Victorian Bills Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]


Environment Protection Bill 2017

         Environment Protection Bill 2017

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                  General
On 17 January 2017, the Andrews Labor Government released its response
to the Independent Inquiry into the Environment Protection Authority
(the Authority) (Government Response), which committed to implementing
changes to modernise the Environment Protection Authority's governance
structure and overhaul the Environment Protection Act 1970 (EP Act).
The Government Response committed to 2 legislative packages--an EPA
Establishment Act, intended to implement the Authority's new objectives,
decision making principles and a new governance structure; and a complete
rewrite of the remainder of the EP Act.
The Bill gives effect to certain commitments announced in the Government
Response, by establishing a new governance structure for the Authority and
new objective of the Authority to protect human health and the environment.
The Bill will form the basis for the new principal Environment Protection
Act.
The Bill will primarily repeal parts of the EP Act, but will make some
consequential amendments to that Act, which are necessary to ensure both
the EP Act and Bill can be read together until the EP Act is repealed in its
entirety. The Bill also makes consequential amendments to the Public
Administration Act 2004.
Part 1 of the Bill provides for preliminary matters, namely the purposes and
commencement of the Bill and definitions.
Part 2 of the Bill provides for the new objective of the Authority. It also
provides for the establishment and functions of the new Governing Board
of the Authority, the proceedings of the Governing Board, the governance
arrangements regarding the members of the Governing Board, and the
employment of staff of the Authority including a chief executive officer
and a new role of chief environmental scientist.


581370                                 1       BILL LA INTRODUCTION 6/6/2017

 


 

Part 3 of the Bill provides for general and transitional provisions. Part 4 of the Bill provides for consequential amendments to the Environment Protection Act 1970 and the Public Administration Act 2004. Clause Notes Part 1--Preliminary Clause 1 sets out the main purposes of the Bill, which are-- • to provide for the continuation of the Authority; and • to specify a new objective of the Authority; and • to provide a new governance structure for the continued Authority; and • to provide for the Governing Board of the Authority; and • to make consequential amendments to the Environment Protection Act 1970 and the Public Administration Act 2004. Clause 2 deals with the commencement of the Bill. It will come into operation on a day or days to be proclaimed. Any provisions that have not come into operation before 1 July 2018 will come into operation on that day. Clause 3 sets out definitions of various terms used in the Bill. These are-- advisory committee refers to a committee established by the Governing Board under clause 20. The Governing Board has discretion to establish these committees, and to appoint any person to be a member of a committee, to advise and assist the Governing Board in the performance of it functions; Authority refers to the Environment Protection Authority established under section 5(1) of the Environment Protection Act 1970 and continued in existence upon commencement of the Bill by operation of clause 5(1) of this Bill; Chairperson refers to the member of the Governing Board who is appointed as the Chairperson of the Governing Board by the Governor in Council, on the recommendation of the Minister, under clause 11(1)(a); 2

 


 

chief environmental scientist refers to the chief environmental scientist (CES) of the Authority who is to be appointed by the Governing Board under clause 22 of this Bill who is responsible for providing advice to the Authority relating to its new objective set out in clause 6 of this Bill and the duties and functions of the Authority; chief executive officer refers to the chief executive officer (CEO) of the Authority who is to be appointed by the Governing Board under clause 21 of this Bill who is responsible to the Governing Board for the administration of the day to day management of the affairs of the Authority; commencement day means the day clause 28 of this Bill comes into operation to repeal sections of the Environment Protection Act 1970 that are replaced by the clauses in this Bill; deputy Chairperson refers to the member of the Governing Board who is appointed as the deputy Chairperson by the Governor in Council, on the recommendation of the Minister, under clause 11(1)(b) of this Bill; Governing Board means the Environment Protection Authority Governing Board established under clause 9. The Governing Board is established as the governing body of the Authority and is vested with the powers, functions and duties of the Authority under the Bill. Subclause (2) provides that words and expressions defined in the Environment Protection Act 1970 have the same meaning in this Bill, unless that meaning is inconsistent with the context or subject matter of the clause. Clause 4 provides that this Bill is to be read as if it forms part of the Environment Protection Act 1970, but this Bill prevails if there is an inconsistency between the Bill and that Act. Part 2--Environment Protection Authority Clause 5 provides for the continued existence of the Environment Protection Authority as established under section 5(1) of the Environment Protection Act 1970 as in force immediately before the commencement day. 3

 


 

The Authority is a body corporate with the usual powers, such as being able to sue and be sued, hold personal property and do other things that a body corporate may do. Subclause (3) provides for the courts to take judicial notice of the official seal of the Authority, and subclause (4) provides the official seal must be kept in such custody as the Authority determines and that it not be used except as authorised by the Authority. Subclause (5), for the avoidance of doubt, confirms the Authority is the same body despite being re-constituted under the Bill as a public entity. Clause 6 provides for the objective of the Authority. The Authority's objective is to protect human health and the environment by reducing the harmful effects of pollution and waste. Subclause (2) provides that the Authority must exercise and perform the powers, duties and functions conferred on it by this Bill, the Environment Protection Act 1970 or any other Act to achieve the objective in subclause (1) to the extent that it is practicable to do so having regard to the nature of the power, duty or function. Clause 7 provides that the Authority's powers, duties and functions are-- • to administer this Bill and the Environment Protection Act 1970 and any regulations and Orders made under those Acts; and • the powers, duties and functions conferred on the Authority by this Bill, the Environment Protection Act 1970 or any other Act. Clause 8 enables the Authority to employ staff under Part 3 of the Public Administration Act 2004 for the purposes of performing the functions of the Authority. Under subclause (2), the Authority may also enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body. This means that the Authority may use the services of other public bodies by agreement. 4

 


 

Upon commencement of this Bill any existing staff of the Authority will remain employed by the Authority with their current terms and conditions of employment. Clause 9 establishes the governing body of the Authority, that being the Environment Protection Authority Governing Board. Subclause (2) provides that the members of the Board are appointed by the Governor in Council on the recommendation of the Minister and that the Board consists of 5 to 9 members. Subclause (3) requires the Minister, when recommending persons to be members of the Governing Board, to ensure that at least one recommended person has qualifications or experience in science or engineering, and that at least one recommended person be nominated by the Minister responsible for the administration of the Public Health and Wellbeing Act 2008 who has qualifications or experience in health. Subclause (3) further requires the Minister to ensure that the persons recommended for appointment collectively have experience, skills or knowledge in the following fields-- • environment protection or regulation; • regulation of industry; • local government; • public administration or governance; • finance or accounting; • legal practice. A person recommended for appointment to the Governing Board could possess experience, skills or knowledge in more than one field. Clause 10 provides that the Governing Board is responsible for-- • the governance, strategic planning and risk management of the Authority; and • pursuing the objective of the Authority. The Governing Board may perform the duties and functions and exercise the powers of the Authority. 5

 


 

Subclause (2) deems that all acts and things done in the name of, or on behalf of, the Authority by, or with the authority of the Governing Board, are taken to have been done by the Authority. Clause 11 requires the Governor in Council, on the recommendation of the Minister, to appoint one of the members already appointed to the Governing Board under clause 9 as the Chairperson and to appoint another of the members as the deputy Chairperson. The composition of the Governing Board is therefore-- • a member appointed as Chairperson; and • a member appointed as deputy Chairperson; and • not less than 3 and not more than 7 other members. Subclause (2) provides that a Chairperson or deputy Chairperson ceases to hold that office when they cease to be a member of the Governing Board. Clause 12 provides for the member's terms and conditions of appointment to office. Specifically, a member of the Governing Board-- holds office for a period of up to 5 years and may be reappointed for one further term; holds office on the terms and conditions (including remuneration and allowances) as specified in the instrument of appointment; and is subject to the Public Administration Act 2004, but not Part 3 of that Act. Subclause (2) provides that other terms and conditions of a member's appointment to office may be set out in their instrument of appointment so long as those terms and conditions are not inconsistent with those in the Bill. Clause 13 deals with vacancies, resignations and removal of members of the Governing Board from office. Subclause (1) provides for the circumstances where the office of a member becomes vacant, which are where the member-- • becomes an insolvent under administration; or • is convicted or found guilty of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or • is absent from 2 consecutive meetings of the Governing Board without the approval of the Governing Board; or 6

 


 

• is removed from office; or • retires or resigns; or • dies. Subclause (2) enables the Governor in Council to fill a vacancy that occurs in office before the end of the member's term by appointing another member to act in that office or appointing another person to act as a member of the Governing Board (as the case requires) in accordance with clause 14 of the Bill. If an office becomes vacant within 6 months before the end of the term, subclause (3) authorises the Governor in Council to leave the office vacant for the remainder of the term. Subclause (4) enables a member of the Governing Board to resign by delivering a signed letter of resignation to the Minister. Subclause (5) provides that the Governor in Council, upon recommendation of the Minister, may remove a member from office based on certain grounds. Specifically if the member-- • becomes incapable of performing the member's duties; or • is negligent in the performance of those duties; or • engages in improper conduct; or • fails to disclose a pecuniary interest as required by clause 18; or • is convicted or found guilty of an offence against this Bill or the Environment Protection Act 1970; or • is no longer suitable to hold office. Under subclause (5)(e), the Minister may recommend to the Governor in Council to remove a member who is found guilty of an offence against this Bill or the Environment Protection Act 1970 because the duties of a member of the Governing Board of the Authority relate to the enforcement of those offences. A member could lose office in these circumstances even if the court does not record a conviction to ensure, in the public interest, that only fit and proper persons are members of the Governing Board. 7

 


 

Clause 14 provides for acting appointments. Subclause (1) requires the deputy Chairperson to act as Chairperson if the office of the Chairperson is vacant or during any period the Chairperson is absent or unable to attend meetings or unable to perform duties of the office. Subclause (2) provides that while acting as the Chairperson, the deputy Chairperson may exercise all the powers and must perform all the functions and duties of the Chairperson and is entitled to the remuneration and allowances to which the Chairperson would have been entitled. Subclause (3) authorises the Governor in Council, on the recommendation of the Minister, to appoint a member to act as deputy Chairperson when--the office of deputy Chairperson is vacant; when the deputy Chairperson is absent; during any period the deputy Chairperson is acting as Chairperson; or when the deputy Chairperson is unable to attend meetings or unable to perform duties of the office. Subclause (4) provides that a member acting as the deputy Chairperson may exercise all the powers, and must perform all the functions and duties, of the deputy Chairperson. Subclauses (5) to (8) provide for the Governor in Council, on the recommendation of the Minister, to appoint a person to act as a member of the Governing Board when--the office of a member is vacant; a member is absent during any period; a member is acting as deputy Chairperson; or a member is unable to attend meetings or unable to perform duties of the office. A person acting as a member of the Governing Board may exercise all the powers, and must perform all the functions and duties, of the member and is entitled to the remuneration and allowances to which the member would have been entitled. In recommending acting appointments, the Minister must ensure that the recommended acting appointee together with the members of the Governing Board collectively possess the knowledge, skills and experience required for appointments to the Governing Board as set out in subclause 9(3) of this Bill. Clause 15 provides that a decision or an act of the Governing Board will not be invalid only by reason of any vacancy in the office of a member or any defect or irregularity in or in connection with the appointment of a member. 8

 


 

Clause 16 provides for the conduct of meetings of the Governing Board, including when and where meetings must be held, quorum requirements, voting rights and meeting minutes. Under subclause (1), the Governing Board determines the times and places of meetings of the Governing Board. Under subclause (2), a quorum for a board meeting is a majority of the members holding office at the time, of whom one member must be the Chairperson or deputy Chairperson. Subclause (3) provides that questions at board meetings are to be determined by a majority of votes. Under subclause (4), the person presiding has a deliberative vote and, in case of a tie, has a second or casting vote. Subclause (5) enables members of the Governing Board to participate in meetings without being physically present in the same room. For instance, the Governing Board could conduct a meeting by teleconference. Subclause (6) requires the presiding member to ensure that accurate meetings of the board are kept. Under subclause (7), the Governing Board can otherwise determine its own procedure. Clause 17 enables the Governing Board to make resolutions without holding a board meeting. Subclause (1) enables the Governing Board to determine to make proposed resolutions without having to meet and to determine a method by which the members can form agreement in regards to the proposed resolutions. Subclause (2) provides that a resolution is taken to have been made if a majority of the members of the Governing Board entitled to vote on the resolution indicate agreement with the resolution, that agreement is indicated in accordance with a method that was determined by the Governing Board, and all the members were informed of the proposed resolution, or reasonable efforts were made to inform the members of the proposed resolution. Subclause (3) clarifies that a member of the Governing Board is not entitled to vote on a proposed resolution in the method agreed upon in this clause if the member would have been precluded from voting on that resolution considered at a meeting 9

 


 

of the Governing Board. Clause 18 regarding pecuniary interests applies in the same way to resolutions permitted under this clause. Subclause (4) requires the Governing Board to keep a record of resolutions made in accordance with this clause. Clause 18 provides for how any pecuniary interest of a member in a matter being considered or about to be considered by the Governing Board must be dealt with and creates offences for non-compliance. Subclause (1) requires a member who has a pecuniary interest in a matter being or to be considered by the Governing Board to disclose that interest at a meeting of the Governing Board as soon as practicable after the relevant facts have come to the member's knowledge. Breach of subclause (1) is an offence with a maximum penalty of 60 penalty units. Subclause (2) provides that where the Chairperson has an interest in a matter being considered by the Governing Board, they must disclose the nature of the interest to the Minister as soon as practicable after it has come to their attention. Breach of subclause (2) is an offence with a maximum penalty of 60 penalty units. Subclause (3) provides that the presiding member of a meeting of the Governing Board at which a disclosure is made under this clause must record the disclosure in the minutes of the meeting. Subclause (4) provides that a member who has made a disclosure under subclause (1) or (2) must not be present during any deliberation with respect to, or vote on, the matter. A breach of subclause (4) will be an offence with a maximum penalty of 60 penalty units. However, this subclause will not apply if the Governing Board resolves under subclause (5) that the member may be present during deliberations of, or vote on, the matter. Subclause (5) provides that the Governing Board may resolve that the interests of the member are not such as to require them to remove themselves from the deliberation and voting and permit the member to be present for such in respect to a matter where they have made a disclosure. 10

 


 

Note that Part 5 of the Public Administration Act 2004, which also sets out requirements for disclosure of interests, also applies to members of the Governing Board. Clause 19 provides it is an offence for a person who is or has been a member of the Governing Board, the chief executive officer, an authorised officer or an employee of the Authority to improperly use any information acquired in the course of that person's duties to obtain or indirectly obtain any pecuniary interest or other advantage for themselves or another person. The offence carries a maximum penalty of 60 penalty units. Clause 20 provides the Governing Board may establish advisory committees to provide advice and information to assist the Board in the performance of its functions. It is expected that the Governing Board will establish committees to advise it in relation to the Authority's science, engineering and health functions. Subclause (2) provides that the Governing Board may determine the process for establishing the committees, the governance and procedure of the committees and terms and conditions of members appointed to committees. Subclause (3) provides that the Governing Board may appoint any person to a committee. Subclause (4) provides that members of committees are entitled to be paid allowances and expenses as determined by the Governing Board. Clause 21 requires the Governing Board to appoint a chief executive officer subject to the terms and conditions set out in the instrument of appointment. The chief executive officer is responsible for the administration of the day to day management of the affairs of the Authority and is subject to the policies and directions of the Governing Board made for the purposes of clause 10(1)(a). Under subclause (2), the chief executive officer must not be a member of the Governing Board but may attend its meetings. Subclause (5) enables the chief executive officer to delegate any of their powers or functions to an officer or employee of the Authority, or to the holder of an office or position with the Authority, with the exception of the power of delegation, which cannot be delegated. 11

 


 

Clause 22 requires the Governing Board to appoint a chief environmental scientist, who is employed under Part 3 of the Public Administration Act 2004. The chief environmental scientist is responsible for the provision of advice to the Authority relating to the objective of the Authority set out in clause 6 and the duties and functions of the Authority. The chief environmental scientist is to fulfil this responsibility subject to and in accordance with the directions of the chief executive officer. Note that as the chief environmental scientist is employed under Part 3 of the Public Administration Act 2004, they will be subject to the public service employment arrangements under that Act and be an employee of the Authority. Part 3--General and transitional provisions Clause 23 provides that the Public Administration Act 2004 applies to the Authority as if the Authority is a public entity for the purposes of Part 5 of that Act. Part 5 of the Public Administration Act 2004 deals with the operation of public entities. The provisions of that Act prevail over this Bill to the extent of any inconsistency (see section 76 of that Act). Clause 24 provides that all remuneration and expenses of the Authority are to be paid out of the Environment Protection Fund established under section 70 of the Environment Protection Act 1970 and moneys provided by Parliament for the purpose. This includes the remuneration and expenses of the members of the Governing Board and advisory committees, the chief executive officer and the chief environmental scientist and all other expenses lawfully incurred by the Authority and the Governing Board under this Bill and the Environment Protection Act 1970. Clause 25 provides transitional provisions that take effect on the commencement day, which is the day when clause 28 of the Bill comes into operation to repeal certain sections of the Environment Protection Act 1970. Paragraph (a) provides for the abolishment of the Environment Protection Board under section 8(1) of the Environment Protection Act 1970 and for the appointment of that Board's members to the office to cease. Under this Bill, the Environment Protection Board is to be replaced by the Environment Protection Authority Governing Board. 12

 


 

Paragraphs (b) and (c) provide for the abolishment of the offices of Chairman and Deputy Chairman under section 6(1) and (2) of the Environment Protection Act 1970 and for the appointment of the Chairman and Deputy Chairman to cease. Under this Bill, a chief executive officer will be appointed as the head of the Authority, and a member of the new Environment Protection Authority Governing Board will be appointed as Chairperson and another as deputy Chairperson by the Governor in Council on the recommendation of the Minister under clause 11. Clause 26 provides transitional provisions relating to employees of the Authority that take effect on the commencement day, when clause 28 of the Bill comes into operation to repeal sections of the Environment Protection Act 1970. A person who is an employee of the Authority immediately before the commencement day is taken to be employed under clause 8(1) of this Bill by the Authority that is continued in operation by clause 5 of this Bill. Subparagraphs (b) and (c) of this clause provide that the terms and condition and any entitlements to benefits accrued by these employees immediately before the commencement day will continue with the Authority that is continued in operation by clause 5 of this Bill. Part 4--Consequential amendments Division 1--Amendment of the Environment Protection Act 1970 Clause 27 repeals the definitions of Authority and Chairman in section 4(1) of the Environment Protection Act 1970. These definitions are to be replaced by new definitions in this Bill to reflect the application of this Bill. Subclause (3) inserts a legislative note at the end of section 4(1) of the Environment Protection Act 1970 explaining that the provisions of this Bill are to be read as if they formed part of that Act. Clause 28 repeals sections 5, 6, 7, 8, 9, 10 and 11 of the Environment Protection Act 1970, which relate to the establishment of the Authority and the role and procedures of the Environment Protection Board. These sections are replaced by the clauses 13

 


 

in this Bill that provide for the new governance structure of the Authority. Clause 29 repeals sections 14 and 15 of the Environment Protection Act 1970, which relate to employees and expenses of the Authority. Section 14 and 15 are replaced by clauses 8 and 24 of this Bill with minor amendments to reflect the new status of the Authority and its offices. Clause 30 amends section 19B of the Environment Protection Act 1970 to allow the Authority to refer applications for works approvals that have potentially significant implications for public health to the Secretary of the Department of Health and Human Services (DHHS). Subclause (1) provides that the Authority need only refer an application for a works approval to the Secretary of DHHS if the Authority considers that the application is a significant works approval application. Subclause (2) inserts a definition of significant works approval application into section 19B of the Environment Protection Act 1970. The definition refers to an application for a works approval that is reasonably likely to have significant implications for public health that meets the criteria for "significant" as specified by the Minister in a determination published in the Government Gazette for the purposes of section 19B. This change to works approvals reflects the Government's response to the Independent Inquiry's recommendation to consolidate and enhance Victoria's environmental health capability in the Authority through the transfer of DHHS staff to the Authority. It is intended that only works approvals that are assessed by the Authority as having the potential to pose significant health risks to public health be referred to DHHS so as to provide formal input from Victoria's ultimate authority on public health matters, the Chief Health Officer. Clause 31 amends section 20(8)(a)(ii) of the Environment Protection Act 1970 to require the Authority to refer a copy of an application received under section 20 of that Act to the Secretary of the Department of Health and Human Services only if the application would have been a significant works approval application under section 19B, as amended by clause 30 of this Bill, if it had been made under section 19B. 14

 


 

Clause 32 amends section 20A(6)(a)(ii) of the Environment Protection Act 1970 to require the Authority to refer a copy of an application received under section 20A of that Act to the Secretary of the Department of Health and Human Services only if the application would have been a significant works approval application under section 19B, as amended by clause 30 of this Bill, if it had been made under section 19B. Clause 33 amends section 20B(3) of the Environment Protection Act 1970 by substituting references to the Chairman with references to the chief executive officer. This amendment reflects that the chief executive officer will be responsible for the administration of the day to day management of the affairs of the Authority under this Bill. Clause 34 amends section 20C(3)(a) of the Environment Protection Act 1970 to enable the Authority to refuse to issue, transfer or amend an authorisation on the basis that, in the opinion of the Authority, to do so would likely endanger public health. Clause 35 amends section 50AC(d) of the Environment Protection Act 1970 to replace the term Chairman as defined under the Environment Protection Act 1970 with Chairperson as defined under this Bill. Clause 36 amends section 50BC(b) of the Environment Protection Act 1970 to replace the term Chairman as defined under the Environment Protection Act 1970 with Chairperson as defined under this Bill. Clause 37 amends section 54C of the Environment Protection Act 1970 to replace the term Chairman as defined under the Environment Protection Act 1970 with Chairperson as defined under this Bill. Clause 38 amends section 54D of the Environment Protection Act 1970 to replace the term Chairman as defined under the Environment Protection Act 1970 with Chairperson as defined under this Bill. Clause 39 amends section 54E of the Environment Protection Act 1970 to replace the term Chairman as defined under the Environment Protection Act 1970 with Chairperson as defined under this Bill. Clause 40 amends section 59AA of the Environment Protection Act 1970 to replace the term Chairman as defined under the Environment Protection Act 1970 with Chairperson as defined under this Bill. 15

 


 

Clause 41 amends section 60 of the Environment Protection Act 1970 to extend the requirements regarding the disclosure of information obtained during the course of a person's duties set out in section 60 to apply to information obtained during the course of a person's duties under this Bill. Clause 42 amends section 68 of the Environment Protection Act 1970 by replacing some instances of "Authority" with "Governing Board" to reflect that the Governing Board has the power to delegate the powers and functions of the Authority to protection agencies under this Bill. Clause 43 amends section 68A(1) of the Environment Protection Act 1970 to reflect that the Governing Board has the power to delegate the powers and functions of the Authority or the Governing Board to an officer or employee of or the holder of an office or position with the Authority under this Bill, except for the power of delegation. Clause 43 also inserts section 68(A)(3) into the Environment Protection Act 1970 to provide the chief executive officer may delegate all or any of the powers and functions delegated to the chief executive officer by the Governing Board under subsection (1) to an officer or employee of or the holder of an office or position with the Authority under this Bill. Clause 44 amends section 68B of the Environment Protection Act 1970 by replacing some instances of "Authority" with "Governing Board" to reflect that the Governing Board has the power to delegate the powers and functions of the Authority to protection agencies under this Bill. Clause 44 also amends section 68B of the Environment Protection Act 1970 by adding references to this Bill in addition to the references to the Environment Protection Act 1970. Division 2--Amendment of the Public Administration Act 2004 Clause 45 amends section 16(1) of the Public Administration Act 2004 to provide that the Chairperson of the Authority has the functions of a public service body Head in relation to employees of the Authority. 16

 


 

Division 3--Repeal of Part 4 Clause 46 provides for Part 4 of this Bill to be repealed on 1 July 2019. The repeal will not affect the continuing operation of amendments made by Part 4--see section 15(1) of the Interpretation of Legislation Act 1984. 17

 


 

 


[Index] [Search] [Download] [Bill] [Help]