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Environment Protection and
Sustainability Victoria Amendment Bill
2014
Introduction Print
EXPLANATORY MEMORANDUM
General
In summary, the Bill--
· provides for a consistent and coordinated approach to waste
and resource recovery across the State by aligning the
governance of Waste and Resource Recovery Groups and
integrating State-wide and regional waste and resource
recovery infrastructure planning and implementation;
· changes the functions and membership of Sustainability
Victoria to better align it with the above approach;
· makes changes to the method of calculating the landfill levy,
provides for the indexation of that levy and changes the method
of distributing that levy;
· makes minor amendments to the processes under the
Environment Protection Act 1970 to remove duplication,
reduce the regulatory burden on industry and remove redundant
provisions.
571369 1 BILL LA INTRODUCTION 5/2/2014
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill which are to--
· amend the Environment Protection Act 1970 (the EP
Act)--
· to establish a new framework for State-wide
waste and resource recovery planning; and
· to establish new Waste and Resource Recovery
Groups to perform waste and resource recovery
functions; and
· to change the process for determining the landfill
levy by using fee units instead of dollar amounts;
and
· to change the method of distributing the landfill
levy; and
· to provide for the exemption of certain occupiers
of premises from the requirement to obtain a
works approval; and
· to repeal provisions relating to Environment and
Resource Efficiency Plans; and
· to change the process for renewing permits to
transport prescribed waste; and
· to repeal the requirement to lodge prescribed
industrial waste returns annually; and
· to amend provisions relating to clean up notices;
and
· amend the Sustainability Victoria Act 2005--
· to amend the membership of Sustainability
Victoria; and
· to make minor and consequential amendments;
and
2
· amend the Alpine Resorts (Management) Act 1997 to
make consequential amendments to that Act resulting
from earlier amendments to the Environment
Protection Act 1970.
Clause 2 provides for when the Bill will come into operation.
Subclause (1) provides that Parts 1, 2 and 5 of the Bill come into
operation on the day after the day on which it receives the Royal
Assent.
Subclause (2) provides for the remaining provisions of the Bill
to come into operation, subject to new subclause (3), on a day or
days to be proclaimed.
Subclause (3) provides that if a provision of the Bill does not
come into operation before 1 July 2015, it comes into operation
on that day.
A forced commencement date of 1 July 2015 will allow sufficient
time for an orderly transition to the new institutional and
governance arrangements for the waste and resource recovery
sector.
PART 2--AMENDMENTS TO ENVIRONMENT
PROTECTION ACT 1970
Part 2 of the Bill contains clauses 3 to 13, which amend the EP Act. In the
following explanations a reference to a section, Division, Part, or Schedule is
a reference to a provision of that Act.
Clause 3 amends section 4 to--
· insert a general definition of waste and resource
recovery region for the purposes of new Divisions 2
and 2AA (inserted by clauses 5 and 6) and specific
definitions for each region being--Barwon South West
Waste and Resource Recovery Region, Gippsland
Waste and Resource Recovery Region, Goulburn
Valley Waste and Resource Recovery Region,
Grampians Central West Waste and Resource
Recovery Region, Loddon Mallee Waste and Resource
Recovery Region, Metropolitan Waste and Resource
Recovery Region and North East Waste and Resource
Recovery Region. Each waste and resource recovery
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region is defined by reference to the municipal districts
within that region; and
· insert a general definition of Waste and Resource
Recovery Group for the purposes of new Divisions 2
and 2AA (inserted by clauses 5 and 6) and specific
definitions for each Waste Group being--Barwon
South West Waste and Resource Recovery Group,
Gippsland Waste and Resource Recovery Group,
Goulburn Valley Waste and Resource Recovery
Group, Grampians Central West Waste and Resource
Recovery Group, Loddon Mallee Waste and Resource
Recovery Group, Metropolitan Waste and Resource
Recovery Group and North East Waste and Resource
Recovery Group. Each Waste and Resource Recovery
Group is defined by reference to the name of its waste
and resource recovery region; and
· insert a definition of Local Government Waste
Forum for the purposes of new section 49B (inserted
by clause 5); and
· repeal the definition of metropolitan districts as a result
of the definition becoming redundant.
Clause 4 amends section 19A to provide for the Environment Protection
Authority (the Authority) to be able grant an exemption to an
occupier of a scheduled premises (an occupier) from section
19A(2) in certain circumstances as well as an occupier who is
exempt from the need to hold a licence under the Act from the
requirement to obtain a works approval under existing sections
19A(1) and (2).
Subclause (1) inserts reference to an occupier "who is exempt
from the need to hold a licence under this Act" in existing
section 19A(4) to ensure that the Authority is able to exempt
such a person from compliance with existing section 19A(1)(a).
Subclause (2) inserts reference to an occupier "who is exempt
from the need to hold a licence under this Act" in existing
section 19A(5) to ensure that the Authority is able to exempt
such a person from compliance with existing section 19A(1)(b)
and (c).
4
Subclause (3) inserts reference to an occupier "who is exempt
from the need to hold a licence under this Act" in existing
section 19A(6) to ensure that the Authority is able to exempt
such a person from compliance with existing section 19A(1)(d).
Subclause (4) inserts new section 19A(6A) and (6B).
New section 19A(6A) provides for the Authority to grant an
exemption to an occupier of a scheduled premises in respect of
which a licence is in force under the Act, or who is exempt from
the need to hold a licence under the Act, from the requirement to
obtain a works approval under existing section 19A(2).
New section 19A(6B) provides the criteria with which the
Authority must be satisfied before granting an exemption under
new section 19A(6A).
Subclause (5) inserts reference to new section 19A(6A) in
existing section 19A(7) to ensure that any exemption granted
under new section 19A(6A) may be general or limited in
operation according to time or any other circumstances, and may
be revoked or amended by a written notice given by the
Authority.
Subclause (6) inserts reference to new section 19A(6A) in
existing section 19A(8) to exclude the existing offence provision
from applying to an occupier where any exemption under new
section 19A(6A) has been granted.
The effect of the amendments is to extend the ability of the
Authority to grant an exemption from the need to obtain a works
approval in certain circumstances to occupiers not required to
hold a licence and from section 19A(2) for which exemptions
cannot currently be granted. The Authority's power to grant
exemptions under existing section 19A(1) already exists but only
in respect to occupiers who are required to hold a licence.
Clause 5 inserts new Division 2 which establishes a Local Government
Waste Forum for each Waste and Resource Recovery Group.
New section 49B(1) provides for there to be a Local Government
Waste Forum for each waste and resource recovery region
consisting of representatives of the councils in the region.
New section 49B(2) provides that each council in a waste and
resource recovery region may nominate a representative to a
Local Government Waste Forum for that region. This ensures
5
that each council has a say in determining their representatives
for the Board of directors of their Waste and Resource Recovery
Group and is the same process that presently applies to the
Metropolitan Waste Management Group.
New section 49B(3) provides that the functions of a Forum are
to--
· nominate the 4 persons who are to be the
representatives of the councils for the purposes of
new section 49K(2)(a); and
· if there is a vacancy in the office of a director
nominated under new section 49K(2)(a), nominate a
person to fill that vacancy; and
· advise the Board of directors of the Waste and Resource
Recovery Group on matters and issues affecting the role
of councils in waste management and resource
recovery; and
· act as a conduit for consultation between the Waste and
Resource Recovery Group and the councils in the waste
and resource recovery region of that Group.
New section 49B(4) requires a Forum to develop procedures for
the purposes of new subsections (3)(a) and (3)(b) with the
councils. This will ensure the councils within each waste and
resource recovery region have control over how their
representation is determined.
Clause 6 substitutes the existing Division 2AA with a new Division 2AA
that provides for the establishment of each Waste and Resource
Recovery Group including the objectives, functions and powers
of each Group together with their membership and operating
requirement of the Groups. This Division is modelled on the
existing Division 2AC that applies to the Metropolitan Waste
Management Group but with some modifications and will apply
to all new Waste and Resource Recovery Groups including the
new Metropolitan Waste and Resource Recovery Group.
New section 49C(1) provides that subject to new section 49D
there are Waste and Resource Recovery Groups. The definitions
of each Waste and Resource Recovery Group and the municipal
districts covered by each Group are inserted into the existing
section 4 (see clause 3).
6
New section 49C(2) provides that each Waste and Resource
Recovery Group--
· is a body corporate with perpetual succession; and
· has a common seal; and
· may sue and be sued in its corporate name; and
· is capable of acquiring, holding and disposing of
personal property; and
· may take land on lease and grant sub-leases of leased
land; and
· subject to this Act, may do and suffer all acts and things
that a body corporate may by law do and suffer.
New section 49C(3) provides that the common seal of a Waste
and Resource Recovery Group can only be used in a way
approved by the Group.
New section 49C(4) provides that all courts and people acting
judicially must take judicial notice of the common seal of a
Waste and Resource Recovery Group.
New section 49D(1) provides that the Minister may, by Order
published in the Government Gazette, declare the date on which a
Group (including the renamed Metropolitan Waste and Resource
Recovery Group which will incorporate the municipal district of
the Mornington Peninsula Shire Council) commences operation.
This provision is important as it allows flexibility for the
commencement of each Group in order for the existing Regional
Waste Management Groups to be wound up in accordance with
existing section 50LB or new section 50LC at different times to
suit their individual circumstances.
New section 49D(2) provides that if a Group has not commenced
operation before 1 July 2015, the Group commences operation on
that date. This measure will ensure that the establishment of each
Group will occur by a specific date.
New section 49D(3) provides that--
· the Metropolitan Waste and Resource Recovery Group
is taken to be the successor in law of the Metropolitan
Waste Management Group; and
7
· the Board of directors of the Metropolitan Waste
Management Group is taken to be the Board of directors
of the Metropolitan Waste and Resource Recovery
Group appointed under new section 49K; and
· any reference to the Metropolitan Waste Management
Group in any Act other than the EP Act, regulation,
subordinate instrument or other document is taken to be
a reference to the Metropolitan Waste and Resource
Recovery Group unless the contrary intention appears.
As the Division applying to the existing Metropolitan Waste
Management Group will be substituted by clause 19, this
provision is important to ensure the continued operation of the
renamed Metropolitan Waste and Resource Recovery Group.
New section 49E provides that a Waste and Resource Recovery
Group is not, and is not to be taken to represent, the Crown.
This ensures the existing approach taken in respect to the current
Metropolitan Waste Management Group will apply to all new
Groups.
New section 49F provides that despite new section 49E 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.
The above ensures that appropriate governance arrangements are
in place for Groups.
New section 49G(1) provides that the objectives of Waste and
Resource Recovery Groups are--
· to undertake waste and resource recovery infrastructure
planning to meet the future needs of its waste and
resource recovery region while minimising the
environmental and public health impacts of waste and
resource recovery infrastructure; and
· to facilitate efficient procurement of waste and resource
recovery infrastructure and services for its waste and
resource recovery region through the collective
procurement of waste management facilities and waste
and resource recovery services in the region; and
8
· to integrate regional and local knowledge into State-
wide waste and resource recovery market development
strategies; and
· to educate businesses and communities within its waste
and resource recovery region to reduce waste going to
landfill by using waste and resource recovery
infrastructure and services efficiently; and
· to ensure Regional Plans and programs are informed by
local government, business and community and inform
State-wide waste and resource recovery planning and
programs.
New section 49G(2) requires a Group in seeking to achieve its
objectives to collaborate with councils, Sustainability Victoria,
the Authority, industry, business and the community.
This maintains the current approach contained in existing
section 50AC(2).
New section 49H provides for the functions of Waste and
Resource Recovery Groups to be--
· to plan for the future needs of waste and resource
recovery infrastructure within its waste and resource
recovery region consistently with the State Plan; and
· to facilitate the provision of waste and resource
recovery infrastructure and services by councils within
its waste and resource recovery region; and
· to facilitate the development of contracts for the joint
procurement of waste management facilities and waste
and resource recovery services within its waste and
resource recovery region; and
· to manage contracts in the performance of its objectives
and functions; and
· to work with Sustainability Victoria, councils,
businesses and communities to ensure State-wide waste
and resource recovery education programs are adapted
to the needs of its waste and resource recovery region
and to facilitate the delivery of those education
programs; and
9
· to advise, with Sustainability Victoria, councils and
businesses within its waste and resource recovery region
on best practices for waste and resource recovery
systems, facilities and services; and
· to support its waste and resource recovery region's
Local Government Waste Forum to enable the Waste
Forum to perform its functions; and
· to undertake waste and resource recovery projects as
funded by government, councils and other
organisations.
New section 49I(1) provides that subject to new subsection (2), a
Waste and Resource Recovery Group may do all things that are
necessary or convenient to enable it to carry out its functions and
achieve its objective.
New section 49I(2) provides that a Group cannot--
· 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.
New section 49J(1) provides that there is to be a Board of
directors of each Waste and Resource Recovery Group consisting
of 8 directors appointed in accordance with new section 49K.
New section 49J(2) provides that the Board of directors of a
Group--
· is responsible for the management of the affairs of the
Group; and
· may exercise all the powers of the Group.
New section 49K(1) provides that directors of a Waste and
Resource Recovery Group are to be appointed by the Governor
in Council on the recommendation of the Minister.
10
New section 49K(2) provides that of the directors--
· 4 must be nominated in accordance with new
section 49B by a Local Government Waste Forum to the
Minister for recommendation under new subsection (1);
and
· 4 must be recommended by the Minister who--
· must recommend a person who, in the opinion of
the Minister, has skills, experience or knowledge
that will assist the Group to carry out its
functions and achieve its objectives; and
· must attempt to ensure that collectively the
directors of the Group have skills, experience
or knowledge relating to local government,
financial management, contract management,
risk management, environmental policy, waste
management and materials efficiency.
New section 49K(3) provides that a person cannot be nominated
or recommended for appointment as a director if the person--
· is an insolvent under administration; or
· has been convicted of an indictable offence or has been
imprisoned for any offence within the preceding period
of 7 years.
New section 49K(4) provides that the Minister must appoint one
of the directors nominated under new subsection (2)(a) to be the
Chairperson of the Board of directors. This provision ensures the
Chairperson is a nominee of local government and is consistent
with existing section 50AG(4) of the EP Act.
New section 49K(5) provides that the Board of directors may
appoint one of the directors to be the Deputy Chairperson of the
Board of directors.
New section 49K(6) provides that if a Local Government Waste
Forum fails to make any nominations under new section 49B
within 2 months of being requested in writing by the Minister to
do so, the Minister may make any nominations required for the
purposes of that new section. This provision ensures that the
Minister can recommend suitability qualified persons for
appointment should the Forum not be able to and is consistent
with existing section 50AG(6).
11
New section 49L(1) provides that a director of a Waste and
Resource Recovery Group--
· holds office for the period specified in the instrument of
appointment, which must be a period of not more than
4 years; and
· holds office on the terms and conditions determined by
the Governor in Council; and
· may be re-appointed; and
· may resign from office by delivering a signed letter of
resignation to the Governor in Council; and
· may be removed from office at any time by the
Governor in Council.
New section 49L(2) provides that the Governor in Council must
remove a director from office if the director--
· becomes an insolvent under administration; or
· is convicted of an indictable offence or is imprisoned
for any offence; or
· fails to comply with new section 49N.
New section 49M(1) sets out who presides at a meeting of the
Waste and Resource Recovery Group and provides that a meeting
of a Group is to be presided over by--
· the Chairperson; or
· in the absence of the Chairperson, the Deputy
Chairperson; or
· in the absence of both the Chairperson and Deputy
Chairperson, a director elected by the directors present
at the meeting.
New section 49M(2) ensures that at least half of the members
appointed to a Group must be present before a decision can be
made by providing that a matter cannot be decided at a meeting
unless a majority of the directors appointed for the time being are
present.
12
New section 49M(3) provides that the decision on a question of
the majority of the directors present and voting on the question is
the decision of the Group.
New section 49M(4) sets out a mechanism to ensure there is not
a deadlock on a vote on a matter being considered by a Group by
providing that the person presiding at a meeting of a Group has--
· a deliberative vote; and
· in the event of an equality of votes on any question, a
second or casting vote.
New section 49M(5) sets out how a Group may meet and
provides that a Group may conduct all or any part of a meeting
by using telephones, video links or any other system of
telecommunication.
New section 49M(6) allows a Group to set out its own procedures
subject to any other requirements of the EP Act.
New section 49N provides for disclosure by directors of a Waste
and Resource Recovery Group of direct or indirect pecuniary
interests or conflicts of interest and how these are to be dealt with
at meetings of the Group.
New section 49O provides that acts and decisions of a Waste and
Resource Recovery Group are not invalid in certain situations
such as a vacancy in the membership of the Group or a defect or
irregularity in the appointment of a director of the Group.
Provision is also made that things done by or in relation to
persons purporting to act as directors of the Group are not invalid
in certain circumstances.
New section 49P provides that a Waste and Resource Recovery
Group may, by an instrument under its common seal, delegate to
the Chairperson, a director, the executive officer (the Chief
Executive in the case of the Metropolitan Waste and Resource
Recovery Group, see new section 49Q) or any employee of the
Group any function, duty or power conferred on the Group by or
under the EP Act or any other Act, other than the power of
delegation.
New section 49Q(1) provides that subject to new subsection (2),
a Waste and Resource Recovery Group must appoint an
executive officer of that Group.
13
New section 49Q(2) provides that the Metropolitan Waste and
Resource Recovery Group must appoint a Chief Executive
Officer with the approval of the Minister.
New section 49Q(3) provides that the executive officer or Chief
Executive Officer is responsible to the Group for the carrying out
of the Group's functions.
New section 49Q(4) requires the executive officer or Chief
Executive Officer to comply with the directions of the Group.
New section 49Q(5) provides that the executive officer or Chief
Executive Officer may, by instrument, delegate to any employee
of the Group any responsibility, power, authority, duty or
function conferred on the executive officer or Chief Executive
Officer by or under the EP Act, except the power of delegation.
New section 49R provides that a Waste and Resource Recovery
Group may employ any employees that are necessary to enable
the Group to perform its functions.
New section 49S provides that the Minister may issue written
directions to a Waste and Resource Recovery Group and a Group
must comply with a written direction of the Minister.
New section 49SA provides that a Waste and Resource Recovery
Group must comply with any procurement directions or
guidelines that have been issued by the Treasurer in consultation
with the Minister in carrying out its functions.
New section 49SB 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 49SC 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
14
· 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 49SA, the council is exempt from the
requirements of section 193 of the Local Government
Act 1989.
Clause 7 inserts a new section 50LC after the existing section 50LB.
This provision will enable the Minister to wind up an existing
regional waste management group.
New section 50LC(1) provides that despite existing section
50LB(1), the Minister may declare, by Order published in the
Government Gazette, that a regional waste management group
is dissolved.
New section 50LC(2) provides that before publishing an Order
under new subsection (1), the Minister may direct the regional
waste management group to prepare a statement of outstanding
issues relevant to the proposed transfer of assets and liabilities of
the group upon its dissolution.
New section 50LC(3) allows for the Order to specify that, upon
the dissolution of the regional waste management group, its
assets and liabilities must be transferred to a Waste and Resource
Recovery Group or to one or more councils.
New section 50LC(4) provides for the staff of the existing
regional waste management groups to be transferred to a
specified Waste and Resource Recovery Group on the dissolution
of an existing regional waste management group under new
section 50LC(1).
Clause 8 amends existing section 50S to make provision for the annual
indexation of the amount payable as the landfill levy on and after
1 July 2015.
Subclause (1) substitutes "Subject to subsection (2AAA), the
amount" in existing section 50S(2A) for "The amount" as a
consequence of the insertion made by subclause (2).
Subclause (2) inserts a new subsection (2AAA) after the existing
section 50S(2A) to provide for the amount of the levy payable
under the existing subsection (1) on and after 1 July 2015 to be
the amount specified in Schedule DA which is to be inserted by
clause 13.
15
Subclause (3) repeals section 50S(5). Section 50S(5) contains a
power to make regulations to adjust the landfill levy by up to
10% each year which is now redundant as a result of subclauses
(1) and (2).
Clause 9 repeals section 54B.
This section requires the occupier of premises who produces,
reprocesses, treats, stores or disposes of prescribed industrial
waste to lodge with the Authority an annual return containing the
prescribed particulars relating to the amount, category and quality
of the prescribed industrial waste. An associated offence exists
for not providing the prescribed information.
The information about this waste is collected as part of the
requirements of waste transport certificates so the requirement to
provide an annual return and its associated offence are therefore
redundant.
Clause 10 amends existing section 62A to provide for the Authority to
amend a clean up notice issued to the occupier of premises or any
other person to whom such a notice was directed under existing
sections 62A(1) or (1AA).
Subclause (1) inserts a new section 62A(1AB) that provides an
express power for the Authority to amend any requirement
specified in a notice under existing sections 62A(1) or (1AA) by
serving on the occupier of the premises, or other person to whom
the notice was directed, a written notice of amendment.
Subclause (2) amends the existing offence of contravening a
notice issued under existing section 62A(1) or (1AA) to provide
that the offence does not apply if the offence inserted by
subclause (3) applies.
Subclause (3) inserts a new section 62A(3A) that provides for it
to be an offence if the reporting requirements in a notice issued
under existing sections 62A(1) or (1AA) are not complied with.
Non-compliance with any requirement of a clean-up notice other
than a reporting requirement is an offence under existing
section 62A(3).
16
Clause 11 amends Schedule A.
Paragraph (a) omits reference to section 54B(2) as a consequence
of the repeal of section 54B by clause 9.
Paragraph (b) inserts an item into Schedule A to make the
offence under new section 62A(3A) inserted by clause 10(3) an
infringement offence. The infringement penalty for this offence
is 10 penalty units in the case of a body corporate and 5 penalty
units in the case of a natural person.
Clause 12 amends Schedule D to provide that the amounts contained in the
existing Schedule D only apply to the landfill levy before 1 July
2015. This amendment is required as a consequence of the
amendments contained in clause 8.
Clause 13 inserts a new Schedule DA into the EP Act that provides for the
amounts payable as a levy for each tonne of waste deposited on
or after 1 July 2015 in fee units. The inserted Schedule is as
follows--
Amount payable for each tonne deposited (in fee units)
Schedule C Premises Non-Schedule C Premises
Date when
waste is Municipal Industrial Municipal Industrial
deposited waste waste waste waste
on or after 4.45 4.45 2.23 3.90
1 July 2015
PART 3--FURTHER AMENDMENTS TO ENVIRONMENT
PROTECTION ACT 1970
Clause 14 amends section 4 of the EP Act to--
· insert a definition of Regional Waste and Resource
Recovery Implementation Plan (Regional Plan) for the
purposes of new Division 2AD (inserted by clause 19);
and
· insert a definition of State-Wide Waste and Resource
Recovery Infrastructure Plan (State Plan) for the
purposes of new Division 2AC (inserted by clause 19);
and
17
· insert a definition of Victorian Waste and Resource
Recovery Infrastructure Planning Framework for the
purposes of new Division 2AB (inserted by clause 19);
and
· repeal the definitions of Environment and Resource
Efficiency Plan, person who undertakes the scheduled
activity, register of scheduled activities and scheduled
activity as a result of each definition becoming
redundant (see clause 17); and
· repeal the definition of metropolitan council as a result
of the definition becoming redundant (see clauses 19
and 20); and
· repeal the definitions of metropolitan Melbourne,
Metropolitan Local Governments' Waste Forum,
Metropolitan Waste and Resource Recovery Strategic
Plan and Metropolitan Waste Management Group,
as a result of each definition becoming redundant
(see clause 19); and
· repeals the definition of regional waste management
plan, as a result of the definition becoming redundant
(see clauses 19, 20 and 21).
Clause 15 makes consequential amendments to existing section 13.
Subclause (1) repeals section 13(1)(ae) as a consequence of the
repeal of Division 4A of Part III (see clause 17).
Subclause (2) substitutes existing section 13(1)(nc) to ensure
it refers to "Regional Waste and Resource Recovery
Implementation Plan" in place of "regional waste management
plan" as a consequence of the amendments contained in
clauses 19, 20 and 21.
Clause 16 substitutes reference to "Regional Waste and Resource Recovery
Implementation Plan" for "regional waste management plan" in
existing section 19AI(3)(h) (see clauses 19, 20 and 21).
Clause 17 repeals Division 4A of Part III. The effect is the Environment
and Resource Efficiency Plans program is discontinued.
Clause 18 repeals sections 31A(1B) and 31A(2)(e)(iia) as a consequence of
the repeal of Division 4A of Part III (see clause 17).
18
Clause 19 substitutes existing Divisions 2AB to 2AD of Part IX with new
Divisions 2AB to 2AE.
Division 2AB contains provisions for the Victorian Waste and
Resource Recovery Infrastructure Planning Framework.
New section 50 defines what the Victorian Waste and Resource
Recovery Infrastructure Framework means.
New section 50A provides for the objectives of the Victorian
Waste and Resource Recovery Infrastructure Planning
Framework.
Division 2AC provides for the provisions relating to the
State-Wide Waste and Resource Recovery Infrastructure Plan.
New section 50AA provides that Sustainability Victoria must
prepare a State Plan in accordance with Division 2AC, sets out
the objective of the State Plan and requires that the State Plan be
submitted to the Minister within 6 months after the date on which
clause 19 comes into operation.
New section 50AB(1) sets out the content requirements for the
State Plan including a provision that the State Plan must include
any matters required by guidelines made under new
section 50CA.
New section 50AB(2) requires that the State Plan must
be consistent with any policy and any government policies.
A policy under the EP Act means a State environment protection
policy or a waste management policy made under the Act and
reference to government policies is intended to have its ordinary
meaning and is not defined.
New section 50AB(3) provides that if a State Plan is inconsistent
with a policy, the policy prevails to the extent of the
inconsistency.
New section 50AC provides for who Sustainability Victoria must
consult with before submitting a draft State Plan to the Minister.
New section 50AD(1) provides that upon receiving the State Plan
the Minister may approve the Plan, approve the Plan with
amendments or return the Plan to Sustainability Victoria for
amendment.
19
New section 50AD(2) provides that if the Minister returns the
State Plan for amendment the Minister must give directions to
Sustainability Victoria as to the amendments required to be
made.
New section 50AD(3) provides that Sustainability Victoria
must comply with a direction of the Minister under new
section 50AD(2) within 30 days or a longer period specified
by the Minister.
New section 50AE requires an approved State Plan to be
published in the Government Gazette, specifies the period within
which it must be published, provides for the Plan to commence
on the date the notice is published in the Government Gazette or
such later date specified in the notice and provides that the State
Plan remains in force until it is replaced by another Plan.
New section 50AF(1) provides that Sustainability Victoria must
publish on its website a copy of the State Plan approved by the
Minister under new section 50AD within 7 days of the Minister
publishing a notice of approval in the Government Gazette under
new section 50AE.
New section 50AF(2) provides that Sustainability Victoria must
publish on its website a revised copy of the Plan if it has been
amended or varied under new section 50AG.
New section 50AG(1) allows Sustainability Victoria to prepare
draft amendments to the State Plan at any time.
New section 50AG(2) provides that the Minister may at any time
direct Sustainability Victoria to prepare draft amendments to the
State Plan within a specified period of time.
New section 50AG(3) provides that the Minister may at any time
make a variation to the State Plan that is declaratory, machinery
or administrative in nature. This allows the Minister to make
minor variations to the Plan that do not impact on the Plan's
application. For example a variation might include changing the
name of a body referred to in the Plan.
New section 50AG(4) provides that new sections 50AC, 50AD
and 50AE apply to an amendment of the State Plan under
subsections (1) and (2) as if the amendment were a draft State
Plan. This ensures that there is a public record of any
amendments made.
20
New section 50AG(5) provides that new sections 50AD and
50AE apply to a variation of the State Plan under subsection (3)
as if the variation were a draft State Plan. This ensures that there
is a public record of any variations made.
New section 50AH(1) provides that, subject to new section
50AH(2), Sustainability Victoria must prepare a draft revised
State Plan based on a review of the existing Plan within 5 years
of the date the existing Plan took effect. An amendment or
variation to the Plan will not impact on the timing of a review
under this section.
New section 50AH(2) provides a mechanism for the Minister to
require Sustainability Victoria to prepare a revised draft Plan
within 12 months of the date of the request.
Division 2AD provides for the provisions relating to Regional
Waste and Resource Recovery Implementation Plans.
New section 50B(1) provides that each Waste and Resource
Recovery Group must prepare a Regional Plan for its waste and
resource recovery region.
New section 50B(2) provides that subject to new subsection (3),
each Waste and Resource Recovery Group must submit a draft
Regional Plan to Sustainability Victoria and to the Authority
within 12 months after the date on which the State Plan takes
effect. This requirement will be triggered when a new State Plan
is prepared following a review under new section 50AH.
New section 50B(3) contains a provision dealing with the first
Regional Plan of the Metropolitan Waste and Resource Recovery
Group and provides that a draft Regional Plan must be submitted
within 3 months after the date on which the first State Plan takes
effect.
New section 50B(3) will be spent after the first Regional Plans
are made as the provision is designed only to provide for the
making of the first Plans.
New section 50B(4) provides that the Authority must make any
comments within 60 days of receiving a draft Regional Plan.
New section 50BA provides that the objective of a Regional Plan
is to set out how the waste and resource recovery infrastructure
needs of a waste and resource recovery region will be met over at
least a 10 year period.
21
New section 50BB(1) sets out the content requirements for a
Regional Plan including a provision that the Plan must include
any matters required by guidelines made under new
section 50CA.
New section 50BB(2) requires that the Regional Plan must be
consistent with any policy and any other government policies.
Like the State Plan required under new section 50AB, a policy
under the Act means a State environment protection policy or a
waste management policy made under the EP Act and reference
to government policies is intended to have its ordinary meaning
and is not defined under the EP Act.
New section 50BB(3) provides that if a Plan is inconsistent with
a policy, the policy prevails to the extent of the inconsistency.
New section 50BC provides for who a Waste and Resource
Recovery Group must consult with before submitting a draft
Regional Plan to Sustainability Victoria and the Authority.
New section 50BD(1) provides that on the submission of a draft
Regional Plan to Sustainability Victoria and to the Authority
under new section 50B, the Waste and Resource Recovery Group
and Sustainability Victoria must work together to integrate the
priorities and directions of the Regional Plans and the State Plan
and to resolve any differences in the Plans.
New section 50BD(2) provides that the relevant Group and
Sustainability Victoria have joint responsibility to integrate the
Plans for a period of up to 6 months. This time limit is the
maximum allowed.
New section 50BD(3) provides that Sustainability Victoria and
the relevant Group must--
· take into account any comments made by the Authority;
and
· amend the Schedule to the draft Regional Plan if the
Authority objects to the inclusion of a proposed landfill
on the ground that it is unlikely to meet the
requirements of a relevant policy.
New section 50BD(4) provides that the integration process must
comply with any guidelines issued under new section 50CA.
22
New section 50BD(5) provides that a Group must submit a draft
Regional Plan to the Minister for approval--
· no later than 6 months after submitting a draft to
Sustainability Victoria and the Authority under new
section 50B; and
· not before either the Authority has provided its
comments under new section 50B(4) or the 60 days in
which the Authority may comment on the Plan have
expired.
New section 50BD(6) provides that upon receiving a Regional
Plan prepared under new subsection (5), the Minister may
approve the Plan, approve the Plan with amendments or return
the Plan to the relevant Group for amendment.
New section 50BD(7) provides that if the Minister returns the
Plan for amendment the Minister must give directions as to the
amendments required to be made.
New section 50BD(8) provides that a Group must comply with a
direction of the Minister under new subsection (7) within 30 days
or a longer period specified by the Minister.
New section 50BE requires a notice of approval of an approved
Regional Plan to be published in the Government Gazette,
specifies the period within which the notice must be published,
provides for the Plan to commence on the date the notice is
published in the Government Gazette or such later date as
specified in the notice, and provides that the Plan remains in
force until it is replaced by another Plan.
New section 50BF(1) provides that a Waste and Resource
Recovery Group must publish a copy of its Regional Plan on its
Internet site within 7 days of a notice of approval of the Plan
being published in the Government Gazette.
New section 50BF(2) provides that Sustainability Victoria must
publish a copy of a Regional Plan on its Internet site within
7 days of a notice of approval of the Plan being published in the
Government Gazette.
New section 50BF(3) provides that a Waste and Resource
Recovery Group and Sustainability Victoria must each publish
on its Internet site a revised copy of a Regional Plan within
23
7 days of a notice of approval of an amendment or variation to
the Plan being published in the Government Gazette.
New section 50BG(1) allows a Waste and Resource Recovery
Group to prepare draft amendments to its Regional Plan at any
time. A Group can amend the schedule of existing and required
waste and resource recovery infrastructure to add or remove
landfills or other infrastructure.
New section 50BG(2) provides that the Minister may at any time
direct a Group to prepare draft amendments to its Regional Plan
within a specified period of time.
New section 50BG(3) provides that the Minister may at any time
make a variation to a Regional Plan that is declaratory,
machinery or administrative in nature. This allows the Minister
to make minor variations to the Plan that do not impact on the
Plan's application. For example, a variation might include
changing the name of a body referred to in the Plan.
New section 50BG(4) provides that new sections 50BC, 50BD
and 50BE apply to an amendment of a Regional Plan under new
subsections (1) and (2) as if the amendment were a draft Regional
Plan. This ensures that there is a public record of any
amendments made.
New section 50BG(5) provides that new sections 50BD(6) to (8)
and 50BE apply to a variation of a Regional Plan under new
subsection (3) as if the variation were a draft Regional Plan.
This ensures that there is a public record of any variations made.
New section 50BH(1) provides that a council must perform its
waste management functions consistently with the Regional Plan
which applies to the council's municipal district.
New section 50BH(2) requires that if a council disposes of waste
in a waste and resource recovery region other than the region in
which the council's municipal district is located, the disposal of
the waste must be consistent with the Regional Plan applying to
the other waste and resource recovery region.
New section 50BH(3) provides that any person involved in the
generation, management or transport of waste within the
municipal districts covered by a Regional Plan must not do
anything that is inconsistent with the relevant Regional Plan in
relation to that waste while the waste is in that region.
24
New Division 2AE provides for other general provisions related
to the State Plan and Regional Plans.
New section 50C(1) allows the Authority to refuse to consider an
application for a works approval or an application for the issue or
amendment of a licence in relation to a waste management
facility if--
· the operations of the facility could be inconsistent with
the State Plan or a relevant Regional Plan; or
· the applicant is in breach of any relevant requirements
of a Schedule of existing and required waste and
resource recovery infrastructure within a Regional Plan.
New section 50C(2) requires the Authority, subject to subsection
(3), to refuse to consider an application for a works approval in
relation to a new landfill if the landfill is not provided for in the
proposed sequence for the filling of available landfill sites in a
relevant Schedule of existing and required waste and resource
recovery infrastructure within a Regional Plan.
New section 50C(3) provides the Authority cannot refuse to issue
a works approval under new subsection (2) if the landfill is
privately owned and will only receive wastes that consist of
substances that were owned by the owner of the site before the
substances became wastes.
New section 50C(4) requires the Authority to give any person
whose application is refused under this section a written notice
setting out the reason for the refusal.
New section 50CA(1) allows the Minister to make guidelines in
relation to the making, amendment and integration of the State
Plan and the Regional Plans.
New section 50CA(2) provides that without limiting new
subsection (1), the guidelines may include requirements relating
to content, accountability, transparency and consultation.
Clause 20 repeals Division 2A of Part IX. This Division sets out the
requirements for establishing regional waste management groups
which will be replaced by the new Regional Waste and Resource
Recovery Groups.
25
Clause 21 repeals Division 2B of Part IX. This Division sets out the
requirements for regional waste management plans which will
be replaced by the new Regional Plans.
Clause 22 inserts a new subsection (1A) into section 53F. The insertion
allows the Authority to issue or renew a permit to transport
prescribed waste or prescribed industrial waste for up to 5 years.
Clause 23 amends the existing section 53G in order to allow for fees
payable on permits to transport prescribed waste or prescribed
industrial waste to be paid on issuing or as an annual fee for each
year of the permit.
Subclause (1) omits the word "annual" from section 53G(1) to
support the insertion to be made by subclause (2).
Subclause (2) inserts a new section 53G(1A) that provides for the
fee for the issue or renewal of a permit to transport prescribed
waste or prescribed industrial waste to be paid--
· in advance as a lump sum constituted of the fees for
each year of the permit; or
· as an annual fee for each year of the permit.
Clause 24 makes consequential amendments to existing section 55 as a
result of the repeal of Division 4A of Part III by clause 17.
Subclause (1) omits reference to "or any premises at which a
scheduled activity is being undertaken" in section 55(1)(a).
Subclause (2) repeals sections 55(3)(aa) and 55(3DA).
Subclause (3) omits reference to section 55(3DA) from existing
section 55(3E) as a result of its repeal by subclause (2).
Clause 25 substitutes section 70(6B) to provide that monies paid into
the Environment Protection Fund under section 70(3)(aba)
(the landfill levy) may only be applied in accordance with new
section 70E inserted by clause 29.
Clause 26 makes consequential amendments to section 70A as a result of
the substitution of section 70(6B) (see clause 25) and inserts
provisions saving the operation or any existing priority statement
or guidelines.
26
Clause 27 makes various amendments to the way the priority statement is
made and published.
Subclause (1) inserts a new section 70B(1AA) that provides that
the Minister may prepare a statement setting out, in order of
priority, the matters in respect of which the Premier and the
Minister intend money to be applied under new section 70F(3)
(see also clause 29).
Subclause (2) makes a consequential amendment to section
70B(1) to refer to new section 70B(1AA) inserted by
subclause (1).
Subclause (1) and (2) are necessary amendments to reflect the
requirement to establish and maintain the Sustainability Fund
Account within the Department of Environment and Primary
Industries provided for in clause 29. The amendments do not
change the Minister's powers in respect of making a priority
statement for the Sustainability Fund Account.
Subclause (3) substitutes reference to the Department of
Environment and Primary Industries' Internet site in place of
reference to Sustainability Victoria's website. This amendment
reflects the administrative efficiencies of having the priority
statement published by the Department as a result of the
Sustainability Fund Account to which it relates being within the
Department.
Subclause (4) substitutes "signing" for "approving" in
section 70B(1)(e).
Subclause (5) makes a consequential amendment to
section 70B(1)(f) as a result of the amendment made in
subclause (4).
Subclauses (4) and (5) reflect that there is no need for the
Premier and Minister to physically sign the document
representing the priority statement for it to be approved.
Clause 28 amends existing section 70C to require the Minister to publish
the whole of guidelines required by existing section 70A(b) in the
Government Gazette and on the Internet site of the Department of
Environment and Primary Industries and makes consequential
amendments to remove references to publishing a notice of the
making of the guidelines as the whole of the guidelines will now
be published.
27
Clause 29 Substitutes new sections 70D to 70F for the existing sections.
New section 70D(1) requires the Authority to maintain a General
Landfill Levy Account within the Environment Protection Fund.
New section 70D(2) requires the Authority to credit to the
General Landfill Levy Account all amounts paid into the
Environment Protection Fund under section 70(3)(aba).
New section 70D(3) provides that this section does not affect the
operation of existing section 70(7).
New section 70D effectively replicates the existing requirements
of regulation 6 of the Environment Protection (Distribution of
Landfill Levy) Regulations 2010 which will become redundant
due to amendments contained in this clause and clause 25.
New section 70E(1) provides that the Department of
Environment and Primary Industries must establish and maintain
an account called the Municipal and Industrial Landfill Levy
Trust Account.
New section 70E(2) provides that the Authority must credit to the
Municipal and Industrial Landfill Levy Trust Account any
amount standing to credit of the General Landfill Levy Account
at the end of each quarter.
New section 70E(3) provides that money paid into the Municipal
and Industrial Landfill Levy Trust Account may only be applied
by paying an amount to one or more of the following bodies--
· the Authority;
· Sustainability Victoria;
· a Waste and Resource Recovery Group;
· a public entity or other body established for public
purposes to be used for environment assessment,
protection, restoration or improvement purposes.
New section 70E(4) provides that any amount paid under new
section 70E(3) must be paid in accordance with a determination
under new section 70E(5).
28
New section 70E(5) provides that the Minister must make a
determination specifying--
· an amount to be paid under new subsection (4) or the
methods by which the amounts are to be calculated; and
· the times at which each amount must be paid; and
· the period for which the determination applies.
New section 70E(6) provides that this section does not affect the
operation of existing section 70(7).
New section 70E effectively replicates the existing
section 70(6B)(a) and the requirements under that section
providing for regulations specifying who the money is to be
paid to, and how the amounts to be paid are to be calculated.
New section 70E is more narrowly focussed than the existing
section 70(6B)(a) and limits who the Minister can determine
monies are paid to and the use of those monies.
New section 70F(1) provides that the Department of
Environment and Primary Industries must establish and maintain
an account called the Sustainability Fund Account.
New section 70F(2) provides that the Department must credit to
the Sustainability Fund Account any amount standing to the
credit of the Municipal and Industrial Landfill Levy Trust
Account at the end of each quarter.
New section 70F(3) provides that money paid into the
Sustainability Fund Account may only be applied by paying an
amount--
· with the consent of both the Premier and the Minister,
for the purposes of fostering environmentally
sustainable uses of resources and best practices in waste
management to advance the social and economic
development of Victoria; or
· with the consent of both the Premier and the Minister,
for the purposes of fostering community action or
innovation in relation to the reduction of greenhouse gas
substance emissions or adaptation or adjustment to
climate change in Victoria.
29
New section 70F(3) imposes the same limitations and
requirements on the Premier and the Minister as existing section
70(6B)(b) and (c). Any monies applied are also subject to the
priority statement and guidelines issued under existing
sections 70B and 70C.
Clause 30 repeals sections 71(1)(cb) and (cc) as these powers are redundant
as a result of the repeal of Division 4A of Part III of the EP Act
by clause 17.
Clause 31 contains savings and transitional provisions.
Subclause (1) provides that despite the repeal of Division 2AC
of Part IX by clause 19, the Metropolitan Waste Management
Group established under section 50 of the EP Act as in force
immediately before the commencement of clause 19 continues in
operation until the commencement of the Metropolitan Waste
and Resource Recovery Group under new section 49D.
Subclause (2) provides that despite the repeal of Division 2AD of
Part IX by clause 19 the Metropolitan Waste and Resource
Recovery Strategic Plan as in force immediately before the
commencement of that clause continues to have effect until the
Regional Plan for the waste and resource recovery region of the
Metropolitan Waste and Resource Recovery Group takes effect.
Subclause (3) provides that despite the repeal of Division 2B of
Part IX by clause 21, a regional waste management plan as in
force immediately before the commencement of that clause
continues to have effect until a Regional Plan that provides for
the same municipal districts provided for in the regional waste
management plan takes effect.
Subclause (4) provides that despite the amendment of section 70
by clause 25, any money standing to the credit of the general
landfill levy account under the relevant regulations is taken to
be money standing to the credit of the General Landfill Levy
Account under new section 70D.
Subclause (5) provides that despite the substitution of section 70F
by clause 29, any money standing to the credit of the
Sustainability Fund Account as in force immediately before the
commencement of that section is taken to be money standing to
the credit of the Sustainability Fund Account under new
section 70F.
30
Subclause (6) provides that any reference to the 2014 Act in
subclauses (1) to (5) means the Environment Protection and
Sustainability Victoria Amendment Act 2014.
Clause 32 amends Schedule A to omit the items from Schedule A
concerning offences under sections 26F(1), 26F(2), 26F(3), 26J,
26M and 26O as a consequence of the repeal of Division 4A of
Part III by clause 17.
PART 4--AMENDMENT OF SUSTAINABILITY VICTORIA
ACT 2005
Part 4 of the Bill contains clauses 33 to 35, which amend the Sustainability
Victoria Act 2005. In the following explanations, a reference to a section,
Division, Part, or Schedule is a reference to a provision of that Act.
Clause 33 amends the definition of Department in section 3 to substitute
"Environment and Primary Industries" for "Sustainability and
Environment" to reflect that Department's name change.
Clause 34 inserts a new function for Sustainability Victoria as
paragraph (oa) of section 7 to prepare the State Plan and assist in
the preparation of Regional Plans under the EP Act.
Clause 35 amends existing section 9.
Subclause (1) substitutes existing sections 9(3)(b) and 9(3)(c) to
require--
· two members to have skills, experience or knowledge
relating to waste management within local government;
· two members to have skills, experience or knowledge
relating to the waste industry.
Subclause (2) substitutes reference to "subsection (3)" in
section 9(4) with "subsection (3)(a)" to ensure the skills,
experience and knowledge requirements apply to the members
appointed under the substituted sections 9(3)(b) and 9(3)(c) (see
subclause (1)).
Subclause (3) omits the following words from section 9(4)(b)--
· local government; and
· industry.
31
Subclause (4) inserts after existing section 9(4) a new
section 9(4A) that provides that a member appointed under
section 9(3)(b) or 9(3)(c) and in office immediately before the
commencement of this clause remains in office until his or her
term of office expires.
Subclause (5) inserts after section 9(5) a new section 9(6) that
provides that despite the amendment of this section by this
clause, Sustainability Victoria continues as the same legal entity
as in operation immediately before the commencement of that
section.
PART 5--AMENDMENT OF ALPINE RESORTS
(MANAGEMENT) ACT 1997
Clause 36 amends paragraph (b) of section 5 of the Alpine Resorts
(Management) Act 1997 to omit reference to section 52B(4) of
the Environment Protection Act 1970 which has been repealed.
PART 6--REPEAL OF AMENDING ACT
Clause 37 provides for the repeal of this Act on 1 July 2016. The repeal of
this Act 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).
32