19 July, 2018
Environment Protection Amendment Bill 2018 (Vic)
What you need to know
The Environment Protection Amendment Bill 2018 (the Bill) proposes to introduce a general environmental duty (GED) to take "reasonably practicable" steps to eliminate risks of harm to human health and the environment from pollution or waste.
Breach of the GED is an offence, regardless of whether any harm actually occurs.
What constitutes a "reasonably practicable" step will depend on the circumstances, and the actual state of affairs at the time the risk arises.
What you need to do
The Bill holds operators to a much higher standard than the current Environment Protection Act 1970 (Vic). If the Bill passes, which we expect that it will, it will be imperative that organisations operating in Victoria undertake careful, directed risk assessment of their practices and procedures.
It will not be enough to undertake a general risk assessment. This assessment must be specific and targeted to identifying potential risks to human health and the environment.
Organisations will need to ensure that their environmental management and health and safety programs, training and processes, are tailored to the organisation's operations. Examples may include: reviewing safety manuals, training processes, supervision hierarchies and procedures for compliance.
Having general environmental and health and safety programs/processes will not be enough to guard against a breach of the GED.
What does this Bill do?
The Victorian Government introduced the Environment Protection Amendment Bill 2018 (Vic) into Parliament on 18 June 2018.
The Bill is the second tranche of major reforms to environmental laws in Victoria stemming from the Independent Inquiry into the Environment Protection Authority (EPA) completed in 2016.
If the Bill passes, which we expect that it will, the proposed reforms are expected to take full effect by 2020.
This is the first alert in our series on the Bill. Our Environment article, The end of Victoria's environmental law as we know it?, dated 22 June 2018, sets out the background to the Bill and outlines the key changes to be introduced.
This Environment Alert provides more details about the proposed general environmental duty and provides some insights from OHS laws about how it might be implemented.
The general environment duty
One of the central reforms is the proposed introduction of a general environmental duty (GED), which places a positive obligation on duty holders to undertake "reasonably practicable" steps to eliminate or reduce risks of harm to human health and the environment from pollution or waste. This preventative approach to environmental regulation is a transformational change from the current approach. In particular, far greater focus will be placed on the minimisation of potential risks to human health and the environment; as opposed to addressing harm after it has occurred.
Who does the duty apply to?
Under the Bill, any person who engages in an activity that may give rise to risks of harm to human health or the environment from pollution or waste, must take "reasonably practicable" steps to minimise those risks.
Failure to comply with the GED is an offence that can lead to civil and/or criminal penalties of up to A$1.6 million. In the case of aggravated breaches (intentional/reckless), the penalties are far higher (up to 5 years imprisonment, and/or fines of up to A$3.2 million).
Importantly, this liability extends to upstream duty holders, including persons who design, manufacture, install or supply substances, plants, equipment or structures.
How will the duty be applied?
The GED provisions in the Bill mirror the general duty provisions in the Occupational Health and Safety Act 2004 (Vic) (OHS Act) which characterises offences as risk-based, and does not require causation to be proven. Cases applying the OHS Act general duty are instructive in understanding how the GED will be applied.
For example, in DPP v Vibro-pile (2016) 49 VR 676 (Vibro-pile), a worker was killed in a construction accident after falling from a piling machine that was not bolted together correctly. The Victorian Court of Appeal held that the failure to include a warning in the manual about the risk of an incorrectly bolted machine collapsing was a breach of the general duty to maintain a "safe system of work".
The Court held that:
- the risk of the machine collapsing was a risk to employee health and safety;
- including a warning in the manual was an identifiable measure that would have eliminated or reduced that risk; and
- it was reasonably practicable in the circumstances for the employer to include that warning.
What are "reasonably practicable" steps?
What constitutes "reasonably practicable" steps will depend on the facts of each case, and the actual state of affairs at the time the risk arises.
For example, a measure to avert chemical spills in a land-based refinery may be less "reasonably practicable" on an off-shore rig.
According to the Bill, in determining what is "reasonably practicable", the courts will have regard to:
- the likelihood of the risks eventuating;
- the degree of harm that would result;
- what the person knows, or ought to reasonably know about the harm or risks of harm, and any ways of eliminating or reducing those risks; and
- the availability, suitability and cost of eliminating or reducing the risks.
Key points to note
The GED is a risk-based, not outcome-based, offence provision. This means that the duty can be breached even in the absence of injury, death or environmental damage. For example, the failure to train a worker correctly in the prevention of chemical spills may be a direct breach of the GED. There is no need for a spill to actually occur.
There is no requirement to prove causation to establish that the GED has been breached. For instance, in the chemical spill example, it is not necessary to establish that a failure to train actually caused a chemical spill.
Our next Environment Alert
The next Environment Alert in our series will discuss community rights, that is, third party rights to apply to the court for orders to enforce and restrain breaches of the legislation.
For further information, please contact:
Daniel Reinbott, Partner, Ashurst
daniel.reinbott@ashurst.com
