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Introduction

Aims and scope

As a theme, environmental crime has for the most part been somewhat overlooked in Australia, receiving, at best, episodic attention in the published literature. This attention, however, is likely to magnify as environmental changes more immediate to the average Australian, such as the continuing drought, associated water restrictions (and water misuse and theft) and the uncertainty as to the likely effects of climate change, demand greater awareness and action.

In the absence of a recent comprehensive review of environmental crime in Australia, this report gathers together published literature from a broad range of sources to describe:

  • what is known about the current status and trends in environmental crimes;
  • the various international and national controls used to prevent and deter environmental crimes;
  • detection and reporting methods; and
  • the type of sanctions available to punish perpetrators of environmental offences and how they are actually applied.

Following a description of the methodology, this section defines environmental crime and the types of acts that are categorised as environmental crime. The section also provides a brief account of the incentives and drivers behind the commission of environmental offences and describes the dimensions of scale environmental crime can take.

The second section summarises the existing international and national controls for combating environmental crime, including international agreements (such as Multilateral Environment Agreements), Commonwealth and state/territory legislation, regulatory control and enforcement, and sanctioning approaches. Following this is a series of theme sections examining key areas of environmental crime, including:

  • pollution and illegal waste disposal/trade;
  • illegal trade in fauna (animals) and flora (plants) and harms to biodiversity;
  • illegal, unregulated and unreported fishing;
  • illegal native vegetation clearance;
  • illegal logging and timber trade; and
  • water theft.

While it is acknowledge in this report that the concept of environmental harm and its growing use in the field of environmental criminology encompasses much more than what is legally sanctioned against, this report is focused predominantly on those acts that violate current law.

The report also excludes an extended commentary on climate change and its effect on environmental and other crimes. A subsection later in this section summarises some of the literature published to date on the effect climate change may have on criminal behaviour.

Methods

Literature review

The majority of the report's content is drawn from a wide range of published literature, including:

  • peer-reviewed papers published in criminology, ecology and conservation, and legal journals;
  • Australian and state/territory government annual, discussion and research reports, and policy statements;
  • papers and texts of international covenants from various international bodies;
  • special reports from NGOs and independent think tanks;
  • proceedings from conferences and summary documents; and
  • media bulletins and releases.

Information made available (but not in published form) on government, NGO and international and intergovernmental body websites was also referred to and cited. Most of the information on cases of prosecution in Australia stem from that published in other accounts.

Commonwealth and state/territory legislation was sourced from the Australasian Legal Information Institute website (http://www.austlii.edu.au/) to compile an inventory of environmental offences and associated maximum penalties.

Environmental crime roundtable

To supplement the information derived from the literature review, the Australian Institute of Criminology (AIC) hosted a roundtable on environmental crime on 24 February 2009. Participants came from academia, law enforcement, the judiciary and relevant Commonwealth and state/territory agencies. The organisations and institutions represented at the roundtable are listed in Appendix Table 1. The discussion from this roundtable is incorporated into the text of the report.

Defining environmental crime

The recognition and acceptance of environmental crime as a genuine criminal offence (or rather array of offences) has perhaps been more problematic than other crime types. Traditionally, harmful practices against the environment were not viewed with the same moral repugnance as offences directed against the person or property. To some extent, this reflected the reality of the age in which they were being committed, by whom and why. With an increasing awareness and appreciation of the environment came a re-evaluation of what the environment can and cannot sustain and an acknowledgement of the need to regulate, and in some cases, criminalise these harmful practices.

Despite these advances, attitudes to environmental crime have arguably continued to suffer from a 'mindset' that has underestimated its consequences or, at best, instilled a sense of ambivalence towards it (Elliott 2007; Halsey & White 1998; South 1998; White 2008a). For example, environmental crime is often thought of as 'victimless' and, unlike a lot of other criminal offences, does not always produce an immediate consequence. Further, the assault on the environment often comprises a series of acts that may themselves, along with their impact, go undetected for a lengthy period of time. This 'out of sight, out of mind' mentality has meant environmental crimes may not be seen as important as other criminal offences and hence receives less attention from enforcement officers (Elliott 2007). Further, the leniency (both apparent and real) with which environmental offenders are treated trivialises the nature and gravity of the offence, particularly in the eyes of the would-be offender and, to some extent, the wider public (Korsell 2001).

Possibly influencing some of this misunderstanding about environmental crime is the lack of consistency in defining and classifying environmental crime. Some attention has been devoted by criminologists to both dissecting and formulating the concept of environmental crime and in some cases, establishing a workable definition. The primary hurdle is differing perspectives as to what constitutes an environmental crime, embedded in moral, philosophical or legalistic interpretations of harm and when the enactment of harm actually becomes a crime (White 2008a). At one (and some would argue narrower) end of the spectrum is the inclusion of only those environmentally harmful acts that violate prescribed law. For example, Situ and Emmons (2000: 3) define environmental crime as:

an unauthorised act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanction. This offence harms or endangers people's physical safety or health as well as the environment itself. It serves the interest of either organizations—typically corporations—or individuals.

While such a definition omits certain practices or behaviours that the majority may deem environmentally irresponsible, negligent or destructive, Situ and Emmons (2000) argue that until the practice or behaviour actually breaks a law, it cannot be considered, and hence treated as, a crime. Certainly, choosing a legalistic approach in defining environmental crime enables a 'value free and objective' appraisal of environmental criminal activity (Bell & McGillivrary 2008: 278). It can also, however, constrain its practical application where uncertainty remains about what really constitutes an environmental crime. For example, Bell and McGillivrary (2008) alert environmental lawyers to issues relating to the setting of legal boundaries (eg which statutes should be considered), the selection of offences that should be tried and problems associated with jurisdictional variability and limitation.

Of equal relevance is the very real fact that a considerable proportion of environmental harm is 'legal and takes place with the consent of society' (Korsell 2001: 133). At the other end of the definitional (or conceptual) spectrum is the notion of environmental harm as viewed from a 'green' or 'ecological' perspective (see Halsey & White 1998; South 1998; Lynch & Stretesky 2003; White 2008a). This conceptualisation of environmental harm as environmental crime forms the basis of the relatively new discipline of green criminology which acknowledges the complex interconnectedness between the physical environment and its resident species.

Sitting somewhere between these viewpoints are definitions such as that proposed by Clifford and Edwards (1998: 26) whereby an environmental crime is conceived as:

an act committed with the intent to harm or with a potential to cause harm to ecological and/or biological systems and for the purpose of securing business or personal advantage.

The deliberate neutrality of this definition, at least in the absence of a reference to the lawfulness or illegality of the act, is a response to what Clifford and Edwards (1998) criticise as the indiscriminate use of the term environmental crime, which users employ without clearly specifying what they mean by it. A lack of definitional consistency is a common casualty of new disciplines but can cloud and confuse what is actually being investigated. Different perceptions also lead (and have led) to the enactment of different rules regarding what is allowable and what is not and hence a lack of uniformity as to what constitutes a crime against the environment. Neutrality, then, can clear some of this confusion, particularly where differing perceptions are likely to linger.

The purpose of the 'act' alludes to the underlying assumption about what motivates environmental crime. Often described as a form of enterprise crime, environmental crimes are generally market driven rather than a form of 'social deviance' (Hayman & Brack 2002). For this reason, environmental crime has traditionally been located in the portfolio of corporate or white-collar crime (Halsey & White 1998). Clifford and Edward's (1998) definition implies a corporate role in the commission of environmental crime but, in reality, the cast of players can be and is quite broad (see below).

A primary incentive for committing environmental crimes is personal gain. These gains are obtained directly through benefits achieved from performing a specified act but also through the resources saved by ignoring standardised codes as to how certain practices should be performed. Personal gain may be distributed between distinct players and in some cases, follows a gradient of financial benefit dependent on role and circumstances. One notorious example is the involvement of the so-called ecomafia in relieving companies and municipalities of industrial and other waste. The companies benefit as they do not have to pay increased costs in depositing waste at designated sites and the waste collectors benefit by exacting a fee for their services (Massari & Monzini 2004). When waste is transported across jurisdictional borders, a third group becomes involved, who take a deposit for having the waste dumped in their jurisdiction. Another example centres on the illegal wildlife trade, which typically involves a trail of participants starting with the poachers who trap the animals, through a network of intermediate dealers and concluding with the buyer. Each participant receives an incentive for contributing, with this incentive generally increasing in monetary value as the item is transferred up the trafficking pathway.

What are environmental crimes?

While a uniform definition presently remains elusive and the application of laws against environmentally harmful practices varies between (and within) nations, there is unanimity in the types of acts commonly recognised as environmental crimes. These are:

  • pollution or other contamination of air, land and water;
  • illegal discharge, dumping and transport of, or trade in, hazardous and other regulated waste;
  • illegal trade in ozone-depleting substances;
  • IUU fishing;
  • illegal trade in (protected) flora and fauna and harms to biodiversity; and
  • illegal logging and timber trade.

In addition, Australia recognises:

  • illegal native vegetation clearance; and
  • water theft.

Other activities identified as environmental crimes include the illegal trade and misuse of chemicals (eg pesticides), illegal trade in genetically modified organisms and material, and fuel smuggling (Hayman & Brack 2002). In some countries, such as Australia and the United Kingdom, 'lesser' offences such as littering are listed in environmental protection statutes. In addition are criminal behaviours not immediately recognisable as environmental crimes per se but which are sometimes included under its banner, such as the illegal trade and acquisition in cultural heritage (Davies 2002). For example, the Australian Federal Police (AFP) includes this cultural heritage trade in activities that constitute environmental crime under Commonwealth legislation. Finally, there is what could be termed 'associated' environmental crimes; the most relevant example at the moment being the possible and predicted fraud that could arise out of the carbon trade emissions scheme (Beck forthcoming).

Of note is the consistent use of the preface 'illegal' in the listed activities constituting environmental crime, a preface not regularly employed when describing other categories of crime. This reflects the fact that some component or level of these activities is still condoned and that it only becomes illegal once a set boundary has been passed. This tipping point of illegality contrasts environmental crimes with other established criminal offences. For example, the act of emitting (some) pollutants into the atmosphere is not itself illegal in Australia but becomes so when the amount or nature of pollutants emitted is outside prescribed guidelines and done without the relevant authority. Another example refers to the protection of threatened species—by and large, it is an offence to take a threatened animal, but in some instances it is not, as long as the purpose for taking a threatened species (eg for zoological research) has been notified to and approved by the relevant regulatory authority.

Complicity in environmental crime can be categorised as doing the harm itself and/or related to a breach of conditions associated with a mandatory licence or permit. Offences described in Australian legislation generally describe both, with an offence relating to the act itself (eg take, buy, sell or possess protected fish species) and a breach of conditions (eg contravening conditions of commercial fishing licence). Another, related categorisation follows Carrabine et al. (2004: 316) whereby environmental (or green) harms are described as primary or secondary crimes. Primary crimes are a result of concerted degradation of the environment, which Carrabine et al. (2004) list as including air and water pollution, deforestation and species decline, while secondary crimes derive from a flouting of regulatory rules.

Climate change and crime

Climate change now represents the greatest area of environmental concern to governments and the general public alike. Attention is being drawn not just to its immediate and obvious casualties (such as the predicted huge losses in biodiversity) but to associated consequences as well. Where Australia is concerned, the Garnault Report (Garnault 2008) listed direct impacts on resource-based industries such as irrigated agriculture and tourism; critical infrastructure (eg urban water supply); human health and Australia's unique ecology.

Another consideration is to what effect climate change will have on crime. This matter has received attention in the published literature but encapsulates three possible scenarios (Bergin & Allen 2008):

  • an increase in climate change-related crime (such as water theft) or increased prevalence of specific crime types;
  • civil unrest following natural disasters and related emergencies; and
  • fraudulent and collusive behaviour associated with the establishment of carbon offset and trade emission scheme.

While suggested, there is little in the way of published predictions as to how climate change will affect crime rates. Spikes in other environmental crimes are a real possibility, predictably water theft, but the impact of harms from illegal fishing or wildlife poaching are likely to be exacerbated when coinciding with climate change induced reduction in biodiversity. Interpol have set up a special project group to identify restraints and potential loopholes in national legislation that may inadvertently facilitate climate change related crime (INTERPOL Pollution Crime Working Group 2009a).

Fraud associated with carbon offsetting and emissions trading schemes represents the greatest risk for criminal behaviour. Evidence of fraudulent behaviour in carbon offset schemes has already been cited, such as 'double selling' of credits, purchase of 'worthless' credits, purchase of carbon reductions that would have happened anyway and collusive behaviour between entities (Bergin & Allen 2008; Joyce 2008). Even the UN-managed, World Bank-administered Clean Development Mechanism (CDM) has not been impervious to 'deceitful claims', with an estimate that that two-thirds of the credits produced by the scheme did not correlate with any reduction in greenhouse gas emissions (McCully 2008). A recent survey of carbon offset schemes in Australia discovered considerable variability in the nature and standard of the carbon offsets being promoted (Riedy & Atherton 2008). The variability in the product was related to four factors:

  • the voluntary and unregulated nature of the market;
  • the absence of a national (regulatory) standard on the practice of carbon offset trading (the one exception being the NSW Government's Greenhouse Gas Abatement Scheme Rule);
  • the absence of a formal accreditation system (carbon suppliers can opt into a system but there is no imperative to do so); and
  • the absence of a carbon offsets registry for verification, monitoring and reporting.

Emissions trading schemes are also vulnerable to episodes of manipulation, collusion, corruption, deception and 'creative accounting', as reported for the EU emissions trade scheme (Glover 2009; Macallister 2009). The potential criminal vulnerabilities of an Australian emissions trading scheme are explored in detail in Beck (forthcoming) and relates to issues of liability for entry into the scheme, fraudulent reporting of emissions, market manipulation, regulatory corruption and provision of secondary services (eg advice, brokerage).

Incentives and drivers

'Greed' and 'ignorance' are the foundations of environmental crime (Grabosky 2003: 237). The former refers to individuals or organisations who understand that a considerable amount of money can be made or saved by committing particular types of environmental crime, as well as the individual or organisation who wants to avoid having to pay financial dispensations or increased costs for practices that used to be legal. For some business enterprises, such as logging, the illegal version is preferred as it can be more lucrative than the legal form (OECD 2007). 'Ignorance' covers genuine lack of awareness about environmental responsibilities (eg the subsistence poacher) or is the product of confusion about the intricacies of these responsibilities (eg the permit, licensing and record-keeping system required to breed and trade in native birds). Feigned ignorance, of course, can arise and some benefit of the doubt might be given where legislative requirements are open to misinterpretation.

The attractiveness of the profits is enhanced by the often minimal investment that is needed to commit environmental crimes and the relatively low risk of getting caught and prosecuted (Hayman & Brack 2002). Many forms of environmental crime are not easily observed or detected, do not make an obvious impact and are not always a constant on the law enforcement radar. Regulatory loopholes and weaknesses, combined with the sometimes inefficiency or corruptibility of investigating officials, either reduces the chances of being detected or actually assists the criminal behaviour to continue (Hayman & Brack 2002). When apprehensions are made, it is frequently the 'small fry', while the primary contributors may have the connections to delay, prolong or avoid prosecution. One notorious case is Exxon Mobil's protracted (and eventually successful) effort to reduce punitive damages imposed on the company, almost 20 years after the leaking of 11 million tonnes of crude oil into the Prince William Sound off the coast of Alaska (Barnes 2008). A final factor is the application of appropriate penalties and the inconsistency in which they are applied. Penalties for more serious environmental crimes usually come in the form of a fine. For large-scale business perpetrators of environmental crime, such penalties are regarded as a 'cost of doing business', since they can be easily recouped from the profits generated from circumventing or ignoring environmental regulations (Situ & Emmons 2000).

An underlying, but hugely influential, trigger for environmental crime is supply and demand (Hayman & Brack 2002). One consequence of the introduction of controls to combat environmental crime (see next section) is an increase in the allure and value of the 'resources' the controls are meant to protect (eg protected fish stocks) as well as the opening up of new and highly profitable avenues of criminal activity (eg trade in ozone-depleting substances). It also produces an imbalance between supply and demand, with restrictions made on supply but no change (or a small increase) in demand (Hayman & Brack 2002). Thus, alterations to supply such as fishing quotas, protection of endangered animals, restrictions on gigalitres of water pumped from inland rivers, or the impact on industrial production by following prescribed environmental regulations, may tilt the balance towards demand. The opportunity for profit, and hence the incentive to breach controls, increases where such an imbalance exists. The second imbalance arises where there is some sort of curb on demand (Hayman & Brack 2002). In this case, unregulated sources of supply are sought instead to avoid the additional costs (eg taxes) associated with regulated supply transactions.

Breadth of scale

Like any complex criminal enterprise, quantifying the true scale and profitability of environmental crime is a challenge. Nonetheless, there is consensus that environmental crime represents one of the fastest growing areas of criminal activity. Financial returns have been estimated in the millions, possibly billions of dollars. Indeed, there are claims that environmental crime is almost as lucrative as the drugs and illegal arms trade. For example, a report for the US congress on the international illegal wildlife trade cited an annual profit of between US$5–20b (Wyler & Sheikh 2009). Another US interagency government report estimated the generation of US$22–31b by international crime syndicates involved in the smuggling of hazardous materials, hazardous waste dumping and trafficking of protected flora and fauna (Central Intelligence Agency et al. 2000).

While there is no doubt about the involvement of substantial, sophisticated operations in perpetrating environmental crimes, the truth is that there is quite considerable breadth in the range of criminal enterprise. These span small-scale, opportunistic and/or one-off ventures to systematic, large-scale undertakings. The traditionally-viewed perpetrator of environmental crime is the corporation, in large part because of their involvement in pollution and contamination cases. Environmental criminality, however, comprises a much more extensive cast. As an example, Bell and McGillivray (2008: 278) compares 'the fly-tipping “man in a white van”, organised criminal gangs, the egg collector, and the global corporation' as legitimate participants in crimes against the environment. A diverse group of contributors also exists in individual operations. Consider illegal logging operations in West Papua (EIA & Telepak 2005; Setiono 2007) where a central financier is linked to the community in which the logs are taken, the loggers and logging operators, sawmill operators, forestry regulators, customs officers, timber buyers and financial institutions.

The spatial coverage of environmental criminal activity is equally broad and encompasses the:

  • international and regional;
  • national; and
  • state/local.

International or transnational environmental crime

Because of its cross-border trajectory, the sometime involvement of organised crime and its profitability, international or transnational environmental crime (TEC) is the 'high-profile' end of the spectrum. These operations are described as transnational as they involve the movement of goods across territorial borders and because of the cross-boundary nature of their impact (Hayman & Brack 2002). In more recent years, TEC has been a beneficiary of globalisation, which has facilitated travel, transport, transaction and similar arrangements critical to the easy passage of illegal goods (Wyler & Sheik 2009).

TEC offences are typically characterised by the illegal trade in fauna/flora and ozone depleting substances, the illegal dumping and transport of hazardous waste, illegal logging and timber trade and IUU fishing. International bodies active in highlighting or preventing transnational environmental offences include the United Nations Environment Programme, the UN Interregional Crime and Justice Research Institute (which has included environmental crime into its 'Emerging crimes and Anti-Human Trafficking' portfolio), the EU, European Commission and the Association of Southeast Asian Nations (ASEAN). Since 1992, international enforcement activities have been led by Interpol, focusing on 'pollution' (primarily, the illegal transport and disposal of hazardous waste) and wildlife trafficking. NGOs and international regulatory networks also play a crucial role.

For the most part, TEC is purely profit driven or a means to avoid excise, taxes and high disposal costs (Elliott 2007). Compared with other crimes, it is also relatively low risk but has the promise of high returns. For this reason, it is sometimes relied upon as a means of creating venture capital for riskier illicit enterprises (such as drugs trafficking) with commodities from both streams sometimes trafficked in parallel (Hayman & Brack 2002). TEC is also known to cohabit with money laundering activities. Financiers of illegal logging in Indonesia, for example, are reported to launder monies derived from illegal logging with that produced from their legitimate businesses (Setiono 2007). Money laundering is also rife among European criminal organisations involved in waste disposal and wildlife trafficking. The nature of these crimes implies a level of organised criminal contribution and, in some instances, there is. Hayman and Brack's (2002: 7) analysis, however, suggests that the majority of environmental crime is perpetrated by 'loosely organised networks of individuals with some specialist knowledge'. These networks can still be intricately woven, particularly the chain(s) of connection between the middle-men or suppliers.

Differential transaction scenarios also occur, from the seemingly unwitting to the premeditated, criminal trade. Consider, for example, the smuggling of wildlife, which may follow one of four transaction modes (Hayman & Brack 2002):

  • low volume, low value (eg 'tourist' or inadvertent smuggling);
  • high volume, low value (eg opportunistic smuggling);
  • high volume, high value (eg smuggling adopted by organised criminal networks); or
  • low volume, high value (eg 'smuggle to order' operations)

There has been no evaluation as to what extent these modes contribute to the overall trade but each can be differentiated with regard to the sophistication of the operation, the identity of the participants and often the species of wildlife targeted.

National and local environmental crime

At the local and national level, there is an even broader spectrum of crimes that can be perpetrated against the environment. These offences range from one-off acts of non-compliance with permit conditions to large-scale environmental destruction. In Australia, this diversity of possible crimes derives from legislative and regulatory differentiation between the actual act of environmental degradation and the commission of the act without appropriate authorisation.

Local occurrences of environmental crime may be defined as those where the action (or the action's outcome) is in defiance of locally prescribed rules regarding responsible environmental behaviour (in Australia, for example, this would include state- and territory-specific legislation) and/or the outcome of the action produces a detrimental effect on a localised, discrete area. Examples of these include the clearance by a landowner of protected, native vegetation; dumping of hospital waste in a residential area; kangaroo and wallaby culling by persons without authorised permits; sewage leaks onto public land or into waterways; taking of marine species in excess of recreational or commercial limits; or unauthorised sinking of, and extraction of ground water from, a bore. National environmental crimes encompass undertakings which flout laws applicable to the nation as a whole, exert a cross-jurisdictional effect or impact on an object of national significance. They may also include transgressions by international parties, the most frequent example in Australia being the illegal fishing conducted by Indonesian fishers in Australia's northern waters.

In his keynote address to the 2002 Combating Wildlife Crime in the 21st Century conference, AFP Deputy Commissioner Davies (2002: 23) made the point that most environmental crime represents 'continuous infringements (perpetrated) over a long period of time'. This is probably true for a sizeable component of local environmental crime. Nonetheless, and as Davies (2002) also points out, the accrual effect of these infringements and acts of non-compliance can and do produce significant and long-lasting detriments to the environment.