Long-awaited reform of Victoria’s environmental laws deferred due to COVID-19

Updated 26 May 2020

COVID-19, a once in a lifetime health pandemic, has delayed the implementation of a once in a generation overhaul of Victoria’s environmental laws. In a special one-day sitting, the Parliament of Victoria has tonight passed the COVID-19 Omnibus (Emergency Measures) Bill 2020 (Bill), which will, amongst other things, defer commencement of the Environment Protection Amendment Act 2018 (Vic) (Amendment Act 2018) until 1 December 2021. However this date is anticipated to be brought forward to 1 July 2021 if the impacts of COVID-19 are short lived. 

The Amendment Act 2018 is part of the Victorian Government’s complete overhaul and replacement of the Environment Protection Act 1970 (Vic) (EP Act 1970). The first step in this overhaul occurred in 2017 with the passage of the Environment Protection Act 2017 (Vic) (EP Act 2017), which implemented reforms to the Environment Protection Authority’s (EPA) corporate governance structure. The Amendment Act 2018 was the second and final step in this overhaul, and contains the substantive provisions to ‘fill in’ the framework set up by the EP Act 2017.

The Amendment Act 2018 was to come into operation on 1 July 2020 with the effect of repealing the EP Act 1970 and introducing a suite of significant state-wide reforms. This includes the introduction of a new general environmental duty (GED), requiring a proactive approach to the elimination or minimisation of harm to human health or the environment so far as reasonably practicable.

These reforms represent the most significant changes to Victoria’s environmental regulatory regime since the commencement of the EP Act 1970 nearly 50 years ago.

With the passing of the Bill the new regime will now be put on hold until 1 December 2021. However, there is scope for this date to be brought forward by proclamation, which will likely be informed by the impacts of COVID-19. Earlier commencement was flagged as a possibility during Parliamentary debate on the Bill. During the Second Reading of the Bill, the Victorian Government stated its intention to proclaim an earlier commencement date of 1 July 2021. The EPA has also suggested the Amendment Act 2018 will commence by 1 July 2021. [1]

What does this mean for industry?

The deferral will likely be well received by industry as the practical measures needed to prepare for the new regime may not have been feasibly achieved in the present environment.

In particular, there is now less urgency for industry to:

• revisit and update their environmental management systems and operations to ensure compliance with the GED and other proactive duties;
  
  
• prepare for the need to obtain new permissions under the new regime;
  
  
• investigate the extent and nature of pre-existing contamination on site to be ready to satisfy the new positive reporting obligations to the EPA; and
  
  
• update their standard terms and conditions of contracts of sale and leases to satisfy new contaminated land disclosure obligations.

The deferred commencement date of the Amendment Act 2018 will also mean that persons wishing to invoke ‘change in law’ provisions under existing contracts may need to re‑evaluate their position.

The EPA may use the deferral to push back the date for the release of the much-awaited final form of the Environment Protection Regulations and Environmental Reference Standards. These were initially anticipated to be released in April or May 2020. Ideally, the EPA will release the final form as soon as possible to enable industry and the community to use the deferral window to prepare for the new regime.

The EPA has also announced its intention to extend the public consultation period on proposed reforms to Victoria’s land-use planning system to bring it in line with the new environmental regime.

A number of specific provisions of the Amendment Act 2018 which had already taken effect will not be disrupted by the passing of the Bill. Those provisions are:

• section 19, which came into operation on 28 August 2018, which had the effect of ensuring the Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic), as in force immediately before 1 July 2019, remain in force until the Amendment Act 2018 commences; and
  
  
• part 3, which came into operation on 1 July 2019 to effect specific amendments to the Mineral Resources (Sustainable Development) Act 1990 (Vic).

Even with the deferral, there is much work for industry to continue to do in this window to prepare for the significant changes and be ready to ensure compliance from day one of the new regime.

_{[1] Environment Protection Authority Victoria, New Environment Protection Act postponed to July 2021.}