Victoria's Environment Protection regime: the general environmental duty

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On 1 July 2021, the Environment Protection Act 1970 (Vic) was repealed and replaced by the reforms introduced by the Environment Protection Act 2017 as amended by the Environment Protection Amendment Act 2018 (Vic). The 2017 Act is now the central environment protection legislation in Victoria.

A key component of the reformed environment protection regime is the new general environmental duty (GED).

What is the general environmental duty?

The GED closely resembles the well-established general duty under Occupation Health & Safety (OHS) legislation. The GED is set out in section 25 of the 2017 Act, and provides in 25(1):

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

When minimising risks of harm, the 2017 Act requires a person to:

• first eliminate the risks of harm to human health and the environment so far as reasonably practicable; and
• if it is not reasonably practicable to eliminate the risks, reduce those risks so far as reasonably practicable.

Importantly, a breach of the GED can occur even if no harm has actually occurred.

The GED is an overarching duty that will apply to a person engaging in an activity, which includes a person conducting, undertaking, managing or in control of that activity. It applies in addition to all other duties and obligations under the 2017 Act even where they may be relevant to performance of the GED.^[1]

Where a person fails to meet the GED in the course of conducting a business or undertaking, they will commit an offence. A person can conduct a business or undertaking whether or not they are a government or public authority (however described), or are doing so for profit or gain. However, a person will not conduct a business or undertaking merely because they are engaging in an activity:

• that is primarily domestic or private and not conducted for profit or gain;
• solely in their capacity as an employee or officer of another person;^[2]
• on a voluntary basis.

This offence is an indictable offence and currently carries a penalty of $1,817,400 (for a body corporate) or $363,480 (for an individual) with higher penalties applying to aggravated breaches. As an alternative to prosecution, the EPA could take other compliance and enforcement action in response to a failure to comply with the GED. EPA's compliance and enforcement policy (Publication 1798.2) provides more insight into the regulator's approach to compliance and enforcement.

What does "so far as reasonably practicable" mean?

The 2017 Act sets out a number of factors that must be taken into account in the consideration of whether something is "reasonably practicable". These are:

• the likelihood of the risks eventuating;
• the degree of harm that would result if the risks eventuated;
• what the duty holder knows (or ought reasonably know) about the harm or risks of harm, and how to eliminate or reduce those risks;
• the availability and suitability of ways to eliminate or reduce the risks; and
• the cost of eliminating or reducing the risks.

EPA has also released guidance on how to determine what is reasonably practicable (Publication 1856). Generally, the publication shows that, in EPA's view:

• the controls adopted should be proportionate to the risk;
• controls that eliminate or substitute the sources of the risk are to be preferred over engineering or administrative controls;
• when dealing with a common risk or a common harm, using well-established practices or controls may be reasonably practicable;
• what is reasonably practicable will evolve over time with the "state of knowledge".

The phrase "state of knowledge" is used to describe the body of accepted knowledge that informs what a person knows, or reasonably should know, about the risks of harm and controls for eliminating or reducing those risks. EPA has provided a description of this concept and links on its website.

The state of knowledge includes:

• business and industry knowledge eg. industry associated guidance and manuals;
• regulatory and government agency knowledge eg. EPA and Worksafe publications;
• independent organisations' knowledge eg. Standards Australia.

What should you be doing to address the GED?

This will ultimately depend on the activity you are in engaging in, however, we offer the following general tips:

• be sure to understand the risks of harm to human health and the environment from pollution and waste arising from your activity;
• ·obtain independent expert advice on the risks, and the ways to eliminate or minimise those risks as necessary;
• keep abreast of best practice measures relevant to your industry and activity;
• understand the legislation and the extent of your duties and obligations under the 2017 Act including sections 25(4) and (5) which include a list actions that must be taken to meet the GED;
• ensure that you have systems, processes and procedures in place to implement identified measures to minimise risks of harm in performance of the GED;
• keep accurate and up to date records of action taken to demonstrate compliance with the GED.

We have compiled a list of the key provisions of the 2017 Act, EPA publications and webpages relevant to the GED to provide a useful reference point when considering the performance of the new GED.

^[1] There are some mechanisms which can "deem" performance of the GED. These include a compliance code under section 100, or a permission with conditions that provide for how a person is to perform the GED (section 62). ^{Back to article}