Victorian Government implements first stage of environmental protection overhaul

The Victorian Government recently introduced a bill to parliament as the first stage of the long anticipated overhaul to Victorian environmental protection legislation.

1. Background

In 2016, an independent ministerial advisory committee conducted an inquiry into the Environment Protection Authority Victoria (EPA). As previously reported by Partner, Meg Lee, and lawyer, Linda Choi, the Inquiry’s report was released in May 2016 and examined a range of matters relating to the EPA’s role, duties, powers and regulatory tools, the Victorian community and industry’s expectations of the EPA as its environmental regulator, and the EPA’s governance structure and funding mechanisms.

The Andrews Government subsequently confirmed support or support in principle for all 48 recommendations made in the Inquiry, including a ‘comprehensive overhaul’ of the Environment Protection Act 1970 (EP Act). Partner, Meg Lee, and lawyer, Linda Choi reported on the Government’s response to the Inquiry in January 2017.

2. The Environment Protection Bill 2017

The Environment Protection Bill 2017 (Vic) (the Bill) was introduced to Victorian Parliament in June 2017 as the first stage of implementing the recommendations made in the Inquiry.

The Bill will create a new Act which updates the governance of the EPA. The Bill is intended to operate in conjunction with the EP Act, at least for the near future. In particular, the Bill:

• • re-establishes the EPA as a more independent public entity under the Public Administration Act 2004 (Vic) (rather than an administrative office of the Department of Land, Environment, Water and Planning), with a governing board, comprising up to nine board members to be appointed by the Governor in Council (on the recommendation of the Minister);
  • states, for the first time, the EPA’s objective:

to protect human health and the environment by reducing the harmful effects of pollution and waste.

• creates a statutory position of chief executive officer, who must not be a member of the governing board;
• creates the role of the chief environmental scientist who is responsible for providing advice to the EPA relating to the EPA’s objectives, functions and duties;
• limits the requirement for the Department of Health and Human Services to review works approval and certain licensing applications so it is only required to review applications which are reasonably likely to have significant implications for public health;
• adds a new consideration allowing the EPA to refuse to issue, transfer or amend an authorisation (including a works approval, licence and prescribed waste or prescribed industrial transport permit), if in the EPA’s opinion, the issue, transfer or amendment would be likely to endanger public health;
• other consequential amendments including those relating to the mechanics of the governance changes.

Once enacted, the Bill will come into force before 1 July 2018.

3. Next Steps

The EP Act is almost 50 years old, and despite numerous amendments, it is in much need of updating so that it aligns with current governance and environmental standards and community expectations. Accordingly, it is likely that the Bill will be enacted later this year without significant opposition because the amendments are not controversial and it is widely recognised that amendment to the governance of environment protection is required in Victoria.

The regulatory updates and increased funding in the 2017-2018 budget mean that the EPA will hopefully run more efficiently and have greater capacity to regulate and enforce environmental law within Victoria. The key purpose of the Bill is to prepare the EPA for further environmental protection reforms which are currently being prepared. As foreshadowed in the Government’s Inquiry response, a second bill containing these reforms is intended to be introduced into Parliament in 2018.

This second bill will be a complete rewrite of the environmental protection provisions and will result in the repeal of the current EP Act. The second bill will implement many of the other recommendations of the inquiry including introducing a general preventative duty to protect the Victorian environment against pollution and waste impacts (Inquiry recommendation 12.1). Industry and businesses with works approvals and environmental licences are likely to be impacted by the second bill. Industry and businesses should monitor information on this bill as it is released and consider the implications to their operations at the earliest opportunity.

Gadens will provide a further update when the second bill is released.