What is in the Environment Protection Amendment Bill 2018?

The Environment Protection Amendment Bill 2018 (the Bill) is the second tranche of reforms following the Ministerial Advisory Committee's Final Report of the Independent Inquiry into the Environment Protection Authority (EPA)

The first major reform, the Environment Protection Act 2017 created a new statutory objective for the EPA and clarified its focus; to protect human health and the environment from the harmful impact of waste and pollution.

The Bill, if passed, will repeal and replace the current Environment Protection Act 1970 (the old Act), and create a prevention-focussed regulatory regime that gives the EPA a wider array sanctions and controls to manage high-risk activity.

The Bill has a forced commencement date of 1 December 2020, but is intended to take effect from 1 July 2020.

General environmental duty

The cornerstone of the Bill is a general environmental duty modelled after the duty on employers in the Occupational Health and Safety Act 2004.  It creates a positive obligation on duty-holders to proactively minimise the risk of harm to health and the environment from pollution and waste.  Both individuals and people conducting a business or undertaking (duty-holders) breach the duty if they fail to take steps that are reasonably practicable to minimise the risk of harm.

The type of actions required of duty-holders are laid out in the Bill and include:

• using and maintaining plant, equipment, processes and systems in a manner that minimises risks of harm to human health or the environment from pollution and waste; 
• using and maintaining adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised; and
• ensuring that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health or the environment from pollution and waste.

Those who breach the duty while conducting a business or an undertaking commit an indictable offence, and face a fine.

This duty will impact businesses, bodies and departments who engage in activities that pose a risk of harm to health or the environment from pollution and waste.

Permissions

There are three main tiers of permissions within the Bill: Licences (which are divided into operating, development and pilot project licences), permits and registrations.

In the old Act, licences and other types of approvals only applied to 'premises', whereas the Bill's permissions structure will apply to 'activities'.  The regulations will prescribe the types of activities that can be approved for each permission type.

The most easily granted permission, registrations, are meant for low to medium risk activity.  Permits are for less complex activities with a medium to high risk, and will include a standardised assessment process within the regulations.

The most onerous permission, in terms of application process and possible conditions is a licence.  It is designed for complex and high-risk activities and allows the EPA to customise conditions to suit the project.

Bodies that hold old permissions immediately prior to the Bill's commencement date will hold new permissions from the day the Bill commences.

Contaminated land

The Bill will create a duty to notify the EPA and an obligation to manage land contaminated by waste, a chemical substance or any other prescribed substance.  For the duty to apply, the contamination must be on or under the surface of the land, be present in a concentration above the background level and create a risk to human health or the environment.

If the land is contaminated, the Bill makes it clear that the person with management or control of the land is under the general duty to minimise risks of harm to human health and the environment from the contaminated land, which may include cleaning up the land.

The person with management or control must notify the EPA that the land is contaminated as soon as reasonably practicable.  Failure to do so results in a civil penalty.

Third party rights

The Bill will enable third parties to enforce breaches of the law and seek civil remedies where the EPA has not taken action.  The third party must be a person whose interests are affect by the contravention or non-compliance with the law, or anyone else with leave of the court where it is in the public interest.

If eligible, the third party has the same rights as the EPA to seek orders remedying or restraining breaches of the law, its regulations, or to licences and other permissions.

The right to enforce the law and seek remedies creates a new accountability mechanism on the EPA, where the regulator has failed or chose not to take action.

The Bill passed the Legislative Council on 9 August 2018.

For further information on the Bill and its implications, please contact:

Annette Jones
Principal Solicitor
8684 0444

Natasha Maugueret 

Managing Principal Solicitor 

8684 0223

This blog was produced with the assistance of Emma Buckley Lennox, Graduate Lawyer.

Director of Public Prosecutions publishes new policy

In August 2017, the Director of Public Prosecutions published the Policy of the Director of Public Prosecutions for Victoria (Policy).  The Policy follows a comprehensive review of the DPP's policy material and replaces all former DPP policies.

The Policy is required reading for anyone involved in prosecution or employed in an agency with prosecutorial or regulatory functions.  You can and should use the Policy to guide your prosecutorial decisions in line with modern prosecutorial principles.  We've produced a quick summary of what the policy covers to help you easily identify the areas you might find most relevant to your day to day functions.

What does the Policy cover?

The Policy supplements the Public Prosecutions Act 1994 and relevant case law to promote  transparency, accountability and consistency in prosecutorial decision-making.  It aims to reflect, accurately and succinctly, the needs of modern-day prosecutors.  Importantly, the overriding criteria in making the decision to prosecute remain that there is a reasonable prospect of a conviction and the prosecution is in the public interest.

In summary, the Policy covers:

• prosecutorial discretion 
• the role of the prosecutor
• victims and persons adversely affected by crime
• resolution of criminal proceedings by agreement between the prosecution and the accused
• the appropriate jurisdiction for indictable offences triable summarily
• undertakings and indemnities
• juries
• family violence
• appeals, references, retrials and reinvestigations
• takeover of prosecutions by the DPP
• proceeds of crime
• giving reasons for prosecutorial decisions
• advice from the Office of Public Prosecutions to external agencies
• detention orders under the Serious Sex Offenders (Detention and Supervisions) Act 2009.

The DPP has also said that he will not print the Policy for distribution, but will treat it as a living, electronic document, to be continually reviewed and accessed as needed.  This approach ensures that the Policy is consistently relevant and up-to-date.  You can follow the DPP on Twitter to receive notification of updates to the policy.

What doesn't the Policy cover?

Inevitably, some matters covered by former policies are not covered in the Policy.  After all, the single, 50-page Policy replaces over 50 former policies, issued over several years and totalling almost 500 pages.  In the Policy Foreword, the DPP notes that this series of former policies did not bear a sufficient connection to the practice of a modern-day prosecutor.  Generally speaking, the Victorian public prosecutions service has sought to excise any policy material that was out of date, was related to internal DPP procedures or was seen as an unnecessary recitation of the law.

To give just a few examples, the new Policy does not reproduce the former policies on media communication, the investigation of jury offences or protocols for the prosecution of joint State-Commonwealth matters.  Several policies relating to specific applications or pieces of legislation have also been retired, such as those on notifications under s 49(1) of the Coroners Act 2008, the granting of consent to prosecute under the Racial and Religious Tolerance Act 2001 and the granting of consent to extend time to prosecute under the Funerals Act 2006.

What else does the Policy mean for me?

Agencies with prosecutorial or regulatory functions may also wish to review their internal policies and manuals to ensure they are up-to-date.  VGSO have a team of regulatory and enforcement specialists who can assist with investigations, prosecutions, as well as drafting of relevant policies, manuals and staff training.

Where can I go for more information?

If you would like further advice about the Policy or its implications for your practice, please contact:

Alicia Robson
8684 0494
Acting Managing Principal Solicitor

Michael Rancie
8684 0266
Solicitor

Legislative instruments — Are yours in tune?

No inconvenience in government administration can, in my opinion, be allowed to displace adherence to the principle that a citizen should not be bound by a law the terms of which he has no means of knowing.

Chief Justice Barwick, Watson v Lee  (1979) 

Most of us know the maxim 'ignorance of the law is no excuse'.  But how can a citizen be expected to know about, let alone comply with, a law that has not been published?
Since 1 July 2011, new rules under the Subordinate Legislation Act 1994 (SLA) govern the preparation, making, publication and review of 'legislative instruments'.

The consequences of failing to comply with the SLA's requirements could be serious, including possible invalidity or disallowance of an instrument.  In this blog, we

• explain what is, and what is not, a 'legislative instrument';
• outline what the new laws say agencies must do; and
• give practical tips on things agencies should do to achieve best practice.

What is a legislative instrument?

To comply with the new laws, you first need to determine whether a particular instrument is legislative or administrative.   Put simply, any instrument that has a legislative character is a 'legislative instrument', unless otherwise designated or exempted  by the SLA (e.g. statutory rules and planning schemes) or other legislation.

Case law has developed principles for determining whether an instrument has a 'legislative character' by examining what the instrument does.  Under these principles, the distinction between legislative and administrative actions '…  is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases'.

A number of factors must be taken into account, such as whether the instrument alters pre-existing law, creates or changes legal rights and obligations, is mandatory or has general application.[1]   Usually, these principles are easy to apply — but not always.  In cases of doubt, given the potential consequences, it may be wise to seek legal advice.

In many cases, an instrument is specifically characterised as legislative or administrative by:

• the Subordinate Legislation Act 1994 [2]; 
• the Act under which the instrument is made; or
• the Subordinate Legislation (Legislative Instruments) Regulations 2011.

What does the SLA require?

The SLA imposes a number of requirements on agencies that make or administer legislative instruments, including those outlined below.

Preparation 

Agencies must

• consult other agencies and stakeholders during preparation, unless exempt;
• prepare a regulatory impact statement (RIS) if the instrument would impose an appreciable economic or social burden, unless exempt;
• conduct a human rights assessment of every proposed legislative instrument, identifying and justifying any limitation of the rights set out in the Charter of Human Rights and Responsibilities [3];  and
• prepare certificates of compliance with or exemption from these requirements.

Making 

Agencies must

• arrange tabling in Parliament of all new legislative instruments, unless exempt; and
• provide copies of all new legislative instruments and associated certificates (unless exempt) to Parliament's Scrutiny of Acts and Regulations Committee (SARC), which can recommend disallowance.

Publication

Agencies must

• publish all new legislative instruments in the Government Gazette, either in its next General edition, or in a Special edition within 10 working days (this often supersedes less onerous requirements in the authorising Act [4]); and
• prepare up to date consolidations of amended instruments, unless exempt; and
• publish copies of instruments in force, including any consolidations, on the internet and also make them available for public inspection in hard copy.

Legislative instruments exempt from RIS and tabling must still be gazetted.[5]

Good practice tips

There are a number of things not required by the SLA but which agencies should do as a matter of good practice to make the law more accessible and easier to understand for members of the public. They will also make administration easier.

In particular, it is good practice for agencies

• to draft using the standards and format for statutory rules, and to use plain English;
• to remake an instrument rather than make extensive amendments to it;
• to have a second person check the draft before an instrument is made — the criteria set out in the SLA at s. 13 (for proposed statutory rules) and at s. 25A (which SARC applies in reviewing instruments) provide useful checklists; and
• to retain revoked instruments and superseded consolidations on websites, so that members of the public can find what the law was at any point in time.

Getting In Tune - Legislative Instruments workshops

In conjunction with the Office of Chief Parliamentary Counsel, VGSO will be holding lunch time workshops for clients titled Getting In Tune - Legislative Instruments.

The workshops will cover the rules, procedures tips and traps of creating and maintaining legislative instruments.

These will be held on:
Tuesday 28 July, 12.30pm
Thursday 30 July, 12.30pm

To register your interest, please contact marketing.team@vgso.vic.gov.au 

For assistance on these issues contact:

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0416

Mark Miller
General Counsel

9947 1408

[1] See RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185 at 202, and Visa International Services Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 at 424. See also the Premier's Guidelines under the Subordinate Legislation Act 1994 published in the Government Gazette of 4 August 2011, at pages 1798 to 1799  Government Gazette of 28 August 2014 at pages 1906 to 1938.
[2] See the definitions of 'legislative instrument' and of instruments of a 'purely administrative nature' in s. 3.
[3] The VGSO's human rights and equal opportunity practice group can assist agencies with Charter assessments and the preparation of certificates:  Contact Catherine Roberts, Managing Principal Solicitor.
[4] See in particular section 16D of the Subordinate Legislation Act 1994, which deals with how to reconcile dual or competing publication requirements of the SLA and the authorising Act.
[5] See regulation 7 of, and Schedule 3 to, the Subordinate Legislation (Legislative Instruments) Regulations 2011.