Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023 (Vic)
Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023
No. 35 of 2023
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of Circular Economy (Waste Reduction and Recycling) Act 2021
Division 1—Recycling Victoria Fund
3New Division 7 inserted in Part 2
Division 2—Container deposit scheme
4Definitions
5Functions of the Head, Recycling Victoria—container deposit scheme
6Functions of Scheme Coordinator
7Scheme Coordinator agreement
8Content of Scheme Coordinator agreement
9Appointment of Scheme Coordinator
10Content of network operator agreements
11Appointment of network operators
12Payments to collection point operators
13Determination of first supplier
14Application for approval as suitable eligible container
15Material recovery facilities protocol
16Local government refund sharing protocol
17Offence to supply beverage without supply arrangement with Scheme Coordinator and container approval
18Guidelines
19Civil penalty order
20Criminal liability of officers of bodies corporate—accessorial liability
21New heading to Division 1 of Part 9 inserted
22New section 191A and Division 2 of Part 9 inserted
23Schedule 1—Subject matter for Regulations
Division 3—Waste to energy scheme
24Issue of cap licences
25Conditions on cap licences
26Issue of existing operator licences
27Conditions on existing operator licences
28Schedule 1—Subject matter for Regulations
Division 4—Miscellaneous
29Regulations
30Statute law revision
Part 3—Amendment of Environment Protection Act 2017
Division 1—Financial assurances
31New section 218A inserted
32Section 231 substituted and new sections 231A to 231N inserted
33Application for release of financial assurance
34Decisions reviewable by VCAT
Division 2—Miscellaneous amendments
35Definitions
36Definition
37Protection against self-incrimination
38New sections 269A and 269B inserted
39Notice to investigate
40Environmental action notice
41Site management orders
42Cost recovery powers
43Displacement of other laws
44Reports and certificates
45Liability of officers of bodies corporate—failure to exercise due diligence
46Delegation
47New Part 14.9 inserted
48Statute law revision—Part 17.1
Part 4—Repeal of this Act
49Repeal of this Act
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Endnotes
1 General information
Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023
No. 35 of 2023
[Assented to 28 November 2023]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purposes
The purposes of this Act are—
(a)to amend the Circular Economy (Waste Reduction and Recycling) Act 2021—
(i)to further provide for matters relating to the container deposit scheme, the waste to energy scheme and the recovery of regulatory costs for those schemes; and
(ii)to expand the regulation-making power in relation to fees; and
(b)to amend the Environment Protection Act 2017 to improve the operation of that Act.
2Commencement
(1)This Part and Part 2 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 1 October 2024, it comes into operation on that day.
PART 2—AMENDMENT OF CIRCULAR ECONOMY (WASTE REDUCTION AND RECYCLING) ACT 2021
Division 1—Recycling Victoria Fund
3New Division 7 inserted in Part 2
After Division 6 of Part 2 of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"Division 7—Recycling Victoria Fund
37AARecycling Victoria Fund
(1)There must be established in the Public Account as part of the Trust Fund an account to be known as the Recycling Victoria Fund.
(2)The Recycling Victoria Fund is to be divided into—
(a)the Container Deposit Scheme account; and
(b)the Waste to Energy Scheme account.
37ABPayments into and from the Container Deposit Scheme account
(1)The following are to be credited to the Container Deposit Scheme account—
(a)payments made to the Minister or Head, Recycling Victoria under this Act in respect of the container deposit scheme;
(b)payments made to the Head, Recycling Victoria under the Scheme Coordinator agreement;
(c)all money appropriated by Parliament for the purposes of the Container Deposit Scheme account.
(2)Money in the Container Deposit Scheme account may be applied for the following purposes—
(a)any costs associated with the container deposit scheme;
(b)any amounts directed under subsection (3) to be paid into the Consolidated Fund.
(3)If the Treasurer is satisfied that there is in the Container Deposit Scheme account at any time an amount in excess of the amount required to meet the anticipated payments from the account, after consultation with the Minister, the Treasurer may direct the payment of the whole or any part of that excess amount out of the account into the Consolidated Fund.
37ACPayments into and from the Waste to Energy Scheme account
(1)The following are to be credited to the Waste to Energy Scheme account—
(a)payments made to the Head, Recycling Victoria under this Act in respect of the waste to energy scheme;
(b)all money appropriated by Parliament for the purposes of the Waste to Energy Scheme account.
(2)Money into the Waste to Energy Scheme account may be applied for the following purposes—
(a)any costs associated with the waste to energy scheme;
(b)any amounts directed under subsection (3) to be paid into the Consolidated Fund.
(3)If the Treasurer is satisfied that there is in the Waste to Energy Scheme account at any time an amount in excess of the amount required to meet the anticipated payments from the account, after consultation with the Minister, the Treasurer may direct the payment of the whole or any part of that excess amount out of the account into the Consolidated Fund.".
Division 2—Container deposit scheme
4Definitions
(1)In section 3(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021, in the definition of first supplier—
(a)for "the person determined" substitute "a person determined";
(b)for "the first supplier of" substitute "a first supplier of any beverage in".
(2)In section 3(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021, in the definition of material recovery facility—
(a)omit "either";
(b)in paragraph (b )(ii), for "material;" substitute "material; or";
(c)after paragraph (b) insert—
"(c)a facility prescribed to be a material recovery facility;".
(3)In section 3(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021, in the definition of refund amount—
(a)for "an eligible container" (where twice occurring) substitute "a suitable eligible container";
(b)for "that eligible container" (where twice occurring) substitute "that suitable eligible container".
5Functions of the Head, Recycling Victoria—container deposit scheme
In section 76(2)(a) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "the first supplier" substitute "a first supplier".
6Functions of Scheme Coordinator
(1)In section 79(f) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "facilities." substitute "facilities; and".
(2)After section 79(f) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(g)to perform any prescribed function.".
7Scheme Coordinator agreement
(1)In section 80(4) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "If the Minister" substitute "Subject to subsection (5), if the Minister".
(2)For section 80(5) of the Circular Economy (Waste Reduction and Recycling) Act 2021 substitute—
"(5)The Minister must not recommend to the Governor in Council that a person be appointed as the Scheme Coordinator during any period in which the appointment of another person as the Scheme Coordinator is in effect.".
8Content of Scheme Coordinator agreement
(1)In section 81(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021—
(a)in paragraph (b), for "containers" substitute "suitable eligible containers";
(b)in paragraph (c), for "eligible containers" substitute "suitable eligible containers".
(2)After section 81(2) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(2A)Without limiting subsection (2)(a), a Scheme Coordinator agreement may specify a methodology by applying or incorporating any methodology or document approved by the Department—
(a)wholly or partially or with or without any modification; or
(b)as in force or as issued at a particular time or as in force or as issued from time to time.".
(3)After section 81(3) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(3A)A Scheme Coordinator agreement must include any prescribed requirements.".
(4)After section 81(4)(b) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(ba)provide for the exercise by the Minister of a power or function of the Scheme Coordinator under this Act if the Scheme Coordinator fails to exercise that function or power; and".
(5)After section 81(4)(e) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(ea)specify any fees that the Scheme Coordinator must pay to the Head, Recycling Victoria for the purposes of the administration of the container deposit scheme; and".
(6)For section 81(4)(g) of the Circular Economy (Waste Reduction and Recycling) Act 2021 substitute—
"(g)provide for any other matter agreed to by the parties to the agreement that is not inconsistent with this Act.".
(7)Section 81(4)(h) of the Circular Economy (Waste Reduction and Recycling) Act 2021 is repealed.
(8)After section 81(4) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(5)Without limiting subsection (4)(ea), a fee specified in a Scheme Coordinator agreement may—
(a)differ according to differences in time, place or circumstances; and
(b)provide for the cost of performing any or all of the functions or duties related to the administration of the container deposit scheme, including but not limited to the cost of—
(i)determining whether to approve an eligible container as a suitable eligible container; or
(ii)determining whether or not a person is or will be a first supplier of an eligible container in Victoria.
(6)Nothing in this Part is to be construed as preventing a person with whom the Minister has entered into a Scheme Coordinator agreement from entering into a scheme arrangement before the day on which that person's appointment as the Scheme Coordinator comes into effect.".
9Appointment of Scheme Coordinator
After section 82(7) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(8)A revocation of an appointment of the Scheme Coordinator under subsection (6) or (7) must specify the day on which the appointment is to be revoked.
(9)The Governor in Council must not appoint a person as the Scheme Coordinator during any period in which the appointment of another person as the Scheme Coordinator is in effect.".
10Content of network operator agreements
(1)In section 90(1)(b) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "containers" substitute "suitable eligible containers".
(2)After section 90(2) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(2A)Without limiting subsection (2)(a), a network operator agreement may specify a methodology by applying or incorporating any methodology or document approved by the Department—
(a)wholly or partially or with or without any modification; or
(b)as in force or as issued at a particular time or as in force or as issued from time to time.".
(3)After section 90(3) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(3A)A network operator agreement must include any prescribed requirements.".
(4)After section 90(4)(b) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(ba)provide for the exercise by the Minister of a power or function of the network operator under this Act if the network operator fails to exercise that function or power; and".
(5)In section 90(4)(f) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "resolved." substitute "resolved; and".
(6)After section 90(4)(f) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(g)provide for any other matter agreed to by the parties to the agreement that is not inconsistent with this Act.".
(7)After section 90(4) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(5)Nothing in this Part is to be construed as preventing a person with whom the Minister has entered into a network operator agreement from entering into a scheme arrangement before the day on which that person's appointment as a network operator comes into effect.".
11Appointment of network operators
After section 91(7) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(8)A revocation of an appointment of the network operator under subsection (6) or (7) must specify the day on which the appointment is to be revoked.".
12Payments to collection point operators
In section 97(1)(a) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "containers" substitute "suitable eligible containers".
13Determination of first supplier
(1)In section 98(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021, after "supply" insert "a beverage in".
(2)In section 98(2) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "the first supplier" substitute "a first supplier".
(3)In section 98(3) of the Circular Economy (Waste Reduction and Recycling) Act 2021—
(a)for "an eligible container" substitute "a beverage in an eligible container";
(b)for "the first supplier" substitute "a first supplier".
14Application for approval as suitable eligible container
(1)In section 99(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021—
(a)for "The first supplier" substitute "A first supplier";
(b)after "an eligible container" insert ", or a person who has given notice under section 98(1) in relation to an eligible container,".
(2)For section 99(2) of the Circular Economy (Waste Reduction and Recycling) Act 2021 substitute—
"(2)An application for approval under subsection (1) must be made in accordance with the process approved under subsection (4).".
15Material recovery facilities protocol
In section 103(2)(c) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "eligible container" substitute "suitable eligible container".
16Local government refund sharing protocol
(1)In section 104(1)(a) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "eligible containers services" substitute "suitable eligible containers".
(2)In section 104(3) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "eligible containers" substitute "suitable eligible containers".
17Offence to supply beverage without supply arrangement with Scheme Coordinator and container approval
(1)In section 110(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021—
(a)for "in a container" substitute "in an eligible container";
(b)in paragraph (a) omit "in respect of a class of containers to which the container belongs";
(c)for paragraph (b) substitute—
"(b)the eligible container is approved as a suitable eligible container.".
(2)For section 110(4) of the Circular Economy (Waste Reduction and Recycling) Act 2021 substitute—
"(4)Subsection (1) does not apply to any supply, or offer to supply, in relation to which the person is not required to notify the Head, Recycling Victoria under section 98(1).".
18Guidelines
In section 112(1)(b) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "the first supplier" substitute "a first supplier".
19Civil penalty order
In the table to section 138(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021, in items 13 and 17, after "(Offence to supply" insert "beverage in".
20Criminal liability of officers of bodies corporate—accessorial liability
In section 177(2)(d) and (g) of the Circular Economy (Waste Reduction and Recycling) Act 2021, after "(Offence to supply" insert "beverage in".
21New heading to Division 1 of Part 9 inserted
Before section 184 of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"Division 1—General".
22New section 191A and Division 2 of Part 9 inserted
After section 191 of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"191A Transitional provisions—Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023
(1)Section 81(3A) does not apply to a Scheme Coordinator agreement entered into before the day on which section 8(3) of the Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023 comes into operation.
(2)Section 90(3A) does not apply to a network operator agreement entered into before the day on which section 10(3) of the Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023 comes into operation.
Division 2—Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023
191BValidation of Scheme Coordinator agreement
(1)Any Scheme Coordinator agreement or part of a Scheme Coordinator agreement in force or purportedly in force immediately before the commencement day is taken to have, and to always have had, the same force and effect as it would if the amendments to section 81 made by section 8 of the amending Act had been in operation at the time the agreement or part was entered into or purportedly entered into.
(2)Without limiting subsection (1), any act or thing done or omitted to be done, directly or indirectly, in reliance on a Scheme Coordinator agreement or under this or any other Act, whether before, on or after the commencement day, is not invalid and is taken to never have been invalid by reason only that, but for subsection (1), the agreement or any part of the agreement was not entered into in accordance with section 81.
(3)In this section—
amending Act means the Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023;
commencement day means the day on which section 8 of the amending Act comes into operation.
191CValidation of network operator agreements
(1)Any network operator agreement or part of a network operator agreement in force or purportedly in force immediately before the commencement day is taken to have, and to always have had, the same force and effect as it would if the amendments to section 90 made by section 10 of the amending Act had been in operation at the time the agreement or part was entered into or purportedly entered into.
(2)Without limiting subsection (1), any act or thing done or omitted to be done, directly or indirectly, in reliance on a network operator agreement or under this or any other Act, whether before, on or after the commencement day, is not invalid and is taken to never have been invalid by reason only that, but for subsection (1), the agreement or any part of the agreement was not entered into in accordance with section 90.
(3)In this section—
amending Act means the Environment Legislation Amendment (Circular Economy and Other Matters) Act 2023;
commencement day means the day on which section 10 of the amending Act comes into operation.".
23Schedule 1—Subject matter for Regulations
(1)After item 2.1 of Schedule 1 to the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"2.1ARequirements for determining a fee specified in a Scheme Coordinator agreement under section 81(4)(ea).".
(2)Item 2.4 of Schedule 1 to the Circular Economy (Waste Reduction and Recycling) Act 2021 is repealed.
(3)In item 2.5 of Schedule 1 to the Circular Economy (Waste Reduction and Recycling) Act 2021, for "the first supplier" substitute "a first supplier".
Division 3—Waste to energy scheme
24Issue of cap licences
(1)For section 74T(1)(a) of the Circular Economy (Waste Reduction and Recycling) Act 2021 substitute—
"(a)subject to subsection (3), issue the cap licence, subject to—
(i)any condition specified in this Part; and
(ii)any terms and conditions that the Head, Recycling Victoria considers appropriate; or".
(2)In section 74T(3) of the Circular Economy (Waste Reduction and Recycling) Act 2021, after "74V(b)" insert ", (ba)".
25Conditions on cap licences
(1)In section 74V of the Circular Economy (Waste Reduction and Recycling) Act 2021—
(a)after "subject to" insert "the following conditions and limitations";
(b)in paragraph (a) omit "and";
(c)in paragraph (b) omit "and".
(2)After section 74V(b) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(ba)the condition that the holder of a cap licence pay any prescribed periodic fee to the Head, Recycling Victoria;".
26Issue of existing operator licences
(1)For section 74Y(1)(a) of the Circular Economy (Waste Reduction and Recycling) Act 2021 substitute—
"(a)subject to subsection (4), issue the existing operator licence, subject to—
(i)any condition specified in this Part; and
(ii)any terms and conditions that the Head, Recycling Victoria considers appropriate; or".
(2)In section 74Y(4) of the Circular Economy (Waste Reduction and Recycling) Act 2021, after "74Z(b)" insert ", (ba)".
(3)In section 74Y(6) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "(2)(a)" substitute "(1)(a)".
27Conditions on existing operator licences
(1)In section 74Z of the Circular Economy (Waste Reduction and Recycling) Act 2021—
(a)after "subject to" insert "the following conditions and limitations";
(b)in paragraph (a) omit "and";
(c)in paragraph (b) omit "and".
(2)After section 74Z(b) of the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"(ba)the condition that the holder of an existing operator licence pay any prescribed periodic fee to the Head, Recycling Victoria;".
28Schedule 1—Subject matter for Regulations
After item 1A.4 of Schedule 1 to the Circular Economy (Waste Reduction and Recycling) Act 2021 insert—
"1A.4AIn respect of the periodic fee payable as a condition of a cap licence, prescribing the period to which the fee applies and when the fee is to be paid.
1A.4BIn respect of the periodic fee payable as a condition of an existing operator licence, prescribing the period to which the fee applies and when the fee is to be paid.".
Division 4—Miscellaneous
29Regulations
For section 183(2)(c) of the Circular Economy (Waste Reduction and Recycling) Act 2021 substitute—
"(c)prescribing fees, including but not limited to variable fees, for determining an application (other than an application under section 99) or accepting a submission under this Act or the regulations;
(ca)prescribing the method for calculating fees payable under this Act or the regulations for decisions in respect of applications or submissions, whether payable at the time the application or submission is made or at a later time;".
30Statute law revision
(1)In section 74ZB(2)(b) of the Circular Economy (Waste Reduction and Recycling) Act 2021 omit "must".
(2)In section 74ZG(5) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "cancel revoke the revocation of a waste to energy licence under subsection (1)" substitute "cancel the revocation of a waste to energy licence under subsection (4)".
(3)In section 74ZH(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "Victoria, revokes" substitute "Victoria revokes".
(4)In section 80(3) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "the Minster" substitute "the Minister".
(5)In section 89(3) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "the Minster" substitute "the Minister".
(6)In section 147A(6)(b) of the Circular Economy (Waste Reduction and Recycling) Act 2021, for "Head" substitute "Head,".
(7)In the table in section 178(1) of the Circular Economy (Waste Reduction and Recycling) Act 2021—
(a)in item 5G, after "holder" insert "of";
(b)in item 5I, for "holder a cap" substitute "holder of a cap";
(c)in item 5L, for "holder a waste" substitute "holder of a waste".
PART 3—AMENDMENT OF ENVIRONMENT PROTECTION ACT 2017
Division 1—Financial assurances
31New section 218A inserted
After section 218 of the Environment Protection Act 2017 insert—
"218A Definitions
In this Part—
impact includes any detrimental effect resulting from a relevant activity or from an action that is ancillary to that activity;
material change means a significant change in circumstances that would have a bearing on the assessment of any of the factors set out in section 231C, 231D, 231E or 231F or the considerations specified in section 231G;
refusal review date means—
(a)the date determined under section 231I(1); or
(b)any later date agreed to or determined under section 231M;
relevant activity means the activity to which a prescribed permission, site management order, environmental action notice or Order relating to environmentally hazardous substances relates, as applicable;
significant relevant new information means information relevant to the Authority's assessment of risk in connection with a financial assurance that—
(a)has not previously been provided to the Authority or was not available to the Authority; and
(b)would have a significant bearing on the assessment of any of the factors set out in section 231C, 231D, 231E or 231F or the considerations specified in section 231G—
other than information relating to a material change;
trigger event means an event specified in section 231A(1)(a), (b), (c) or (d).".
32Section 231 substituted and new sections 231A to 231N inserted
For section 231 of the Environment Protection Act 2017 substitute—
"231 Release of financial assurance following review or amendment
(1)If, following a review under section 225, the Authority determines that the financial assurance is no longer required, the Authority must release the financial assurance.
(2)If the Authority reduces the amount of the financial assurance by amendment under section 226, the Authority must release the part of the financial assurance that is no longer required.
(3)The Authority must notify the person who provided the financial assurance in writing if the Authority releases all or part of a financial assurance.
231ANotice of trigger event
(1)The following events are trigger events for the purposes of releasing a financial assurance under this Part—
(a)if the financial assurance is provided as a condition of a prescribed permission—the person who provided the financial assurance ceases to hold the permission;
(b)if the financial assurance is provided as a condition of a site management order—the site management order ceases to apply to the person who provided the financial assurance;
(c)if the financial assurance is provided as a condition of an environmental action notice—the notice ceases to apply to the person who provided the financial assurance;
(d)if the financial assurance is provided as a condition of an Order relating to environmentally hazardous substances—the Order ceases to apply to the person who provided the financial assurance.
(2)A person who provided a financial assurance may notify the Authority if a trigger event specified in subsection (1)(a), (b), (c) or (d) occurs.
231BRelease of financial assurance following trigger event
(1)Subject to section 231M, within 40 business days after being notified of a trigger event the Authority must—
(a)release the financial assurance; or
(b)notify the person who provided the financial assurance in writing of the intention of the Authority to refuse to release all or part of the financial assurance under section 231C, 231D, 231E or 231F.
(2)A notice of intention under subsection (1)(b) must invite the person who provided the financial assurance to make a submission on the Authority's intention to refuse to release all or part of the financial assurance—
(a)within 20 business days of the date of the notice; or
(b)within any other period agreed between the Authority and the person.
(3)The Authority must consider any submission received under subsection (2) before refusing to release a financial assurance under section 231C, 231D, 231E or 231F.
231CAuthority may refuse to release financial assurance—prescribed permission
The Authority may refuse to release all or part of a financial assurance to the person who provided it despite the occurrence of a trigger event described in section 231A(1)(a) if—
(a)the reason the person no longer holds a permission is that—
(i)a liquidator has disclaimed the person's interest in the permission in accordance with the Corporations Act; or
(ii)the person is an insolvent under administration; or
(iii)the permission is transferred, sold, revoked or surrendered, or has expired; and
(b)the Authority—
(i)is satisfied, having regard to the considerations specified in section 231G, that it is necessary to retain the financial assurance as security for the costs or expenses of remediation or clean up where there is a significant risk these costs or expenses may be borne by the State or the Authority; or
(ii)is entitled to make a claim on the financial assurance under section 227(2).
231DAuthority may refuse to release financial assurance—site management order
The Authority may refuse to release all or part of a financial assurance to the person who provided it despite the occurrence of a trigger event described in section 231A(1)(b) if—
(a)the reason a site management order no longer applies to the person is that—
(i)the land to which the site management order relates is owned, occupied, managed or controlled by a company that has gone into liquidation and the liquidator has disclaimed the company's interest in the land in accordance with the Corporations Act; or
(ii)the person is an insolvent under administration; or
(iii)the land to which the site management order relates is transferred or sold; or
(iv)the person is an occupier but not an owner of the land to which the site management order relates and the person sells, transfers or abandons their interest in the land or otherwise ceases to occupy the land; and
(b)the Authority—
(i)is satisfied, having regard to the considerations specified in section 231G, that it is necessary to retain the financial assurance as security for the costs or expenses of remediation or clean up where there is a significant risk these costs or expenses may be borne by the State or the Authority; or
(ii)is entitled to make a claim on the financial assurance under section 227(2).
231EAuthority may refuse to release financial assurance—environmental action notice
The Authority may refuse to release all or part of a financial assurance to the person who provided it despite the occurrence of a trigger event described in section 231A(1)(c) if—
(a)the reason an environmental action notice no longer applies to the person is that—
(i)the land or premises to which that notice relates are owned, occupied, managed or controlled by a company that has gone into liquidation and the liquidator has disclaimed the company's interest in the land or premises in accordance with the Corporations Act; or
(ii)the person is an insolvent under administration; or
(iii)the land or premises to which the environmental action notice relates are transferred or sold; or
(iv)the person is an occupier but not an owner of the land or premises to which the environmental action notice relates and the person sells, transfers or abandons their interest in the property or otherwise ceases to occupy the property; and
(b)the Authority—
(i)is satisfied, having regard to the considerations specified in section 231G, that it is necessary to retain the financial assurance as security for the costs or expenses of remediation or clean up where there is a significant risk these costs or expenses may be borne by the State or the Authority; or
(ii)is entitled to make a claim on the financial assurance under section 227(2).
231FAuthority may refuse to release financial assurance—Order relating to environmentally hazardous substances
The Authority may refuse to release all or part of a financial assurance to the person who provided it despite the occurrence of a trigger event described in section 231A(1)(d) if the Authority—
(a)is satisfied, having regard to the considerations specified in section 231G, that it is necessary to retain the financial assurance as security for the costs or expenses of remediation or clean up where there is a significant risk these costs or expenses may be borne by the State or the Authority, because—
(i)the risk of contamination of land, personal property, waters or premises from the environmentally hazardous substance that is the subject of the Order remains; or
(ii)a clean up is likely to be required due to the impact of the environmentally hazardous substance that is the subject of the Order on land, personal property, waters or premises; or
(b)is entitled to make a claim on the financial assurance under section 227(2).
231GSpecified considerations to which Authority must have regard
For the purposes of sections 231C(b)(i), 231D(b)(i), 231E(b)(i), 231F(a) and 232(2B)(a)(i) and (b)(i), the following considerations are specified—
(a)the likelihood that clean up or remediation will be required, having regard to the nature of the relevant activity;
(b)the nature, duration, extent and costs of any remediation or clean up required under this Act or the regulations in relation to the relevant activity;
(c)the likelihood of any party other than the State or the Authority conducting clean up or remediation activities or bearing the costs or expenses of clean up or remediation for the relevant activity;
Example
If the relevant activity relates to land, premises, personal property or a leasehold interest which has been sold or transferred to another person, the Authority must consider whether the person to whom that interest was transferred is likely to provide a financial assurance, and if so, the amount of that financial assurance.
(d)the extent to which contamination, pollution or waste resulting from the relevant activity may cause risk to human health and the environment, having regard to the nature or location of the relevant activity;
(e)whether the full extent of any contamination, pollution, waste or environmental impacts resulting from the relevant activity is likely or unlikely to be discoverable until a future date;
(f)any failures by the person who provided the financial assurance or a related entity of that person to comply with this Act, the regulations, or the conditions of any permission, site management order, environmental action notice, or Order relating to environmentally hazardous substances;
(g)any prescribed considerations.
231HTiming of decision to refuse to release financial assurance following trigger event
(1)Subject to section 231M, a decision whether or not to release a financial assurance under section 231C, 231D, 231E or 231F must be made within 40 business days of the earlier of the following days—
(a)the day on which a submission under section 231B(2) is received;
(b)the day on which a notice from the person who provided the financial assurance is received, stating that a submission will not be made;
(c)the day on which a submission under section 231B(2) is due, including any agreed extension.
(2)The Authority may require the person who provided the financial assurance to provide the Authority with any information that the Authority considers necessary.
(3)The time in which the Authority must make a decision under section 231C, 231D, 231E or 231F does not include—
(a)if the Authority requires information under subsection (2), the period from the date that the Authority makes the request until the date on which the Authority receives the information; or
(b)any period that the Authority and the person who provided the financial assurance agree is not to be included in that time.
(4)Within 5 business days of making a decision to refuse to release all or part of the financial assurance under section 231C, 231D, 231E or 231F, the Authority must notify the following persons in writing—
(a)the person who provided the financial assurance;
(b)any prescribed persons.
231IReview of refusal to release financial assurance—date for commencing review
(1)If the Authority refuses to release all or part of a financial assurance under any of the following sections, the Authority must determine a date by which the Authority will commence a review of that refusal—
(a)section 231C;
(b)section 231D;
(c)section 231E;
(d)section 231F;
(e)section 231L;
(f)section 232(4)(a), if the refusal relates to an application that was made after a trigger event and that was assessed under section 232(2A) or (2B).
(2)The refusal review date must be—
(a)a date agreed by the parties; or
(b)if the parties have not agreed on a date, a date no later than 5 years after the day on which the Authority refuses to release all or part of the financial assurance under section 231C, 231D, 231E, 231F, 231L or 232(4)(a).
(3)In addition to any review scheduled under this section, the Authority may review the refusal to release the financial assurance in accordance with sections 231J, 231K and 231L if—
(a)information is given to the Authority that indicates there has been a material change since the Authority refused to release all or part of the financial assurance; and
(b)the Authority considers there is a reasonable likelihood that the new information could change the Authority's assessment as to whether or not to release the financial assurance.
231JReview of refusal to release financial assurance—notice of intention
On or before the refusal review date, the Authority must—
(a)in writing, notify the person who provided a financial assurance that the Authority—
(i)is considering whether or not to release the financial assurance; or
(ii)intends to refuse to release all or part of the financial assurance; and
(b)invite the person who provided the financial assurance to make a submission setting out any significant relevant new information or any material change that has occurred since the Authority refused to release all or part of the financial assurance—
(i)within 20 business days of the date of the notice; or
(ii)within any other period agreed between the Authority and the person.
231KReview of refusal to release financial assurance—matters to consider before making decision
(1)If the Authority has received a submission under section 231J, the Authority must consider whether or not the submission—
(a)sets out significant relevant new information; or
(b)demonstrates that a material change has occurred.
(2)The Authority must consider any submission received under section 231J before making a decision under section 231L(1).
(3)The Authority may refuse to release all or part of the financial assurance under section 231L(1) without considering any further matters if—
(a)the Authority considers that the submission does not set out significant relevant new information or demonstrate that a material change has occurred; or
(b)no submission is received.
(4)If the Authority considers that the submission sets out significant relevant new information or demonstrates that a material change has occurred, the Authority must consider—
(a)whether the Authority may refuse to release all or part of the financial assurance under section 231C, 231D, 231E or 231F, as the case requires; and
(b)the questions of causation and remoteness of any pollution, harm or contamination occurring after a trigger event described in section 231A(1), affecting land, personal property, waters or premises.
231LReview of refusal to release financial assurance—decision and timing
(1)Subject to section 231M, the Authority must decide whether or not to refuse to release all or part of the financial assurance within 40 business days of the earlier of the following days—
(a)the day on which a submission under section 231J(b) is received;
(b)the day on which a notice from the person who provided the financial assurance is received, stating that a submission will not be made;
(c)the day on which a submission under section 231J(b) is due, including any agreed extension.
(2)The Authority may require the person who provided the financial assurance to provide the Authority with any information that the Authority considers necessary.
(3)The time in which the Authority must make a decision under subsection (1) does not include—
(a)if the Authority requires information under subsection (2), the period from the date that the Authority makes the request until the date on which the Authority receives the information; or
(b)any period that the Authority and the person who provided the financial assurance agree is not to be included in that time.
(4)Within 5 business days of making a decision under subsection (1), the Authority must notify the following persons in writing—
(a) the person who provided the financial assurance;
(b)any prescribed persons.
(5)There is no limit to the number of times a financial assurance may be reconsidered and all or part of its release refused under this section before any expiry date set out in the financial assurance is reached.
231MExtension of time
(1)The Authority may—
(a)reach an agreement with the person who provided the financial assurance to—
(i)extend a period specified in section 231B(1), 231H(1), 231L(1) or 232(5); or
(ii)select a new date by which the Authority will commence a review of a refusal to release all or part of a financial assurance under section 231C, 231D, 231E, 231F, 231L or 232(4)(a) (if the refusal relates to an application that was made after a trigger event and that was assessed under section 232(2A) or (2B)); or
(b)apply to VCAT for—
(i)an extension of a period specified in section 231B(1), 231H(1), 231L(1) or 232(5); or
(ii)the determination of a new date by which the Authority will commence a review of a refusal to release all or part of a financial assurance under section 231C, 231D, 231E, 231F, 231L or 232(4)(a) (if the refusal relates to an application that was made after a trigger event and that was assessed under section 232(2A) or (2B)).
(2)On an application under subsection (1)(b), VCAT, as the case requires—
(a)may refuse to grant the extension or make the determination; or
(b)may—
(i) grant an extension for any period that VCAT considers reasonable in the circumstances; or
(ii)determine a new date that VCAT considers reasonable in the circumstances.
(3)If VCAT refuses to grant the Authority's application—
(a)in relation to the period specified in section 231B(1), 231H(1), 231L(1) or 232(5), the Authority must make the decision under that section within the later of the following—
(i)the period specified in that section;
(ii)20 business days after VCAT's decision; or
(b)in relation to the date by which the Authority will commence a review of a refusal the Authority must comply with the date determined under section 231I—
unless a stay is granted under section 149 of the Victorian Civil and Administrative Tribunal Act 1998 to allow the Authority to appeal to the Supreme Court.
231NFailure to make decision
If the period (including any relevant extensions of the period) for the Authority to take action under any of the following sections lapses without the Authority taking that action, the Authority is taken to have refused to make a decision—
(a)section 231B;
(b)section 231H;
(c)section 231J;
(d)section 231L;
(e)section 232(5).
Note
The person who provided the financial assurance may apply to VCAT for review of a failure to release the financial assurance within the period during which the Authority must determine the application—see section 4(2) of the Victorian Civil and Administrative Tribunal Act 1998.".
33Application for release of financial assurance
(1)After section 232(1) of the Environment Protection Act 2017 insert—
"(1A)If an application under subsection (1) relates to a financial assurance that the Authority has refused to release (in whole or in part) under section 231C, 231D, 231E or 231F, or under section 231L following a review of a refusal under one of those sections, the application must set out—
(a)significant relevant new information; or
(b)demonstrate that a material change has occurred.".
(2)For section 232(2) of the Environment Protection Act 2017 substitute—
"(2)In considering an application under subsection (1), other than an application referred to in subsection (1A), the Authority must have regard to the prescribed risk assessment criteria.
(2A)In considering an application referred to in subsection (1A), the Authority must consider whether or not the application—
(a)sets out significant relevant new information; or
(b)demonstrates that a material change has occurred—
and may refuse to release all or part of the financial assurance without considering any further matters if the Authority considers that the application does not set out significant relevant new information or demonstrate that a material change has occurred.
(2B)If the Authority considers that an application referred to in subsection (1A) sets out significant relevant new information or demonstrates that a material change has occurred, the Authority must consider—
(a)in the case of an application in relation to a financial assurance that the Authority has refused to release (in whole or in part) under section 231C, 231D or 231E, or under section 231L following a review of a refusal under one of those sections, whether the Authority—
(i)is satisfied, having regard to the considerations specified in section 231G, that it is necessary to retain the financial assurance as security for the costs or expenses of remediation or clean up where there is a significant risk these costs may be borne by the State or the Authority; or
(ii)is entitled to make a claim on the financial assurance under section 227(2); or
(b)in the case of an application in relation to a financial assurance that the Authority has refused to release (in whole or in part) under section 231F, or under section 231L following a review of a refusal under section 231F, whether the Authority—
(i)is satisfied, having regard to the considerations specified in section 231G, that it is necessary to retain the financial assurance as security for the costs or expenses of remediation or clean up where there is a significant risk these costs or expenses may be borne by the State or the Authority, because—
(A)the risk of contamination of land, personal property, waters or premises from the environmentally hazardous substance that is the subject of the Order remains; or
(B)a clean up is likely to be required due to the impact of the environmentally hazardous substance that is the subject of the Order on land, personal property, waters or premises; or
(ii)is entitled to make a claim on the financial assurance under section 227(2).".
(3)In section 232(3)(b) of the Environment Protection Act 2017, for "(2)(b)" substitute "(5)".
(4)After section 232(3) of the Environment Protection Act 2017 insert—
"(4)After considering an application under subsection (1), the Authority may—
(a)refuse to release all or part of the financial assurance; or
(b)release all of the financial assurance.
(5)Subject to section 231M, the Authority must notify the following persons in writing within 40 business days after the date on which the application is received of the Authority's decision under subsection (4)—
(a)the person who provided the financial assurance;
(b)any prescribed persons.".
34Decisions reviewable by VCAT
(1)In the table to section 430(4) of the Environment Protection Act 2017, in item 29, for "Person required to provide financial assurance" substitute "Person who provided financial assurance".
(2)In the table to section 430(4) of the Environment Protection Act 2017, in item 30, for "Person required to provide financial assurance" substitute "Person who provided financial assurance".
(3)In the table to section 430(4) of the Environment Protection Act 2017, for item 31 substitute—
"30A. 231C Person who provided financial assurance 30B. 231D Person who provided financial assurance 30C. 231E Person who provided financial assurance 30D. 231F Person who provided financial assurance 30E. 231L Person who provided financial assurance 31. 232(4) Person who provided financial assurance".
Division 2—Miscellaneous amendments
35Definitions
(1)In section 3(1) of the Environment Protection Act 2017 insert the following definitions—
"designated place has the same meaning as in the Victoria Police Act 2013;
police premises has the same meaning as in the Victoria Police Act 2013;
protective services officer has the same meaning as in the Victoria Police Act 2013;
vehicle inspection notice means a notice under section 269A(1);".
(2)In section 3(1) of the Environment Protection Act 2017, in the definition of litter enforcement officer, for paragraph (f) substitute—
"(f)a protective services officer who is on duty at a designated place or in the vicinity of police premises; or
(fa)in relation to any land or waters managed under a relevant law (within the meaning of the Conservation, Forests and Lands Act 1987), a person appointed under Part 3 of the Game Management Authority Act 2014; or".
(3)In section 3(1) of the Environment Protection Act 2017, for the definition of unreasonable noise substitute—
"unreasonable noise means noise that is—
(a)unreasonable having regard to the following—
(i)its volume, intensity or duration;
(ii)its character;
(iii)the time, place and other circumstances in which it is emitted;
(iv)how often it is emitted;
(v)any prescribed factors; or
(b)prescribed to be unreasonable noise—
but does not include noise prescribed not to be unreasonable noise;".
36Definition
In section 49A of the Environment Protection Act 2017, after paragraph (f) of the definition of relevant permission application insert—
"(fa)an application under section 80 for an exemption from the application of section 45; or".
37Protection against self-incrimination
After section 268(2) of the Environment Protection Act 2017 insert—
"(3)Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to make a vehicle available for inspection as required under this Part if making the vehicle available for inspection would tend to incriminate the person.".
38New sections 269A and 269B inserted
After section 269 of the Environment Protection Act 2017 insert—
"269A Authority may require vehicle to be made available for inspection
(1)The Authority may serve a notice on a person who is the registered owner of, or is apparently in lawful possession of, a relevant vehicle, requiring the person to make the relevant vehicle available for measurement, inspection and testing by an authorised officer to determine whether or not—
(a)the person has contravened a provision of this Act or the regulations in relation to the relevant vehicle; or
(b)there is a risk of harm to human health or the environment from pollution or waste in relation to the relevant vehicle.
(2)A vehicle inspection notice must be in writing and must set out—
(a)the name of the person on whom it is served; and
(b)the relevant vehicle in relation to which it is served; and
(c)the reason the relevant vehicle is to be inspected; and
(d)the actions that need to be taken to comply with the notice; and
(e)the time and date of the inspection, which must be reasonable in the circumstances; and
(f)the place of the inspection, which must be reasonable in the circumstances; and
(g)the period during which the relevant vehicle will be kept by the Authority; and
(h)the penalty for failure to comply with the notice.
(3)The Authority may revoke or amend a vehicle inspection notice by written notice given to the person on whom the vehicle inspection notice was served.
(4)A person who is served with a vehicle inspection notice may request the Authority to amend a requirement set out in the notice relating to any of the following—
(a)the time of the inspection;
(b)the place of the inspection;
(c)the period for which the relevant vehicle will be required.
(5)In this section—
relevant vehicle means the following—
(a)a motor vehicle;
(b)a vehicle other than a motor vehicle used to transport reportable priority waste.
269BFailure to present vehicle for inspection
(1)A person who is served with a vehicle inspection notice must present the vehicle for inspection at the time, date and place specified in the notice, unless the person has a reasonable excuse.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.
(2)The Authority may apply to the Court for an order compelling a person to comply with a vehicle inspection notice.".
39Notice to investigate
After section 273(4) of the Environment Protection Act 2017 insert—
"(5)A person in management or control of land may recover in a court of competent jurisdiction, as a debt due to the person, any reasonable costs incurred in complying with a notice to investigate, including any reasonable costs incurred by the person in taking action under this section, against any person responsible for causing or contributing to the relevant circumstances.".
40Environmental action notice
In section 274(6) of the Environment Protection Act 2017, for "contamination of the land" substitute "the relevant circumstances".
41Site management orders
In section 275(11) of the Environment Protection Act 2017, after "contamination of the land" insert "or harm or the risk of harm to human health or to the environment from pollution or waste".
42Cost recovery powers
In section 297(5) of the Environment Protection Act 2017, for "Chapter 5" substitute "Division 7A of Part 5.6".
43Displacement of other laws
In section 297A of the Environment Protection Act 2017, for "Chapter 5" substitute "Division 7A of Part 5.6".
44Reports and certificates
After section 337(4) of the Environment Protection Act 2017 insert—
"(4A)A protective services officer who observes a motor vehicle while the officer is on duty at a designated place or on duty on or in the vicinity of police premises may sign a report to the effect that the motor vehicle did not comply with a provision of this Act or the regulations.".
45Liability of officers of bodies corporate—failure to exercise due diligence
In section 349(2)(m) of the Environment Protection Act 2017, for "290(1)" substitute "290(3)".
46Delegation
In section 437(1) of the Environment Protection Act 2017, after "under this Act" insert "or any other Act".
47New Part 14.9 inserted
After Part 14.8 of the Environment Protection Act 2017 insert—
"PART 14.9—INTEREST
463AAuthority may charge interest on unpaid fees
(1)The Authority may require a person to pay interest on a fee prescribed under a provision specified in subsection (2)—
(a)which that person owes to the Authority; and
(b)which has not been paid within one month after the fee became due and payable.
(2)The following provisions are specified—
(a)section 50A;
(b)section 55;
(c)section 90A;
(d)section 157A;
(e)section 181A;
(f)section 277A;
(g)section 459AA.
(3)The interest—
(a)is to be calculated at the rate fixed under section 2 of the Penalty Interest Rates Act 1983 that applied on the day on which the fee was due to be paid; and
(b)continues to be payable until the payment or recovery of the fee.".
48Statute law revision—Part 17.1
In section 503 of the Environment Protection Act 2017 (where secondly occurring), for "503" substitute "503A".
PART 4—REPEAL OF THIS ACT
49Repeal of this Act
This Act is repealed on 1 October 2025.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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ENDNOTES
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 18 October 2023
Legislative Council: 2 November 2023
The long title for the Bill for this Act was "A Bill for an Act to amend the Circular Economy (Waste Reduction and Recycling) Act 2021 to further provide for matters relating to the container deposit scheme, the waste to energy scheme and the recovery of regulatory costs for those schemes and to amend the Environment Protection Act 2017 to improve the operation of that Act and for other purposes."
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