Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Environment Protection Amendment
Bill 2019
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill, which are to amend the
Environment Protection Act 1970 to prohibit the provision of
certain plastic bags by retailers and false and misleading
information relating to plastic bags, and to make technical and
consequential amendments to the Environment Protection
Amendment Act 2018.
Clause 2 sets out commencement arrangements for the Bill.
Clause 2(1) provides for the provisions of the Bill to come into
operation by proclamation subject to this section.
Clause 2(2) provides for Part 1 and Part 3 of the Bill to come into
operation on the day after the day on which the Bill receives
Royal Assent.
Clause 2(3) provides for Part 2 of the Bill to come into operation
on a day or days to be proclaimed, or on 1 November 2019 if not
proclaimed before that date, to provide for a transitional period
for the retail sector.
Clause 2(4) provides for Part 4 of the Bill to come into operation
on a day or days to be proclaimed, or on 1 December 2020 if not
proclaimed before that date.
591041 1 BILL LA INTRODUCTION 13/6/2019
Part 2--Amendments to the Environment Protection Act 1970
Clause 3 provides that, in Part 2 of the Bill, the Environment Protection
Act 1970 is called the Principal Act.
Clause 4 sets out the definitions of banned plastic bag, barrier bag and
exempt plastic bag for inclusion in section 4(1) of the Principal
Act and repeals the definition of plastic bag in section 4(1) of the
Principal Act.
Banned plastic bag is defined to mean a bag, other than an
exempt plastic bag, with handles and that comprises, either
wholly or partly, plastic, whether or not that plastic is
biodegradable, degradable or compostable and has a thickness of
35 micrometres or less at any part of the bag, or a prescribed
banned plastic bag. The definition includes reference to
biodegradable, degradable and compostable bags but the
inclusion of these types of bags is not to limit the scope but rather
avoid confusion about whether they are exempt. The definition
allows for specific types of bags to be prescribed as a banned
plastic bag where the need for certainty or clarity arises.
Barrier bag is defined to mean a bag that comprises, either
wholly or partly, plastic and does not have handles and is used to
carry unpackaged perishable food.
Exempt plastic bag is defined to mean a bag that comprises,
either wholly or partly, plastic that is a barrier bag or is an
integral part of the packaging in which goods are sealed or
provided for sale or a prescribed exempt plastic bag. The
exemption for plastic bags which are an integral part of the
packaging for certain goods is to exempt from the ban those
plastic bags which are used to carry perishable goods that are
pre-packaged in-store. A barrier bag is exempt from the ban due
to the practicable issues of food safety and hygiene associated
with perishable goods. The following types of bags are not
intended to be a banned plastic bag: heavyweight reusable
plastic bags (also known as department store or boutique bags),
paper bags, cloth bags, jute bags, hessian bags, kitchen tidy bags,
bin liners, nappy bags or dog waste bags.
2
Clause 5 amends section 31A(1)(b)(ia) of the Principal Act to enable a
pollution abatement notice to be issued for a contravention of
section 45ZM where a retailer sells or provides a banned plastic
bag to a person to carry or transport goods sold or provided by
the retailer from the retail premise and repeals section
31A(2)(e)(ia) of the Principal Act as it is rendered redundant by
the new provisions relating to banned plastic bags.
Clause 6 inserts new Division 8 into Part VIIA of the Principal Act to
insert 2 offence provisions, new sections 45ZM and 45ZN.
New section 45ZM creates an offence, that is intended to be a
strict liability offence, for the provision of banned plastic bags by
a retailer and, also provides the relevant penalties if a natural
person (60 penalty units) or a body corporate (300 penalty units)
is found to have contravened section 45ZM.
For a strict liability offence to be made out, the prosecution
would only have to prove the conduct of the retailer, namely the
prohibited provision of the plastic bag, occurred. A strict liability
offence removes the requirement for the prosecution to prove the
element of fault. It would then be open to the retailer to show
that they acted under an honest and reasonable mistake as to the
existence of facts which, if true, would have made that conduct
innocent. A strict liability offence serves an important public
purpose as it is fundamental to the effective deterrence of the
supply of banned plastic bags. As such, it is justified in
preventing the serious environmental harm that results from the
widespread dissemination of plastic bags from multiple points of
supply.
The ban's enforcement regime would be undermined if it were
required to prove mental intent, knowledge or recklessness for
each prosecution. A less restrictive measure of enforcement
would not be appropriate considering the strong public interest in
preventing indelible harm to the environment through the
dissemination of banned plastic bags. The supply offence being
one of strict liability would only place an evidential burden on an
accused. The imposition of strict liability for the supply offence
is necessary and appropriate in the circumstance.
New section 45ZN creates an offence for the provision of false or
misleading information by a retailer or wholesaler, or a
manufacturer of plastic bags, about the composition of a banned
plastic bag and whether or not a bag is a banned plastic bag or an
3
exempt plastic bag. Section 45ZN also provides the relevant
penalties if a natural person (60 penalty units) or a body
corporate (300 penalty units) is found to have contravened
section 45ZN.
Clause 7 amends section 55(1) of the Principal Act, which currently
provides for the premises into which an authorised officer may
enter for compliance purposes. The powers of entry in
section 55(1), in their current form, do not enable an authorised
officer to enter retail premises to determine whether a retailer
complies with the plastic bag ban. The purpose of the
amendment is to extend existing powers of entry to any retail
premises at "any reasonable time" to enable an authorised officer
to ensure compliance with, or contravention of, the new plastic
bag offences. Extending these powers is necessary for
enforcement of the ban as enforcement will largely rely on
regulation at the point of supply. The proposed expanded powers
of entry onto retail premises are proportional to the existing
powers of entry afforded to authorised officers under the
Principal Act onto other regulated premises. Without extending
the powers of entry to retail premises, the ability to enforce the
plastic bag ban would be frustrated and the effectiveness of the
policy limited. A reduction in the number of plastic bags in
circulation relies on regulation at the point of supply. Failing to
extend these powers of entry would limit the Environment
Protection Authority's ability to prevent environmental harm
through enforcing the ban, which largely relies on regulation at
the point of supply to effect a reduction in the number of plastic
bags in circulation.
Clause 8 amends the regulation-making heads of power in the Principal
Act.
Clause 8(1) substitutes section 71(1)(ka) to create a regulation-
making head of power for prescribing banned plastic bags
pursuant to the definition of banned plastic bag.
Clause 8(2) substitutes section 71(1)(kb) of the Principal Act to
create a regulation-making head of power for prescribing exempt
plastic bags pursuant to the definition of exempt plastic bag.
Clause 8(3) repeals the regulation-making heads of power in
section 71(1)(kc), (kd), (ke), (kf) and (kg) of the Principal Act
because they are redundant due to the new prohibition of banned
plastic bags.
4
Clause 9 amends Schedule A to the Principal Act to provide for the issuing
of infringement notices in relation to the prohibition on the
provision of a banned plastic bag under new section 45ZM.
Infringement notices enable less serious breaches of this offence
to be dealt with expediently.
Part 3--Amendments to the Environment Protection Amendment
Act 2018
Clause 10 provides that, in Part 3 of the Bill, the Environment Protection
Amendment Act 2018 is called the Principal Act.
Clause 11 amends section 6(9) of the Principal Act to correct the proposed
definition of resource recovery by removing the unnecessary
word "any".
Clause 12 amends section 7 of the Principal Act to substitute proposed
section 57(5) of the Environment Protection Act 2017
(the 2017 Act), which currently provides for the time frame in
which the Authority, or a council in the case of a permit issued
by a council, must make a decision following an application to
amend a licence or permit within 42 days following receipt of the
application by the Authority or a prescribed period in respect of
an application made to a council. This substitution corrects the
time frame in which the decision must be made, in the case of
amending a licence to 42 days, in the case of an application to the
Authority to amend a permit to any prescribed period not
exceeding 42 days following receipt of the application or
15 business days if there is no prescribed period, and to the
prescribed period in the case of an application to a council to
amend a permit. This provides consistency with the time frame
for an initial decision to grant a permit.
Clause 13 amends proposed section 61 of the 2017 Act in section 7 of the
Principal Act, which provides for the revocation of permissions
(a development licence, operating licence, pilot project licence,
permit or registration under the Environment Protection
Act 2017), on the Authority's or council's initiative where certain
grounds or criteria apply.
Clause 13(1) repeals proposed section 61(1)(e) of the 2017 Act in
section 7 of the Principal Act.
5
Clause 13(2) replaces the reference to paragraph (f) with
paragraph (e) in proposed section 61(1).
Clause 13(3) substitutes proposed section 61(2), which currently
provides that the Authority or a council may revoke a permission
issued or granted by it where it considers that the holder is no
longer required to hold the permission. If a permission is
revoked on the grounds or criteria specified in section 61(1), the
permission holder is a prohibited person by virtue of proposed
section 88(1)(b) of the 2017 Act, meaning they are prohibited
from engaging in particular activities. This substitution has the
effect of not deeming a person to be a prohibited person, where a
permission is revoked because the person no longer engages in
the activity prescribed in the permission. No longer engaging in
an activity is not indicative of a likelihood to cause harm to
human health or the environment and should not deem a person
to be a prohibited person.
Clause 14 amends section 7 of the Principal Act to replace the reference to
the deposit of waste with reference to receiving waste in
proposed section 67 of the 2017 Act to clarify that the Authority
must not issue or grant a permission in relation to a landfill site
for receiving priority waste prescribed as Category A priority
waste and that this covers activities where it might otherwise be
argued that there was no act of parting with the possession of
waste.
Clause 15 amends section 7 of the Principal Act to replace the words
"public works" with "works" in proposed section 70(a) of the
2017 Act to clarify that the notice required for the application for
a development licence can be combined with any notice given for
those works under the Environment Effects Act 1978, where it
relates to any works as opposed to being limited only to works
that are public works. This also provides consistency with the
current provisions of the Environment Protection Act 1970 for
joint publication, which are not limited to only public works.
Clause 16 amends proposed section 86 of the 2017 Act in section 7 of the
Principal Act, which provides for renewal of registrations which
are a type of permission required for prescribed registration
activities.
Clause 16(1) substitutes proposed section 86(4) with proposed
section 86(4) and (5) to ensure that a compliant registration
renewal is granted automatically upon application, and the
6
applicant notified, as is the case for granting the registration,
rather than providing the Authority discretion to determine
whether to renew after taking into account any prescribed
matters.
Clause 16(2) replaces the references to subsections (5) and (6) in
proposed section 86 to subsections (6) and (7) respectively.
Clause 17 amends section 7 of the Principal Act to remove the unnecessary
word "section" in proposed section 89(2) of the 2017 Act which
incorrectly refers to "section Part 11.8".
Clause 18 amends proposed section 93 of the 2017 Act in section 7 of the
Principal Act, which provides for environment reference
standards which set out the uses, attributes and functions of the
environment that the community values and that are sought to be
achieved or maintained, for example on air quality, water quality
or noise.
Clause 18(1) amends proposed section 93(2) of the 2017 Act,
which provides for what an environment reference standard must
identify, to omit "that specify the environmental condition and
uses of the environment" as environmental values do not specify
the environmental condition and uses of the environment, rather,
they are values to be achieved or maintained.
Clause 18(2) repeals proposed section 93(3)(e), which provides
that an environment reference standard must specify the
indicators and objectives to be used to measure whether
environmental values specified in the environment reference
standard are being achieved or maintained, and amends
section 93(3)(d) to reflect that it is the final paragraph in the
subsection.
Clause 18(3) inserts section 93(4) which provides that an
environment reference standard may specify indicators and
objectives. This removes the requirement for indicators and
objectives to be specified in relation to each environmental value,
and instead makes this discretionary. This was the original intent
for indicators and objectives and is consistent with current
practice in some State environment protection policies in relation
to beneficial uses.
7
Clause 18(4) replaces the references to subsections (4) and (3)(e)
in proposed section 93(4) to subsections (5) and (4) respectively
as a consequence of subclause (2)(a) repealing proposed
section 93(3)(e) and subclause (3) inserting a new proposed
section 93(4) and existing proposed section 93(4) being
renumbered 93(5).
Clause 19 amends section 7 of the Principal Act to substitute "reasonably
believes that another person" in proposed section 118(2)(b)(ii) of
the 2017 Act for "saw another person who". This removes the
requirement to see another person, instead requiring a reasonable
belief that another person was in or near the vehicle at the time,
for example because the vehicle had been used by another person
at the time of the offence. Without this correction, the proposed
section incorrectly narrows the defence to littering from a vehicle
because where a person did not see who deposited the waste, it
requires the person to have seen another person in or near the
vehicle at the time the waste was deposited.
Clause 20 amends section 7 of the Principal Act to replace the reference to
"a person" with "a natural person" in proposed section 125(3), (4)
and (6) of the 2017 Act and to set out in the offence, rather than
the penalty provision at the foot of the offence, that this offence
applies only to natural persons for consistency.
Clause 21 amends section 7 of the Principal Act to replace the references to
"deposited on to land" for "received" in proposed section 145(1)
and (2) of the 2017 Act and "deposited" for "received" in
proposed section 145(4)(b) of that Act. Proposed section 145
provides for the requirement to pay the waste levy and this
clarifies that where waste is received at premises subject to the
waste levy, the levy remains payable in situations where it may
otherwise be argued that there was no act of parting with
possession of litter or waste (as per the definition of "deposit").
For example, in the situation where a landfill operator also
collects waste as a transporter. It also clarifies that the waste levy
is payable at the point at which landfill operators record the
weight and type of incoming waste at the landfill gate rather than
at the point at which the waste is unloaded.
Clause 22 amends section 7 of the Principal Act to replace "appointment"
with "application" in the provision and in the heading of
proposed section 196 of the 2017 Act to provide for consistent
references across proposed sections 191, 196 and 198 of that Act.
8
Clause 23 amends proposed section 225(2)(f) of the 2017 Act in section 7
of the Principal Act to ensure that the Authority may review the
form of a financial assurance in addition to the amount of a
financial assurance.
Clause 24 amends section 7 of the Principal Act to clarify that proposed
section 234(2)(a) of the 2017 Act applies to all permissions
whether they are licences or permits which are issued or
registrations which are granted.
Clause 25 amends section 7 of the Principal Act to correct a typographical
error by replacing "of" with "or" in proposed section 242(1) of
the 2017 Act and removes the unnecessary words "in writing" in
proposed section 242(2) of the 2017 Act because an instrument is
always a document in writing.
Clause 26 amends section 7 of the Principal Act to replace the reference to
"a person" with "a natural person" in proposed section 259(3) of
the 2017 Act and to set out in the offence, rather than the penalty
provision at the foot of the offence, that this offence applies only
to natural persons for consistency.
Clause 27 amends section 7 of the Principal Act to clarify that proposed
section 271(1)(b) of the 2017 Act, which provides that the
Authority or an authorised officer may issue a person with an
improvement notice if the Authority or authorised officer
reasonably believes that the person is not complying or has not
complied with a permission granted under the 2017 Act, applies
to all permissions.
Clause 28 amends proposed section 274(4) of the 2017 Act in section 7 of
the Principal Act to allow the Authority or an authorised officer
to specify any condition, requirement, restriction, performance
standard or level in an environmental action notice, rather than
just the Authority.
Clause 29 amends section 7 of the Principal Act to remove the unnecessary
word "section" in the Note at the foot of proposed section 293(1)
of the 2017 Act.
Clause 30 amends section 7 of the Principal Act to clarify that proposed
section 309(1)(a) of the 2017 Act applies to all permissions
whether they are licences or permits which are issued or
registrations which are granted.
9
Clause 31 amends section 12 of the Principal Act to substitute the incorrect
reference to "the human" with "human" in proposed section
358(e) of the 2017 Act.
Clause 32 amends the Table to proposed section 430(4) of the 2017 Act in
section 18 of the Principal Act.
Clause 32(1) substitutes an incorrect reference to "(6)" with "(7)"
in item 5 so that review by the Victorian Civil and Administrative
Tribunal is available for a decision by the Authority or council to
extend a period of suspension of a permission, and is not
available for a decision to remove a period of suspension of a
permission.
Clause 32(2) inserts new item 18A into the Table to enable
review by the Victorian Civil and Administrative Tribunal of a
decision by the Authority, any other litter authority or a litter
enforcement officer to direct the occupier of the place or
premises to remove or dispose of waste within the time specified
in the notice, if a person who deposited waste at a place or on
premises in contravention of Part 6.3 of the 2017 Act cannot be
located.
Clause 32(3) amends item 23 to include reference to
subsection (2) of proposed section 200 of the 2017 Act to enable
the Victorian Civil and Administrative Tribunal to review a
decision by the Authority to revoke the appointment of an
environmental auditor who is suspended.
Clause 33 amends section 18 of the Principal Act by replacing references to
"public works" with "works" in proposed section 431(3)(a) of the
2017 Act to limit the availability to an eligible person of a review
by the Victorian Civil and Administrative Tribunal for a decision
to issue a development licence where the licence relates to any
works to which the Environment Effects Act 1978 applies, the
notice is combined with any notice under the Environment
Effects Act 1978 and the licence is substantially in accordance
with the Environment Effects Statement for those works.
Clause 34 amends section 18 of the Principal Act by replacing references to
"public works" with "works" in proposed section 434(5)(a) of the
2017 Act to limit the availability to a third party of a review by
the Victorian Civil and Administrative Tribunal of a decision to
issue a development licence where the licence relates to any
works to which the Environment Effects Act 1978 applies, the
10
notice is combined with any notice under the Environment
Effects Act 1978 and the licence is substantially in accordance
with the Environment Effects Statement for those works.
Clause 35 amends section 18 of the Principal Act to remove the
unnecessary words "in writing" in proposed section 437(1) of the
2017 Act because an instrument is always a document in writing.
Clause 36 amends section 18 of the Principal Act to correct terminology in
proposed section 445(1)(a) of the 2017 Act in describing the
process for how funds from the Environment Protection Fund are
paid out, by replacing "used" with "applied".
Clause 37 amends section 18 of the Principal Act to correct terminology in
proposed section 447(3) of the 2017 Act in describing the process
for how funds from the Restorative Project Account are paid out,
by replacing two references to "used" with "applied".
Clause 38 corrects terminology in describing the process for how funds
from the Sustainability Fund Account are paid out.
Clause 38(1) amends section 18 of the Principal Act to replace
"used" with "applied" in proposed section 449(3) of the 2017
Act.
Clause 38(2) amends section 18 of the Principal Act to replace
"use" with "application" in proposed section 449(4) of the 2017
Act.
Clause 39 amends section 18 of the Principal Act to replace the incorrect
reference to "the doing" with "doing" in proposed section
465(2)(c)(i) of the 2017 Act.
Clause 40 amends proposed section 469 of the 2017 Act in section 18 of the
Principal Act to replace incorrect references to "Part" with
"Chapter" to ensure that proposed section 469 references
Chapter 16 rather than Part 16.2 of Chapter 16.
Clause 41 inserts new item 6.11A in section 23 of the Principal Act after
proposed Schedule 1 to the 2017 Act to provide for a regulation-
making head of power for regulations which prohibit the
provision of false or misleading information relating to plastic
products, plastic packaging or plastic bags.
11
Clause 42 substitutes references to depositing waste with references to
receiving waste in Table 1, Table 2 and in the Notes at the foot of
both tables in proposed Schedule 2 to the 2017 Act in section 23
of the Principal Act as a consequence of the amendment of
proposed section 145 contained in clause 21 of the Bill.
Clause 43 substitutes section 32(2) of the Principal Act, which amends the
Catchment and Land Protection Act 1994 so that
section 48B(c) of that Act provides that in determining an
application under the Catchment and Land Protection
Act 1994, the Victorian Civil and Administrative Tribunal must
take account of, but is not required to give effect to, any
environment reference standard. Environment reference
standards can be taken account of but not given effect to as they
do not contain compliance obligations. Similar amendments are
contained in clauses 44, 46 and 47 of the Bill.
Clause 44 amends section 37 of the Principal Act, which amends the Flora
and Fauna Guarantee Act 1988.
Clause 44(a) substitutes the reference to "section 38(c)" with
"section 41B(c)".
Clause 44(b) omits the words "and give effect to" in proposed
section 41B(c) to ensure that in determining an application under
the Flora and Fauna Guarantee Act 1988, the Victorian Civil
and Administrative Tribunal must take account of, but is not
required to give effect to, any environment reference standard.
Clause 45 inserts new section 42A into the Principal Act to make
consequential amendments to the Marine and Coastal Act 2018
to ensure the currency of references and definitions.
New section 42A(1) inserts definitions of environment reference
standard and environmental value into the Marine and Coastal
Act 2018.
New section 42A(2) substitutes a reference to the Environment
Protection Act 1970 with a reference to the 2017 Act.
New section 42A(3) replaces "beneficial uses" with
"environmental values" and "State environment protection
policy" with "environment reference standard" in paragraphs (a)
and (b) of section 50 of the Marine and Coastal Act 2018
respectively. This provides that an environmental management
plan must include, among other things, proposed actions to be
12
undertaken to protect environmental values and a description of
how the plan promotes the objectives of any environment
reference standard applying to that area to align the terminology
with that of the 2017 Act.
Clause 46 amends section 54 of the Principal Act, which amends
section 41B(c) of the Subdivision Act 1988.
Clause 46(a) provides that in determining an application under
the Subdivision Act 1988, the Victorian Civil and
Administrative Tribunal must take account of, but is not required
to also give effect to, any environment reference standard.
Clause 46(b) substitutes the word "environment" for
"environmental" to provide for the correct term.
Clause 47 substitutes section 61 of the Principal Act to amend the Water
Act 1989 to provide that--
in issuing a water share, determining an application for
bulk entitlement and allocating an environmental
entitlement under the Water Act 1989, the original
decision-maker must have regard to any environment
reference standard and any Order made under
section 156 of the Environment Protection Act 2017;
and
in determining an application for review under the
Water Act 1989, other than determining an application
for review from a person objecting to the calculation or
application of a valuation equalisation factor or the
fixing of different fees based on valuation, the Victorian
Civil and Administrative Tribunal must take account of,
but is not also required to give effect to, any
environment reference standard and any Order made
under section 156 of the Environment Protection
Act 2017.
Orders made under section 156 of the Environment Protection
Act 2017 are mandatory obligations on the persons to whom they
apply.
13
Part 4--Repeal of amending Act
Clause 48 provides for the automatic repeal of the Bill on 1 December
2021. The repeal of the Bill does not affect in any way the
continuing operation of the amendments made by it
(see section 15(1) of the Interpretation of Legislation
Act 1984).
14