General duties as regulatory tools in environmental protection: principles, practice, problems

Following an extensive review of the Victorian Environment Protection Authority, the Victorian Parliament passed the Environment Protection Amendment Act 2018 (Vic) which introduced a general environmental duty to minimise harm to the environment. General duties, a form of principle-based regulation, have been used in other areas of law with various degrees of success. For a regulator, implementing a regulatory regime in which a general duty plays a central role poses a number of challenges including how to provide organisational leadership, communicate the obligations imposed on duty holders and staff, educate duty holders how to interpret standards, identify and manage risks and achieve compliance, determine the relationship between a general duty and other statutory measures, provide a sound scientific basis for the law and enforcement, detect and enforce breaches of the law and evaluate its effectiveness. This article examines the challenges faced by the EPA as it prepares for the transition from a retrospective and reactive approach to one which is generally regarded as proactive and preventative.