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Australia | Publication | August 2023
On 14 August 2023 the Victorian Department of Energy Environment and Climate Action (DEECA) released the draft Circular Economy (Waste Reduction and Recycling) (Risk, Consequence and Contingency) Regulations 2023 (Risk Regulations), for public comment.
The waste, recycling and resource recovery sector has in recent years been affected by changes in national and international policy, emergencies causing impacts to human health and the environment and supply chain failures involving significant operators and facilities.
The Risk Regulations are the next tranche of regulations proposed to be made under the Circular Economy (Waste Reduction and Recycling) Act 2021 (CEWRR Act) which came into operation on 1 July 2022. The Risk Regulations will facilitate the implementation of the statutory risk, consequence and contingency planning framework in the CEWRR Act that seeks to share the management of risks between industry and government.
The Risk Regulations are relevant to the Victorian waste, recycling and resource recovery sector, particularly large operators or those who have government contracts which would be considered to be ‘essential services’ under the Risk Regulations.
We have previously provided updates on the CEWRR Act which discuss:
The Risk Regulations prescribe:
The Risk Regulations prescribe which waste, recycling and resource recovery services are proposed to be classified as Essential Services, set out in Table 1 of Schedule 1 and include certain:
Providers of Essential Services are subject to the new duty established under section 74 of the CEWRR Act to minimise so far as is reasonably practicable, the risk of serious failure, disruption or hindrance of that essential service (Failure, Disruption or Hindrance Duty). Duty holders are required to comply with the Failure, Disruption or Hindrance Duty to reduce the risks of service disruptions. Failure to comply with this duty is an offence punishable by 500 penalty units (currently $96,155) for a natural person, and 2500 penalty units (currently $480,775) for a body corporate.
The Risk Regulations prescribe a subset of Essential Services which are proposed to be defined as a ‘Responsible Entity’2 and accordingly be the subject of higher levels of regulation and oversight of risk consequence and contingency planning.
An Essential Service will be a ‘Responsible Entity’ if:
Responsible Entities will be required to prepare annual RCC Plans (discussed below) under section 74F of the CEWRR Act that meet the prescribed requirements set out under the Risk Regulations. The requirements include ensuring the Responsible Entity:
Failure to comply with the requirements of a RCC Plan is an offence for a Responsible Entity. 4
The Risk Regulations set out the required content for RCC Plans, which includes amongst other things:
When a business that operates an essential service becomes or ceases to be a ‘Responsible entity’ they must notify Recycling Victoria.6 Failure to notify Recycling Victoria is an offence with a penalty of 60 units (currently $11,538.60) for a natural person and 300 units (currently $57,693) for a body corporate.
For businesses that operate an Essential Service but do not meet the definition of ‘Responsible Entity’, the Failure, Disruption or Hindrance Duty will still apply.
The Risk Regulations also provide additional detail on the content of Recycling Victoria’s CERCC Plan, required to be prepared annually under section 74B of the CEWRR Act.
The CERCC Plan will identify risks of serious failure, disruption or hindrances, identifying financial risks to Victoria’s circular economy transition and consequences of the risks (such as the severity of harm).
The Risk Regulations provide that the CERCC Plan will include any information held by Recycling Victoria regarding the total volume of waste managed in Victoria for each—
Consultation closes on 12 September 2023. You can participate in the consultation by filling out an online form on Engage Victoria’s website here.
Following the preparation and publication of a formal response to public comment, DEECA intends to submit the new regulations to the Governor in Council in November 2023, with the final Risk Regulations to come into effect on 1 December 2023.
If you would like more information on how the Risk Regulations might affect your existing operations or future projects, or would like assistance with preparing a submission to DEECA, please contact a member of our Environment and Planning team.
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