Recommendation 5

Implementation progress

This section provides progress updates on the implementation of the government commitments made in response to the inquiry recommendations.

Recommendation 5

That the Victorian Government review appropriate sanctions for entities that do not keep records demonstrating compliance with regulatory requirements.

Government commitment:

In the context of Fiskville and environmental compliance more broadly, the Government Response to the Independent Inquiry into the Environment Protection Authority (EPA) (released on 17 January 2017) supported a number of recommendations made by the EPA Inquiry to improve the regulator’s ability to hold polluters to account, including a commitment to expand the range, and increase the severity of, sanctions. Currently, EPA approvals and licences contain conditions requiring the recipient to maintain records. Failure to comply is a breach of the licence or approval and may result in a sanction under the Environment Protection Act 1970 (EP Act). Similarly, some regulations also have requirements to maintain records and have specific sanctions associated with a failure to comply with them. Penalties for record keeping offences are being considered as part of the review of the Occupational Health and Safety Regulations 2007.

Lead agency DELWP

Status Complete

The inquiry made a range of findings relating to weaknesses in recordkeeping and the impact on the safety of operations, governance and effective regulatory oversight. The inquiry found that poor recordkeeping by CFA meant that regulatory agencies had not been able to hold it to account for contamination at Fiskville.

The inquiry report outlined CFA’s poor documentation and dissemination of incidents and complaints, which led to a loss of corporate knowledge and the unnecessary exposure of people to toxic substances. The inquiry report also noted that the lack of records on the fuels donated for use in training made it difficult for health professionals to determine the impacts of contamination on people. The inquiry recommended that the government review appropriate sanctions for entities that do not keep records demonstrating compliance with regulatory requirements. The government supported Recommendation 5 in principle. Its response recognised the importance of government entities maintaining adequate records and complying with regulatory requirements.

The government commitment sets out two key mechanisms to address the recommendation:

The review of penalties in the Occupational Health and Safety Regulations 2007.

Legislative reforms arising from the 2015–16 Independent Inquiry into the Environment Protection

Authority (the EPA inquiry).14

With respect to the first mechanism, IGEM’s 2018 progress report outlined the increased penalties for recordkeeping offences in the Occupational Health and Safety Regulations 2017, which replaced the 2007 regulations.

Legislative reforms to sanctions

Currently, the Environment Protection Act 1970 and subsidiary legislation sets out obligations for people and organisations to keep records to demonstrate compliance with environmental regulatory requirements. The new Environment Protection Amendment Act 2018, given royal assent in August 2018, reforms the legislative framework for the protection of human health and the environment from pollution and waste. The government intends the new legislation to take effect on 1 July 2020. The new legislation contains expanded and strengthened penalties and sanctions across a range of activities. It increases criminal penalties for environmental offences compared with the Environmental Protection Act 1970. Pollution offences currently attract a maximum penalty of 2400 penalty units15 (as of April 2019 $386,856) for an individual or corporation, and a maximum penalty of 10,000 penalty units (as of April 2019 $1.6 million) for a corporation causing aggravated pollution. Under the new legislation: the core offence of breaching the general environmental duty attracts a penalty of up to 2000 penalty units (as of April 2019 $322,000) for an individual and 10,000 penalty units ($1.6 million) for a corporation intentional or reckless breaches of the general environmental duty that result in material harm attract a penalty of up to 4000 penalty units ($644,000) and/or five years imprisonment for an individual and up to 20,000 penalty units ($3.2 million) for a corporation.

The new legislation also introduces a civil penalty scheme alongside criminal penalties to allow EPA to take more timely and proportionate enforcement action for moderate breaches of the law. Maintenance of records will continue to be required under the new legislation for various activities. For example, EPA-issued permissions (refer to Recommendation 16), which regulate the management of environmental risks arising from a range of industrial and commercial activities, can contain conditions that require the recipient to maintain records. These conditions may require the permission holder to provide monitoring data, information or performance reports to EPA, local council or the public. The new legislation strengthens penalties for breaches of permission conditions. The current legislation provides for a penalty of a maximum 2400 penalty units (and 1200 penalty units for each additional day) for contravening conditions. Depending on the type of permission and severity of offence, the new legislation provides for penalties of between 120 and 2000 penalty units for an individual and 600 and 10,000 penalty units for a corporation.

The new legislation continues to allow EPA to suspend or revoke permissions in certain circumstances, including when it believes on reasonable grounds that the holder of the permission has contravened the legislation or subsidiary regulations.

14 For more information refer to http://www.epa-inquiry.vic.gov.au/. 15 Refer to Appendix B for definition of penalty units.