1 July 2021 - Revised start date for Victoria's new environmental laws

WHAT YOU NEED TO KNOW

On 24 April 2020, the Victorian Government passed COVID-19 Omnibus (Emergency Measures) Act 2020. One key change was an amendment to the Environment Protection Amendment Act 2018.   

Specifically, the COVID-19 legislation defers commencement of Victoria’s new regulatory regime for environment protection, which clients were expecting to take effect on 1 July 2020.

KEY DATES

1 July 2021 is the new date that environment managers and legal counsel need to diarise. This is the amended date for the repeal of the existing Environment Protection Act 1970 and most likely date for commencement of the new laws, consistent with the press release from EPA and the recent approach adopted by the Victorian Government with regard to proclamation.  

However, there is a longstop date written into the legislation of 1 December 2021 for all parts of the act to commence, and so it is conceivable, although in my view unlikely, that some aspects of the new laws could actually commence between 1 July and 1 December 2021.  

GOOD AND BAD

For those operators who have been waiting for the positives coming out of the regulatory changes, notably a more pragmatic approach to environmental compliance or the new contaminated land costs recovery regime, the news of deferral is potentially a double-edged sword. Yes, on the one hand, there is greater time to roll-out business changes to prepare your organisation for the new laws.  Equally, however, existing problems now have to continue to be dealt with under the existing Environment Protection Act 1970 framework, with all of its intrinsic difficulties for those developing sites, negotiating contaminated land liability, or for example seeking beneficial reuse approvals.  

For others, the deferral is a genuinely welcome step, not least given that for many environment managers and legal teams, the timescales for reaching compliance preparedness were slipping away, in significant part due to EPA having not yet finalised its regulations nor released the guidance and policy documents that would support compliance. 

STEPS FOR THE NEXT 6 MONTHS

Other than hanging in there during these challenging times, and supporting each other as environmental professionals, I think there are two areas for focus:

1. From a risk management perspective, existing liabilities need to continue to be managed, and given it will be at least 14 months, possibly 19 months, before the new laws commence, it will likely now be necessary for some operators to seek advice on issues of current concern, rather than putting these “on hold” until the new regime starts.

2. With regard to compliance preparedness for the new regime, the next 6 months can probably most fruitfully used to wait and see what EPA release in terms of final regulations and compliance framework documents and to work on starting some of the compliance projects that would take months to undertake (for example, if the business has never considered contaminated land liability, or done an environmental risk-assessment of its operations) then budgeting for, and engaging consultants to start this work is advisable.  

Consider re-grouping in late September/early October and developing a tailored monthly list of compliance actions (internal and with external advisers as necessary) to ensure that this second “bite of the cherry” puts you in a comfortable position to be compliant before 1 July 2021. 

KEY CONSIDERATIONS FOR ALL ORGANISATIONS

The key things that all organisations need to do are:

• assess how the new laws will affect their organisations by viewing operations through the lens of the new regime. In essence, seeking advice on the “applicability” of the new laws. This is because some entities will have complex contractual arrangements with contractors/service providers that influence which party is liable for environmental compliance and therefore what management actions need to be taken by each party to comply with the new regime;

• evaluate which parts of the legislative regime will apply to the business, e.g. the changes to contaminated land management, or changes to waste laws, or changes brought about by new obligations to assess environmental risk (under the general environmental duty). It will be necessary to go through the Act and Regulations in detail to identify the key legal obligations and rules as they will apply to you;

• identify which aspects of your existing environmental management system would already comply with the new laws and which areas have gaps that need to be filled.  I call this “gap analysis”;

• Get help, as required, to fill the gaps in your EMS.  Noting that some things will be genuinely new for a lot of unlicensed businesses, e.g. pollution incident response protocols. 

For a snapshot of the above, check out my infographic from January 2020 below. 

Guthrie Legal - Roadmap for compliance ©Guthrie Legal 2020

HERE TO HELP

If you need help with compliance preparedness, I have teamed up with several leading environmental consultancies to offer integrated legal and consulting advice on compliance and risk management. Whether you need a detailed review of your EMS or advice on managing a specific issue, such as making contaminated land notifications, please reach out if you’d like to discuss. I also offer executive and legal team briefings and key personnel training.

FOR THE DETAIL FOCUSSED READER:

• Back in 2017, a new Act called the Environment Protection Act 2017 (2017 Act) was passed in Victoria.  This Act deals with deals with the constitution and operation of the Victorian Environment Protection Authority (EPA) and it is in force (28.8.18).

• In 2018, the Environment Protection Amendment Act 2018 (2018 Amendment Act) received royal assent.  This 2018 Amendment Act has all the substantive detail for compliance i.e. all the key changes to environmental law.  But this Act is only partially in force.  

• Section 19 of the 2018 Amendment Act (in relation to the principle of evidence-based decision-making) came into force on 28 August 2018 and Part 3 of the 2018 Amendment Act (in relation to changes to the Mineral Resources (Sustainable Development) Act 1990) came into force on 1 July 2019.

• It was originally intended that all the other key substantive changes were to commence between 1 July 2020 and 1 December 2020 (the original long stop date in the legislation.  On 3 March 2020,  the formal commencement date of 1 July 2020 start date was in fact proclaimed. 

• However, last week, Part 5.2 of the COVID-19 Omnibus (Emergency Measures) Act 2020 was passed on 24 April 2020.  This makes changes to the commencement provisions section 2 of the 2018 Amendment Act (see Part 5.2 – section 54) and relevantly revokes the proclamation of commencement that was made in March 2020. 

• The new commencement date is to be a date to be proclaimed – currently announced by EPA to be 1 July 2021, with a longstop date of 1 December 2021 (see the amended section 2(4) of the Environment Protection Amendment Act 2018).

• The way that the two pieces of environmental legislation work is that the 2018 Amendment Act (once it is fully in force) will amend the 2017 Act by inserting all the key environmental provisions into the 2017 Act.  The 2017 Act will then become the principal piece of legislation (which will be known as the Environment Protection Act 2017).  The existing Environment Protection Act 1970 will be repealed on 1 July 2021 in accordance with section 64 of the 2018 Amendment Act (following these recent Covid-19 Omnibus changes).  The Environment Protection Act 2017 being an amalgamation of both the 2017 and 2018 legislation will include all provisions.

•  So, if you are looking for the detail of what the key changes are you should search for the Environment Protection Amendment Act 2018.

This post is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. Whilst attempts have been made to ensure that the content is current, Guthrie Legal does not guarantee its currency. You should always seek legal or other professional advice on specific cases and before acting or relying on any of the content.

©Guthrie Legal 2020