The Law Handbook 2024

1032 Section 11: Rights, activism and fair treatment at work The only significant harm-based offence that remains in the EP Act is an aggravated breach of the GED under section 27 of the EP Act (noting a transitional pollution offence in section 28 that will lapse in less than four years). This offence applies where a person intentionally or recklessly breaches their GED and this causes, or is likely to cause, material harm and the person knew (or should have known) that the material harm would be caused or would be likely to be caused. A breach of section 27 of the EP Act can result in a fine of up to 4000 penalty units ( pu ) and/or five years in jail. For a body corporate, the fine is up to 20 000 pu. NOTE For the period 1 July 2023 to 30 June 2024, one penalty unit ( pu ) equals $192.31 under Victorian state law and $313 under Commonwealth law. For more information, see ‘A note about penalty units’ at the start of this book. While the GED is the key obligation under the EP Act, a range of other duties have been created – some of which are a revision of current obligations – but others are genuinely new, to support the GED and help achieve the EP Act objectives. Pollution incident duties Two new duties apply where a person’s activities result in a pollution incident: 1 the duty to restore : the duty to take action to respond to harm caused by a pollution incident; 2 the duty to notify : the duty to report certain pollution incidents to the EPA. The duty to restore polluted land The duty to restore polluted land (s 31 EP Act) arises when a person’s activity results in a pollution incident that causes, or is likely to cause, harm to human health or to the environment. Where this occurs, the person must restore the affected area to the state it was in before the pollution incident occurred, so far as is reasonably practicable. A breach of the duty to restore is not a criminal offence. However, a person may be directed to comply with this duty (e.g. through a remedial notice). The EPA has published guidance on this duty as well as videos on the topic (see www. epa.vic.gov.au) . The duty to report pollution The duty to report certain pollution incidents to the EPA (s 32 EP Act) applies where a person’s activity causes a pollution incident and material harm is caused or is likely to be caused. Unlike the duty to restore, which applies to any level of harm, the duty to notify only applies tomore serious incidents. ‘Material harm’ is defined in section 5 of the EP Act and includes incidents that cause a level of harm that is more than negligible, impacts an area of high-conservation value or of special significance, or where rehabilitation of the affected area will cost more than $10,000. Unlike the duty to restore, failing to meet your duty to notify is a criminal offence. This new duty brings Victoria into line with all other Australian jurisdictions. Contaminated land duties Two new duties apply in relation to land that has become contaminated from human activities: 1 the duty to manage : the duty to minimise the risk of harm from contaminated land; 2 the duty to notify : the duty to report certain contaminated land to the EPA. As with the pollution incident duties, the duty to manage contaminated land is only enforceable through directions and notices, whereas a failure to report contaminated land is an offence. Importantly, the contaminated land duties are not associated with engaging in an activity, but instead apply to a person or to the management of contaminated land, whether or not the person is responsible for the contamination being present. The duty to manage contaminated land The duty to manage contaminated land (s 39 EP Act) requires a person to minimise the risk of harm from the contamination, so far as reasonably practicable. While this duty is new to the EP Act, it reflects the obligations under the previous state environment protection policies that were in place for decades. This duty is most likely to apply to land that has historically been used for polluting and waste- generating activities (e.g. by industrial processes) before environment protection was in place. The duty may also be relevant at sites where there has been an environmental incident (e.g. a chemical spill or leak) or where hazardous waste was dumped or contained in soil brought on site. The EPA has