides that an officer of a body corporate may
commit an offence against a provision of the Principal Act to
which accessorial liability applies under this section, whether or
not the body corporate has been prosecuted for, or found guilty
of, an offence against that provision.
New section 352 sets out how new sections 349 and 350 apply in
relation to contraventions of civil penalty provisions. If a body
corporate contravenes a civil penalty provision that is specified in
new section 349(2) or 350(2), sections 349 and 350 apply to an
officer of the body corporate subject to certain modifications
specified in subsections (a) to (d). The effect of new section 352
is that civil penalty proceedings can be initiated against an officer
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of a body corporate if the body corporate contravenes a civil
penalty provision specified in new section 349(2) or 350(2), in
accordance with new sections 349 and 350 and subject to the
modifications referred to in new section 352(1)(a) to (d).
Division 2--Conduct of employees and agents
New section 353 specifies that any conduct of an employee,
agent or officer of a body corporate is taken to be conduct
engaged in by the body corporate, if the employee, agent or
officer is acting within the actual or apparent scope of their
employment or authority. This enables conduct of an employee,
agent or officer of a body corporate to be attributed to that body
corporate, including for the purposes of determining whether a
body corporate has committed an offence or contravened a civil
penalty provision, or has otherwise contravened the Principal
Act.
Part 11.9--Defence of emergency
New section 354 provides that it is a defence to any offence
against or contravention of the Principal Act, if the alleged
offence or contravention occurred in an emergency to prevent
danger to life or limb, other than an emergency arising from the
negligent act or omission of the person who is alleged to have
committed the offence or contravention.
Clause 8 substitutes section 4 of the Principal Act to insert a heading for
Chapter 12 and a new Part 12.1. Section 4 of the Principal Act
will be redundant when the 1970 Act is repealed.
New section 355 provides a simplified outline of Chapter 12.
Clause 9 substitutes a new heading to Part 2 of the Principal Act.
Clause 10 inserts new subsection (6) at the end of section 5 of the Principal
Act.
New subsection (6) inserts a definition of commencement day for
the purposes of section 5 of the Principal Act. This will replace
the definition of commencement day repealed from section 3(1)
of the Principal Act (by clause 6(8) of the Bill). Subsection (6)
provides that the commencement day for the purposes of
section 5 of the Principal Act is 1 July 2018, which is the day
on which that section will commence.
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Clause 11 amends section 6(2) of the Principal Act to omit a reference to
the 1970 Act. This reference will be redundant when the 1970
Act is repealed.
Clause 12 substitutes new sections 358 and 359 for section 7 of the
Principal Act.
New section 358 provides a revised set of functions for the
Authority reflecting the new legislative framework in the Bill for
protecting human health and the environment from pollution and
waste.
New section 359 sets out the powers of the Authority.
Subsection (1) provides the Authority has any power conferred
under this Act or any other Act and power to do all things
necessary or convenient to be done in performing its functions
and duties.
Subsections (2) to (4) provide the Authority and authorised
officers with a clear power to provide advice to a person who has
a duty or obligation under the Principal Act about complying
with that duty or obligation.
Subsection (5) provides that the Authority has powers in relation
to intellectual property rights.
Clause 13 amends section 13(2) and (5) of the Principal Act to update cross
references and to omit a reference to the 1970 Act which will be
redundant when the 1970 Act is repealed.
Clause 14 amends section 21(4) of the Principal Act to update a cross
reference.
Clause 15 amends section 22(3)(a) of the Principal Act to update a cross
reference.
Clause 16 amends the heading to Part 3 of the Principal Act.
Clause 17 amends section 24 of the Principal Act to omit a reference to the
1970 Act which will be redundant when the 1970 Act is repealed
and to update a cross reference.
Clause 18 inserts new sections 377 to 380 and Chapters 13 to 16 after
section 24 of the Principal Act.
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New section 377 provides for the Chairperson to notify the IBAC
of any matter the Chairperson suspects on reasonable grounds
involves corrupt conduct.
New section 378 enables the Chairperson to consult the IBAC
about whether to make a notification to the IBAC.
New section 379 provides for the provision or disclosure of
information to the IBAC.
New section 380 provides that the Authority must take all
reasonable steps to ensure that it does not prejudice an IBAC
investigation of which it is, or becomes, aware.
Chapter 13--Waste and resource recovery infrastructure
and planning
Chapter 13 largely restates the law as it was provided for in,
Divisions 2, 2AA, 2AB, and 2AC of Part IX of the 1970 Act.
Part 13.1--Simplified outline
New section 381 provides a simplified outline of Chapter 13.
Part 13.2--Waste and Resource Recovery Groups
Division 1--Waste and Resource Recovery Groups
New section 382 provides that the Waste Resource and Recovery
Groups established under section 49C of the 1970 Act (as in
force immediately before its repeal) are continued under the
Principal Act.
New section 383 provides for the general body corporate status
of each Waste Resource and Recovery Group.
New section 384 provides that a Waste and Resource Recovery
Group is not, and is not to be taken to represent, the Crown.
New section 385 provides that a Waste and Resource Recovery
Group is a public body to which Part 7 of the Financial
Management Act 1994 applies and a public entity for the
purposes of the Public Administration Act 2004.
New section 386 provides for the objectives of Waste and
Resource Recovery Groups. Subsection (2) provides that, in
achieving the objectives, a Waste and Resource Recovery Group
must engage with councils, Sustainability Victoria, the Authority,
industry, business and the community.
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New section 387 provides for the functions of Waste and
Resource Recovery Groups.
New section 388 provides for the powers of Waste and Resource
Recovery Groups. A Waste and Resource Recovery Group may
do all things necessary or convenient to enable it to carry out its
functions and achieve its objectives. However, a Waste and
Resource Recovery Group must not--
• own or operate a waste management facility; or
• apply for or hold a planning permit; or
• enter into contracts for the procurement of waste
management facilities or waste and resource recovery
services, unless the contract is jointly entered into with a
procurer under that contract.
Division 2--Governance of Waste and Resource Recovery
Groups
New section 389 specifies that a Waste and Resource Recovery
Group must have a board of 8 directors appointed in accordance
with new section 390. The board is responsible for managing the
affairs of the Group and may exercise all powers of the Group.
New section 390 empowers the Minister to appoint the
directors. Subsections (1) to (6) set out the requirements for the
appointments of directors of a Waste and Resource Recovery
Group by the Minister.
New section 391 provides for a Local Government Waste
Forum for each waste and resource recovery region consisting of
representatives of the councils in the region and specifies the
process for the nomination of these representatives. Subsection
(3) specifies the functions of a Local Government Waste Forum.
Subsection (4) specifies that a Local Government Waste Forum
must develop procedures relating to nominations and vacancies
of representatives.
New section 392 requires the Minister to appoint one of the
directors with specific skills as Chairperson for the board of a
Waste and Resource Recovery Group. The board may appoint
one of the directors to be a Deputy Chairperson.
New section 393 sets out the conditions that apply to the
appointment of directors of Waste and Resource Recovery
Groups.
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New section 394 provides for the automatic removal of a
director from office, if a director should become insolvent
under administration, or be convicted of an indictable offence,
be imprisoned for any offence, or fail to comply with new
section 396.
New section 395 sets out the procedures for meetings of Waste
and Resource Recovery Groups.
New section 396 provides for the disclosure by directors of
Waste and Resource Recovery Groups of direct or indirect
pecuniary interests or conflicts of interest and specifies how
these are to be dealt with at meetings of the Group.
New section 397 relates to the validity of decisions of Waste
and Resource Recovery Groups. New section 398 specifies the
powers of a Waste and Resource Recovery Group to delegate
certain functions, duties or powers of the Group to specified
persons or classes of persons within the Group.
New section 399 provides for the appointment of executive
officers of Waste and Resource Recovery Groups by the board,
and provides for the Group, with the approval of the Minister, to
appoint a Chief Executive Officer of the Metropolitan Waste and
Resource Recovery Group. Subsection (4) requires the executive
officer and Chief Executive Officer to comply with directions of
the Waste and Resource Recovery Group. Subsection (5) enables
the executive officer and Chief Executive Officer to delegate
responsibilities, powers, authorities, duties or functions to
employees of the Group.
New section 400 enables a Waste and Resource Recovery
Group to employ any staff or employees necessary to enable it to
perform its functions.
New section 401 enables the Minister to give written directions
to a Waste and Resource Recovery Group that the Group must
comply with.
New section 402 specifies that the Treasurer, in consultation
with the Minister, may give procurement directions or issue
procurement guidelines. A Waste and Resource Recovery Group
must comply with a procurement direction given, or guidelines
issued.
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New section 403 provides that a Waste and Resource Recovery
Group must submit an annual business plan to the Minister and
sets out the procedures for approval of the plan and how the
Group must comply with the plan.
New section 404 modifies the application of sections 186
and 193 of the Local Government Act 1989 as follows--
• if a council enters into a contract, arrangement or
agreement with a Waste and Resource Recovery
Group, the council is exempt from the requirements of
section 186 of the Local Government Act 1989; and
• section 193 of the Local Government Act 1989 does
not apply in respect of the participation of a council in a
Local Government Waste Forum; and
• if a council engages in procurement activities of a
Waste and Resource Recovery Group which comply
with any procurement directions or guidelines issued
under new section 404(1), the council is exempt from
the requirements of section 193 of the Local
Government Act 1989.
Part 13.3--Victorian Waste and Resource Recovery
Infrastructure Planning Framework
Division 1--Victorian Waste and Resource Recovery
Infrastructure Planning Framework
New section 405 defines the Victorian Waste and Resource
Recovery Infrastructure Planning Framework.
New section 406 specifies the objectives of the Victorian Waste
and Resource Recovery Infrastructure Planning Framework.
Division 2--State-Wide Waste and Resource Recovery
Infrastructure Plan
New section 407 specifies that Sustainability Victoria must
prepare a draft State-Wide Waste and Resource Recovery
Infrastructure Plan. The Plan's objective must be to provide
strategic direction for the management of waste and resource
recovery infrastructure in Victoria for a period of 30 years.
New section 408 provides that a State-Wide Waste and Resource
Recovery Infrastructure Plan must include any matters required
by any guidelines made by the Minister under new section 427.
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New section 409 specifies that in preparing a draft State-Wide
Waste and Resource Recovery Infrastructure Plan, Sustainability
Victoria must comply with the consultation process required by
any guidelines made by the Minister under new section 427.
New section 410 provides that on receiving a draft State-Wide
Waste and Resource Recovery Infrastructure Plan, the Minister
must approve the draft Plan; or approve the draft Plan with
amendments; or return the draft Plan to Sustainability Victoria
for amendment. Subsection (2) provides that if the Minister
returns a draft Plan to Sustainability Victoria, the Minister must
give directions as to the amendments required and must direct
Sustainability Victoria to submit the draft Plan within a specified
period.
New section 411 provides that a State-Wide Waste and Resource
Recovery Infrastructure Plan approved by the Minister must be
published in the Government Gazette and takes effect on the
day in which the notice of approval is published or a later day
specified in the notice. A State-Wide Waste and Resource
Recovery Infrastructure Plan remains in force until it is replaced
by another State-Wide Waste and Resource Recovery
Infrastructure Plan.
New section 412 specifies that Sustainability Victoria
must publish a State-Wide Waste and Resource Recovery
Infrastructure Plan on its internet site within 5 business days of a
notice of approval being published in the Government Gazette.
Sustainability Victoria must also publish a revised copy of the
Plan on its internet site within 5 business days of a notice of
approval of an amendment or variation to the Plan being
published in the Government Gazette.
New section 413 specifies the procedure for the amendment or
variation of the State-Wide Waste and Resource Recovery
Infrastructure Plan.
New section 414 provides for the preparation of a draft revised
Plan based on a review of the existing Plan within 5 years of the
date the existing Plan took effect.
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Division 3--Regional Waste and Resource Recovery
Implementation Plans
New section 415 provides for the preparation of a draft Regional
Waste and Resource Recovery Implementation Plan for waste
and resource recovery regions by Waste and Resource Recovery
Groups.
New section 416 provides that the objective of a Regional Waste
and Resource Recovery Implementation Plan is to specify the
manner in which the waste and resource recovery infrastructure
needs of a region will be met over a specified period of at least
10 years.
New section 417 specifies the information that a Regional Waste
and Resource Recovery Implementation Plan must include.
New section 418 specifies the consultation process that a
Waste and Resource Recovery Group must comply with before
submitting a draft Regional Waste and Resource Recovery
Implementation Plan.
New section 419 provides for the joint review of a draft Regional
Waste and Resource Recovery Implementation Plan for certain
purposes, including integration with the relevant State-Wide
Waste and Resource Recovery Infrastructure Plan.
New section 420 specifies the powers of the Minister to approve
draft Regional Waste and Resource Recovery Implementation
Plans.
New section 421 specifies the form and manner of publication of
notices of approval of an approved Regional Plan and provides
that the Plan remains in force until it is replaced by another Plan.
New section 422 provides for the publication of a Regional
Waste and Resource Recovery Implementation Plan on the
Group's internet site and on Sustainability Victoria's internet site.
New section 423 enables a Waste and Resource Recovery Group
to prepare draft amendments to the relevant Regional Waste and
Resource Recovery Implementation Plan. Subsection (2) enables
the Minister to direct a Waste and Resource Recovery Group to
prepare draft amendments to the Plan. Subsection (3) enables
the Minister to make a variation to the Plan that is declaratory,
machinery or administrative in nature. Subsection (4) specifies
the relevant provisions of the Principal Act that that apply to an
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amendment to the Plan as if it were a draft Plan. Subsection (5)
specifies the relevant provisions of the Act that apply to a
variation of the draft Plan as if the variation were a draft Plan.
New section 424 requires that councils and other persons
involved in waste transportation and management act consistently
with and comply with a Regional Waste and Resource Recovery
Implementation Plan. If a council disposes of waste in another
region, the council must comply with the Plan applying to the
other waste and resource recovery region. Any person involved
in the generation, management or transport of waste must not do
anything inconsistently with the relevant Regional Waste and
Resource Recovery Implementation Plan.
New section 425 provides for the review of Regional Waste and
Resource Recovery Infrastructure Plans and the provisions of the
Principal Act that apply to a revised draft as if it were a draft
Regional Waste and Resource Recovery Implementation Plan.
Division 4--General
New section 426 provides that the Authority may refuse
applications relating to certain facilities if certain Plans are not
observed.
Under subsection (1) this power applies to--
• any application for a permission in relation to a waste
management facility; or
• any application to amend a permission in relation to a
waste management facility.
Subsection (2) provides that the Authority may refuse to consider
an application or refuse an application if--
• the operations of the waste management facility could
be inconsistent with the State-Wide Waste and Resource
Recovery Infrastructure Plan or a relevant Regional
Waste and Resource Recovery Implementation Plan; or
• the applicant is in breach of any relevant requirements
of a schedule of existing and required waste and
resource recovery infrastructure in a Regional Waste
and Resource Recovery Implementation Plan.
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The Authority must refuse to consider an application in
relation to a new landfill site if that site is not included in the
proposed sequence for filling available landfill sites in a relevant
schedule of existing and required waste and resource recovery
infrastructure within a Regional Waste and Resource Recovery
Implementation Plan, unless the landfill site is privately owned
and will only receive waste generated by the owner of the site.
Subsection (5) provides that the Authority must give reasons in
writing to any person whose application is not considered or is
refused.
New section 427 provides that the Minister may make
guidelines in relation to the preparation of, consultation about,
and integration of each of the relevant Plans.
Chapter 14--General
Part 14.1--Simplified outline
New section 428 provides a simplified outline and overview of
Chapter 14.
Part 14.2--Review of decisions
Division 1--Review by the Authority
New section 429 details the procedures for internal reviews of
decisions made by the Authority to issue an improvement notice,
a prohibition notice, a notice to investigate or an environmental
action notice. The section also provides for the periods within
which an application for review must be made and the effect of
the Authority's decision on review.
Division 2--Review by VCAT
New section 430 specifies the decisions under the Principal Act
that are subject to review by VCAT and who is an eligible person
to make an application for each type of review.
New section 431 provides the notice periods for applications
for review to VCAT and circumstances that may prevent an
applicant being permitted to apply. Subsection (3) re-enacts the
exclusion of VCAT review under the 1970 Act for development
licences where the application for the licence has been subject to
a joint process with an environmental effects statement under
the Environment Effects Act 1978, or relates to an activity
requiring a planning permit or an amendment to a planning
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scheme, and the licence is substantially in accordance with that
statement or application. Under the Planning and Environment
Act 1987, where a panel has been appointed to hear the planning
permit application or planning scheme amendment, the panel is
obliged to consider submissions and give interested parties a
reasonable opportunity to be heard. Alternatively, if the activity
has been reflected in an environmental effects statement,
interested parties will be able to make submissions to the
Minister in accordance with the process in the Environment
Effects Act 1978.
New section 432 sets out specific grounds for review for some
types of reviewable decisions.
New section 433 empowers VCAT to order that a person can
be joined as a party to a review in decisions that relate to the
Authority's failure to make a decision in the time frame
allowed in section 69 for the issuing of a development licence.
This section does not limit section 60 of the Victorian Civil and
Administrative Tribunal Act 1998 which provides power for
VCAT to join a party.
New section 434 provides for VCAT review of decisions by
persons other than eligible persons.
Subsection (1) provides that a person who is not an eligible
person for a reviewable decision (a third party) whose interests
are affected by a decision may seek VCAT review within
15 business days after the decision was made. Section 5 of the
Victorian Civil and Administrative Tribunal Act 1998 sets out
when a person's interests are affected by a decision, noting that
section 430(3) provides for the application of section 5 of the
Victorian Civil and Administrative Tribunal Act 1998.
Subsection (2) sets out the reviewable decisions for which a
third party may seek review, being the issue of a development
licence or the removal of the suspension of an operating licence.
The 1970 Act also provided for third party review for the issuing
or amendment of a licence (an operating licence under the Bill)
where a works approval (a development licence under the Bill)
should have been obtained but was not. The Bill does not
provide for the issuing or amendment of an operating licence
in such circumstances so there is no provision for third party
review. Instead, in such circumstances the applicant will need to
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apply for a development licence which is subject to third party
review.
Subsection (3) sets out four grounds on which a third party may
make an application for review. Paragraph (a) sets out an interest
test which is narrower than section 5 of the Victorian Civil and
Administrative Tribunal Act 1998. Under paragraph (a), the
ground to be made out is that the decision unreasonably and
adversely affects the financial, physical or personal interests of
the third party. If this ground is not applicable, the third party
will instead need to make its application on one of the grounds in
paragraphs (b) to (d). The ground in paragraph (b) may apply if
the licence authorises a licence activity that would contravene the
general environmental duty if conducted in accordance with the
licence. Ground (c) may apply if the licence activity would pose
an unacceptable risk of harm to human health or the environment
if conducted in accordance with the licence. Ground (d) may
apply where there is a licence condition that deems compliance
with the general environmental duty that would not, in fact,
minimise the risks of harm to human health or the environment
from pollution and waste so far as reasonably practicable.
Subsection (4) sets out matters that VCAT may take into account
when determining whether a person's interests are affected by a
decision.
Subsection (5) sets out the same exclusions for third party review
that apply in new section 431(3) for eligible persons.
New section 435 specifies matters that VCAT must take into
account in determining an application for review under this
Division.
New section 436 sets out VCAT's power to make declarations on
application of an person who may apply to VCAT on the matter.
Part 14.3--Delegations
New section 437 specifies the bodies to which the Governing
Board may delegate the powers and functions of the Authority
and the ability of those bodies to sub-delegate. The section
enables the Governing Board to provide directions to delegates
about the exercise of a delegated power or the carrying out of a
delegated function.
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Part 14.4--Financial matters
New section 438 sets out the fees and penalties imposed by or
under the Principal Act that are to be paid into the Consolidated
Fund.
New section 439 specifies exceptions to the requirement to pay
fees and penalties into the Consolidated Fund.
New section 440 specifies further exceptions to the requirement
to pay fees and penalties into the Consolidated Fund in relation to
Part 6.3.
New section 441 provides that an account to be known as the
Environment Protection Fund must be established in the Public
Account, as part of the Trust Fund.
New section 442 provides that any money standing to the credit
of the Environment Protection Fund may be invested in any
securities approved by the Treasurer.
New section 443 sets out the circumstances in which the
Treasurer may make grants or advances out of the Environment
Protection Fund.
New section 444 lists the types of payments that must be paid
into the Environment Protection Fund.
New section 445 details the uses and application for money paid
out of the Environment Protection Fund.
New section 446 provides for the establishment of the General
Waste Levy Account within the Environment Protection Fund
and the Authority's obligation to credit the Account with money
paid into the Fund relating to the waste levy scheme.
New section 447 provides for the establishment of the
Restorative Project Account within the Environment Protection
Fund, the Authority's obligation to credit the Account with
money paid into the Fund for that purpose and the uses of that
money.
New section 448 provides for the Municipal and Industrial
Waste Levy Trust Account to be established and maintained by
the Department of Environment, Land, Water and Planning.
This section requires the Authority to credit the Account with
money standing to the credit of the General Waste Levy Account
each quarter. This section also sets out to whom and for what
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purposes money can be paid from the Account and for the
Minister to make determinations regarding the amounts paid.
New section 449 provides for the Sustainability Fund Account
to be established and maintained by the Department of
Environment, Land, Water and Planning. This section also
provides for the Department to credit the Account at the end of
each quarter with money standing to the credit of the Municipal
and Industrial Waste Levy Trust Account and the restrictions on
the use of money paid out of the Account.
New section 450 requires the Minister to prepare and publish a
priority statement regarding the matters for which the money paid
out of the Sustainability Fund Account is intended to be used for.
New section 451 sets out requirements for the publication and
operation of guidelines made for the Sustainability Fund
Account.
Part 14.5--Information sharing
Division 1--Collection, use, disclosure and publication of
information
New section 452 provides for the Authority to collect, use,
disclose, or publish certain information.
New section 453 makes it an offence to disclose commercially
sensitive information obtained during the exercise of a power or
the performance of a function or duty under the Principal Act.
This offence is intended to be a strict liability offence. A penalty
of up to 120 penalty units applies to the offence. This section
also sets out the circumstances in which the offence does not
apply.
New section 454 empowers the Authority to publish a public
statement or issue a public warning and the type of information
such statements or warnings can contain.
Division 2--Public Register
New section 455 provides that the Authority must establish and
maintain the Public Register in any form and manner that the
Authority thinks appropriate.
New section 456 sets out the information that must be kept on the
Public Register.
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New section 457 details the obligation of the Authority to ensure
certain information on the Register is accessible to the public.
Part 14.6--Designated agencies
New section 458 enables the Authority to designate specified
responsibilities to a Victorian Government agency, where it
appears that circumstances that present a risk of harm to human
health or the environment exist in a particular area.
Part 14.7--Exemptions
New section 459 enables the Authority to grant exemptions from
provisions of the regulations or a legislative instrument in limited
circumstances on application or on the Authority's own motion.
The section details the application process for exemption made
on application and publishing requirements for exemptions
granted by the Authority to a class of persons.
Part 14.8--Impersonation, interference and information
offences
New section 460 makes it an offence to impersonate specified
roles provided for in the Bill. This offence is intended to be a
strict liability offence. A penalty of up to 60 penalty units for a
natural person or 300 penalty units for a body corporate applies.
New section 461 provides for offences in relation to making false
representations relating to permissions and Authority approvals.
This offence is intended to be a strict liability offence. A penalty
of up to 60 penalty units for a natural person or 300 penalty units
for a body corporate applies.
New section 462 makes it an offence to interfere with monitoring
equipment used by the Authority or an authorised officer or, in
certain circumstances, any other person. A penalty of up to
500 penalty units for a natural person or 2500 penalty units for a
body corporate applies. Subsection (2) provides that an offence
under subsection (1) is an indictable offence. A note following
subsection (2) clarifies that the offence may be tried summarily.
New section 463 makes it an offence to provide false or
misleading information to the Authority or an authorised officer.
Subsection (1) sets out the circumstances in which the section
applies while subsection (2) sets out the obligation not to provide
false or misleading information. A note following subsection (2)
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identifies that subsection (2) is a civil penalty provision with a
penalty set out in the Table in section 314.
Subsection (3) makes it an offence to contravene subsection (2).
This offence is intended to be a strict liability offence. A penalty
of up to 500 penalty units for a natural person or 2500 penalty
units for a body corporate applies.
Subsection (4) provides that an offence under subsection (3) is
an indictable offence. A note following subsection (4) clarifies
that the offence may be tried summarily. Subsection (5) provides
that this section does not apply to the provision of information
or documents by a person under Part 6.3 as that Part includes a
separate offence for providing false or misleading information.
Chapter 15--Regulations
Part 15.1--Simplified outline
New section 464 provides a simplified outline for Chapter 15.
Part 15.2--Regulations
New section 465 provides that the Governor in Council may
make regulations to give effect to the Principal Act.
Subsections (2) and (3) set out general powers that apply to the
making of any regulations made under the Principal Act.
Subsection (4) provides that for the purposes of subclause (3)(f),
the Minister must ensure that the National Environment
Protection Council is consulted before the Minister recommends
that a regulation be made if it is proposed that the regulation is
to incorporate a measure that is more stringent than a national
environment protection measure.
Subsection (5) provides that before the Governor in Council
makes a regulation under subsection (1), the Minister must have
regard to the principles of environment protection.
New section 466 sets out the effect of compliance with
regulations that provide for or with respect to a duty or obligation
imposed by the Principal Act or the regulations. This section
provides that a person is taken to have complied with the
Principal Act or the regulations in relation to a duty or obligation,
if--
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• the regulations make provision for or with respect to the
duty or obligation imposed by the Act or the
regulations; and
• the person complies with the regulations to the extent
that it makes that provision.
Chapter 16--Transitional provisions
Part 16.1--Simplified outline
New section 467 provides a simplified outline of Chapter 16.
Part 16.2--General
New section 468 specifies definitions for the purpose of
Chapter 16.
New subsection (1) provides as follows--
commencement day means the day on which section 7 of the
Environment Protection Amendment Act 2018 comes into
operation;
old Act means the Environment Protection Act 1970 as in force
from time to time before its repeal by this Act;
new Act means this Act (being the Environment Protection
Act 2017 as amended by the Bill);
new permission means a permission within the meaning of the
new Act;
old permission means an approval, permission, authorisation or
licence (however described) within the meaning of the old Act;
equivalent, in relation to an old permission, has the meaning
given by new section 470.
Subsection (2) specifies when, for the purposes of this Chapter,
an application is to be taken to be finally determined.
New section 469 sets out general transition provisions.
Subsection (1) provides that Part 16.2 and the regulations under
Part 16.2 do not affect the operation of the Interpretation of
Legislation Act 1984 except where the contrary intention
appears. Subsection (2) specifies the circumstances in which
certain provisions of the old Act and regulations made under the
old Act will continue to have effect. Subsection (3) provides
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that Part 16.2 and the regulations under Part 16.2 apply despite
anything to the contrary in the old Act.
Part 16.3--Transitional provisions: permissions, notices and
directions and orders
Division 1--Permissions
New section 470 specifies, for each type of new permission listed
in the Table in this section, the equivalent old permission under
the old Act. For example, a development licence under the new
Act is equivalent to a works approval under section 19B of the
old Act.
New section 471 provides that a person who held an old
permission immediately before the commencement day holds an
equivalent new permission under the new Act as specified under
section 470. That person is taken to hold the new permission on
and from the commencement day subject to the same conditions
that applied to the equivalent old permission at that time.
New section 472 specifies the powers of the Authority to amend
or revoke the conditions of, or impose new conditions on, an
equivalent permission for the purposes of ensuring that its
conditions are consistent with the kinds of conditions that may
be imposed under the new Act. The section also sets out notice
periods and the rights of persons given such notices to request
changes to any proposed amendments.
New section 473 provides that if a person was exempt from a
requirement to hold an old permission under the old Act and the
relevant permission has an equivalent under the new Act, the
person is taken to be exempt from the requirement to hold the
equivalent new permission for the period of 5 years following the
commencement day if the new Act provides for exemptions from
the requirement to hold the new permission.
New section 474 states that if a person had made an
application for an old permission under the old Act prior to the
commencement day which is pending at that date, and there is
an equivalent new permission under the new Act, that person is
taken to have made an application under the new Act for the new
permission. The section also describes the Authority's obligation
to provide the person who made the application with a reasonable
opportunity to provide further information that the Authority
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requires to determine the application under the new Act and other
powers of the Authority in relation to the application
New section 475 provides that if a person, who is deemed
to hold a new permission under section 471, has made an
application in respect of the relevant old permission under a
prescribed provision and that application has not been finally
determined at commencement date, the person is taken to
have made the application under the new Act which is to be
determined under the new Act. The Authority has an obligation
to provide the person who made the application with a reasonable
opportunity to provide further information required to determine
the application.
Division 2--Notices, directions and orders
New section 476 provides that a notice, direction or similar
instrument that was in force under the old Act prior to the
commencement day continues to be in force for a maximum
period of 2 years from the commencement day as if the old Act
continued to apply to that instrument.
New section 477 provides that a notifiable chemical order made
under section 30D of the old Act is taken to be equivalent to an
order made under section 154 of the new Act.
Part 16.4--Transitional provisions: Environmental audits
New section 478 specifies that, if an environmental audit under
the old Act is yet to be completed before the commencement day,
an environmental auditor may continue to conduct the audit
under the old Act or the new Act. If an environmental auditor
elects to conduct the audit under the old Act, the section specifies
the relevant provisions of the old Act that that apply to the audit.
New section 479 sets out the provisions of the old Act and of the
new Act that apply to certificates and statements of environment
audit issued under the old Act or taken to be issued under the new
Act because of section 478.
Part 16.5--Transitional provisions: Waste and Resource
Recovery Groups
New section 480 provides for the legal succession of a Waste and
Resource Recovery Group, that is in existence under the old Act
at commencement date, continued under the new Act.
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New section 481 provides for the continuation of the rights,
property, assets, debts, liabilities, obligations and contracts of a
Waste and Resource Recovery Group that is continued in
existence under the new Act.
New section 482 provides that a person who holds office as a
director, Chairperson or Deputy Chairperson of the Board of
directors of a Waste and Resource Recovery Group continues to
hold that office for the remainder of the term specified in the
instrument of appointment subject to the same terms, conditions
and entitlements that applied prior to the commencement day.
New section 483 provides that a person who holds office as an
executive officer, Chief Executive Officer or employee of a
Waste and Resource Recovery Group continues to hold that
office or position for the remainder of their term subject to the
same terms, conditions and entitlements that applied prior to the
commencement day. The section also provides for the continued
employment of employees and other related matters.
New section 484 provides that on the commencement day a
delegation made under the old Act by a Waste and Resource
Recovery Group or an executive officer or the Chief Executive
Officer of a Waste and Resource Recovery Group is to be taken
to be a delegation made under the relevant provisions of the new
Act.
New section 485 provides that on the commencement day a
State-Wide Waste and Resource Recovery Infrastructure Plan
approved by the Minister under the old Act is taken to be such a
Plan made under the relevant provisions of the new Act.
New section 486 provides that on the commencement day a
Regional Waste and Resource Recovery Implementation Plan
approved by the Minister under the old Act is taken to be such a
Plan approved under the relevant provisions of the new Act.
New section 487 provides that if a draft State-Wide Waste and
Resource Recovery Infrastructure Plan or a draft Regional Waste
and Resource Recovery Implementation Plan, submitted under
the old Act, has not been approved prior to the commencement
day, the Minister may approve it under the relevant provisions of
the old Act as if those provisions had not been repealed.
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Part 16.6--Transitional provisions: Financial matters
Division 1--Funds
New section 488 provides that on the commencement day any
money standing to the credit of the Environment Protection Fund
under the old Act is taken to be standing to the credit of the
equivalent fund under the relevant provisions of the new Act.
New section 489 provides that on the commencement day any
money standing to the credit of the General Landfill Levy
Account under the old Act is taken to be standing to the credit of
the equivalent account under the relevant provisions of the new
Act.
New section 490 provides that on the commencement day any
money standing to the credit of the Municipal and Industrial
Landfill Levy Trust Account under the old Act is taken to be
standing to the credit of the equivalent account under the relevant
provisions of the new Act.
New section 491 provides that on the commencement day any
money standing to the credit of the Sustainability Fund Account
under the old Act is taken to be standing to the credit of the
equivalent account under the relevant provisions of the new Act.
New section 492 provides that specified priority statements and
guidelines made under the old Act, that are in force immediately
before the commencement day, are taken to have been made
under the relevant provisions of the new Act.
Division 2--Landfill levy
New section 493 provides for the continuation of the liability of a
person who holds a licence in respect of a scheduled premises to
pay a landfill levy. The section specifies the relevant provisions
from the old Act that are to continue to apply to the licence
holder for waste deposited until the first 1 July that occurs after
the commencement day.
Division 3--Financial assurances
New section 494 provides that a financial assurance required
under the old Act is taken to be a financial assurance required for
the purposes of Part 8.4 of the new Act.
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Part 16.7--Transitional provisions: Continuation of certain
appointments and roles
New section 495 provides that on the commencement day a litter
enforcement officer appointed under the old Act continues to
hold the same position subject to the same terms for the purposes
of the new Act.
New section 496 provides that on the commencement day a
residential noise enforcement officer appointed under the old Act
continues to hold the same position subject to the same terms for
the purposes of the new Act.
New section 497 provides that on the commencement day an
environmental auditor appointed under the old Act continues to
hold the same position subject to the same terms for the purposes
of the new Act.
New section 498 provides that on the commencement day an
analyst appointed under the old Act continues to hold the same
position subject to the same terms for the purposes of the new
Act.
Part 16.8--Transitional provisions: VCAT matters
New section 499 specifies how the provisions of the old Act are
to continue apply, despite the commencement of the new Act, to
applications on foot at VCAT, applications that could have been
made to VCAT or decisions made by VCAT, in relation to
decisions made under the old Act before the commencement
date. The section also sets out how a permission arising from
the decision made by VCAT under these transitional provisions
is taken to be a new permission under the new Act.
Part 16.9--Transitional provisions: Regulations
Division 1--Saving of Environment Protection
(Industrial Waste Resources) Regulations 2009
Clause 19 substitutes section 25 of the Principal Act. The new section 25
provides for the continued operation of the Environment
Protection (Industrial Waste Resources) Regulations 2009
until section 63 of this Act comes into operation.
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Clause 20 substitutes section 26 of the Principal Act with new Divisions 2
and 3 of Part 16.9.
New Division 2--Saving of Environment Protection
(Vehicle Emissions) Regulations 2013, which contains new
section 501, continues the operation of the Environment
Protection (Vehicle Emissions) Regulations 2013 for the period
from the commencement date until the earlier of 10 December
2023 or any earlier day on which the regulations are revoked.
New Division 3--Transitional regulations, which contains
new section 502, provides that the Governor in Council has the
power to make regulations of a savings or transitional nature.
The power to make transitional regulations expires 2 years from
the commencement day.
Clause 21 provides for the repeal of Part 4 (Consequential amendments) of
the Principal Act. Part 4 of the Principal Act will be redundant
when this Bill commences.
Clause 22 inserts a Table that renumbers provisions of the Principal Act to
reflect changes made by this Bill.
Clause 23 inserts new Schedules 1 and 2 to the Principal Act.
New Schedule 1 sets out, for the purposes of section 465(2),
detailed subject matter for the making of regulations.
New Schedule 2 sets out the amount of waste levy payable
under new section 145 for each tonne of waste deposited.
The amount payable is set out in fee units within the meaning
of the Monetary Units Act 2004. This enables the amount of
waste levy to be automatically indexed each financial year.
Table 1 sets out the amount of waste levy payable for each
tonne of municipal and industrial waste deposited under new
section 145(1). A note following Table 1 identifies that
regulations may prescribe municipal districts that are subject to
the higher waste levy payable under Table 1 for each tonne of
municipal and industrial waste that is deposited.
Table 2 sets out the amount of waste levy payable for each tonne
of priority waste deposited under section 145(2). Under the 1970
Act, the amount of levy payable for prescribed waste (which has
been replaced in the Bill by priority waste) is set out in dollar
figures. The Bill changes this to fee units to provide for
automatic indexation, consistent with the municipal and
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industrial waste levy which is already indexed. Notes following
Table 2 identify that there is no waste levy payable for depositing
Category A waste as the deposit to landfill of Category A waste
is prohibited; regulations may prescribe an amount payable as the
waste levy for each tonne of priority waste that is deposited
(other than those set out in Table 2).
Part 3--Amendment of the Mineral Resources
(Sustainable Development) Act 1990
Clause 24 substitutes the definition of referral authority in section 77TA
Mineral Resources (Sustainable Development) Act 1990, to
the effect that the Environment Protection Authority is a referral
authority in the case of a work plan or a variation of an approved
work plan for mining work proposed to be done under a mining
licence.
Clause 25 substitutes section 77TD(1)(c) of the Mineral Resources
(Sustainable Development) Act 1990, which provides that
the Department Head must endorse a work plan or variation to
approved work plan. New paragraph (c) provides that a copy of
the work plan (or variation to a work plan) must be given to
each relevant referral authority, and in the case of a work plan
(or variation) in respect of a mining licence, a copy must be
provided to the Authority and other relevant referral authority in
accordance with section 77TE(1A) as inserted by clause 26 of the
Bill.
Clause 26 amends section 77TE of the Mineral Resources (Sustainable
Development) Act 1990 which provides that the Department
Head must give a copy of a work plan or variation to relevant
referral authorities.
Subclause (1) amends section 77TE(1) of the Mineral Resources
(Sustainable Development) Act 1990 by inserting a new
subclause (1A) which provides the Department Head must give
a copy of a work plan (or variation) for mining work under a
mining licence to the Authority within 28 days of receipt.
Clause 27 amends the definition of public sector body in section 84AB(c)
of the Mineral Resources (Sustainable Development) Act 1990
to update the reference from the Environment Protection
Act 1970 to the Environment Protection Act 2017.
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Part 4--Consequential amendments to other Acts
Clause 28 consequentially amends the definition of relevant Act in the
Agricultural and Veterinary Chemicals (Control of Use)
Act 1992 to substitute a reference to the Environment
Protection Act 1970 with the Environment Protection
Act 2017.
Clause 29 consequentially amends the Albury-Wodonga Agreement
(Repeal) Act 2003 to substitute a reference to the Environment
Protection Act 1970 with the Environment Protection
Act 2017.
Clause 30 consequentially amends the Alpine Resorts (Management)
Act 1997 to substitute a reference to the Environment
Protection Act 1970 with the Environment Protection
Act 2017.
Clause 31 consequentially amends the Audit Act 1994 to substitute a
reference to the Environment Protection Act 1970 with the
Environment Protection Act 2017.
Clause 32 substitutes section 25(2) of the Catchment and Land Protection
Act 1994 to provide that a regional catchment strategy may be
incorporated into an environment reference standard within the
meaning of the Principal Act and into any order made by the
Governor in Council under new section 156 of the Principal Act.
Subclause (2) substitutes a reference to a State environment
protection policy in section 48B(c) of the Catchment and Land
Protection Act 1994 to provide that the Tribunal must take into
account an environment reference standard within the meaning of
the Principal Act and any order made by the Governor in Council
under new section 156 of the Principal Act instead of a State
environment protection policy when determining an application
for a review or declaration.
These amendments are necessary because State environment
protection policies declared by Order under section 16 of the
1970 Act have been replaced by other regulatory instruments in
this Bill. Subclause (3) consequentially amends section 93(1) of
the Catchment and Land Protection Act 1994 to substitute a
reference to the Environment Protection Act 1970 with the
Environment Protection Act 2017.
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Clause 33 consequentially amends Schedule 1 to the Climate Change
Act 2017 to replace references to the Environment Protection
Act 1970 with the Environment Protection Act 2017 and to
provide for a new list of corresponding decisions under the
Principal Act which must take account factors specified in Part 3
of the Climate Change Act 2017.
Subclauses (1)(b) to (e) insert the following decisions--
• a decision of the Minister to recommend the making,
amendment, or revocation of regulations made under the
Principal Act; and
• a decision of the Minister to recommend the making,
amendment, or revocation of an environment reference
standard; and
• any decision of the Authority made in relation to
licences and permits under the Principal Act; and
• a decision by the Authority to review an operating
licence under the Principal Act.
Clause 34 consequentially amends the Country Fire Authority Act 1958
to substitute a reference to the Environment Protection
Act 1970 with the Environment Protection Act 2017.
Subclause (2) repeals section 97 of the Country Fire Authority
Act 1958, which provided for the County Fire Authority (CFA)
to be designated as a protection agency for purposes of section 66
of the 1970 Act, which allowed a protection agency to recover
costs of a clean up. The Bill does not include either the concept
of a "protection agency" or provisions equivalent to section 66 of
the 1970 Act enabling the Authority to direct a protection agency
to conduct a clean up.
Clause 35 substitutes clause 9 of Schedule 2 to the Criminal Procedure
Act 2009 to enable indictable offences under the Environment
Protection Act 2017 to be heard and determined summarily in
the Magistrates' Court. In any such proceedings the maximum
penalty that may be imposed is subject to Part 10 of the
Sentencing Act 1991.
Clause 36 substitutes section 8(2) of the Dangerous Goods Act 1985 to
replace references to the Environment Protection Act 1970
with the Environment Protection Act 2017 and updates the
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section with the corresponding instruments under the Principal
Act.
Clause 37 substitutes section 41B(c) of the Flora and Fauna Guarantee
Act 1988 to replace references to the Environment Protection
Act 1970 with the Environment Protection Act 2017, and to
provide that the Tribunal must take into account an environment
reference standard within the meaning of the Principal Act,
and any order made by the Governor in Council under new
section 156 of the Principal Act, instead of a State environment
protection policy.
This amendment is necessary because State environment
protection policies declared by Order under section 16 of the
1970 Act have been replaced by other regulatory instruments in
this Bill.
Clause 38 consequentially amends the Geothermal Energy Resources
Act 2005 to substitute references to the Environment Protection
Act 1970 with the Environment Protection Act 2017.
Clause 39 consequentially amends the Greenhouse Gas Geological
Sequestration Act 2008 to substitute references to the
Environment Protection Act 1970 with the Environment
Protection Act 2017.
Clause 40 consequentially amends the Independent Broad-based
Anti-corruption Commission Act 2011 to substitute references
to sections of the Environment Protection Act 1970 with
equivalent new sections of the Environment Protection
Act 2017.
Subclauses (1)(a) and (2) amend certain sections of the
Independent Broad-based Anti-corruption Commission
Act 2011 to reference corresponding new section 356 of the
Principal Act, which provides for the continuation of the
Authority.
Subclause (1)(b) and (c) amend the definitions of mandatory
notification provision and notification to the IBAC,
respectively, in section 3(1) of the Independent Broad-based
Anti-corruption Commission Act 2011 to reference
corresponding new section 377 of the Principal Act, which
provides for the mandatory notification requirement to the
IBAC for corrupt conduct.
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Clause 41 consequently amends the Major Transport Projects
Facilitation Act 2009 to substitute references to the
Environment Protection Act 1970 with references to the
Environment Protection Act 2017 (see subclause (1)), as
well as to substitute terms used within the 1970 Act with
corresponding terms used in the Principal Act, and additional
technical amendments.
Relevantly, subclause (2) amends section 3 of the Major
Transport Projects Facilitation Act 2009 by repealing the
definitions of protection agency, State environment protection
policy, waste management policy and works approval. These
definitions are unnecessary because these terms and concepts of
the 1970 Act have either been made redundant or have been
modified or adapted and referred to as something else in the
Principal Act.
Subclause (4) inserts a new definition of development licence
to have the same meaning as in the Environment Protection
Act 2017.
Subclauses (5), (6), (9), (12), (15), (18), (19), (20), (21),
and (22) substitute references to the term "works approval" with
"development licence" within multiple sections of the Major
Transport Projects Facilitation Act 2009. These amendments
are necessary as development licences are the equivalent
instrument under the Principal Act to works approvals under
the 1970 Act.
Subclause (7) substitutes section 27(f) of the Major Transport
Projects Facilitation Act 2009 to provide that a project
proponent preparing an impact management plan must set out
how any relevant environment reference standard within the
meaning of the Principal Act and any order made by the
Governor in Council under section 156 of the Principal Act will
be taken into account instead of a State environment protection
policy. This amendment is necessary because State environment
protection policies declared by an Order under section 16 of the
1970 Act have been replaced by other regulatory instruments in
this Bill.
Subclause (8) substitutes section 39(f) of the Major Transport
Projects Facilitation Act 2009 to provide that a project
proponent preparing a comprehensive impact statement must
set out how any relevant environment reference standard within
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the meaning of the Principal Act and any order made by the
Governor in Council under section 156 of the Principal Act will
be taken into account instead of a State environment protection
policy.
Subclause (10) amends section 51(2) of the Major Transport
Projects Facilitation Act 2009 to reference corresponding
new section 50(1)(b) of the Principal Act, which provides for
prescribed fees for an application for a development licence.
Subclause (13) substitutes section 51A(2)(a) of the Major
Transport Projects Facilitation Act 2009 to provide that the
Authority must, on receiving a comprehensive impact statement
under section 51 of the Major Transport Projects Facilitation
Act 2009, refer a copy to any agency to which the Authority
referred the application for the development licence under
section 69(2) of Principal Act. Section 51A(2)(a) referred to
"protection agency" which has been repealed under subclause (2).
The concept of protection agency has not been continued under
this Bill; however, the Authority under new section 458 of the
Principal Act may designate any Victorian Government agency
to be a designated agency.
Subclause (14) substitutes references to "protection agency"
in section 51A(3) and (4) of the Major Transport Projects
Facilitation Act 2009 to provide for "any agency".
Subclause (16) substitutes section 62(4A)(a) of the Major
Transport Projects Facilitation Act 2009 to provide that the
Authority must, on receiving a revised comprehensive impact
statement, refer a copy to any agency the Authority referred the
application for the development licence under section 69(2) of
Principal Act. Section 62(4A)(a) referred to "protection agency"
which has been repealed under subclause (2).
Subclause (17) substitutes references to "protection agency"
in section 62(4B) and (4C) of the Major Transport Projects
Facilitation Act 2009 to provide for "any agency".
Subclause (23) amends section 84(4) of the Major Transport
Projects Facilitation Act 2009 to reference corresponding new
section 58 of the Principal Act, which allows the Authority or a
council to amend a permission on its own initiative.
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Subclause (24) amends the Table in Schedule 1 to the Major
Transport Projects Facilitation Act 2009 by--
• substituting references to Environment Protection
Act 1970 with Environment Protection Act 2017; and
• substituting the reference to "Works approval under
section 19B(7)" with the corresponding new section of
"Development licence under section 69"; and
• substituting the reference to "Permit under
section 53F(1)" with the corresponding words
"Permission under Chapter 4 that specifies the transport
of priority waste or activities relating to septic tanks";
and
• omitting the words "Permit under section 53M".
Clause 42 consequentially amends the Marine (Drug, Alcohol and
Pollution Control) Act 1988 to substitute references to the
Environment Protection Act 1970 with the Environment
Protection Act 2017.
Clause 43 repeals section 55 of the Metropolitan Fire Brigades Act 1958,
which provided for the Metropolitan Fire and Emergency
Services Board to be designated as a protection agency for
purposes of section 66 of the 1970 Act, which allowed a
protection agency to recover costs of a clean up. The Bill
does not include either the concept of a "protection agency" or
provisions equivalent to section 66 of the 1970 Act enabling the
Authority to direct a protection agency to conduct a clean up.
Clause 44 amends the Mineral Resources (Sustainable Development)
Act 1990 to substitute a reference to the Environment
Protection Act 1970 with the Environment Protection
Act 2017 and to provide equivalent new sections of the
Principal Act.
Subclause (2) amends the definition of auditor in section 77U of
the Mineral Resources (Sustainable Development) Act 1990
by ensuring the definition of auditor has the same meaning of
environmental auditor as in the Principal Act.
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Clause 45 consequentially amends the Offshore Petroleum and
Greenhouse Gas Storage Act 2010 to substitute a reference to
the Environment Protection Act 1970 with the Environment
Protection Act 2017.
Clause 46 amends section 16L(2)(j) of the Ombudsman Act 1973 to
reference corresponding new section 356 of the Principal Act,
which provides for the continuation of the Authority.
Clause 47 consequentially amends the Parliamentary Committees
Act 2003 to substitute a reference to the Environment
Protection Act 1970 with the Environment Protection
Act 2017.
Clause 48 consequentially amends the Petroleum Act 1998 to substitute a
reference to the Environment Protection Act 1970 with the
Environment Protection Act 2017.
Clause 49 substitutes section 60(1A)(f) of the Planning and Environment
Act 1987 to replace references to the Environment Protection
Act 1970 with the Environment Protection Act 2017 and to
provide that the a responsible authority must consider an
environment reference standard within the meaning of the
Principal Act and any order made by the Governor in Council
under new section 156 of the Principal Act instead of a State
environment protection policy before deciding on an application.
Subclause (2) substitutes section 84B(2)(e) to replace references
to the Environment Protection Act 1970 with the Environment
Protection Act 2017 and to provide that the Tribunal must take
into account an environment reference standard within the
meaning of the Principal Act and any order made by the
Governor in Council under new section 156 of the Principal
Act instead of a State environment protection policy when
determining an application for review.
These amendments are necessary because State environment
protection policies declared by Order under section 16 of the
1970 Act have been replaced by other regulatory instruments in
this Bill.
Clause 50 consequentially amends the Pollution of Waters by Oil and
Noxious Substances Act 1986 to substitute references to the
Environment Protection Act 1970 with the Environment
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Protection Act 2017 and to provide for corresponding new
sections of the Principal Act.
Subclause (1) amends definition of Authority in section 3(1)
of the Pollution of Waters by Oil and Noxious Substances
Act 1986 to reference corresponding new section 356 of the
Principal Act, which provides for the continuation of the
Authority.
Subclause (2) provides for updating references to the 1970 Act
to the Principal Act. Subclauses (3) and (4) amend section 28
and section 34A, respectively, of the Pollution of Waters by Oil
and Noxious Substances Act 1986 by replacing references to
sections of the 1970 Act with corresponding new sections of the
Principal Act.
Clause 51 consequently amends the Port Management Act 1995 to
substitute references to the Environment Protection Act 1970
with the Environment Protection Act 2017 and to provide for
corresponding new sections of the Principal Act.
Subclauses (1), (2)(a), (4), (5) and (6) provide for updating
references to the 1970 Act to the Principal Act. Subclause (2)(b)
repeals the definitions of pollute and polluted in section 88I of
the Port Management Act 1995, as these terms are not used
within that Act outside the definitions provided in section 88I.
Subclause (3) amends sections 88J(b) and 88JA(1)(b) of the Port
Management Act 1995 by replacing the reference to "condition
of pollution" with a "pollution incident within the meaning of the
Environment Protection Act 2017". The phrase "condition of
pollution" is used within that Act to allow the Victorian Ports
Corporation under section 88J or the port of Melbourne operator
under section 88A to conduct and recover costs relating to a
clean up. The phrase "condition of pollution" has no particular
meaning under the Principal Act, so to better align these sections
with the Principal Act, the phrase has been replaced with the
occurrence of a pollution incident.
Subclause (7) amends section 91E(2) and (4) of the Port
Management Act 1995 replacing the reference to section 53S
under the 1970 Act, which refers to the appointment of
environmental auditors, with the corresponding new Division
of the Principal Act.
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Clause 52 amends section 136(1)(d) of the Radiation Act 2005 to
reference corresponding new section 356 of the Principal Act,
which provides for the continuation of the Authority.
Clause 53 amends the definition of traffic infringement in section 3(1)
of the Road Safety Act 1986 by replacing the reference to
sections 45E and 45F of the 1970 Act with corresponding new
section 115 of the Principal Act. The amendments also align the
language used in the Principal Act, by replacing the reference to
"litter" to "waste". Under the Principal Act, litter is a subset of
waste.
Clause 54 substitutes section 41B(c) of the Subdivision Act 1988 to replace
references to the Environment Protection Act 1970 with the
Environment Protection Act 2017 and to provide that the
Tribunal must take into account an environment reference
standard within the meaning of the Principal Act and any order
made by the Governor in Council under new section 156 of the
Principal Act instead of a State environment protection policy
when determining applications. These amendments are
necessary because State environment protection policies declared
by Order under section 16 of the 1970 Act have been replaced by
other regulatory instruments in this Bill.
Clause 55 inserts a new definition of Environment Protection Authority
into section 3(1) of the Surveillance Devices Act 1999 to allow
the Authority to utilise a range of surveillance methods and
enforcement powers under that Act. Subclause (1) also amends
definitions in that Act as follows--
• paragraph (b), in the definition of chief officer, inserts a
reference to the chief executive officer appointed by the
Governing Board of the Environment Protection
Authority; and
• paragraph (c), in the definition of law enforcement
agency, inserts a reference to the Environment
Protection Authority; and
• paragraph (d), in the definition of law enforcement
officer, inserts a reference to an authorised officer
appointed under Part 9.2 of the Environment
Protection Act 2017; and
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• paragraph (e), in the definition of senior officer, inserts
references to the chief executive officer appointed by
the Governing Board of the Environment Protection
Authority and an authorised officer appointed under
Part 9.2 of the Environment Protection Act 2017.
Subclause (2) amends section 25 of the Surveillance Devices
Act 1999 to extend the application of that section, which relates
to emergency authorisations, to the Authority.
Clause 56 consequently amends the Sustainability Victoria Act 2005 to
substitute references to the Environment Protection Act 1970
with the Environment Protection Act 2017.
Clause 57 consequentially amends the Sustainable Forests (Timber)
Act 2004 to substitute references to the Environment Protection
Act 1970 with the Environment Protection Act 2017 and to
provide for corresponding new section 356 of the Principal Act,
which provides for the continuation of the Authority.
Clause 58 consequentially amends the Transport (Compliance and
Miscellaneous) Act 1983 to substitute references to the
Environment Protection Act 1970 with the Environment
Protection Act 2017.
Clause 59 consequentially amends the Victorian Civil and Administrative
Tribunal Act 1998 to substitute references to the Environment
Protection Act 1970 with the Environment Protection
Act 2017.
In addition, subclause (3) amends clause 64(1)(b) of Schedule 1
to the Victorian Civil and Administrative Tribunal Act 1998,
which sets out how certain matters should be dealt with under the
1970 Act, to include relevant licence applications under the
Principal Act within the scope of that clause.
Clause 60 consequentially amends the Victorian Fisheries Authority
Act 2016 to substitute references to the Environment Protection
Act 1970 with the Environment Protection Act 2017.
Clause 61 amends section 305B of the Water Act 1989 to provide that
the Tribunal must take into account an environment reference
standard within the meaning of the Principal Act and any order
made by the Governor in Council under new section 156 of the
Principal Act instead of a State environment protection policy
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when determining an application for review. These amendments
are necessary because State environment protection policies
declared by Order under section 16 of the 1970 Act have been
replaced by other regulatory instruments in this Bill.
Clause 62 consequentially amends the Yarra River Protection (Wilip-gin
Birrarung murron) Act 2017 to substitute references to the
Environment Protection Act 1970 with the Environment
Protection Act 2017.
Part 5--Repeal of Environment Protection Act 1970 and
amending Act
Clause 63 provides for the repeal of the 1970 Act.
Clause 64 provides for this amending Act to be repealed on 1 July 2021.
The repeal of this Act will not affect the continuing operations of
amendments to be made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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