Revolutionising Victorian environmental law & White & Case Tim Power 26 July 2018

Topics covered Complying with the general environmental duty Redirecting clean up liability Third party rights appeals enforcement

Complying with the GED In brief The proposed duty: 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 management must minimise those risks, so far as is reasonably practicable Different regulatory models “Pollution model” – prohibit pollution and punish polluters (eg. PEOA in NSW) “Preventative model” – mandate prevention and punish failure to prevent The proposed duty falls within the second category

Complying with the GED In brief Covers any activity that may give risk to any risk of harm, regardless of whatever degree or duration Materiality of potential harm irrelevant to whether it is captured by the duty Contrast with Qld general environmental duty – applies only to ‘likely’ harm

Complying with the GED In brief The compliance task is to reduce risks as far as reasonably practicable, having regard to Likelihood of the risk eventuating Degree of harm that would result What’s known or ought to be known about the risk of harm, and ways to eliminate or reduce those risks Availability, suitability and cost of eliminating or reducing the risks

Complying with the GED In brief Deemed contravention of the duty if you don’t Use and maintain plant/equipment and use and handling of substances in a manner that minimises risks of harm Use and maintain systems to minimise risk of harm, identify, assess and control risks Provide information, instruction, supervision and training Must be reasonably practicable

Complying with the GED Key issues All risks captured Systems and work practices must address those risks and benchmarked against mandatory requirements, so far as reasonably practicable Don’t assume interstate systems are sufficient Victorian OHS systems and practices more suitable

Redirecting clean up liability In brief Empowers regulators to redirect statutory liability to other people Present situation - clean up notice liability can be redirected to subsidiaries or related/associated entities Depends on entity’s control over the notice recipient Depends on actual or constructive knowledge of the notice recipient’s conduct Entity didn’t take reasonable steps to prevent the notice recipient’s conduct

Redirecting clean up liability In brief Situation largely retained for EANs and SMOs Winding up of notice recipient New power - redirecting EAN/SMO liability to company officer Similar tests to corporate redirection Can’t be unjust, oppressive or unreasonable

Redirecting clean up liability Key issues Not as broad as Qld’s “chain of responsibility” laws Key change is scope for company officer liability Will it ever be used? Evidence of corporate control and knowledge of company officers Oppressive Will it motivate compliance?

Third party rights VCAT applications Third party applications permissible for development licence applications Standing tests unchanged – “interests affected” test Limited statutory grounds of review Unreasonably and adversely affected Breaches duty or poses unacceptable risk of harm Condition won’t minimise risks of harm

Third party rights Civil enforcement Enforcement applications brought by Person whose interests are affected Anyone else with leave of the Court Limits on the Court’s power to grant leave Public interest EPA has not taken its own enforcement action, despite request

Questions?

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