Authorised Officers’ powers of entry and inspection under the Environment Protection Act 2017 (Vic)

On 1 July 2021 the Environment Protection Act 2017 (Vic) (Act) was amended reforming environment protection legislation in Victoria to a duty-based, prevention-focused regime, and with it strengthened investigation and inquiry powers for authorised officers, including use of surveillance tools.¹

These powers enable authorised officers to prevent and respond to current and future environmental and public health issues in Victoria.²

Authorised Officers appointed by EPA Victoria

Officers of multiple agencies may be authorised under the Act. The Environment Protection Authority Victoria (EPA) may appoint authorised officers for the purpose of the Act, including officers or employees of:³

the EPA;
a public sector body;
a council;
officers from the Environment Protection Authority of New South Wales; and
officers of the Environment Protection Authority of South Australia.

More broadly, the EPA may also appoint a specified person or each member of a specified class of persons, as an authorised officer for the purpose of the Act.⁴ This allows contractors and consultants to be authorised for particular purposes. Officers from agencies other than the EPA are typically appointed for discrete functions or defined geographic areas, such as a local government municipality.

Authorised Officers appointed by delegated public sector body or council

Where the EPA has delegated a function to a public sector body or council, that body or council may appoint an officer, employee or specified class of persons as an authorised officer.⁵

EPA delegation to public sector bodies and councils significantly increases the resources and capacity of the Victorian Government, including through Local Government, to investigate and enforce the Act. This is particularly relevant in remote and regional locations or a restricted access area like a port.

Person assisting an authorised officer

An authorised officer may request the assistance of any other person for the purpose of entry and inspection of a place or premises. An occupier of person in management or control of a place or premises must allow the person assisting the authorised officer to access the place or premises.⁶ Examples include where specialist skills and equipment are required, such as drilling bores for soil sampling at depth or accessing air discharge stacks for air sampling.

Download the Authorised Officers brochure here

Obligations on an authorised officer exercising power of entry

An authorised officer must immediately upon entering a place or premises, take all reasonable steps to notify the occupier or apparent occupier of the place or premises and produce identification.⁷

An authorised officer is not required to produce identification if prior notice of the entry was given or if to do so would unreasonably interfere with performance of the function or power (e.g. covert surveillance).⁸

An authorised officer must take reasonable steps to:⁹

minimise disruption caused by entry and inspection of a place or premises and of taking any action; and
ensure the authorised officer does not remain at a place or premises any longer than is reasonably necessary.

An authorised officer who enters and inspects a place or premises must give a report concerning the entry to the occupier or apparent occupier, as soon as practicable.¹⁰ The report must be in writing and detail:¹¹

the time of entry and departure;
the purpose of the entry and inspection;
a description of any actions taken at the place or premises;
a summary of observations of the authorised officer of the place or premises; and
the procedure for contacting the EPA and the authorised officer for further details of the entry and inspection.

If an occupier disputes an observation or identifies an error in a report, the occupier should record the matter then inform the EPA in writing. This ensures contemporary notes are available to the authorised officer and the EPA for the purpose of the entry and inspection.

An employer must so far as reasonably practicable, ensure an authorised officer and person assisting an authorised officer, are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.¹²

Once entry is gained, an authorised officer will make an informed decision for themselves as to whether it is safe to conduct any inspection. The EPA has confirmed this position on open record in the Magistrates Court of Victoria.

To facilitate an authorised officer making an informed decision the employer must inform the authorised officer of all relevant information relating to risk to their health and safety arising from the conduct of the undertaking.

In the absence of a documented plan for the entry and inspection disclosed by the authorised officer and agreed by the employer, it is appropriate, and reasonably practicable, for an employer to provide a person to escort and accompany the authorised officer during the inspection for the purpose of ensuring they are not exposed to risks to their health and safety. This will require communication with the authorised officer during and prior to actions during the inspection, such as taking samples.

Obligations on an authorised officer executing search warrant

Before executing a search warrant, an authorised officer must:

announce that the authorised officer is authorised by the warrant to enter the place or premises to be searched; and
give any person at the place or premises the opportunity to allow entry;

unless the authorised officer reasonably believes that to do so would frustrate the effective execution of the search warrant.¹³

As soon as possible after the authorised officer seizes or obtains a thing, including a document, the EPA must return the thing to the owner unless:

the EPA considers it necessary to retain the thing because it may afford evidence in a proceeding;
the thing is forfeited to the EPA; or
the EPA is authorised to retain, destroy or dispose of the thing.¹⁴

The EPA may return a seized thing subject to conditions appropriate to minimise risks of harm to human health or the environment from pollution or waste.¹⁵

Anything seized by an authorised officer is forfeited to the EPA if the EPA cannot find the owner despite making reasonable enquiries, cannot return it to the owner despite making reasonable enquiries or considers it necessary to retain the thing to prevent the commission of a further offence. If forfeited to the EPA, the EPA must give the owner notice of how the owner may apply to the Victorian Civil and Administrative Tribunal for return of the thing.

Obligations of an authorised officer executing warrants under Surveillance Devices Act 1999 (Vic)

An authorised officer appointed under the Act may apply for a surveillance device warrant where the officer, on reasonable grounds, believes that:

an offence has been, is being, is about to be or is likely to be committed; and
the use of a surveillance device is or will be necessary for the investigation and obtaining evidence of the commission of the offence or the identity of the offender.

An application may be made to the Supreme Court of Victoria, or to a Magistrate where the surveillance device is for tracking only.¹⁶

An authorised officer may also apply for a retrieval warrant to allow entry and retrieval of a lawfully installed surveillance device.¹⁷

Criminal Offences (criminal penalty and civil remedies)

It is a summary criminal offence for a person, without reasonable excuse, to refuse or fail to comply with a request from an authorised officer for relevant information,¹⁸ or to refuse to provide a document located at the place or premises or otherwise in the person’s possession or control.¹⁹

In each instance, the Court may impose a maximum penalty of 60 penalty units for a natural person and 300 penalty units for a body corporate.²⁰

In relation to the performance of a function or the exercise of a power by an authorised officer or a person assisting, it is a summary criminal offence²¹to:

hinder, delay or obstruct;
conceal the location or existence of any person or thing; or
use abusive, threatening or insulting language.

Where an authorised officer has requested assistance from a person at the place or premises and that request is refused, this will in most instances constitute hindrance, obstruction or delay of the authorised officer or person assisting.

A Court may impose a maximum penalty of 60 penalty units for a natural person and 300 penalty units for a body corporate.

In relation to the performance of a function or the exercise of a power by an authorised officer or a person assisting, it is an indictable criminal offence²² to:

assault;
intimidate or threaten, directly or indirectly; or
attempt to assault, intimidate or threaten the authorised officer or person assisting.

A Court may impose 2 year's imprisonment or a maximum penalty of 240 penalty units, or both, for a natural person and a penalty of 1200 penalty units for a body corporate.

If the EPA returns a seized thing, and returns it subject to conditions, it is an offence if the owner fails to comply with the conditions.²³ A Court may impose a maximum penalty of 60 penalty units for a natural person and 300 penalty units for a body corporate.

Civil remedies including restraining conduct, requiring a specific act, payment of compensation and other ancillary matters are available to the EPA, or delegated public sector body or council.²⁴

On a finding of guilt or conviction, a Court may also, in addition to any penalty or civil remedy, make orders providing for:

payment of an amount equivalent to the monetary benefit derived from the offence;
adverse publication of the offence;
prevent, minimise or remedy any harm caused;
eliminate or reduce any risk of harm;
prevent any continuation or reoccurrence;
restoration of a public place or for a public benefit; or
engage an environmental auditor to conduct a preliminary risk screen assessment or environmental audit.

An infringement notice may not be issued for these offences confining enforcement to proceedings before a Court.²⁵

Who may bring proceedings?

The EPA may appoint an employee or officer to take proceedings against the Act.²⁶

A public sector body, or a council delegated functions or powers by the EPA, may appoint a person to bring proceedings²⁷ for offences where so delegated, including:

the general environmental duty;
aggravated breach of the general environmental duty;
contravention of an improvement notice;
contravention of a prohibition notice; and
failure to report under an improvement notice or compliance notice.

Notices, directions and production of information

Authorised officers have extensive powers to issue notices, directions and to compel production of information. These powers may be exercised regardless of whether the authorised officer has exercised the power of entry and inspection.

The exercise of power to issue notices, give directions and compel production of information is addressed separately in further material.

Further information

If you require any further information, please contact Stefan Fiedler or Matt Taylor.

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Endnotes

Explanatory Memorandum – Environment Protection Amendment Bill 2018, 1-4.
Second Reading, Environment Protection Amendment Bill 2018, 20 June 2018, 2083-2087.
Act, s 242(1)(a).
Act, s 242(1)(b).
Act, s 242(2) and (2A).
Act, s 250.
Act, s 249(1).
Act, s 249(2).
Act, s 251(4).
Act, s 254(1).
Act, s 254(2).
Occupational Health and Safety Act 2004 (Vic), s 23.
Act, s 262.
Act, s 264(1).
Act, s 264(2).
Surveillance Devices Act 1999 (Vic), s 15.
Ibid, s 20C.
Act, s 253(3).
Act, s 252(2).
Act, ss 252(2), 253(3).
Act, s 266.
Act, s 267.
Act, s 264(3).
Act, Part 11.4.
Act, s 307 and Environment Protection Regulations 2021 (Vic), r 169 and Schedule 10.
Act, s 347(1).
Act s 347(7).