The Law Handbook 2024

1038 Section 11: Rights, activism and fair treatment at work evidence and to take interventions such as the issuing of remedial notices, the seeking of civil remedies and orders from the court to compel compliance or prevent non-compliance. The EP Act also enables civil and criminal proceedings where the EPA considers that actions, or the failure to take action constitutes a contravention, or offence under the EP Act. The EPA publishes a range of policies and positions on its approach and strategy in fulfilling its function and exercising its powers under the EP Act (see www.epa.vic.gov.au) . The EPA’s options for taking regulatory action The EPA can enforce the EP Act in several ways. It can appoint authorised officers to exercise certain powers under the Act, which include powers of entry, investigation and to issue remedial notices for non-compliance. The are two categories of such officers: • Environment Protection Officers whose role is generally to monitor and pursue compliance with permission holders, businesses and other organisations – including investigating pollution reports and other complaints; and • Officers for the Protection of the Local Environment who are EPA staff based in local councils who provide quick compliance and enforcement responses to smaller local pollution reports, particularly in relation to litter, illegal dumping, noise, odour and dust. Remedial notices and site management orders The EPA can issue a range of remedial notices. These notices include improvement, prohibition and environmental action notices directing a person to comply with their duties (including the GED). The EPA can also issue notices directing a person to take action to address a risk of harm or contamination (ss 271–274 EP Act) (e.g. to carry out works or stop a particular activity). A person who receives a remedial notice may be entitled to have it independently reviewed by another person from the EPA or VCAT (ss 429, 430 EP Act). The EPA can also issue a ‘site management order’ to ensure the long-term management of contamination or other harmful circumstances at a site. These orders may build upon and improve the current use of section 173 agreements under the PE Act. Civil remedies and restraining orders The EPA is empowered to obtain injunctive-type remedies and orders from a court (including the Magistrates’ Court) requiring a person to comply with a duty and obligation they owe under the EP Act (pt 11.4). If the court is satisfied, on the balance of evidence that a person is not complying or has not complied with a permission or is in breach of another obligation (e.g. the GED), particularly where there is a risk of harm to human health and the environment it is able to make a number of orders. The court can order that duty holder to take action if the court considers it reasonably necessary to address the non-compliance or seek a financial assurance from that person as a condition of engaging in the conduct. Significantly, these orders can be urgently sought by the EPA and include seeking what is known as an ex parte order (i.e. an order made in the absence of the person who is the subject of the order), where the circumstances warrant the making of an (interim) order. Enforcement options and orders Stopping non-compliance and taking remedial interventions will not always satisfy regulatory enforcement outcomes. Where the EPA believes an action, or failure to act is either a contravention or offence under one of the obligations of the Act, including a breach of the GED, it is able to commence either civil or criminal proceedings. As to whether a civil or criminal pathway is pursued, is a matter for the EPA. However, either way, the range of orders (summarised below) that can be imposed by a court are identical irrespective of which pathway is pursued. In some circumstances enforcement outcomes can be achieved by entering an enforceable undertaking. The EPA may accept an enforceable undertaking from a duty holder in relation to any matter that it has a power or function under the Act and Regulations (pt 11.2 EP Act). This includes accepting an enforceable undertaking as an alternative to legal proceedings. Generally, an enforceable undertaking provides a means of achieving a tailored enforcement outcome, that includes multiple outcomes and benefits. An enforceable undertaking can include restorative measures and will frequently