The General Environmental Duty under Victoria's new environmental regulatory regime

Victoria's new environmental regulatory regime will come into effect on 1 July 2021. This is the commencement date of a suite of amendments to the Environment Protection Act 2017 (EPA Act 2017) made by the Environment Protection Amendment Act 2018 and the Environment Protection Amendment Act 2019.

The new regulatory regime will shift its focus from a reactive to a prevention-based approach, underpinned by the new General Environmental Duty (GED). The GED is a positive duty to proactively identify and manage environmental risk and is a shared responsibility of all Victorians.

The GED is contained in Part 3.2 of the EPA Act 2017. The GED states that:

A person who is engaging in an activity that may give rise to risk of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.¹

The GED is intended to be enduring, flexible and fill regulatory gaps where no specific requirement exists in current legislation. For example, specific practices or technologies do not have to identified upfront and the duty can apply to new hazards that emerge in the future.²

Deemed contraventions

Without limiting the GED, it is a deemed contravention under the EPA Act 2017 if a person who is conducting a business or undertaking fails to do any of the following, so far as reasonably practicable:

• use and maintain plant, equipment, processes and systems in a manner that minimises risks from pollution and waste
• use and maintain risk management systems
• handle, store, use or transport substances in a manner that minimises risk
• provide training and information to persons.³

Minimising risks of harm

To determine what is reasonably practicable in relation to the minimisation of risks, regard must be had to:

• the likelihood of those risks eventuating
• the degree of harm that would result if those risks eventuated
• what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks
• the availability and suitability of ways to eliminate or reduce those risks
• the cost of eliminating or reducing those risks.⁴

Remedial Notices and Penalties

A breach or a threatened breach of the GED will trigger the Environment Protection Authority (EPA)'s capacity to issue a notice, such as improvement and prohibition notices or notices to investigate and environment action notices, so that the problem can be remedied quickly.⁵

Failure to comply with the GED results in civil liability and criminal penalties of:

• $363,480 for a natural person
• $1,817,400 for a body corporate.⁶

There are additional penalties if the breach of the GED is aggravated, meaning it is intentional or reckless:

• $726,920 and/or 5 years imprisonment for a natural person
• $3,634,800 for a body corporate.⁷

Application of the GED based on general duty under OH&S laws

The GED is modelled off the general duty imposed on employers under Occupational Health and Safety (OH&S) legislation,⁸ albeit with one key difference. Under OH&S laws, employers must, so far as is reasonably practicable, eliminate risks to employee health and safety.⁹ In contrast, the GED seeks to minimise risks to human health and the environment.

Similar to breaches of the general duty under the Victorian OH&S Act, features of the GED would include:

• offences are risk-based, not outcome-based; whether harm actually occurs is not an element of the offence, but would be evidence of the risk eventuating and the degree of harm that would result if the risk eventuated¹⁰
• proof of a breach would not require proof of knowledge, intention or recklessness¹¹
• liability for a breach would arise when the relevant event occurs, namely, a failure to prevent or minimise risks of harm.¹²

The Supreme Court of Victoria recently held that when an alleged breach of the OH&S Act general duty consisted of an omission rather than a positive act, the prosecution need only establish that:

• there was a risk to employee health and safety
• the measures identified as necessary would have eliminated or reduced the risk (as the case may be)
• it was 'reasonably practicable' in the circumstances for the employer to have taken those measures.¹³

In another recent Supreme Court matter, the Court emphasised that the OH&S Act requires consideration of what an employer ought to have known about the risk and ways to eliminate or reduce it, instead of what could have been done. Therefore, the prosecution must establish would the employer should have done, not what it could have done. ¹⁴

As all businesses will be familiar with the general duty under OH&S, they will be able to use a similar methodology in ensuring compliance with the GED such as risk identification, risk assessment and risk mitigation. And, as with OH&S law, businesses will have guidance from codes of practice and other published guidance material on the EPA's website. Over time, the cost to businesses will reduce as businesses assess their current practices and make any necessary changes to their business. Further, taking preventative action will protect businesses against potentially significant costs for serious breaches in the future.¹⁵

^{[1] EP Act 2017, s 25(1).
[2] See for more information on the initial recommendation to introduce a general duty by the Ministerial Advisory Committee, Independent Inquiry into the Environment Protection Authority (31 March 2016), pp 221-228.
[3] EP Act 2017, s (25)(4). See also s 25(5) for deemed contraventions for persons or businesses that are involved in the design, manufacture, installation or supply of substances, plant, equipment or structures.
[4] EP Act 2017, s 6(2).
[5] See generally EPA Act 2017, Ch 10 - Notices.
[6] Based on the penalty unit rate of $181.74 for the 2021-22 financial year.
[7] EP Act 2017, s 27.
[8] See in particular Occupational Health and Safety Act 2004 (OH&S Act), ss 20-21, 30 and 32 for provisions the GED are modelled off.
[9] OH&S Act, s 20(1)(a).
[10] Director of Public Prosecutions (DPP) (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 per Maxwell, P, Buchanan and Redlich, JJA at 682 [3].
[11] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; 14 VR 321, per Maxwell, P, Buchanan and Redlich, JJA at 326 [24]
[12] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; 14 VR 321, per Maxwell, P, Buchanan and Redlich, JJA at 326 [24] 326 [27]-[28]
[13] Director of Public Prosecutions (DPP) (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 per Maxwell, P, Buchanan and Redlich, JJA at 682-683 at [6], .
[14] SKM Services Pty Ltd v Magistrates' Court of Victoria [2019] VSC 460 per Lansdowne AsJ.
[15] Ministerial Advisory Committee, Independent Inquiry into the Environment Protection Authority (31 March 2016), p 223.}

Contact our team

Please get in touch with our team if you need assistance with environment protection and planning issues.

Alison PK O'Brien PSM, Assistant Victorian Government Solicitor
03 8684 0416
alison.obrien@vgso.vic.gov.au

Or one of our planning and environment team members.