Victoria’s approach to environmental protection and human health is changing soon.
Coming into effect from 1 July 2021, the General Environmental Duty (GED) will be the cornerstone of the new Environment Protection Amendment Act 2018 (Vic) (EPA Act). The new GED will require all Victorian businesses and individuals to take proactive steps to prevent and minimise harm to the environment and human health.
A breach of the GED by a business may lead to civil and/or criminal penalties, regardless of whether harm has eventuated. In certain circumstances, company officers (directors and managers) of a business can be held personally liable for the acts of their companies.
Individual company officers can be fined up to $660,800, in addition to up to five years’ imprisonment for intentional or reckless breaches. In the case of corporations, a breach of the GED may attract fines of up to $3.3 Million.
The GED imposes a positive obligation on ‘a person who is engaging in an activity’ to proactively eliminate or otherwise reduce risks of harm to human health or the environment from pollution or waste ‘as reasonably as practicable’.
Some common examples of activities that would need to be managed, include:
What is ‘reasonably practicable’ will depend on a number of factors, including the likelihood of the risks of harm, the potential degree of harm, the state of knowledge and the suitable ways and costs of eliminating or reducing risks.
Essentially, the question of whether a business has complied with the GED will be determined by what reasonably practicable steps could have been taken having regard to the particular facts and circumstances of the potential breach.
The GED is modelled on the general duty of protection provided by Victoria’s Occupational Health and Safety Act 2004, which requires company officers to protect health and safety so far as is reasonably practicable.
In a similar way, company officers need to exercise ‘due diligence’ and adopt a proactive approach to ensuring compliance with the EPA Act.
Company officers will need to understand the risks presented by the land they own and control and how those risks can be managed.
Once the risks have been identified, company officers will be required to implement ‘reasonably practicable measures’ to eliminate or reduce the likelihood of those risks occurring. If a company officer fails to have these measures in place, they will be in breach of the EPA Act.
The EPA Act provides a non-exhaustive list of actions that must be undertaken to comply with the GED, including:
Businesses can begin preparing for the new GED by:
The Environment Protection Authority Victoria has also published Guidelines and Compliance Codes, which will provide guidance on how businesses can comply with the new GED, within their relevant sector, including:
If you require specific advice in relation to how your business may be impacted by the new GED, please contact Andrea Towson.
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Andrea Towson, Partner
Eylem Onal, Lawyer