Wednesday, 8 June 2022

Bills

Environment Legislation Amendment (Circular Economy and Other Matters) Bill 2022

Statement of compatibility

Ms D’AMBROSIO (Mill Park—Minister for Energy, Environment and Climate Change, Minister for Solar Homes) (10:39): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Environment Legislation Amendment (Circular Economy and Other Matters) Bill 2022.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Environment Legislation Amendment (Circular Economy and Other Matters) Bill 2022 (the Bill). In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill makes amendments to the Circular Economy (Waste Reduction and Recycling) Act 2021 (Circular Economy Act) and the Environment Protection Act 2017 (Environment Protection Act) to further enhance the effectiveness of the regulation of the circular economy, environment protection and environmental sustainability.

The amendments to the Circular Economy Act establish a cap on thermal waste to energy capacity in Victoria and provides the legislative framework for Recycling Victoria’s functions including infrastructure planning and a risk management framework. The Bill also provides for an additional compliance tool through the introduction of monetary benefit orders, to restrict entities from profiting from breaches.

It also establishes a mechanism under the Environment Protection Act to provide funding for Recycling Victoria using funding from the waste levy collected under the Environment Protection Act.

The Bill also amends the Environment Protection Act giving better effect to the intent of the Environment Protection Act and enhancing its operation and effectiveness and ensuring the smooth transition from the repealed Environment Protection Act 1970.

The Bill also makes reforms to the Sustainability Victoria Act 2005 to allow for information sharing by Sustainability Victoria to carry out its’ functions, and to work with Recycling Victoria and the Environment Protection Authority.

Human Rights Issues

Human rights protected by the Charter relevant to the Bill are: the right to privacy and reputation (section 13), the right to the presumption of innocence (section 25(1)), the right not to be tried or punished more than once (section 26) and the right to a fair hearing (section 24).

Right to privacy (section 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will be lawful if it is permitted by a law which is precise and appropriately circumscribed and will not be arbitrary provided it is reasonable in the circumstances and just and appropriate to the end sought.

Information sharing powers

The Bill introduces a range of new information sharing provisions between entities, principally information sharing between Sustainability Victoria, the Head, Recycling Victoria and the Environment Protection Authority.

Part 2 of the Bill includes amendments that expand the agencies to which an otherwise unauthorised disclosure of confidential information or commercially sensitive information is permitted under section 55 of the Circular Economy Act. The purpose of this expansion is to enable confidential or commercially sensitive information to be disclosed to specified oversight agencies to enable that agency to prevent, detect, investigate or prosecute an offence. The purpose of the amendments is to ensure accountability and oversight of government agencies regarding the provision of services, spending of public money under the scheme, as well as compliance with the Act and other requirements. I note that disclosure for law enforcement purposes is a recognised ground under the information privacy principles in the Privacy and Data Protection Act 2014, and that these agencies will each be subject to their own information sharing restrictions in relation to the information they receive. Accordingly, to the extent that disclosures under this clause relate to personal information, any such disclosure would not be arbitrary as it would be made for a legitimate purpose of ensuring oversight and accountability of government agencies, and be subject to existing protections on privacy.

Part 4 of the Bill also introduces new sections 19A to 19D into the Sustainability Victoria Act 2005 enabling Sustainability Victoria to collect, use or disclose any information that is necessary for Sustainability Victoria to perform its duties or exercise its powers under any Act. Sustainability Victoria does not currently have a statutory information sharing scheme, and the objective of the clause is to remove information sharing obstacles that prevent Sustainability Victoria from carrying out its functions. These reforms in the Bill enable information sharing between Recycling Victoria and Sustainability Victoria to carry out each other’s respective functions, including to support the centralised data and information system established by section 51 of the Circular Economy Act.

Most information encompassed by this provision would be of a commercial nature, and to the extent it relates to personal information, any collection, use or disclosure would not be arbitrary due to the safeguards provided. These safeguards include specifying the purposes for which information sharing can be conducted (involving functions connected to environment sustainability, environment protection and the circular economy), the persons or entities to which information sharing can occur, the requirement for information sharing notices to be issued and prohibiting unauthorised disclosure of confidential information except in limited circumstances.

Part 3 of the Bill also empowers the Environment Protection Authority or councils, in relation to licence or permit renewals and exemptions under sections 80, 82, 83, 84 and 90 of the Environment Protection Act to request any information it considers necessary from an applicant. To the extent that this would involve personal information, this may interfere with the right to privacy, however an applicant who voluntarily chooses to apply for a licence or permit under the scheme assumes various responsibilities and duties related to their participation in this regulated sphere, including the requirement to provide all necessary information for the Environment Protection Authority or council to be able to determine their application. The power to request information is still confined to ‘necessary information’ and must be relevant to the determination of the application. The Environment Protection Authority or councils will also be public authorities under the Charter and required to give proper consideration to, and act compatibly with, the right to privacy in making these requests for information. I therefore consider any interference with privacy to be not arbitrary and proportionate to the regulatory aims of the overall scheme.

Fit and proper person assessment

Part 2 of the Bill inserts new Part 5A of the Circular Economy Act that includes provisions to enable persons to submit an expression of interest for waste to energy licences to operate thermal waste facilities, with the condition that the Head, Recycling Victoria must determine whether the applicant is a fit and proper person to be issued with the licence.

For the Head, Recycling Victoria to satisfy themselves that relevant persons are ‘fit and proper’, the Head, Recycling Victoria may require the provision of personal information by applicants who are natural persons, such as criminal history, financial records and probity checks. To the extent that this may interfere with the privacy rights of such applicants, I consider it to be not arbitrary, in that there is a legitimate and important purpose in ensuring that only fit and proper persons hold these licences. The effectiveness of the thermal waste to energy scheme will depend upon the proper performance of roles as a licence holder, and there is a strong need to protect against the risk of any improper, negligent, or fraudulent conduct occurring. Additionally, as discussed above, an applicant has a reduced expectation of privacy in relation to this information, as they are voluntarily applying for a role in a regulated industry where it is a requirement that they demonstrate that they are a fit and proper person to assume that position of responsibility.

Presumption of innocence (section 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

‘Reasonable excuse’ offence provisions

Part 2 of the Bill also inserts new offence provisions into the Circular Economy Act which provide for a ‘reasonable excuse’ defence (new sections 74D, 74G and 74O). This includes that a responsible entity must not, without reasonable excuse, fail to comply with a requirement of its Circular Economy Risk, Consequence and Contingency (CERCC) Plan or Responsible Entity Risk, Consequence and Contingency Plans (RERCC) Plan, or fail to notify the Head, Recycling Victoria as soon as reasonably practicable after becoming aware that it is unable to comply with a requirement of its respective plan. It also includes similar offence provisions relating to the failure to comply with a condition of a waste to energy licence.

As these offences are summary offences, section 72 of the Criminal Procedure Act 2009 will apply to require an accused who wishes to rely on the ‘reasonable excuse’ exception to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the excuse. By creating ‘reasonable excuse’ exceptions, the offences in the Bill may be viewed as placing an evidential burden on the accused, in that it requires the accused to raise evidence as to a reasonable excuse. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge (for example, why the accused failed to comply with a licence condition), the burden shifts back to the prosecution who must prove the absence of a reasonable excuse beyond reasonable doubt. I note that case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter’s right to a presumption of innocence, as such an evidentiary onus falls short of imposing any burden of persuasion on an accused. Common law protections against self-incrimination remain unaffected. Accordingly, to the extent that these provisions may apply to a natural person, I consider that these provisions do not limit the presumption of innocence in section 25 of the Charter.

Accessorial liability of officers of body corporate for offences

Part 2 of the Bill also introduces a number of new offences under section 177(2) of the Circular Economy Act for which liability for certain offences committed by a body corporate or council is extended to the officers of that body corporate, including failure to comply with a CERCC or RERCC Plan or failure to submit a statement of assurance. These sections provide that liability will extend in certain circumstances under section 177 of the Circular Economy Act, including where the officer authorised or permitted the commission of the offence by the body corporate or council, or was knowingly concerned in any way whether by act or omission in the commission of the relevant offence.

This provision is relevant to the presumption of innocence as it may operate to deem as ‘fact’ that an individual has committed an offence based on the actions of another body, due to their association with that body. In my view, these provisions do not limit the presumption of innocence as the prosecution is still required to prove the accessorial elements of the offence—that is, that the relevant person authorised or was knowingly concerned with the commission of the offence, or failed to exercise the necessary due diligence to prevent the offending. In the event that this provision is considered a limit, I am of the view that any limitation is reasonably justified. As with any regulated industry concerning essential services to the public, there is a strong need to ensure adequate deterrence of regulatory offences that may cause harm to industry participants or the public at large. Courts in other jurisdictions have held that the presumption of innocence may be subject to reasonable limits in the context of regulatory compliance. Common law protections against self-incrimination remain unaffected. These provisions only target persons who hold a position as an officer of a body corporate or council, which involves assuming the responsibilities and duties that apply to these roles, and who have the capacity to influence the conduct of the entity concerned.

The provisions ensure such persons are held responsible for all breaches that occur by or on behalf of the entity in which they have responsibility for, enabling offences to be successfully prosecuted. As officers of the body corporate, affected persons should be well aware of the regulatory requirements and, as such, should have the necessary processes and systems in place to effectively meet these requirements and not incur accessorial liability. In my view, there is no less restrictive way of ensuring accountability of officers of bodies corporate or councils for breaches of the Bill, and it follows that these provisions are compatible with the Charter.

Right to not be tried or punished more than once (section 26)

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law. This rule only applies in respect of criminal punishment. The principle does not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, or vice versa. The imposition of civil penalties will not, generally, engage the right, unless the penalty is in the nature of a ‘punishment’, or a penal consequence.

Monetary benefit orders

Part 2 of the Bill also introduces monetary benefit orders as an additional compliance tool by inserting new Division 9A of Part 7 of the Circular Economy Act. This provides that a court can make an ancillary order, on the application of the Head, Recycling Victoria, following a person being convicted of an offence under the Act or breaching an enforceable undertaking, requiring the person to pay an amount that represents any monetary benefit acquired by the person as a result of the commission of the offence or breach of the undertaking. While a monetary benefit order may be made in addition to a sentence, in my view it does not constitute ‘punishment’ so as to engage this right.

The purpose of the monetary benefit order is protective and remedial in nature, and is akin to civil restitution. It is intended to deprive a person of the proceeds gained from the offence or breach and restore them to the position they were in prior to committing the offence. Notably, the provision restricts the court to only being able to make the order only if (1) there is an application from the Head, Recycling Victoria; and (2) the court order of payment of an amount does not exceed the amount the court is satisfied represents the monetary benefit acquired by the person as a result of the commission of the offence or breach of the enforceable undertaking. Accordingly, I consider the order is not punitive, and thus does not engage the right.

Civil penalty provisions

Part 2 of the Bill introduces a range of new additional civil penalty provisions. I note that sections 137 to 141 of the Circular Economy Act enable both civil and criminal proceedings to be brought in some circumstances against persons for contraventions of the Bill concerning the same, or substantially the same conduct. Accordingly, the introduction of further civil penalty provisions is relevant to this right.

The imposition of civil penalties will generally not engage the right under section 26 of the Charter, unless the penalty is in the nature of a punishment. The new provisions are all identified as civil penalty provisions and introduce penalties ranging from 120 penalty units to 1000 penalty units, for natural persons. These provisions are largely protective in nature, with the aim of ensuring compliance with the regulatory scheme. The provisions relate to compliance with CERCC and RERCC plans, and operating a thermal waste to energy facility without a licence, or failure to comply with a condition of that licence or operation using banned waste.

Therefore, the civil penalties serve the purpose of upholding duties on operators and responsible entities and serve the overall objective of protection of the environment and the effective delivery of services for the purposes of waste, recycling and resource recovery services. Moreover, these penalties apply to persons who have elected to participate in this regulated industry, and therefore such penalties could be viewed as disciplinary rather than punitive in nature.

While a penalty of 1000 penalty units is significant for a natural person, the penalty relates to a person operating a facility without a licence or using banned waste, in the context of large-scale commercial thermal waste to energy operators. Additionally, breaches have the potential to directly cause, or indirectly contribute to, significant and irreversible damage to public health and the environment. Therefore, given this scale, I consider the maximum penalty appropriate and not disproportionate given the central role these operators play in the regulatory scheme. Additionally, I note that section 138(2) of the Circular Economy Act provides that in determining the amount of a penalty, the court may have regard, amongst other things, to the nature and extent of any loss or damage suffered as a result of the conduct and the cost of remedying the harm, and whether any enforceable undertaking is in place. I also note that the Environment Protection Act contains a comparable scheme targeting environmental harms, which imposes a maximum of 2000 penalty units on natural persons. Finally, no sanction of imprisonment attaches to failure to pay a civil penalty order. These provisions are largely protective in nature, with the aim of ensuring compliance with the regulatory scheme. Accordingly, I conclude that the penalties attaching to these new offence provisions are civil in nature and thus do not engage this Charter right.

Fair hearing (section 24)

Section 24(1) of the Charter provides, amongst other things, that a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Licence applications

Part 2 of the Bill inserts new Part 5A into the Circular Economy Act which contains a range of new provisions enabling the Head, Recycling Victoria to issue, vary, cancel, or suspend waste to energy licences, and impose conditions on these licences and disqualify persons from holding these licences. As discussed above, an applicant is voluntarily applying for a role in a regulated industry where it is a requirement that they demonstrate that they are a fit and proper person to assume that position of responsibility. The purposes of these provisions is to ensure the integrity of the licensing scheme with appropriate probity checks and safeguards, in particular that licence holders are and remain fit and proper persons, and licence holders comply with the conditions of their licences. The provisions aim to ensure that the integrity of licence scheme and that it furthers the purposes of the protection of the environment, maintenance of a circular economy and environment sustainability, with reasonable actions taken for that purpose by the Head, Recycling Victoria in cases where persons are not or no longer fit and proper, or do not comply with conditions of the licence.

While case law has interpreted ‘civil proceeding’ in section 24 of the Charter broadly, it does not extend to the kind of administrative decision-making that will be undertaken by the Head, Recycling Victoria pursuant to these provisions (in that the Head, Recycling Victoria is unlikely to be considered a ‘tribunal’ for the purpose of this right). However, to the extent that the right does apply, I consider that the scheme would be consistent with the right to a fair hearing, as the Bill provides for clear, accessible, reasonable and proportionate criteria for the determining of all applications, requirements for written notice and an entitlement to respond in relation to potential adverse decisions such as amending, suspending or cancelling, a licence or disqualifying a person from holding a licence.

There is a right to apply to Victorian Civil and Administrative Tribunal (VCAT) for review in relation to a certain decisions, including decisions in the waste to energy scheme grant with conditions or to vary, suspended, cancel or disqualify a waste to energy licence. Decisions to refuse to grant cap licences will be reviewable, but VCAT will not have the power to issue a cap licence following that review if to do so would breach section 74T, which sets a cap on allocation across all licences. Similarly, conditions pertaining to cap allocation of waste to energy amounts under the licence are not reviewable decisions in order to ensure the integrity of the maximum cap amount specified by the regulations and contravene new section 74T. These provisions ensure that the waste to energy cap is not undermined.

Accordingly, I am satisfied that the Bill is compatible with the Charter.

The Hon. Lily D’Ambrosio MP

Minister for Energy, Environment and Climate Change

Second reading

Ms D’AMBROSIO (Mill Park—Minister for Energy, Environment and Climate Change, Minister for Solar Homes) (10:39): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Victorian Government has committed to legislate a state-wide circular economy, generating jobs, meeting climate change targets, and ensuring Victorians have a reliable recycling system. Our waste and recycling system plays a vital role in the functionality and livability of our city and regions.

The Environment Legislation Amendment (Circular Economy and Other Matters) Bill amends the Circular Economy (Waste Reduction and Recycling) Act 2021 to continue the Victorian Government’s delivery of this once-in-a-generation reform of Victoria’s waste and recycling system, making it more transparent, accountable and reliable. The Bill includes interrelated reforms to infrastructure planning, and risk and contingency planning, to encourage investment and market stability, and improved market reporting to increase transparency across the system. The Bill includes consequential amendments to the Environment Protection Act 2017 and Sustainability Victoria Act 2005, to reflect changes in portfolio roles and responsibilities in relation to infrastructure planning, and to enable Sustainability Victoria to share and receive information to perform its functions.

A significant reform in the Bill is to allow an annual cap on the waste that can be used in Waste to Energy facilities in Victoria.

The Bill will also make amendments to the Environment Protection Act 2017 to enhance its operation to better effect the intent of that Act, ensuring the smooth transition from the old Environment Protection Act 1970 which was repealed on 1 July 2021.

Background to the Bill

The Victorian waste and recycling sector is entering a stage of exciting positive change that will help Victorians reduce, reuse, repair and recycle waste while strengthening the economy and setting up a more sustainable future for our state.

On 2 December 2021, the Circular Economy (Waste Reduction and Recycling) Bill 2021 was passed by Parliament giving effect to important components of Recycling Victoria: A new economy, the Victorian Government’s policy and action plan, delivered in February 2020, to transition Victoria to a circular economy and reform our waste and recycling system over the next decade. This policy and legislation demonstrated the Victorian Government’s comprehensive response to major disruptions caused by the China Sword policy implementation in 2018 and the collapse of SKM Recycling in 2019.

The Government also undertook extensive consultation with the community and industry on the Waste to Energy Framework, which outlines the scope and operation of the cap. This was released in November last year. The framework provided certainty to industry seeking to invest in waste to energy facilities as well as those currently operating in Victoria.

The Circular Economy (Waste Reduction and Recycling) Act 2021 established the foundational powers and functions of the Head, Recycling Victoria, a dedicated business unit within the Department of Environment, Land, Water and Planning. Recycling Victoria will commence its operations from 1 July 2022 and includes staff transitioning from the former Waste and Resource Recovery Groups, and from a part of Sustainability Victoria. In introducing the statutory framework to support our transition to a circular economy, I noted it was part of a series of coordinated measures that will support Victoria’s transition to a circular economy, and pledged that the Victorian Government would continue working alongside stakeholders in developing additional reforms, including further legislative change. This Bill comprises the next significant tranche of these previously foreshadowed further legislative changes, which build on and complement the already legislated functions and powers of the Head, Recycling Victoria.

The Environment Protection Amendment Act 2018 took effect on 1 July 2021, repealing the Environment Protection Act 1970, amending the Environment Protection Act 2017 and introducing the new environment protection framework. The Bill contains amendments to the Environment Protection Act 2017 to ensure that it operates as intended following the commencement of the new framework.

Overview of the Bill

The Bill gives effect to key commitments of our action plan Recycling Victoria: A new economy by amending the Circular Economy (Waste Reduction and Recycling) Act 2021 to:

• introduce a single consolidated Victorian Recycling Infrastructure Plan ensuring long-term strategic planning to support decision making for waste and resource recovery infrastructure at State, regional and local levels;

• establish a waste to energy scheme to ensure residual waste that would otherwise go to landfill is utilised to create valuable energy, while ensuring we maximise the recycling of materials first and foremost;

• provide for market oversight, to enhance transparency and accountability, including the introduction of a Risk, Consequence and Contingency Planning framework, the ability to develop and publish market strategies, and a requirement for the Head, Recycling Victoria to produce an annual Market Report; and

• add an additional compliance tool in the form of monetary benefit orders, and make other miscellaneous, minor and technical amendments.

The circular economy elements of the Bill will amend the Sustainability Victoria Act 2005 to transfer responsibility for statewide infrastructure planning from Sustainability Victoria to Recycling Victoria and to enable Sustainability Victoria to share information with its portfolio partners. The Bill will also amend the Environment Protection Act 2017 to allow for funding of Recycling Victoria from the waste levy.

The Bill also gives effect to several amendments to the Environment Protection Act 2017 that will enhance the efficacy of the Act.

The majority of the Bill will come into operation on dates to be proclaimed, and at the latest by 1 June 2023. Some of the amendments to the Environment Protection Act 2017 which concern the transition of permissions issued under the Environment Protection Act 1970 to the new environment protection framework will apply from 1 July 2021 when the new framework commenced. However, in relation to the circular economy components, the new regulator—Recycling Victoria—will be involved in establishing supporting regulations and other subordinate instruments following consultation with local government, industry and community, in the months and years to come.

Circular economy reforms

Since the passage of the Circular Economy (Waste Reduction and Recycling) Act 2021, the Victorian Government has continued to develop reforms that require further legislative change, including enhanced statewide infrastructure planning, and a cap on thermal waste to energy processing in Victoria. The Government has also developed a Risk, Consequence and Contingency Planning framework, to be embedded in legislation, to support the important role of Recycling Victoria in identifying, monitoring, managing and mitigating risks and consequences impacting the delivery of waste, recycling or resource recovery services, and developing contingency plans to minimise impacts from serious failures, disruptions or hinderance in the sector.

The additional circular economy reforms introduced through this Bill are complementary to those already in the legislation and will fully equip Recycling Victoria to exercise its statutory functions and powers.

Thermal waste to energy scheme

The Bill establishes Victoria’s thermal waste to energy scheme in legislation. The scheme will ensure appropriate waste to energy investment and help Victoria transition to a circular economy, support new jobs and reduce the waste sent to landfill.

The Bill outlines a scheme which will cap the amount of “permitted” waste able to be processed by thermal waste to energy facilities. The cap amount will be prescribed by regulations following passage of the Bill and will be 1 million tonnes per year, in line with previous commitments. The Head, Recycling Victoria will have power to issue, revoke, suspend and transfer waste to energy licences under the scheme. Use of recyclable materials in waste to energy facilities will not be permitted, and penalties can be issued by the court for those that are found to be in contravention of the scheme.

This scheme is designed to maximise our recycling of materials, ahead of using them to recover energy. By recycling greater quantities of materials, we are creating more jobs and better valuing our precious resources. The scheme will ensure we are maintaining a focus on innovation, new ways to recycle and the manufacture of new recycled products. It responds to clear evidence in parts of Europe that over-commitment of waste into thermal waste-to-energy facilities has undermined efforts to recycle materials.

However, waste to energy facilities are an important alternative to landfills for residual waste, and our scheme will encourage an appropriate level of investment in these facilities to avoid landfilling while maximising recycling.

Transitional arrangements will be in place for those waste to energy facilities possessing the necessary approvals before the scheme was announced on 1 November 2021. To provide investment certainty, these “existing operators” will not have to fit within the cap, but will be required to have a licence under the scheme to ensure a level playing field.

Under the scheme, the Head, Recycling Victoria will be able to ensure waste to energy projects built in Victoria create clear net benefits and complement efforts to reduce and recycle waste, through the competitive issue of licences.

A new state-wide infrastructure planning framework

The Bill introduces a new single Victorian Recycling Infrastructure Plan (VRIP) in the Circular Economy (Waste Reduction and Recycling) Act 2021 to replace the current eight documents made under the Environment Protection Act 2017 and repeals the existing infrastructure planning framework under the Environment Protection Act 2017.

Recycling Victoria will deliver the VRIP as a single, streamlined plan with a 30-year horizon that will provide long-term strategic planning, guide and inform decision making and drive private sector investment in waste and resource recovery infrastructure at state, regional and local levels. The development of the VRIP will be strongly informed by regional and local engagement.

The Bill makes provisions for the responsibility of infrastructure planning to transition from Sustainability Victoria to Recycling Victoria and contains consequential amendments to the Sustainability Victoria Act 2005 to give effect to this.

The VRIP will enable waste and resource recovery infrastructure planning to have regard to land use and development planning and policy, environmental regulatory approvals and policy, and transport planning and policy.

The VRIP will support effective risk management and contingency planning across the waste and resource recovery infrastructure network. The Bill will require Recycling Victoria to review the VRIP at least every three years, and to produce an annual VRIP progress report. These requirements will ensure the VRIP is up-to-date and enable the identification of early signals of industry change, contingency planning, and coordination.

The VRIP will also support market investment and provide for long term strategic planning of Victoria’s waste and resource recovery infrastructure needs for the next 30 years, providing for a stable and reliable sector.

The provisions enable the flexibility for the VRIP to shift away from a plan where government determines what specific infrastructure is required and where it should be located to a more strategic approach that identifies infrastructure needs and gaps and provides that information to the market to drive innovation and investment where it is needed.

A new risk, consequence, and contingency planning framework

In recent years the Waste, Recycling and Resource Recovery sector, and the wider Circular Economy have gone through significant growth and development; however the sector has also faced significant volatility and the realisation of various significant risks, that have resulted in consequences including major service disruptions. This has included:

• the impacts of national and international policy changes (including the China Green Sword Policy implementation) on the delivery of kerbside recycling services

• Natural emergencies (such as fires and floods) resulting in rapid increase in wastes and regional scale impacts to key infrastructure

• Human health emergencies (COVID-19), resulting in significant sector wide impacts, including significant and rapid increase in clinical waste generation, workforce challenges, changes to operations and protracted interruptions to international logistical networks impacting access to end markets and key products

• significant incidents and failures of key operators and facilities (for example, the SKM company closure).

The establishment of the risk, consequence, and contingency planning framework recognises the significant benefit of preparedness in mitigating risks and minimising consequences. The risk, consequence, and contingency planning framework closely aligns with wider emergency management approaches and current requirements for a number of other sectors including critical infrastructure sectors.

The Bill will establish a new risk, consequence, and contingency planning framework that will ensure that risks and associated consequences are identified and managed, and that contingency plans are implemented to minimise the impact of any serious failures, disruptions and hinderances on waste recycling or resource recovery service delivery.

The Bill introduces an annual Circular Economy Risk, Consequence and Contingency Plan to be prepared by Recycling Victoria. The annual CERCC Plan will:

• outline emerging or continuing risks, performance issues or supply issues within the circular economy, with a focus on waste, recycling and resource recovery parts of the circular economy

• identify risks of serious failure, disruption or hinderance to the provision of waste, recycling or resource recovery services

• outline the consequences of the risks identified, including the severity of the harm that may result; and

• specify any actions or measures proposed or required to be taken by regulated entities and/or government to mitigate any risks identified, mitigate consequences and ensure suitable contingencies are in place.

The CERCC Plan is to be published annually subject to publication being deemed in the public interest.

The Bill also introduces a statutory requirement for responsible entities to develop and maintain Responsible Entity Risk, Consequence and Contingency Plans (RERCC Plan) and to report annually to Recycling Victoria via a Statement of Assurance on their implementation and compliance with this Plan. Who will be considered a ‘responsible entity’ will be set out in regulations, which are to be developed in consultation with industry, and is expected to focus on entities with significant responsibilities in the waste, recycling and resource recovery sector.

In developing and maintaining a Responsible Entity Risk, Consequence and Contingency Plan, responsible entities will ensure they have identified and are managing their risks and have implemented appropriate contingency plans.

The Bill also provides offence provisions for failure to comply with the CERCC Plan, failure to submit a Statement of Assurance, or failure to comply with a RERCC Plan. Offences relating to the provision of false and misleading information will be specifically covered by section 115 of the Circular Economy (Waste Reduction and Recycling) Act 2021.

The Bill provides the Minister the power to direct the Head, Recycling Victoria to review the RERCC Plans of any specified entity or class of responsible entities. The Bill also provides for specific information gathering powers, and for the development of guidance materials related to the implementation and administration of the Risk, Consequence and Contingency Planning framework.

Market strategies and an annual Market Report

The Bill will add a new requirement for the Head, Recycling Victoria to produce an annual Market Report. The purpose of this new report is to provide a regular update about the state of the waste, recycling, and resource recovery market in Victoria. The report can include information on the stability and performance of the market, as well as any emerging trends or issues, and potential actions that might address these issues. This will support risk, consequence, and contingency planning, but also provide valuable intelligence and transparency about the market to industry, the community, and to government.

The Head, Recycling Victoria will also have a new function to prepare and publish market strategies to foster sustainable markets for recycled materials and resources recovered from waste. These strategies can be statewide, or focussed on particular regions, and are aimed at further strengthening the waste, recycling and resource recovery sector to assist Victoria’s transition to a circular economy.

Amendments to the Environment Protection Act

In addition to the reforms above, the Bill will introduce the following amendments to the Environment Protection Act 2017to ensure the Act operates as intended.

The Bill clarifies how licences issued under the repealed Environment Protection Act 1970 transitioned to the Environment Protection Act 2017. This includes aspects such as the transfer, amendment and revocation of permissions, as well as review periods, expiry timeframes and offences for breaching conditions. These amendments will apply from 1 July 2021, when the licences transitioned, to ensure these transitioned permissions continue to operate as intended.

The Bill enables the Environment Protection Authority and councils to appoint independent contractors with specialist skills as authorised officers. This aligns with the approach taken under the Local Government Act 1989 and the now repealed Environment Protection Act 1970.

The Bill enables councils and officers appointed by public sector bodies to take court proceedings and retain revenue from fees and fines related to their delegated functions. It also enables motor vehicle noise testers to retain fees related to their services rather than the fees being paid into consolidated revenue.

The Bill clarifies certain processes under the Environment Protection Act 2017 associated with administering permissions, other types of applications and waste levy.

The Bill strengthens the power of the Environment Protection Authority to make determinations under the Environment Protection Regulations 2021. It also gives the Environment Protection Authority powers to incorporate extrinsic material into determinations, designations and class exemptions and to set a maximum fee for vehicle noise testers in the Environment Protection Regulations 2021.

The Bill clarifies that the Environment Protection Act 2017 contains a head of power enabling the Environment Protection Regulations 2021 to prescribe certain noise prescribed as not unreasonable.

The Bill also clarifies that the burial of all industrial waste will trigger the deposit of industrial waste offence and enable the Environment Protection Authority to respond accordingly.

The Bill protects the ability of the Environment Protection Authority to recover site clean-up and other associated costs from a previous owner or occupier. It introduces a provision in the Environment Protection Act 2017 displacing the Corporations Act 2001 (Cth) provisions that allows a company to disclaim company land, including any liabilities associated with that land, such as obligations to clean up the land or comply with remedial notices.

The Bill also contains amendments to the Environment Protection Act 2017 to support the circular economy reforms. These include moving legislative provisions relating to infrastructure planning from the environment protection legislation to the Circular Economy Act, which reflects Recycling Victoria’s new roles and responsibilities in this area.

Additionally, the Bill contains amendments to the Environment Protection Act 2017 to enable Recycling Victoria to be funded directly from the waste levy trust account. Funding Recycling Victoria’s activities in this way is consistent with the historical use of this account, which is to fund entities with specific legislative functions for environmental and sustainability outcomes, including waste and recycling.

Conclusion

The Victorian Government remains committed to pursuing an ambitious waste and recycling agenda. This Bill represents the continuation of this Government’s major transformational reform of the waste and recycling sector, built on community and industry consultation over a number of years.

These reforms deliver a further milestone in Victoria’s transition to a circular economy. Given the scale of these reforms and the adjustments required by all participants in this transition, it is appropriate to build the functions and capabilities of Recycling Victoria over time. The Victorian Government will continue to work alongside stakeholders as these reforms progress to deliver a stronger and more resilient recycling system and support our transition to a circular economy, which will support Victoria’s economy while protecting the environment. I commend the Bill to the house.

Ms McLEISH (Eildon) (10:39): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 22 June.