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

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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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?

11. 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

12. 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

13. Questions?

14. Address line 1 Address line 1 Country T + F +
White & Case LLP
Address line 1 Address line 1 Country T + F +
In this presentation, White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.