There are two categories of breaches where a company officer will be deemed liable for a breach caused by their company.
In the first suite of breaches17, company officers will be deemed to have committed a breach where their company:
- causes a breach or aggravated breach, of the general environmental duty;
- breaches its duty to notify the EPA of a pollution incident;
- breaches its duty in relation to the deposit or receipt of industrial waste;
- provides false or misleading information to the EPA, either generally, or specifically in relation to industrial waste;
- fails to comply with prohibition, improvement or environmental action notices or site management orders; or
- fails to obtain a permission, or to comply with a permission condition.
For these more serious types of breaches, the onus will be on the officer to prove that they had exercised due diligence to prevent the company from committing a breach18.
In the second suite of breaches, the EPA must prove that the company officer failed to exercise due diligence in order for the officer to be liable for the breaches of the company19. These breaches include the failure to notify the EPA of contaminated land, the failure to manage priority waste, and the failure to comply with a notice to investigate.
These deeming provisions bring Victoria into line with similar provisions in other States and Territories, including South Australia20, Queensland21, New South Wales22; Western Australia23;Tasmania24; and the ACT25.