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Controls against environmental crimes

International controls

International environmental controls are set down in Multilateral Environment Agreements (MEAs). At present, there are over 200 MEAs which formalise international obligations regarding the protection of biodiversity, the marine environment and the atmosphere, sustainable development, regulation on the use of chemicals and transfer and disposal of waste. The MEAs cited as specifically relevant to internationally recognised forms of environmental crime are:

  • 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which controls the international trade in fauna and flora with reference to an annually reviewed list on species vulnerability and their need for protection.
  • 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), which laid the foundation for international cooperation to protect the stratospheric ozone and required developed countries to achieve a 50 percent reduction of chlorofluorocarbons (CFCs; relative to 1986 levels). Four amendments have since been made:
    • 1990 London Amendment (complete phase-out in of CFCs, halons and carbon tetrachloride (ie ODSs) in developed countries by 2000 and developing countries by 2010);
    • 1992 Copenhagen Amendment (accelerated phase-out of ODSs by 1996 in developed countries and phase-out of hydro chlorofluorocarbons (HCFCs) starting in 2004);
    • 1997 Montreal Amendment (phase-out of HCFCs in developing countries and phase-out of methyl bromide in developed and developing countries in 2005 and 2015); and
    • 1999 Beijing Amendment (tightening of controls on production and trade in HCFCs and inclusion of bromochloromethane to the list of controlled substances for phase-out by 2004).
  • 1989 Basel Convention on the Control of Trans-Boundary Movements of Hazardous Wastes and their Disposal, which was established in response to the increased illegal movement of hazardous waste by 'toxic traders' from developed countries to developing countries and Eastern Europe. The convention outlines implementation and enforcement commitments of signatory states, whereby the movement of waste must only be undertaken with prior notification from the exporting state and consent from the transit and import states. A new focus of the convention is improving methods of minimising hazardous waste generation.
  • 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (otherwise known as the London Convention and updated in the 1996 Protocol), to regulate and hence limit the disposal at sea of wastes that are generated on land (eg industrial waste, sewage sludge, dredged material, radioactive wastes).
  • International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978 relating thereto (MARPOL 73/78 Convention), to prevent the dumping of oil, noxious liquid substances, harmful substances carried in packaged form, ship sewage and garbage from ships into the seas, as well as the emission of air pollutants (primarily sulphur oxide and nitrous oxide). Dumping refers to expulsion of wastes from operational and accidental causes.

No overriding international agreement exists to control for illegal fishing. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) acts as a framework on which the conservation and management of fisheries is based and through which Exclusive Economic Zones (EEZ) were established. EEZs designate the jurisdiction of coastal states over all living and non-living resources within. In the following decade, the UNCLOS was supplemented with various arrangements, notably the 1991 Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries, the 1993 FAO Compliance Agreement and 1995 UN Fish Stocks Agreement. These further stipulated standards and requirements for the conservation and management of fisheries and specified fish species, and the operation of fishing ventures in zones that are not governed by formalised sovereign control (eg the high seas).

Similarly, there is the lack of an overarching international control over illegal logging and the timber trade. CITES enacts some international level regulation on the import and export of endangered tree species but obviously excludes those logs of less endangered status taken from protected areas. Further, CITES is generally viewed and applied as specific to endangered faunal species and hence not used to its full effect (or at all) to halt the illegal timber trade (Aikman 2003).

In practice, the effectiveness of MEAs is questionable (eg see Elliott 2007). First (and obviously) is the voluntary state in which international agreements are ratified or observed, with adherence only applicable to that group of nations that choose to oblige. Standards may be watered down to encourage ratification and observation of these standards is dependent on the signatory nations to pass complementary legislation and regulatory practices in their home country. Second, MEAs are sometimes perceived as 'soft laws'—while there is general guidance as to what nations can and cannot do, they often lack formal enforcement measures to truly instil compliant behaviour and direction on the sorts of penalties that should be applied for particular offences (Elliott 2007; Hayman & Brack 2002). Finally, there is a lack of detail on what constitutes illegal or criminal behaviour, which increases the risk of interpretative disparity (Elliott 2007).

Actual containment of transnational (and indeed other levels of) environmental crime relies on individual states to implement national legislation and actively enforce against environmentally criminal behaviour as they occur within their borders (Hayman & Brack 2002). It also requires a willingness to cooperate, be it through intelligence sharing, coordinated enforcement operations etc. The fact that many states still do not have effective regulatory or enforcement approaches in place (or in some cases, none at all) means that those who do are hamstrung in their ability to make a decisive dent in transnational trade. Regulatory failures can occur at the site of origin, the site of receipt and/or the transitory stations and involve a complicity of problems including:

  • inadequate laws and penalties;
  • overloading of key agencies;
  • lack of resources; and
  • poor training of key personnel (Hayman & Brack 2002).

A weak chain of enforcement also opens the flow-through of illegal goods to corruption, in the form of fraudulent declarations, forged documents and bribery. The extent of corruption need not be very sophisticated, and statutory flaws in trade permit systems allow for this exploitation. The practice of false declarations and document forgery is apparently critical in propagating some categories of environmental crime, assisting the illegal trade in flora and fauna, transport of waste, illegal logging and illegal fishing. For example, Warchol's (2004) analysis of the illegal wildlife trade out of South Africa and Namibia found the forgery of CITES permits as one of the primary forms by which smugglers moved wildlife out of these two countries.

The ability to corrupt law enforcement officers is a further facilitator and the reality is that the political, social and economic conditions of many of the countries in which environmental crime occurs fosters corrupt behaviour (Hayman & Brack 2002). For some operations, the scale of bribery reaches government officials and often those charged with protecting the resource or preventing the trade.

Pervasive corruption may be inevitable for environmental crimes that are difficult to hide or disguise, such as illegal logging (Brack 2006; Hayman & Brack 2002; Setiono 2007). The logging 'chain of custody' extends from assignment of concessions to extraction, processing and export, and each custodial point is susceptible to corruption. A recent examination of the extent of illegal logging in the Asia-Pacific region found that, from the available documentation, a considerable proportion of corrupt behaviour occurs at the concession allocation and timber extraction phases (Schloenhardt 2008). The limited information on illegal processing and export practices, however, does not eliminate the likelihood that extensive corruption occurs there too. When considering the Asia-Pacific region, the dubious partnership of illegal logging and corruption is particularly pronounced in Indonesia; Scholenhardt (2008: 53) described corruption and bribery as 'perhaps the greatest facilitators of illegal logging' in this country. This corruption involves both local and provincial forestry officials, local police and other security officers, the military, high government officers and even members of the judiciary (to halt prosecution). Bribes are proffered as 'goodwill payments' to open up or extend concessions, issue felling licences, protect illegal logging sites and activity and enable ease of transmission of logs from logged sites to sawmills.

National controls

National controls against environmental crime reflect international expectations and sovereign interests and standards. At present in Australia, there are in excess of 150 statutes and associated regulations pertaining to environmental conservation, management and protection, divided between the Commonwealth and the states and territories.

Legislation

At the Commonwealth level are six principal statutes that incorporate Australia's commitment to international standards as embodied in the aforementioned MEAs and prescribe national environmental laws (see Table 1). The majority of these statutes comprise a legal framework of prevention and regulation and for the Environment Protection and Biodiversity Conservation Act 1999 and Fisheries Management Act 1991, functions of conservation and sustainable management. These statutes both stand alone and act in concert with one another and other legislative provisions to protect different aspects of the same environment at threat of harm.

Table 1: Primary Commonwealth environment protection statutes
StatuteObjectiveInternational convention, treaty or agreement
Environment Protection and Biodiversity Conservation Act 1999Protection and management of nationally and internationally important flora, fauna, ecological communities (and heritage places)CITES
Fisheries Management Act 1991Sustainable and cost-effective management of Australian fisheries and conservation of living resources in the Australian Fishing ZoneUNCLOS, FAO Agreements
Environment Protection (Sea Dumping) Act 1981Prevent marine pollution through regulating the loading and dumping of waste at seaLondon Convention/1996 Protocol
Protection of the Sea (Prevention of Pollution from Ships) Act 1983Prohibition of marine pollution by oil, noxious substances, sewage and other harmful substancesMARPOL Convention
Hazardous Waste (Regulation of Exports and Imports) Act 1989To ensure the safe disposal of hazardous waste through regulation of the export and import of waste both with and without financial valueBasel Convention
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989To regulate the manufacture, import and export of all ozone depleting substances and synthetic greenhouse gas replacementsMontreal Protocol

There also exist statutes for entities requiring specific legislative attention, for example, those pertaining to the Antarctic region. Australia is a signatory to the Antarctic Treaty 1959 (which outlines obligations of countries active in Antarctica as to how the continent can be used) and the 1991 Madrid Protocol (which outlays provisions regarding protection of the Antarctic environment). These commitments are referred to in a series of statutes, such as the Antarctic Treaty (Environment Protection) Act 2000 and the Antarctic Marine Living Resources Act 1981. Another example is the Torres Strait Fisheries Act 1984, which outlines laws on the protection of the marine environment and the observance of traditional fishing rights as stipulated in the Torres Strait Treaty. Finally is a series of legislative provisions created for the Great Barrier Marine Park, including the Great Barrier Marine Park Act 1975, Great Barrier Reef Marine Park Zoning Plan 2003 (for the conservation and management of the Marine Park), Great Barrier Reef Regions (Prohibition of Mining) Regulations 1999 and Great Barrier Reef Marine Park (Aquaculture) Regulations 2000. Day-to-day management and enforcement of some of the aforementioned Acts (and associated regulations) is shared or entrusted with sister agencies, such as the Australian Antarctic Division, Australian Fisheries Management Authority, Australian Maritime Safety Authority and Great Barrier Reef Marine Park Authority.

A multitude of legislation pertinent to the environment exists at the state and territory level, which will be described in greater detail in subsequent chapters. Each jurisdiction has enacted its own environment protection statute on the prevention and containment of air, water and soil pollution and illegal waste transfer and disposal. Similarly, all but land-locked Australian Capital Territory observes the MARPOL and London Conventions through individual statutes preventing the pollution of marine waters. A few jurisdictions have introduced additional statutes that target specialised groups of pollutants. For example, there are separate acts controlling the use of:

  • environmentally hazardous chemicals (Environmentally Hazardous Chemicals Act 1985 (NSW));
  • pesticides (Pesticides Act 1999 (NSW));
  • ozone depleting substances (Ozone Protection Act 1989 (NSW); Ozone Protection Act 1996 (NT)); and
  • guidelines for the clean-up of contaminated land (Contaminated Land Management Act 1997 (NSW); Contaminated Sites Act 2003 (WA)).

Laws to ensure the protection and conservation of Australia's threatened faunal and floral species are mostly prescribed in individual threatened species/nature conservation statutes. Complementary statutes include additional provisions against the taking of fauna and flora from prescribed areas (such as marine and national parks) or removal of particular species (eg Whales Protection Act 1988 (Tas)).

The prevention of ecologically-damaging native vegetation clearance is covered in principal conservation statutes (and in legislation pertaining to land development) in Victoria, Tasmania, the Northern Territory and the Australian Capital Territory. In Western Australia, it is covered in their primary environment protection statute and in separate native vegetation statutes in New South Wales, Queensland and South Australia.

The remaining fields of environmental protection where laws have been enacted relate to Australia's fisheries and water resources. These statutes in particular seek to balance conservation and sustainable management with sector-specific resource needs. All jurisdictions except Tasmania bundle fisheries laws and rules of management into the one statute. Tasmania observes two Acts, one for marine and the other for inland river fisheries. These statutes and their subordinate legislation act to protect aquatic species, promote sustainable recreational and commercial fishing practices and maintain a viable commercial fishing industry. Water legislation, which is backed up by a series of regulatory water plans, controls the extraction and use of surface and ground water (primarily) through the extension of water entitlements and allocations.

Built into Australian environment conservation and protection statutes is the concept of environmental harm. How this harm is expressed differs between statutes (and will be expanded on in the theme sections) but it is best developed in state and territory environment protection legislation which refer to offences of serious and material environmental harm, and environmental nuisances. These gradations of harm are used to prescribe the seriousness of the offence and the associated maximum penalty. There is some variation in how harm is defined but 'serious' and 'material' environmental harms are basically distinguished by the intensity and extent of the environmental impact and the actual or potential loss of (or damage to) property. The harm incurred is referenced to a predetermined monetary threshold and further differentiated as to the wilfulness or intentional nature of the act.

These laws formulate cross-cutting environmental standards that are primarily developed by government agencies. However, government is not the sole contributor to setting environmental standards. Some standards are formed in conjunction with non-state players, who often spearhead or shape these standards before governments become involved. Non-state players cover a broad range of entities, from business and industry groups, NGOs (environmental 'watchdogs', conservation groups), grassroots and public interest groups, academics etc.

One example is the adoption of self-regulatory standards by business that are:

  • specific to the nature of production; or
  • implemented in a more generalised format as exemplified by the International Organization for Standardization (ISO) 14000 series, and its local equivalent, the Australia/New Zealand International Organization for Standardization (AS/NZ ISO) 14000 series.

The 14000 series grew out of an application from industry groups for a systematic approach in which to manage production that minimised environmental impact, improved environmental performance and established environmental objectives. Another example is the Forest Stewardship Council (FSC), which originated from a multi-party coalition led by the World Wide Fund for Nature (WWF) and included foresters, timber traders, environmental groups and human-rights organisation. The FSC oversees the development and establishment of standards with which to certify well-managed forests and the products derived from them. The Australian chapter of the FSC works with a range of bodies (including government, industry, Indigenous, community and environmental groups) to promote the certification scheme and accredits national and regionally-derived standards of forest maintenance. A similar organisation is the Marine Stewardship Council (MSC), also created by the WWF but, in this case, in partnership with the multinational corporation Unilever. The MSC also acts to develop standards, primarily those concerning sustainable fishing and the chain-of-custody from catch to sale.

Regulatory regimes

Determining which model of regulatory practice is the best fit for preventing and deterring environmental offences has dominated the discourse on environmental crime. Two models of regulation are Scholz's (1984a, 1984b) tit-for-tat enforcement strategy (TFT) and Braithwaite's enforcement pyramid (Ayres & Braithwaite 1992; Braithwaite 1989; 1985). These were first developed for regulation of businesses but adopted and shaped by environment protection agencies. The TFT and the enforcement pyramid are both based on the premise that best-practice regulation must incorporate a mix of punishment and persuasion but they differ on how intricate or complex that mix needs to be.

The TFT relies on the establishment of a cooperative relationship between the regulator and the regulated, with the regulator desisting from imposing a deterrent strategy unless or until the regulated partner chooses to test or break this relationship (Scholz 1984a, 1984b). The partnership is resurrected if the punishment elicits a return to compliant behaviour. Alternatively, the enforcement pyramid promotes the view that compliance is only really achievable if the regulatory authority is supported by, and the regulated body is respectful of, the layers of intervention built into the enforcement pyramid (Ayres & Braithwaite 1992). In its simplest form, the enforcement pyramid is constructed of five storeys in which persuasion is applied first to elicit compliance, with the threat of escalating sanctions if non-compliance continues. A warning letter is followed by a civil penalty, then a criminal penalty and finally incapacitation in the form of a suspension of licence. The object of this regulatory model is to give the regulated party the opportunity to voluntarily comply. Persuasion is not only less expensive but has been shown to be a more effective means of ensuring compliant behaviour (Grabosky & Braithwaite 1986; Hawkins 1984). To be really effective however, the sanctioning scale must be as steep as possible since, as Ayres and Braithwaite (1992) argue, the 'taller' the pyramid, the greater the pressure regulatory authorities can apply to ensure that compliance is obtained at the base (or persuasion component) of the pyramid.

Alongside models of enforcement are different models of regulation. In Australia, these may comprise any combination of the following:

  • 'command and control' (or direct) regulation;
  • self-regulation;
  • voluntary agreements;
  • education and information schemes;
  • economic instruments/applications; and
  • free-market environmentalism (Gunningham & Sinclair 1998).

The so-called command and control model of regulation has been the dominant regulatory model used in Australia to prevent environmental damage. It incorporates rules on what is allowed and not allowed, and the threat of sanction (be it in the form of administrative, civil or criminal penalties) to deter and punish non-compliant behaviour. In more recent times, sanctioning options have expanded to produce a gradation of punishments with the option to leap-frog less severe sanctions when the circumstances of the offence demand a stronger response. Staying within the law is generally established through the authorisation of certain practices. This is achieved through granting licences and/or permits with strict conditions attached to how the practice may be carried out.

Despite its widespread implementation, command and control regulation is not without its critics. The model has proved to be both inflexible and costly, although Gunningham & Sinclair (1998) note that more flexible and cost-efficient adaptations have been in use. Further, command and control regulation relies on an efficient system of inspection and detection which is dependent on resources, staff competencies and cooperation between relevant agencies. These difficulties can be made worse by the abundance of legislative and administrative tools created to support command and control regulation (Gunningham & Sinclair 1998). Even in the best examples of command and control regulation, these problems are apparent (du Rées 2001; Gunningham 1987). Such concerns derive from two factors. The first is the dual role environmental protection agencies play as both regulators and enforcers of environmental law. The second is the observation that agencies have sometimes allied themselves with the entities they are meant to be regulating, otherwise known as 'regulatory capture'.

Gunningham (2002) cautions against some of this criticism since there is evidence the command and control model has made some considerable impact on reducing types of air and water pollution. In their review of regulatory models, Gunningham and Sinclair (1998) also list as success stories:

  • reductions in 'point-source' pollution;
  • banning of extremely hazardous wastes;
  • dumping of wastes; and
  • protection of endangered species.

However, Gunningham (2002) concedes, like others (eg Stewart 2001; Watson 2005), that this strategy has had a limited effect in other areas of environmental protection. This is partly because improvements in environmental protection stimulate community expectation of even greater progress (Watson 2005), which may not be achievable with current models of regulation.

It is one thing to discourage factories from discharging highly toxic waste into rivers. Ensuring that rivers become cleaner each year is a different proposition (Watson 2005: 191).

The response in some quarters to the incapacities of direct regulation was a move towards deregulation or self-regulation and the introduction of 'free market environmentalism'. A pyramid of regulatory strategies conceived by Braithwaite (1989) finds self-regulation at the base, so-called 'enforced self-regulation' in the middle and command and control regulation sitting at the apex. While considered by some as a panacea to regulatory incompetence, self-regulation has proved to be a highly controversial choice when it comes to protecting the environment. Placing regulatory power in the hands of the 'polluters' can mean a watering down of standards, a lackadaisical approach to enforcement and relatively minor forms of punishment (Gunningham & Sinclair 1998). It can also lead to a loss of transparency, accountability and credibility (Webb & Morrison cited in Gunningham & Sinclair 1998).

To more comprehensively prevent environmental degradation requires a 'next generation' approach to regulatory control and a move away from the 'one size fits all' model of the past (Gunningham 2002). This means developing sector-specific regulatory mechanisms and introducing a blended range of strategies. This approach has been labelled 'smart regulation' (Gunningham & Sinclair 1998). Smart regulation embodies regulatory flexibility and includes components of self-regulation, unilateral commitment (to environmental improvement programs), voluntary participation, negotiated agreements, education and information tools, economic instruments, as well as command and control regulation. For examples of compiled information on some of these strategies which had been implemented by Australian industry (eg mining, agriculture), business groups, local and state governments, NGOs and environmental campaigns, see Grabosky and Gant (2000)

Alternate and supplementary methods of environmental protection

An additional criticism of traditional modes of regulation was the narrowed focus on 'the components of the regulatory system…rather than the 'big picture'—the environmental outcomes' (Bingham & Woodward 1993: 4). This focus fostered an over-emphasis on compliance at the expense of prevention (Hutton 2000). In recent years, Australian environment departments and protection agencies have attempted to amend this by embracing the concept of environmental harm and the need to address environmental outcomes (eg see the Victorian Environment Protection Agency's strategic plan Vic EPA 2004a). While maintaining the core elements of direct regulation, there is increased use of supplementary methods of prevention. These include the development of specialised management plans, an emphasis on education, the use of economic tools and creation of partnerships with sister agencies, community groups, industry and NGOs.

One example is New South Wales' shift from an environmental protection framework based on direct regulation, to one incorporating a mix of regulatory control, voluntarism and economic tools. The aim of this mix is to instil a risk-based approach to environmental regulation and protection that is grounded in transparency and flexibility (Woodward 2008 and see Table 2). Of particular note is the current range of economic and market-based instruments that are in use. These instruments are primarily fee-based systems (with built-in incentives) and offset and trade schemes.

The aim of fee extraction schemes is to produce a change in behaviour. For example, the waste levy is used to encourage companies to improve recycling and resource conservation measures. The load-based system was implemented to reduce pollution emissions and reward companies with a reduction in their annual licence fee if they comply with an agreed decrease in pollutants emitted (NSW DEC 2005b; Woodward 2008). If the reduction is not achieved, the company is obliged to repay the fee difference, with interest.

Variants on trading schemes have been established as an additional course of action for preserving biodiversity (eg biodiversity banking) and further reducing discharge of pollutants (tradeable emissions). The former is offered, in select cases, as an alternative to undertaking an 'assessment of significance' for threatened species (which is required under the Environmental Planning and Assessment Act 1979 (NSW) for land development). The scheme allows developers and local government to earn biodiversity credits which they can sell to offset any environmental impact associated with land development activities that have occurred elsewhere (NSW DECC 2007b; Woodward 2008).

The tradeable emission scheme, on the other hand, is essentially a market-generated venture whereby emissions permits can be bought and sold, and credits generated when emission cuts for certain pollutants are achieved. The best developed of these schemes is the Hunter River Salinity trading scheme, established to protect the Hunter River from rising salinity levels (NSW DEC 2006b). Other examples of similar incentives and tools are described in theme sections.

Table 2: Environmental protection policy and economic tools adopted in New South Wales
Risk-based regulation and compliance
Environmental audits
Education campaigns
Public reporting (of breaches in annual reports etc)
Remediation directions
Voluntarism (environmental audits and remediation of sites)
Risk-based licensing schemes
Polluter liability
Pollution reduction programs
Economic tools/market-based instruments
Load-based licensing
Tradeable emissions
Waste levy
Biocertification and biodiversity banking
Environmental offsets

Source: Woodward 2008

Uncovering environmental offences

Environmental offences are detected both formally and informally. Compliance monitoring and auditing represents the most common method of formal detection. Licence or permit holders are subject to routine compliance checks, whereby enforcement officers inspect the site of operation, record-keeping etc to verify the conditions of the licence are being complied with. Compliance monitoring primarily serves to ensure certain practices are adhering to legislated provisions. It also detects breaches of licence, but plays a support role as a deterrent via 'threat' of exposure. Along with monitoring work, enforcement officers devote part of their time to targeted investigations. These investigations usually focus on identified areas of risk, which are ascertained through intelligence-gathering and target an identified group of licence holders or a specific activity. Such operations tend to run over a specified time period (eg a matter of months), increase the level of scrutiny and rely on random and/or unannounced spot-checks or visits. When intelligence indicates illegal practices are suspected or likely to be occurring, these unannounced visits take the form of formal raids. Depending on the gravity of the offence, these raids sometimes involve police officers (eg raids on aviaries suspected of laundering native birds). The effectiveness of more formal methods of detection is addressed in subsequent sections, but the consensus is that its reliability and capability is compromised by a lack of resources tied to the enormity of the job (Bartel 2003; du Rées 2001; Gunningham 1987; Halstead 1992; Pain 1993).

Day-to-day procedure is another avenue in which environmental offences are uncovered. Such detection is best represented by the role of the Australian Customs and Border Protection Service (ACBPS) in discovering smuggled wildlife or flora on passengers (or in their luggage), in the mail or in imported cargo. Some of this detection follows intelligence on suspect imports, or the targeting of passengers, but chance discovery accounts for a number of finds.

Chance discovery or observation also arises, and quite literally in some cases, from the 'discoverer' being in the right place at the right time. A successfully prosecuted case of illegal native vegetation clearance in New South Wales, for example, followed a chance sighting by an enforcement officer (Bartel 2003). The sighting of earthworks machinery led to the discovery of illegal clearing on property bordering the highway the enforcement officer was travelling on.

Chance observation serves as an important source of information for exposing environmental crimes and particularly for offences that are not so easily detected or require enormous resources to adequately control. The 'nosy neighbour' is cited as a key informant of incidents of illegal native vegetation clearance (Bartel 2003; NSW OAG 2006), although one might argue that some revelations are more to do with deliberate sleuthing than accidental discoveries. Nonetheless, and because their presence cannot be everywhere, regulatory agencies do depend on the public to report suspected environmental offences. State and territory fisheries departments operate hotlines on which the public can report suspect recreational or commercial fishing, environment protection agencies encourage reporting of pollution and smoky vehicles and water agencies for any observed breaches of water restrictions. Complaints are compiled in databases, graded as to their apparent seriousness and acted upon where necessary by enforcement officers. A back-log of complaints is, however, a reality for some investigative units.

Research studies or investigations by non-enforcement entities adds evidence for environmental offences taking place. For example, a Macquarie University-led study on works constructions on the Macquarie floodplain and their effect on the viability of the Macquarie Marshes, discovered possible breaches to floodplain development guidelines and subsequent over-harvesting of environmental waters (Steinfeld & Kingsford 2008). The findings from this report persuaded the NSW Government to audit water diversion works on and surrounding the floodplain (Costa 2008) and to review their policy regarding the management of floodplain water diversion. Another, more recent example that came from a four year study on land use in the Tully-Murray, Burdekin-Townsville and Mackay Whitsunday Regions, revealed serious herbicide run-off into rivers and creeks and the Great Barrier Reef Marine Lagoon (Lewis et al. 2009). The run-off was at levels which exceeded freshwater and marine guidelines for species protection. Finally, a seven year study by the Australian National University, which monitored woodland bird populations in the Cowra region, attributed a steady decline in population numbers not only to the drought but also to extensive local native vegetation clearance (Reid & Cunningham 2008).

NGOs also play a critical role in exposing environmental offences. Evidence of illegal logging and illegal fishing has been uncovered and reported by organisations such as Greenpeace, the Environment Investigation Agency and Australia's Wilderness Society; illegal wildlife trafficking by International Fund for Animal Welfare, CAWT and the WWF, and problematic electronic waste disposal by Greenpeace (international) and the Total Environment Centre (within Australia).

Finally, some environmental harm simply just cannot go unnoticed, or the perpetrators are compelled by their own conscious or strict observance of protocol to report an incident. A condition of licence for polluting activities or forestry harvesting ventures requires the licence holder to regularly submit reports to the administering authority detailing specifics of operation, including any incident where regulations are breached. Legislation further requires breaches or accidents to be immediately reported to authorities. Failing to report or providing misleading or doctored data are prescribed offences in environment and conservation statutes, and penalties are severe.

The importance of information-sharing

Elliott (2007: 4) noted that information is an 'important commodity' in the exposing and prosecution of environmental crime. That information, however, is best delivered and acted upon where there is dynamic interagency cooperation in place. Such cooperation also ensures reciprocity of support, intelligence sharing, improved capacity for joint investigations and the production of an appropriate sanction for wrongdoing. As described earlier, environmental laws tend to be compartmentalised in separate statues and separate agencies are responsible for their enforcement. While this may have worked reasonably effectively in practice, improved provisions for interagency collaboration would help circumvent issues that arise due to the broad impact of some environmental offences.

Studies of interagency cooperation within Australia and the effectiveness of this cooperation have not been attempted. However, two papers examining the AFP's role in the investigation and prosecution of environmental crime highlighted deficiencies in both partnership arrangements between the AFP and key environmental agencies and in the adoption of formal information/intelligence-sharing arrangements (Blindell 2006; Davies 2002). Similar mutual assistance problems probably also affect other agencies but the establishment of the Australasian Environmental Law and Enforcement Network (AELERT) has helped to counteract this problem. Founded in 2003, AELERT provides a forum through which regulatory agencies can develop and enhance interagency relationships, cooperation and information sharing. At present, there are 60 member agencies from Australia and New Zealand, representing Commonwealth, state and territory, and regional agencies.

Sanctioning

Sanctioning options

Australia uses a tripartite sequence of sanctioning options—administrative, civil and criminal—to deter and penalise environmental offenders. Enforcement and prosecution guidelines have been developed to instruct enforcement agencies on the most suitable action for a particular category of wrongdoing (eg see ACT EPA 2007; NSW DWE 2008b; NSW EPA 2004; NT NRETA 2007; Qld EPA 2004b; SA EPA 2009b; Tas DPIW&E 2004a, 2004b; Vic EPA 2006; WA DEC 2008b). Depending on the nature of illegal activity and the degree of environmental harm caused, an array of options including warnings, directions, notices, orders and punitive penalties, are available for use. Different jurisdictions employ slightly different combinations and versions of these sanctioning options and variability also exists between different environment statutes. These variations will be elaborated upon in the theme sections.

The least severe end of the sanctioning spectrum are warnings, cautions or advisory letters that alert the offender that a potential or actual breach has been detected and advises on ways in which that breach might be amended. These are usually posted by enforcement officers for administrative, minor or technical breaches. At the next level are infringement and penalty notices, effectively 'one-stop' fines for 'minor', one-off breaches. No criminal conviction is recorded on payment of the fine, but persons may elect to forego the fine and have the case tested in court. Deliberate non-payment may also result in prosecution.

An assortment of orders and notices are available for medium and some serious offences. These are used to temporarily or permanently halt actual or potentially harmful activities. For example, among those prescribed in environmental protection statutes are the 'stop work', 'control', 'prevent', 'abate' or 'prohibit' directions and orders. When an actual harm has been judged as having occurred, offenders may be directed to undertake remedial or rehabilitative works. Enforcement officers are able to issue such orders or notices but, in some cases, injunctive relief can be sought, with the issuance of court-ordered directions to discontinue or prohibit the activity, order compliance or make good a contravention. The existing approval or licence can also be amended, suspended or revoked if harm is evident or there is a risk of an offence being committed in the future. Amendments list the types of actions that need to be made to achieve compliance and are sometimes used as an alternative to serving orders or notices.

Prosecution, both civil and criminal, is reserved for the more serious, or wilfully perpetrated, environmental offences. Enforcement agencies are directed to follow this course of action only if there is sufficient evidence for a prima facie case and a 'reasonable' prospect of finding guilt. Prosecution normally does not commence unless approved by the agency or Division's director, and after consultation with the Director of Public Prosecutions (DPP).

Fines are the predominant penalty for environmental offences but custodial sentences are applicable to some offences and categories of harm. Inter-jurisdictional variability exists in the maximum penalty set as well as in whether sentencing options include a pecuniary and custodial option (see theme sections for a list of environmental offences and the associated maximum penalty). Maximum penalties vary for similar offences based on the seriousness of the offence and the intent behind the illegal behaviour. Again, these variations are described in more detail in the theme sections but are most apparent for penalties for traditional environment protection offences and some conservation laws.

The theme sections will describe, where available data allows, the breakdown of penalties administered over recent years but the general rule has been a surfeit of infringement notices, with a smaller number of (non-court appointed) orders and a smaller number again of prosecutions. This distribution reflects a greater proportion of minor environmental offences than a channelling of punishments towards the lesser end of the penalty spectrum. It has been asserted, however, that the application of penalties for environmental offences has been somewhat unsystematic, with a tendency to resort to lenient sanctioning options (Bartel 2008a, 2003; du Rées 2001; Hain & Cocklin 2001; Korsell 2001; Pain 1993).

Prosecuting environmental offences and the usefulness of traditional penalties

In most Australian states and territories, environmental offences that are prosecuted are tried in Magistrates' courts. South Australia established the Environment, Resources and Development Court in 1993 to deal primarily with disputes and related cases pertaining to land development, natural resources, water resources and irrigation, mining and native title but it is only in New South Wales where there is a court that deals specifically with environmental and planning offences. The NSW Land and Environment Court, established in 1980, sits at the Supreme Court level (further differentiating it from other states and territories) and holds appellate functions with which to monitor sentences handed down in lower courts.

The trying of cases of environmental crime outside a specialty court system is thought to be a contributor to the generally low penalties meted out for environmental offences. Irregular exposure to such cases and the judiciary's comparative lack of training in dealing with (and some argue a lack of understanding of) environmental offences was noted as contributory factors by participants to an AIC roundtable on environmental crime. Martin (2003: 33) makes the point that the task of 'making the punishment fit the crime' is particularly complex when dealing with environmental offences, in part because of the identity of the victim—'the all but invisible ecosystem'. Definitional misinterpretation can and does interfere with how the seriousness and impact of the offence is weighed up. One more extreme example concerns a case in the Queensland Supreme Court in which the likely victims (a local turtle population and their habitat) of a proposed residential subdivision were deemed by the presiding judge not to fall within the definition of 'the environment' (Murphy and Cove House Aust Pty Ltd v The Crown cited in Hain & Cocklin 2001). Participants to the AIC's environmental crime roundtable further observed that problems with quantifying and describing environmental harm made it, at times, difficult to develop and present cases in court.

The difficulties associated with successfully prosecuting environmental crimes might also lie with the application of criminal law to environmental offences (Hartley 2004; Pain 1993). One of the central tenets of controlling against environmental crime is to prevent harm from occurring and not just punish the offender when it does happen. According to Pain (1993), this is problematic because criminal law is not by nature a preventative tool. The application of criminal law also introduces an adversarial undercurrent to the protection of the environment, which may undo good relations between regulators and the regulated, and subsequently disrupt industry achievements brought about by those good relations (Lipman 1993; Pain 1993).

Other potential problems with the application of criminal law might relate to:

  • the general absence of workable and clearly understood definitions (eg what constitutes 'the environment'?, what is 'harm'?, what behaviours 'cause' environmental harm?);
  • the state of mind of the offender;
  • understanding the 'result offence' (ie can we prove the act caused the harm?); or
  • identifying where the burden of proof lies (Lipman 1993; Pain 1993; Preston 2007).

Some of these obstacles have been dealt with in the legislation, specifically the issue of mens rea and the difficulty of proving such in cases of environmental harm. Most environmental offences are now treated as strict liability or absolute liability offences. For example, the three tier penalty schema under the Protection of the Environment and Operations Act 1997 (NSW) defines Tier 1 offences as mens rea offences, Tier 2 offences as strict liability and Tier 3 offences as absolute liability. Tier 1 offences are limited to specific polluting and waste offences that were:

  • wilfully or negligently enacted; and
  • harmed or were likely to harm the environment.

Tier 2 offences refer to all other polluting offences and Tier 3 to offences that can be dealt with by penalty notice. In contrast, offences prescribed in the Environment Protection Act 1970 (Vic) are mostly absolute liability offences. This adoption of strict and absolute liability has enabled a consistently high number of proven cases to be returned for cases of illegal pollution (Hain & Cocklin 2001; Martin 2003).

Such complexity might be used as justification, or at least an explanation, as to why appropriately punishing the environmental offender has been less than successful. What is being recognised, though, is that some of this responsibility lies with the apparent leniency of past sentences and the apparent unsuitability and effectiveness of traditional penalties (Hain & Cocklin 2001; Hartley 2004; Martin 2003; Pain 1993). Between 1990–91 and 1999–2000, for example, conviction rates for offences prosecuted under the Environment Protection Act 1979 (Vic) ranged markedly, from 40 percent of proven charges in 1993–94 to 78 percent in 1992–93 (Hain & Cocklin 2001). Fines were imposed in just half or less of such cases in each year; the one exception was in 1999–2000 when fines were imposed in 54 percent of cases. The fines represented between five percent (1998–99) and 25 percent (1993–94) of the maximum fine that could be imposed. Conviction and fine imposition rates for offences tried under the Protection of the Environment and Operations Act 1997 (NSW) were higher in New South Wales over the same time period but, like Victoria, the actual fines handed down were a fraction of the maximum penalty (15% or less; Hain & Cocklin 2001).

The influence of 'regulatory capture' on the distribution of sanctions prompted state governments (for example, in New South Wales and Victoria) to review penalty schemes and tilt the balance back towards coercion (Pain 1993). An increase in penalties also resulted from the observation that difficulties in comprehensive compliance monitoring, combined with 'soft' penalties, produced endemic recidivism among certain parties and was almost ineffectual in discouraging smaller players (Martin 2003; Pain 1993). The introduction of more severe penalties had the complementary purpose of reflecting emerging community attitudes and expectations about appropriate punishment of environmental offences (Hain & Cocklin 2001; Martin 2003).

Nonetheless, the effectiveness of traditional penalties is questioned. Fines are the main penalty imposed (Abbott 2005) but they are viewed as not being particularly successful as either a mechanism of deterrence or of punishment (Hain & Cocklin 2001; Cole 2008). Custodial sentences are rarely given. Most criticisms against fines refer to the ability of the body corporate to simply absorb fines as a 'cost of business' (Cole 2008). As yet, there is little or no analysis on the deterrent effect of fines on the non-corporate environmental offender. Data collated for this report shows that fines are considerably lower than the maximum penalty, suggesting their deterrence effect is minimal.

A broader application of civil penalties has been proposed as providing the flexibility to shape appropriate sanctions to environmental offences in Australia (Hartley 2004; Pain 1993). Among the benefits of following civil prosecution are the faster process, the lower standard of proof required (based on the balance of probabilities and the ability to bypass mens rea) and the flexibility and variety of available sanctions (ALRC 2002). It also provides a vehicle through which other parties (such as individuals and environmental groups) can pursue claims of environmental harm (Pain 1993). Hartley (2004) argues that supplementing criminal penalties with civil penalties is particularly useful for dealing with 'problem' offenders. This is because civil proceedings, as opposed to criminal prosecutions, are more likely to deliver a successful outcome for prosecutions of more serious acts of harm. Hartley (2004) uses as his example Tier 1 offences under the Environmental Protection Act 1986 (WA) which ordinarily requires a proof of intent. Conversely, however, is the potential evaluation of civil penalties as being less serious than criminal penalties. A greater use of the former may not produce the 'long-term value readjustment' needed to instil the gravity of environmental offences (Pain 1993: 9).

Alternative sentencing options and approaches

Ideally, alternative sentencing approaches for environmental crime should encompass the flexibility to fulfil the dual purpose of punishment and the provision of a 'more acceptable social outcome' (Cole 2008: 96). The measures discussed in the literature as being of particular merit are the 'alternative orders' (Cole 2008; Hain & Cocklin 2001; Martin 2003; Preston 2007). Alternative orders can be combined with a punitive sanction or used instead of a more traditional penalty. The variety of orders available (see Table 3) depends on the statute and not all courts have the option to use them. Compared to punitive sanctions, though, they permit the creation of a sentence often better suited or 'tailor made' to the offence (Preston 2007). They also represent a punishment frequently of greater burden to the offender (Hain & Cocklin 2001).

Table 3: Alternative sentencing orders for environmental offences
Restoration and prevention orders
Payment of costs, expenses and compensation
Pay investigation costs
Monetary benefits penalty order
Publication order
Environmental service order
Environmental audit order
Payment into environmental trust or organisation
Order to allow training
Order to establish training course
Order to provide financial assistance

Source: Preston 2007

Orders that might be considered particularly effective are those that:

  • put a spotlight on the fact a crime has been committed; and
  • produce an environmental good.

The former is brought about by directions to publicise the offence in a medium available to the public and/or the offender's peer group. Targeting the prestige, profit and stability of larger corporations is proposed to have a greater deterrence effect than traditional pecuniary penalties (Fisse & Braithwaite 1988; Lipman 1991). 'Court ordered adverse publicity' fits in with such a tactic (Pain 1993: 7). The second outcome is achieved through directions to restore or rehabilitate the harmed environment, or the issuance of environmental service orders and payments. The latter offset environmental harms by a financial or other contribution to a conservation or rehabilitation project specified by the court.

Two reviews of sentencing provisions for environmental offences found Victoria, in particular, to have embraced the use of alternative orders for pollution offences (under s 67AC of the Environment Protection Act 1979; Cole 2008; Martin 2003). Prosecution data published in more recent Victorian Environment Protection Agency annual reports reveals this trend is continuing (see Pollution and illegal waste disposal). 'Additional orders' (under s 250 of the Protection of the Environment and Operations Act 1997 (NSW)) have been applied in cases dealt with by the Land and Environment Court in New South Wales but there has been little application so far in SA's Environment, Resources and Development Court (Cole 2008).

Restorative justice is currently infrequently used in Australia for environmental offences but is a possible avenue for intervention for some incidents of environmental harm. Hamilton's (2008) study on the use of restorative justice in New South Wales found that intervention of this kind was not directly supported in either the legislation conferring criminal jurisdiction on the NSW Land and Environment Court, although there was scope for its use in incidents of air and water pollution prescribed under the Protection of the Environment and Operations Act 1997 (NSW). Conversely, New Zealand makes use of restorative justice in prosecution of environmental harm. Six cases of environmental harm described in the New Zealand Ministry for the Environment (2006) report on prosecutions under the Resource Management Act were dealt with using restorative justice. In each, an apology was issued, payment of costs secured and monies allocated to environmental projects.

Widespread discrepancy in sentencing for environmental offences inspired the NSW Land and Environment Court to develop the NSW Land and Environment Court Sentencing Database, with the aim to improve a consistency in sentencing per se and in the approach to sentencing environmental crimes (Preston 2009; Preston & Donnelly 2008). The database, which incorporates the court's sentencing data from 1 January 1998 (following the commencement of the Protection of the Environment and Operations Act 1997) and is made available through the Judicial Information Research System (JIRS), provides a source of statistics on the type and magnitude of penalties imposed by the Land and Environment Court judiciary for specific environmental offences. A considerable strength of the database is the provision of material detailing the objective and subjective considerations that were used by the presiding judge to determine why a particular sentence was given.

Improving responses

Participants in an AIC hosted roundtable on environmental crime were asked to nominate what changes could be made to legislation, regulatory procedure and/or sanctioning practices that would improve rates of detection, improve prosecutorial outcomes and achieve better compliance. A summary of the responses is given below.

Legislative complexities

The cause of environmental harm is embedded in all state and territory environment protection statutes or inferred at some level in a number of others. However, there are sometimes difficulties in recognising and identifying when an environmental harm has occurred, and quantifying the level of harm caused. The latter particularly affects the preparation and presentation of cases for prosecution, where the cause and magnitude of harm may be difficult to describe in language understood by the court. Convincing the court that harm has actually taken place can be problematic, because of a definitional lack of clarity (at the statute level) and an interpretative issue (at the court level) in conveying the extent, significance and cumulative effect of an environmental harm.

It was suggested that a way of overcoming this interpretational complexity was to:

  • tighten the statutory definition of harm; and
  • better integrate the concept of harm into the judicial process, including how harm is assessed in this setting.

An additional objective would be to attempt some quantification of the value of 'the environment', which would formalise a process in extracting compensation for the loss of intrinsic value. In the interim, some examination of legislative, enforcement and judiciary assessment of harm would be warranted.

Along with amending legislative deficiencies, is the need to consider legislative alignment, in particular, the creation of complementary penalty regimes across jurisdictions. For example, the Australian Capital Territory is investigating aligning its environmental protection statute with that of New South Wales. Another option is to consolidate offences under the one, over-arching set of laws. One example of successful rationalisation is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (or EPBC Act). An overarching Act would include a full range of sentencing options and a number of deterrence applications that are consistently applied across the jurisdictions. The tiered penalty system set out in the Protection of the Environment Operations Act 1997 (NSW) was thought to offer a good benchmark from which the reassessment of penalties for other environmental offences could be based.

Issues and improvements to procedure

Changing public perception on the seriousness of environmental crime and with it an expansion of duties, meant that agency roles in preventing and detecting environmental offences had become more difficult to meet. A common obstacle was the lack or diminishment of resources and a constant requirement to juggle priorities. The former affected efficiency in fulfilling responsibilities, with a steady backlog of investigations to be undertaken alongside the cycle of compliance monitoring. As a result, responses often tended to be reactive rather than proactive.

A collective wish of all participating agencies was support for capacity building and the development and implementation of innovative tools to measure, monitor and manage activities that can harm the environment. In addition was the need for extra training (particularly in investigatory techniques) and an extension of intelligence and information sharing. The nature of environmental offences made it crucial to increase capabilities to work across sectors and to better coordinate information-sharing protocols between key agencies and with other relevant organisations such as NGOs.

Stakeholders also emphasised the importance of education as a preventative tool to be used alongside of regulation and enforcement. However, traditional means of distributing educative material did not often work and better results (in terms of compliance) occurred if there was regular, education-focused dialogue between the regulators and the regulated. The value of social research was also expressed, involving the community at large and the community most affected by environmental regulation. Social research (alongside education) was being used in New South Wales with farmers, stock/station agents and land clearance contractors to gauge notions of environmental harm and illegal vegetation clearance and viewpoints on regulation and governance.

Prosecuting environmental offences

The treatment of environmental crimes by the judicial system was described by participants to the roundtable on environmental crime as still 'wanting', because of a general lack of understanding of environmental crime and the seriousness of the crime. One agency noted that the legal system in general 'is just not geared toward environmental crime'. This is partly due to the court level at which cases of environmental crime are generally tried and partly the related experience of the presiding judge. In most jurisdictions, cases were assigned to Magistrates' courts which resulted in inconsistent outcomes and according to roundtable participants, did not always adequately reflect the seriousness of the offence.

There was little enthusiasm among roundtable participants for the effectiveness of the penalties normally meted out for environmental offences. Fines were seen as particularly problematic. Most fines handed down were too low to act as an adequate deterrent and larger fines did not always meet clean-up and restoration costs needed to deal with the harm produced. Further was the view that offenders regarded fines as a 'lesser punishment' compared with a remediation or restoration order. A re-examination of penalties and sentencing options was seen as imperative. Sentencing options should ideally address deterrence, incapacitation and rehabilitation (apparently, only deterrence is usually considered) and there should be greater use of alternative sentencing options, including directions for reparations and rehabilitation.

Pollution and illegal waste disposal

Scope and definitions

Pollution—which entails the emission, leakage or spillage of a prescribed substance into the air, water or soil—was the first of the environmentally damaging practices to garner both public consideration and concern, and regulatory attention. Recognised pollutants typically comprise chemicals, pesticides and prescribed gases. While the emission of some of these substances is under the strictest of controls or banned outright, other emissions are technically permitted, albeit within specified levels. Pollution is deemed illegal where there is release of a prohibited substance, the emission or leakage of substances in excess of an established limit, or expulsion into specified media (eg water).

Illegal waste disposal is the sister offence to illegal pollution and incorporates the trade in, and transport and dumping of, waste. Waste covers everything from hazardous chemicals to demolition site refuse and sewage to electronic waste. Strict rules are in place as to who is responsible for the transport and disposal of wastes, how wastes can be moved from one site to another, the procedures that are to be followed in the treatment of waste and under what conditions waste must be stored and disposed of.

Laws and regulations

International controls

Four principal MEAs exist concerning the protection of environments from the emission of serious pollutants and the trade and dumping of hazardous and other wastes of concern. The consequences of marine dumping and polluting from ships received the earliest international attention with the London Convention and the MARPOL 73/78 Convention. The London Convention, now updated as the 1996 Protocol, was created as a regulatory framework to limit the disposal at sea of wastes generated on land (such as industrial wastes, sewage sludge, dredged material and radioactive wastes). The MARPOL Convention acts to prevent dumping at sea of wastes and the emission of air pollutants. Wastes include oil, noxious liquid substances, harmful substances carried in packaged form, ship sewage and garbage. Dumping refers to the expulsion of wastes from both operational and accidental causes.

The increased illegal movement of hazardous waste by 'toxic traders' from developed countries into developing countries and those of Eastern Europe led to the creation of the 1989 Basel Convention on the Control of Trans-Boundary Movements of Hazardous Wastes and their Disposal. This convention outlines implementation and enforcement commitments of signatory states, whereby the movement of waste must only be undertaken with prior notification from the exporting state and consent from the transit and import states. A new focus of the convention is improving methods of minimising hazardous waste generation.

The Montreal Protocol followed international recognition of the role the proliferation of man-made molecules (specifically CFCs and related compounds) had in detected perforations of the earth's protective ozone layer. The Montreal Protocol laid the foundation for international cooperation to protect the stratospheric ozone and required developed countries to achieve a 50 percent reduction of CFCs (relative to 1986 levels). Four amendments have since been made:

  • 1990 London Amendment (complete phase-out in of CFCs and ODSs in developed countries by 2000 and developing countries by 2010);
  • 1992 Copenhagen Amendment (accelerated phase-out of ODSs by 1996 in developed countries and phase-out of HCFCs starting in 2004);
  • 1997 Montreal Amendment (phase-out of HCFCs in developing countries, and phase-out of methyl bromide in developed and developing countries in 2005 and 2015); and
  • 1999 Beijing Amendment (tightening of controls on production and trade in HCFCs and inclusion of bromochloromethane to the list of controlled substances for phase-out by 2004).

National controls

The emission of pollutants into the air, water and soil was the first of the environmentally damaging practices to receive regulatory control. The enactment of legislation regarding the emission of pollutants began in the 1970s, first in Victoria with other states and territories following. At the time, Victoria was the only jurisdiction (and the second in the world) to combine pollution and waste laws into the one piece of legislation (Comino & Leadbeter 2005). Other jurisdictions initially relied on separate pieces of legislation until the 1980s and 1990s when they too passed comprehensive statutes. Each jurisdiction now has a primary environmental protection act and set of regulations which cover responsibilities and prescribed offences relating to air, water and land pollution, and the transfer and disposal of waste (see Table 4). While there is no environmental protection statute at the Commonwealth level, polluting activities affecting Commonwealth protected areas (or wildlife) can be prosecuted under Commonwealth legislation.

Table 4 Environment protection statutes
JurisdictionPrimary statute(s)
CthHazardous Waste (Regulation of Exports and Imports) Act 1989
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
NSWProtection of the Environment Operations Act 1997
Contaminated Land Management Act 1997
Ozone Protection Act 1989
Pesticides Act 1999
Radiation Control Act 1990
VicEnvironment Protection Act 1970
QldEnvironmental Protection Act 1994
WAEnvironmental Protection Act 1986
Contaminated Sites Act 2003
SAEnvironment Protection Act 1993
Radiation Protection and Control Act 1982
Nuclear Waste Storage Facility (Prohibition) Act 2000
TasEnvironmental Management and Pollution Control Act 1994
ACTEnvironment Protection Act 1997
NTWaste Management and Pollution Control Acta
Nuclear Waste Transport, Storage and Disposal (Prohibition) Act

a: Penalties for offences are prescribed in the Environmental Offences and Penalties Act 1996

In addition to environment protection statutes are an array of legislative tools controlling the use and disposal of, and trade in, specified hazardous materials; investigation and remediation of contaminated sites; and prohibiting the dumping of oils, noxious substances, sewage and garbage into marine waters (see Tables 3 and 4). At the Commonwealth level is the:

  • Hazardous Waste (Regulations of Exports and Imports) Act 1989 to control the trade in specified waste materials and implement the 1989 Basel Convention;
  • Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 to regulate the import, export and manufacture of ozone depleting substances (ODSs) and synthetic greenhouse gases (SGGs), and implement the Montreal Protocol and subsequent amendments;
  • Environment Protection (Sea Dumping) Act 1981 to regulate dumping of wastes and incineration at sea and implement the London Convention. The Act covers all vessels, aircraft and platforms in Australian waters and Australian vessels and aircraft operating in any other seas or oceans; and
  • Protection of the Sea (Prevention of Pollution from Ships) Act 1983 to prohibit the release or emission of specified substances and implement the MARPOL 73/78 Convention.

The Australian Government Department of Environment, Water, Heritage and the Arts is responsible for enforcing the first three statutes and associated regulations, and the Australian Maritime Safety Authority the fourth. Legislation on marine pollution (by ships) exists at the state and territory level too (except in the Australian Capital Territory; see Table 5) and in Western Australia, there is an additional statute prohibiting sea dumping.

Table 5: Marine protection statutes: Prohibition of sea dumping and pollution by ships
JurisdictionPrimary statute(s)
CthEnvironment Protection (Sea Dumping) Act 1981
Protection of the Sea (Prevention of Pollution from Ships) Act 1983
NSWMarine Pollution Act 1987
VicPollution of Waters by Oil and Noxious Substances Act 1986
Waste Management Policy (Ship's Ballast Water)
QldTransport Operations (Marine Pollution) Act 1995
WAWestern Australian Marine (Sea Dumping) Act 1981
Pollution of Waters by Oil and Noxious Substances Act 1987
SAProtection of Marine Waters (Prevention of Pollution from Ships) Act 1987
TasPollution of Waters by Oil and Noxious Substances Act 1987
NTMarine Pollution Act

Complementing environmental protection statutes are the National Environment Protection Measures (NEPMs), which constitute statutory instruments developed to provide uniform standards and national objectives on both the protection and monitoring of the environment. NEPMs thus far prescribed relate to:

  • ambient air quality;
  • air toxics;
  • national pollutant inventory;
  • movement of controlled wastes;
  • used package materials;
  • assessment of site contamination; and
  • diesel vehicle emissions.

Jurisdictional implementation of NEPMs are reflected in the establishment of state environment protection policies (known as SEPPs or EPPs depending on the jurisdiction) which detail environmental standards, goals and procedures for specific areas of environmental protection (eg air quality) and provide guidance in the application of regulations. Table 6 lists some of the EPPs presently in place in Victoria and South Australia.

Table 6: Selected environmental protection policies, Victoria and South Australia
JurisdictionSEPPs/EPPs
VicState Environment Protection Policy (Ambient Air Quality)
State Environment Protection Policy (Air Quality Management)
State Environment Protection Policy (Prevention and Management of Contamination of Land)
State Environment Protection Policy (Groundwaters of Victoria)
State Environment Protection Policy (Waters Policy)
SAEnvironment Protection (Air Quality) Policy 1994
Environment Protection (Burning) Policy 1994
Environment Protection (Motor Vehicle Fuel Quality) Policy 2002
Environment Protection (Used Packaging Materials) Policy 2007
Environment Protection (Waste Management) Policy 1994
Environment Protection (Water Quality) Policy 2003
Environment Protection (National Pollutant Inventory) Policy 2008

These policies and the statutes they support are the product of a shift from the conventional regulatory approach of 'command and control' to one where environmental harm and environmental outcomes are the defining elements (Comino & Leadbeter 2005). Environmental protection should focus on preventing pollution and waste contamination through the setting of environmental quality standards and establishment of practices to meet these standards. Fundamental to the creation of Australia's environment protection statutes are the so-called Principles of Environmental Protection (Comino & Leadbeter 2005), consisting of the:

  • prevention of pollution (ie abolish or minimise polluting products and practices);
  • integration of the pollution control principle (ie recognise the cross-media effect of pollutants);
  • precautionary principle (ie absolve dependence on scientific certainty to delay implementation of protective practices); and
  • optimisation of the regulatory mix (ie blending regulatory and market-based approaches—the polluter pays).

Offences and penalties

Concept of environmental harm and intent to commit

In all jurisdictions, the extent of environmental harm (described as a serious environmental harm, material environmental harm or environmental nuisance) is used in environmental protection statutes to prescribe the seriousness of the offence and the associated maximum penalty. There is some definitional variation to these terms but serious and material environmental harm are basically distinguished by the intensity and extensiveness of the environmental impact and the actual or potential loss of, or damage to, property (see Tables 7, 8 and 9). This loss or damage is based on a predetermined monetary threshold in all jurisdictions except New South Wales and Victoria. Serious environmental harm includes acts that:

  • exceed the threshold amount of $50,000 (Queensland, South Australia, Tasmania and the Australian Capital Territory);
  • exceed by five times the threshold amount of $20,000 (Western Australia); and
  • exceed $50,000 (or prescribed) amount (Northern Territory).

Material environmental harm includes acts of harm that:

  • exceed the threshold amount of $5,000 (Queensland, South Australia, Tasmania and the Australian Capital Territory);
  • exceed the threshold amount of $20,000 (Western Australia); and
  • not exceed the threshold (or prescribed) amount of $50,000 (Northern Territory).

Individual statutes additionally incorporate into their definitions of serious environmental harm:

  • harmful acts that affect areas of high conservation value (Queensland, Western Australia, Northern Territory, Australian Capital Territory);
  • costs of taking action to prevent or minimise harm or action required to rehabilitate the damaged environment (Queensland, Northern Territory); and
  • any adverse impact on health and safety of human beings (South Australia, Tasmania).

Harmful acts are also differentiated by the wilfulness or intentional nature of the act. Both the Environmental Protection Act 1994 (Qld) and the Environment Protection Act 1993 (SA) differentiate between 'wilful or unlawful' and 'unlawful' acts of serious or material environmental harm and 'unlawful' acts. The Environmental Management and Pollution Control Act 1994 (Tas) refers to 'intentional' and 'reckless' acts.

The Environment Protection Act 1997 (ACT) divides cases of serious and material environmental harm into three levels of responsibility; that is, those that were done:

  • knowingly and recklessly; or
  • negligently; and
  • without evidence for recklessness or negligence.

A five level offence/penalty scheme adopted in the Northern Territory orders the seriousness of the offence as:

  • 1—intentional acts of pollution that cause serious acts of environmental harm;
  • 2a—acts of pollution that cause serious acts of environmental harm;
  • 2b—intentional acts of pollution that cause material acts of environmental harm;
  • 3—acts of pollution that cause material acts of environmental harm; and
  • 4—an environmental nuisance.

Levels one to three of the offence hierarchy also include a reference to persons to have known or 'ought reasonably be expected to know' (Waste Management and Pollution Control Act (NT) s 83) that harm would arise from the polluting act.

Under the Environmental Protection Act 1986 (WA), most polluting behaviours are deemed a Tier 1 offence. Different penalties, however, are prescribed according to the intentional or otherwise nature of the act. Cases of serious environmental harm (intentional and unintentional) and intentional acts leading to material environmental harm fall into the Tier 1 category of offences. Acts of material harm (where intention was not a factor) is a Tier 2 offence. When considering penalty and licence breaches, intentional actions are treated as Tier 1 and other illegal acts as Tier 2 offences.

Victoria employs a version of the offence regimes described, which incorporates some demarcation based on intent and seriousness of harm produced. The most serious offence under the five level system is 'aggravated pollution', which is defined as intentional, reckless or negligent pollution (or cause to pollute) resulting in serious damage to the environment, serious threat to human health or the risk of either (Environment Protection Act 1970 (Vic), s 59E). The provision of false information (by an environmental auditor) or fabricating results for environmental audit reports also constitute a Level 1 offence. Level 2a offences describe 'intentional' polluting or dumping practices (and giving false information), while Level 2b offences include these offences where they occur without intent. Breaches of works approvals/licences/permits and notices or directives are also Level 2b offences. Infringements are prescribed as Level 4 offences and littering as Level 5.

Table 7: Statute definitions of serious environmental harm
ActDefinition

Environmental Protection Act 1994 (Qld) (s 17)

  • that is irreversible, of a high impact or widespread; or
  • caused to an area of high conservation value or special significance; or
  • that causes actual or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount; or
  • that results in costs of more than the threshold amount being incurred in taking appropriate action to
    • prevent or minimise the harm; and
    • rehabilitate or restore the environment to its condition before the harm

In this section, threshold amount means $50,000 or, if a greater amount is prescribed by regulation, the greater amount

Environmental Protection Act 1986 (WA) (s 3A(2))

  • is irreversible, of a high impact or on a wide scale;
  • is significant or in an area of high conservation value or special significance; or
  • results in actual or potential loss, property damage or damage costs of an amount, or amounts in aggregate, exceeding five times the threshold amount

Damage costs means the reasonable costs and expenses that are or would be incurred in taking all reasonable and practicable measures to prevent, control or abate the environmental harm and to make good resulting environmental damage

Threshold amount means $20,000, or if a greater amount is prescribed by regulation, that amount

Environment Protection Act 1993 (SA) (s 5(3b)

  • it involves actual or potential harm to the health or safety of human beings that is of a high impact or on a wide scale, or other actual or potential environmental harm (not being merely an environmental nuisance) that is of a high impact or on a wide scale; or
  • it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $50,000

Environmental Management and Protection Control Act 1994 (Tas) (s 5(2a) & s 5(4))

  • it involves an actual adverse effect on the health or safety of human beings that is of a high impact or on a wide scale; or
  • it involves an actual adverse effect on the environment that is of a high impact or on a wide scale; or
  • it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding ten times the threshold amount;

'Threshold amount' means $5 000, or if a greater amount is prescribed by regulation, that amount

Environment Protection Act 1997 (ACT) (Schedule 3)

  • that is very significant, including environmental harm that becomes very significant
    • over time; or
    • due to its frequent recurrence; or
    • due to its cumulative effect with other relevant events; or
  • that is to an area of high conservation value and is significant, including environmental harm that becomes significant
  • over time; or
  • due to its frequent recurrence; or
  • due to its cumulative effect with other relevant events; or
  • that results in loss or damage to property to the value of more than $50,000; or
  • that results in necessary remedial action costing more than $50,000

Waste Management and Pollution Control Act (NT) (s 4)

more serious than material environmental harm and includes environmental harm that

  • is irreversible or otherwise of a high impact or on a wide scale;
  • damages an aspect of the environment that is of a high conservation value, high cultural value or high community value or is of special significance;
  • results or is likely to result in more than $50,000 or the prescribed amount (whichever is greater) being spent in taking appropriate action to prevent or minimise the environmental harm or rehabilitate the environment; or
  • results in actual or potential loss or damage to the value of more than $50,000 or the prescribed amount (whichever is greater)

 

Table 8 Statute definitions of material environmental harm
ActDefinition

Environmental Protection Act 1994 (Qld) (s 16)

  • that is not trivial or negligible in nature, extent or context; or
  • that causes actual or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount but less than the maximum amount; or
  • that results in costs of more than the threshold amount but less than the maximum amount being incurred in taking appropriate action to
    • prevent or minimise the harm; and
    • rehabilitate or restore the environment to its condition before the harm.

In this section maximum amount means the threshold amount for serious environmental harm.

'Threshold amount' means $5,000 or, if a greater amount is prescribed by regulation, the greater amount

Environmental Protection Act 1986 (WA) (s 3A(2))

  • is neither trivial nor negligible; or
  • results in actual or potential loss, property damage or damage costs of an amount, or amounts in aggregate, exceeding the threshold amount

Environment Protection Act 1993 (SA) (s 5(3a) )

  • it consists of an environmental nuisance of a high impact or on a wide scale; or
  • it involves actual or potential harm to the health or safety of human beings that is not trivial, or other actual or potential environmental harm (not being merely environmental nuisance) that is not trivial; or
  • it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $5,000

Environmental Management and Protection Control Act 1994 (Tas) (s 5(2b) & s 5(4) )

  • it consists of an environmental nuisance of a high impact or on a wide scale; or
  • it involves an actual adverse effect on the health or safety of human beings that is not negligible; or
  • it involves an actual adverse effect on the environment that is not negligible; or
  • it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding the threshold amount.

'Threshold amount' means $5,000, or if a greater amount is prescribed by regulation, that amount

Environment Protection Act 1997 (ACT) (Schedule 3)

  • that is significant, including environmental harm that becomes significant
    • over time; or
    • due to its frequent recurrence; or
    • due to its cumulative effect with other relevant events; or
  • that is to an area of high conservation value, other than harm that is trivial or negligible; or
  • that results in loss or damage to property to the value of more than $5 000; or
  • that results in necessary remedial action costing more than $5,000

Waste Management and Pollution Control Act (NT) (s 4)

  • is not trivial or negligible in nature;
  • consists of an environmental nuisance of a high impact or on a wide scale;
  • results, or is likely to result, in not more than $50,000 or the prescribed amount (whichever is greater) being spent in taking appropriate action to prevent or minimise the environmental harm or rehabilitate the environment; or
  • results in actual or potential loss or damage to the value of not more than $50,000 or the prescribed amount (whichever is greater)

 

Table 9 Statute definitions of environmental nuisance
ActDefinition

Environmental Protection Act 1994 (Qld) (s 15)

is unreasonable interference or likely interference with an environmental value caused by

  • noise, dust, odour, light; or
  • an unhealthy, offensive or unsightly condition because of contamination; or
  • another way prescribed by regulation

Environment Protection Act 1993 (SA) (s 3)

  • any adverse effect on an amenity value of an area that
    • is caused by pollution; and
    • unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area; or
  • any unsightly or offensive condition caused by pollution

Environmental Management and Protection Control Act 1994 (Tas) (s 3)

  • the emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment; and
  • any emission specified in an environment protection policy to be an environmental nuisance

Environment Protection Act 1997 (ACT) (Schedule 3)

An unreasonable interference with the enjoyment by the public, a section of the public or a person of a place or area, if the interference caused or likely to be caused by

  • dust, fumes, light, noise, odour or smoke; or
  • an unhealthy, unsightly or otherwise offensive condition because of pollution

Waste Management and Pollution Control Act (NT) (s 4)

  • an adverse effect on the amenity of an area that
    • is caused by noise, smoke, dust, fumes or odour; and
    • unreasonably interferes with or is likely to unreasonably interfere with the enjoyment of the area by persons who occupy a place within the area or are otherwise lawfully in the area; or
  • an unsightly or offensive condition caused by contaminants or waste

Note: WA legislation does not include a definition of environmental nuisance

A quite different approach is taken in New South Wales, where a three-tiered system has been adopted that locates the most serious offences in Tier 1 and all other offences in Tiers 2 and 3. Tier 1 offences require proof of willingness or negligence in the commission of the illegal act and evidence of environmental harm or likely harm, for prosecution to proceed. Waste disposal, leakage or spillage of hazardous material and the emission of ozone depleting substances constitute Tier 1 offences. Air, water and land pollution, and unlawful transport of waste, are some of the damaging acts recognised as Tier 2 and 3 offences. Tier 2 offences may be prosecuted, while Tier 3 offences are dealt with through the issuance of a penalty notice. For prosecution purposes, Tier 2 offences are treated as strict liability offences.

Criminal penalties

The most severe penalties prescribed in environment protection statutes are for wilful, intentional or reckless pollution or waste disposal that causes serious environmental harm. In New South Wales, it is for the wilful or negligent disposal of waste, causing a leak or spillage, or emitting an ODS. Any natural person found guilty of such an offence in New South Wales can receive a maximum fine of up to $1m or seven years imprisonment, or both (see Table 10). Fines prescribed in other jurisdictions for natural persons range from $200,000 in the Australian Capital Territory (for knowingly or recklessly polluting to cause serious environmental harm: Environment Protection Act 1997 (ACT), s 137(1)) to over $500,000 in Victoria (for intentional discharge, emission or deposit or waste or 'aggravated' pollution: Environment Protection Act 1979 (Vic), s 67AA per ss 27A, 39, 41, 43). Maximum fines for corporations start at $1m, up to $5m in New South Wales for Tier 1 offences.

Table 10: Maximum penalties for selected offences for causing environmental harm
Act and associated selected offences Maximum penalty
Protection of the Environment Operations Act 1997 (NSW)

Tier 1 Act was wilful or negligent and harmed or is likely to harm environment

Wilful—$1,000,000 and/or seven years imprisonment (individual)

Negligent—$500,000 and/or four years imprisonment (individual)

$5,000,000 (body corporate)

Disposal of waste (s 115)

Causes any substance to leak, spill or otherwise escape (whether or not from a container) (s 116)

Cause any controlled ozone depleting substance to be emitted into the atmosphere (s 117)

Tier 2 Other offences

$250,000 (individual)

$1,000,000 (body corporate)

Pollution of waters (s 120)

Air pollution (ss 124–126, 128–129)

Pollution of land (s 142A)

Unlawful transporting or depositing of waste (s 143)

Unlawful use of land as a waste facility (s 144)

False or misleading information about waste (s 145)

Failure to notify authorities of polluting incident (s 152)

Tier 3 All other offences

Penalty notice

Environment Protection Act 1970 (Vic)a

Unauthorised discharge, emission or deposit of waste (waste or substances that are a danger or potential danger, or creates a state of potential danger to quality of environment (s 27A)

$272,208; $567,100 (intentional—s 67AA)

Contravenes condition of licence (s 27(2))

$272,208

Industrial waste—contravenes rules or regulations specified in a waste management policy or regulations, or causes or permits an environmental hazard (s 27A(1))

As above

Contravenes requirements of an abatement notice (s 28B(5))

As above

Contravenes pollution abatement notice (s 31A(7))

As above

Pollution of waters (s 39)

$272,208; $567,100 (intentional—s 67AA)

Pollution of atmosphere (s 41)

As above

Pollution of land (s 43)

As above

Failure to comply with authority requirement (s 49AM)

As above

Failure to comply with waste reduction agreement (s 51E(5))

$68,052

Unauthorised business to transport proscribed waste (s 53A3)

$272,208

Contravention conditions of permit—waste transportation

$68,052

Failure to comply with regulations regarding use of products that may damage the environment (s 53Q)

$272,208

Relating false information (s 59D)

$272,208; $567,100 (intentional—s 67AA)

Environmental Protection Act 1994 (Qld)

Wilfully or unlawfully cause serious environmental harm (s 437(1))

$312,375 or five years imprisonment

Unlawfully cause serious environmental harm (s 437(2))

$124,875

Wilfully or unlawfully cause material environmental harm (s 438(1))

$124,875 or two years imprisonment

Unlawfully cause material environmental harm (s 438(2))

$62,625

Wilfully or unlawfully cause environmental nuisance (s 440(1))

$62,625

Unlawfully cause environmental nuisance (s 440(2))

$12,375

Deposit prescribed water contaminant in water and related matters (s 440ZG)

$62,625 (wilful); $22,500

Release of certain substances, sewage or garbage from boat into coastal waters (s 440ZI–K)

As above

Use fuel containing more than the permitted level of sulphur (s 440ZM)

$22,500

Release prescribed contaminant into environment/place contaminant where environmental harm or nuisance may be caused (ss 442–443)

$12,375

Contravene environment protection order/development condition (ss 435,435A)

$150,000 or two years imprisonment (wilful); $124,875

Environmental Protection Act 1986 (WA)
Tier 1

Intentionally or negligently causing pollution (s 49(1))

$500,000 and/or five years imprisonment (individual); $1,000,000 (body corporate)

Intentionally or negligently cause serious environmental harm (s 50A(1))

As above

Intentionally or negligently discharge waste to cause pollution (s 50(1))

$500,000 (individual); $1,000,000 (body corporate)

Cause or allow pollution (s 49(2))

$250,000 and/or three years imprisonment (individual); $500,000 (body corporate)

Cause serious environmental harm (s 50A(2))

As above

Intentionally or negligently cause material harm (s 50B(1))

As above

Discharge waste to cause pollution (s 50(2))

$250,000 (individual); $500,000 (body corporate)

Intentionally or negligently emit unreasonable emission (s 49(3))

$125,000 (individual); $250,000 (body corporate)

Intentionally or negligently not comply with environmental protection notice OR environmental protection directions OR prevention notice (s 65(4a))

$250,000 (individual); $500,000 (body corporate)

Tier 2

Cause material environmental harm (s 50B(2))

$125,000 (individual); $250,000 (body corporate)

Emit unreasonable emission (s 49(4))

$62,500 (individual); $125,000 (body corporate)

Contravene conditions of works approval or conditions of licence (ss 55, 58)

As above

Contravene environment protection order or prevention notice (s 65(5))

As above

Tier 3

Vehicle or vessel emission discharge or not maintain emission device or interfere with anti-pollution device (ss 77–78)

$5,000

Environment Protection Act 1993 (SA)

Causing serious environmental harm by intentional or reckless polluting of the environment and with the knowledge that environmental harm will or might result (s 79(1))

$500,000 or Division 4 imprisonment (individual); $2,000,000 (body corporate)

Causing material environmental harm by intentional or reckless polluting of the environment and with the knowledge that environmental harm will or might result (s 80(1))

$250,000 or Division 5 imprisonment (individual); $500,000 (body corporate)

Causing serious environmental harm by polluting of the environment (s 79(2))

$250,000 (individual); $500,000 (body corporate)

Causing material environmental harm by polluting of the environment (s 80(2))

$150,000 (individual); $250,000 (body corporate)

Failing to notify of incident causing serious or material environmental harm (s 83)

As above

Causing environmental nuisance by intentional or reckless polluting of the environment and with the knowledge that environmental harm will or might result (s 82(1))

Division 3 fine (individual); Division 1 fine (body corporate)

Causing environmental nuisance by polluting of the environment (s 82(2))

Division 6 fine (individual); Division 4 fine (body corporate)

Contravene environment protection order (s 93(8))

Penalty associated with contravening requirement under Act

Contravene clean-up order or site contamination order or site remediation order (ss 99, 103H, 103J)

Division 1 fine (individual); $120,000 (body corporate)

Environmental Management and Pollution Control 1994 Act (Tas)

Causing serious environmental harm by polluting intentionally or recklessly and with knowledge serious environmental harm will result (s 50(1))

$250,000 and/or four years imprisonment (individual); $1,000,000 (body corporate)

Causing material environmental harm by polluting intentionally or recklessly and with knowledge material environmental harm will result (s 51(1))

$120,000 and/or two years imprisonment (individual); $250,000 (body corporate)

Polluting environment and causing serious environmental harm (s 50(2))

$120,000; $250,000 (body corporate)

Deposit pollutant where environmental harm may be caused (s 51A)

As above

Polluting environment and causing material environmental harm (s 51(2))

$6,000 (individual); $120,000 (body corporate)

Fail to notify incident (s 32)

As above

Contravene environment protection notice or failure to comply with investigation, remediation or site management notice (ss 44, 74P)

$5,000 (individual); $100,000 (body corporate)

Wilfully or unlawfully causes environmental nuisance (s 53(1))

$3,000

Unlawfully causes environmental nuisance (s 53(2))

$1,000

Environment Protection Act 1997 (ACT)

Knowingly or recklessly polluting causing serious environmental harm (s 137(1))

$200,000 and/or five years imprisonment

Negligently polluting causing serious environmental harm (s 137(2))

$150,000 and/or three years imprisonment

Polluting causing serious environmental harm (s 137(3))

$100,000

Knowingly or recklessly polluting causing material environmental harm (s 138(1))

$100,000 and/or two years imprisonment

Negligently polluting causing material environmental harm (s 138(2))

$75,000 and/or one year imprisonment

Polluting causing material environmental harm (s 138(3))

$500,000

Knowingly or recklessly polluting causing environmental harm (s 139(1))

$10,000 and/or six months imprisonment

Negligently polluting causing environmental harm (s 139(2))

$7,500

Polluting causing environmental harm (s 139(3))

$5,000

Placing pollutant where it can cause harm (s 142)

$1,000

Unauthorised conduct of prescribed activities (s 42(1))

$2,000

Contravene an environmental authorisation (s 45(1))

As above

Contravene order to remediate contaminated land OR environment protection order (s 91D, s 125(1))

As above

Duty to notify of actual or threatened environmental harm (s 23)

As above

Duty to notify of existence of contaminated land (s 23A)

As above

Contravene environmental improvement plan notice or emergency plan notice or assessment of contaminated land notice (ss 76(5), 82(3), 91C)

As above

Waste Management and Pollution Control Act 2007 (NT)b

Environmental offence level 1

Intentionally causing pollution resulting in serious environmental harm and knowing this harm will or may occur (s 83(1))

$25,000–250,000 and/or five years imprisonment (individual); $125,000–1,250,000 (body corporate)

Environmental offence level 2

Causing pollution resulting in serious environmental harm and knowing this harm will or may occur (s 83(2))

$10,000–100,000 (individual); $50,000–500,000 (body corporate)

Intentionally causing pollution resulting in material environmental harm and knowing this harm will or may occur (s 83(3))

As above

Causing pollution resulting in material environmental harm and knowing this harm will or may occur (s 83(4))

As above

Environmental offence level 3

Intentionally store contaminant in manner which is likely to spill or leak etc (s 83(6))

$5,000–50,000 (individual); $25,000–250,000 (body corporate)

Intentionally fail to notify of incident causing of threatening to cause pollution (s 14)

As above

Intentional contravene conditions of environment protection approval or licence (s 39(1))

As above

Intentionally contravene pollution abatement notice or compliance plan (s 63(1))

As above

Environmental offence level 4

Cause an environmental nuisance (s 83(5))

Up to $5,000 (individual); up to $25,000 (body corporate)

Store contaminant or waste which is likely to spill or leak etc (s 83(7))

As above

Fail to notify of incident causing or threatening to cause pollution (s 14)

As above

Contravene conditions of environment protection approval or licence (s 39(2))

As above

Conduct specified activity without environment protection approval (s 30(1))

As above

Contravene pollution abatement notice or compliance plan (s 63(2))

As above

a: Victorian monetary penalty based on penalty unit amount for 2008–09 ($113.42); Monetary Units Act 2004

b: Penalties prescribed in Environmental Offences and Penalties Act 1996

Note: Excludes daily penalties where applied

All states and territories except Victoria include a custodial option for polluting and waste disposal offences—four years in Tasmania to seven years in New South Wales. Penalties correspondingly lessen with a diminishing of the harm caused and the absence of intentional behaviour. Generally speaking, acts of serious environmental harm (minus intent) and intentionally committed acts of material environmental harm are assigned the same or similar maximum penalty and lower penalties again for acts of material environmental harm (minus intent).

Breaches of authorisation concern the contravention of environmental protection policies, conditions of licence or permit, environment protection notices and other orders served to stop or remediate a harmful act. Environment protection statutes in Queensland, Western Australia and Northern Territory add a component of intent to some of these breach offences and the associated maximum penalty is accordingly greater than for 'conventional' offences of failure to comply. For example, the offence of contravening conditions of a development approval (Environmental Protection Act 1994 (Qld), s 435) has a maximum penalty of $150,000 or two years imprisonment. A person found contravening an environmental protection notice in Western Australia is guilty of a Tier 1 offence and liable to pay a fine of up to $250,000 and corporations up to $500,000 (Environmental Protection Act 1986 (WA), s 65(4a)).

Sanction options

Enforcement officers can select from an array of enforcement actions to discipline offenders and most jurisdictions have developed enforcement and prosecution guidelines to instruct the most suitable action depending on the offence committed. There is some variation between jurisdictions in the order in which different types of sanctions are applied but, in effect, comprise notices, orders/directions and prosecution (see Table 11).

Table 11: Enforcement actions for breaches of environment protection statutes

Infringement notice

Fine for relatively minor, one-off breaches. No criminal conviction is registered. Failure to pay fine may result in prosecution. Offenders may also opt to forego paying the fine to have the matter tested in court

Written warning/caution notice

A written notice to an offender that an offence has been committed and detected. Warnings are generally used for administrative, minor or technical breaches of the Act

Penalty notice

Written notice for Tier 3 offences in New South Wales and Tier 2 offences in Western Australia. Offender may pay fine or elect court action. Prosecution will proceed if fine is not paid in a specified time

Orders/notices

Orders or notices to:

  • stop work and/or
  • clean-up, remediate or rehabilitate site and/or
  • initiate measures to prevent, control or abate polluting activities (or comply with licence/permit requirements).

Orders and notices for each jurisdiction are as follows:

New South Wales—environment protection notices (clean-up, prevention and prohibition), investigation order, remediation order

Victoria—pollution abatement notice

Queensland—environment protection order (carry out specified works/clean-up)

Western Australia—environment protection notice (prevent, control or abate), closure notice, stop orders, prevention notice (specific to waste disposal); investigation notice, clean up notice, hazard abatement notice

South Australia—environment protection orders, cleanup orders and cleanup authorisations, site contamination assessment orders, site remediation orders

Tasmania—environment protection notices (prevent, control, reduce or remediate; discontinue or not commence activity)

Australian Capital Territory—environment protection orders (stop work, remediate, restore), order to assess whether land contaminated, order to remediate land

Northern Territory—pollution abatement notices (comply, prevent, remediate)

Civil and injunctive orders

Court applied order to prevent person from engaging in improper conduct, cease activity, instruct compliance or make good a contravention or failure

Amend/cancel/suspend/revoke works approval/licence

Amend licence requiring certain actions be undertaken so to comply with Act or Regulations or cancellation/suspension following serious breach of licence conditions or Act

Prosecution

Civil or criminal proceedings following serous (wilful/negligent) breach

Source: ACT EPA 2007; NSW EPA 2004; NT NRETA 2007; Qld EPA 2004b; SA EPA 2009a; Tas DPIW&E 2004a; Vic EPA 2004a; WA DEC 2008b

Infringement notices usually come in the form of on-the-spot fines, with no conviction recorded if the fine is paid within a specified timeframe. If the fine is not paid, enforcement officers can initiate court proceedings. Offenders may also opt not to pay the fine and have the matter heard in court instead. Infringement notices are generally the first option available to enforcement officers and used to punish minor, one-off and/or technical breaches. Western Australia makes use of infringement notices (for Tier 3 offences) and modified penalty notices (for Tier 2 offences; WA DEC 2008b). Tasmania locates infringement notices (known in the state as EINs) higher in the enforcement action hierarchy and EINs can only be applied for offences listed in the Environmental Management and Pollution Control (Infringement Notices) Regulations 1996 (Tas DPIW&E 2004a). If the offence is committed again, prosecution may be undertaken.

Orders and notices are issued to prevent or halt actual or potentially harmful practices, through stop work, control, prevent, abatement or prohibit directions. Where harm has been committed, persons may be directed to clean up and/or undertake remedial or rehabilitative works. In some cases, the public authority or other designated agency will assume these responsibilities and an order is sent to the offender to this effect. For contaminated land sites, officers may initiate investigative orders to assess the cause and extent of the harm. Some jurisdictions also make provision for orders of injunctive relief, employing court-ordered directions to discontinue or prohibit environmentally damaging activities, order compliance or make good a contravention.

Where harm has occurred, the existing works approval or licence can be amended, suspended or revoked. Amendments are added describing the types of actions that need to be made to achieve compliance. Licence amendment can be used as an alternative to serving orders or notices.

Environmental offences may also be dealt with through civil or criminal proceedings. Each jurisdiction makes provision for civil action, or at least the option to arrange for an injunctive order. Court ordered injunctions are generally sought to restrain an act from being (or continuing to be) committed. Civil orders available are used to:

  • restrain activity;
  • order compliance with the Act or Regulations;
  • require a specified action;
  • mitigate, prevent or make good on damage arising from non-compliant activities;
  • retrieve payment of costs and expenses incurred for the Authority to take action or make good damage;
  • retrieve payment of compensation for injury, loss or damage to property ensuing from activity or harm/payment of costs or expenses incurred in taking action to prevent injury, loss or damage ensuing from activity or harm;
  • obtain payment for exemplary damages; and/or
  • retrieve payment for any financial benefit attributable to the breach.

While the outcomes of the first four listed civil orders match those requested in administrative notices and orders, civil orders are served in situations where:

  • an administrative order or notice has been ignored (or the Authority 'believes' it has been disregarded);
  • other forms of enforcement action have not elicited an adequate response or not undertaken in a sufficient or timely manner;
  • there is a history of non-compliance with administrative orders;
  • urgent action is required (and other actions would not elicit as rapid a response); or
  • the severity of the contravention justifies civil proceedings.

The type of civil orders available varies between the jurisdictions that employ them. South Australia has probably the best developed system of civil orders, which are used for strict liability offences only (SA EPA 2009b). This state has also implemented a new civil penalty system (as at 1 July 2006) whereby the Authority may negotiate a civil penalty with the offender or apply to the Environment, Resources and Development Court for an order directing the offender to pay a civil penalty (Environment Protection Act 1993 (SA) s 104A). Negotiated civil penalties are calculated on the basis of the degree of harm caused (actual, potential and risk of actual/potential) and the nature of the harm.

The penalty also adds the economic benefit derived from the contravening act (SA EPA 2009c) and is adjusted for factors including:

  • offender's compliance record;
  • corrective measures taken to prevent the harmful act;
  • appropriateness and promptness of corrective measures;
  • notification of act;
  • offender's cooperation with the Authority; and
  • degree of public contrition (eg public apology).

Civil penalties handed down in court are determined differently—either an equivalent to the criminal penalty amount specified under the Act or $120,000, whichever is the lesser sum (Environment Protection Act 1993 (SA) s 104A).

Prosecution is reserved for serious acts of environmental harm or breaches against legislation. All jurisdictions specify that prosecution should only be commenced if there is sufficient evidence for a prima facie case and a 'reasonable' prospect of finding guilt. Western Australia, South Australia and the Northern Territory also stipulate the case must be in the public interest (NT NRETA 2007; SA EPA 2009b; WA DEC 2008b). Designated officers from the investigation authority are able to bring proceedings but usually following approval from the authority or division's Director and after consultation with the Crown Solicitor or DPP. Proceedings against Tier 1 offences in New South Wales require authorisation from the Environmental Protection Agency (EPA) Board.

Offences and penalties: Pollution of waters and marine dumping

The Commonwealth and seven of the eight states and territories have enacted legislation dealing specifically with ship pollution. In all statutes, there are offences related to the prohibited discharge of oil and oily substances but variation exists in the inclusion of offences referring to the discharge of other wastes (see Table 12). Additional offences include failure to report incidents, unauthorised or night transfer operations, various record keeping breaches and providing false or misleading information. The master of the ship, the owner (be it a person or body corporate) and in some statutes, the crew members, can be held accountable and face a pecuniary and/or custodial sentence if proven guilty.

As for other pollution and waste disposal offences, the severest penalty for pollution or dumping in coastal waters is found in New South Wales, with individuals facing a maximum fine of $500,000 and ship owners a maximum fine of $10m (see Table 12). Custodial sentences for individuals are available in Victoria (2 years), Tasmania (4 years) and the Northern Territory (5 years), and under Commonwealth law (10 years for dumping of seriously harmful substances).

Table 12: Maximum penalties for selected offences of causing pollution to and dumping in coastal waters
Act and associated selected offencesMaximum penalty
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth)

Prohibition of discharge of oil or oily mixtures into sea (s 9(1)(1B))

$220,000 (reckless or negligent); $55,000 (other)

Prohibition of discharge of oil residues into sea (s 10(1)(1B))

As above

Failure to report certain incidents involving oil or oily mixture (s 11(1A))

$55,000

Prohibition of carriage of substances that have not been categorised or provisionally assessed (s 17(1)(2)

$22,000 (negligent); $6,600

Prohibition of discharge of substances into the sea (s 21(1)(1B)

$220,000 (reckless or negligent); $55,000 (other)

Failure to report certain incidents involving certain noxious substances (s 22(1A))

$55,000

Prohibition of discharge by jettisoning of harmful substances into the sea (s 26AB)

$220,000 (reckless or negligent); $55,000 (other)

Failure to report certain incidents involving certain harmful substances (s 26B)

$55,000

Prohibition of discharge of sewage (s 26BC)

$220,000 (reckless or negligent); $55,000 (other)

Prohibition of discharge of sewage into the sea (s 26D(1)(3))

As above

Prohibition of disposal of garbage into the sea (s 26F(1)(3)

As above

Using fuel oil with a sulphur content of more than 4.5 percent m/m (s 26FEG(1)(2))

As above

Takes Australian ship into SOx emission control area (s 26FEH)(1)(2))

As above

Using fuel oil that does not meet fuel oil quality requirements (s 26FEN)

$55,000

Environment Protection (Sea Dumping) Act 1981 (Cth)

Dumping of controlled matter (s 10A(2a–c))

  • Seriously harmful material

$220,000 and/or 10 years imprisonment

  • Material is not within Annex 1 of Protocol

$5,000 and/or two years imprisonment

  • Any other case

$2,5000 and/or one year imprisonment

Incineration of controlled material (s 10B(2a–c))

As above (per material type)

Loading for the purpose of dumping or incinerating (s 10C(2a–c))

As above (per material type)

Export for the purpose of dumping or incinerating (s 10D(2a–c))

As above (per material type)

Placement of artificial reef (s 10E(2a–c))

As above (per material type)

Marine Pollution Act 1987 (NSW)

Prohibition of discharge of oil or oily mixtures into state waters (s 8)

Persons causing a discharge of oil or oily mixtures into state waters (s 8A)

$500,000 (individual); $10,000,000 (body corporate)

Prohibition of discharge of noxious substances into state waters (s 18)

Persons causing a discharge of noxious substances into state waters (s 18A)

As above

Prohibition of discharge during a transfer operation (s 27)

As above

Failure to report discharge of oil or oily mixtures (s 10) or noxious substances (s 20) or discharge during transfer operation (s 28)

$120,000 (individual); $2,750,000 (body corporate)

Various offences related to retention and completion of oil record book (s 11), cargo record book (s 22) and records relating to transfer operations (s 29(4–5))

$22,000 (individual)

False entries in oil record book (s 12), cargo record book (s 22) and records relating to transfer operations (s 29(6))

As above

Non-compliance with notice acting to prevent pollution (s 50(1))

$220,000

Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic)

Prohibition of discharge of oil or oily mixtures into state waters (s 8)

$226,840 and/or or two years imprisonment (individual); $1,134,200 (body corporate)

Prohibition of discharge of noxious substances into state waters (s 18)

As above

Prohibition of disposal of garbage into state waters (s 23B)

As above

Prohibition of discharge by jettisoning of harmful substances into state waters (s 23E)

As above

Prohibition of discharge of sewage into state waters (s 23G)

As above

Prohibited discharge during transfer operations (s 23J)

As above

Failure to report discharge of oily or oily mixtures (s 10(1) or noxious substances (s 19(1)) or packaged harmful substances (certain incidents) (s 23D(1)) or discharge during transfer operation (s 23L)

$56,710 and/or one year imprisonment

Various offences related to retention and completion of oil record book (ss 11, 13) and cargo record book (ss 20, 22)

$22,684 (individual); $113,420

False entries in oil record book (s 12) and cargo record book (s 21)

$22,684

Transport Operations (Marine Pollution) Act 1995 (Qld)

Discharge of oil (s26) and oily residues (s 27) into coastal waters prohibited

$262,500

Discharge of noxious liquid substances into coastal waters prohibited (s 35)

As above

Jettisoning of harmful substances into coastal waters prohibited (s 42)

As above

Discharge of sewage (ss 47–48)

$63,750

Disposal of garbage into coastal waters prohibited (s 55)

$262,500

Discharge of pollutant into coastal waters during transfer operation prohibited (s 61)

As above

Night transfer operation in contravention of regulations (s 63(5))

$63,750

Western Australian Marine (Sea Dumping) Act 1981 (WA)

Unauthorised dumping of wastes or other matter (s 5)

Annex 1 wastes; $50,000 (individual); $100,000 (body corporate)

Annex 2 wastes; $25,000 (individual); $50,000 (body corporate)

Other; $10,000 (individual); $25,000 (body corporate)

Unauthorised dumping of vessels, aircraft or platforms (s 6)

As above

Unauthorised loading of wastes or other matter, or vessels, aircraft or platforms for dumping or incineration (s 7)

As above

Unauthorised incineration at sea (s 9)

Annex 1 wastes (para 2, 3, 4, 6.7); $50,000 (individual); $100,000 (body corporate)

Annex 1 wastes (paras 1 and 5), $40,000 (individual); $80,000 (body corporate)

Annex 2 wastes; $25,000 (individual); $50,000 (body corporate)

Other; $10,000 (individual); $25,000 (body corporate)

Pollution of Water by Oil and Noxious Substances Act 1987 (WA)

Prohibition of discharge of oil or oily mixtures into state waters (s 8)

$50,000 (individual); $250,000 (body corporate)

Prohibition of discharge of oil or oily mixtures during transfer operations (s 9)

As above

Oil residues that cannot be discharge not retained on board the ship (s 10)

As above

Duty to report certain incidents involving oil or an oily mixture (s 11)

$5,000 (individual); $25,000 (body corporate)

Duty to report discharge of oil or oily substances from land or apparatus (s 12)

$5,000

Various offences related to retention and completion of (ss 13, 15)

$5,000 (individual); $25,000 (body corporate)

False entries in oil record book (s 14)

$10,000

Prohibition of discharge of substances into State waters (s 20)

$50,000 (individual); $250,000 (body corporate)

Duty to report certain incidents involving certain substances (s 22)

$5,000

Various offences related to retention and completion of oil and cargo record book (ss 23, 25)

$5,000 (individual); $25,000 (body corporate)

Protection of Marine Waters (Prevention of Pollution from Ships) Act 1987 (SA)

Prohibition of discharge of oil or oily mixtures into state waters (s 8)

$200,000 (individual); $1,000,000 (body corporate)

Oil residues that cannot be discharge not retained on board the ship (s 9)

As above

Absence of shipboard oil emergency plan (s 10)

$50,000

Various offences related to retention and completion of oil record book (ss 11, 13)

$20,000 (individual); $100,000 (body corporate)

False entries in oil record book (s 12)

$20,000

Prohibition of discharge of substances into state waters (s 18)

$200,000 (individual); $1,000,000 (body corporate)

Various offences related to completion of cargo record book (ss 21, 22)

$20,000 (individual); $100,000 (body corporate)

False entries in cargo record book (s 21)

$20,000

Prohibition of discharge of harmful substances into state waters (s 24AAB)

$200,000 (individual); $1,000,000 (body corporate)

Prohibition of disposal of garbage into state waters (s 24AAD)

As above

Discharge of oil into waters from vehicles etc (s 26)

$200,000 (individual); $1,000,000 (body corporate)

Pollution of Water by Oil and Noxious Substances Act 1987 (Tas)

Prohibition of discharge of oil or oily mixtures into State waters (s 8)

$250,000 and/or four years imprisonment (individual); $1,000,000 (body corporate)

Oil residues that cannot be discharged not retained on board the ship (s 9)

As above

Absence of shipboard oil emergency plan (s 10)

$50,000

Various offences related to retention and completion of oil record book (ss 11, 13)

$50,000 (individual); $100,000 (body corporate)

Prohibition of discharge of substances into state waters (s 20)

$250,000 and/or four years imprisonment (individual); $1,000,000 (body corporate)

Various offences related to completion of cargo record book (ss 23, 25)

$50,000 (individual); $100,000 (body corporate)

Discharge of packaged harmful substances into state waters prohibited (s 25C)

$250,000 and/or four years imprisonment (individual); $1,000,000 (body corporate)

Prohibition on discharge of sewage into state waters (s 25CB)

As above

Disposal of garbage into state waters prohibited (s 25F)

$50,000 (individual); $100,000 (body corporate)

Marine Pollution Act 1997 (NT)

Discharge of oil into coastal waters prohibited (s 14)

As below

Discharge of noxious liquid substances into coastal waters prohibited (s 19)

Jettisoning of harmful substances into coastal waters prohibited (s 27)

Discharge of sewage from ships into coastal waters prohibited (s 31)

Disposal of garbage into coastal waters prohibited (s 38)

Prevention of pollution during transfer operations (s 43)

Intentionally cause discharge resulting in serious environmental harm (EL1)

$25,000–$250,000 and/or five years imprisonment (individual); $125,000–$1,250,000 (body corporate)

Cause discharge resulting in serious environmental harm OR intentionally cause material environmental harm (EL2)

$10,000–$100,000 (individual); $50,000–$500,000 (body corporate)

  • Cause discharge resulting in material environmental harm (EL3)

$5,000–$50,000 (individual); $25,000–$250,000 (body corporate)

  • Ensure oil or substance etc. is not discharged (EL4)

$5,000 (individual); $25,000 (body corporate)

Absence of shipboard oil emergency plan (s 17)

$110,000

Note: Victorian monetary penalty based on penalty unit amount for 2008–09 ($113.42); Monetary Units Act 2004

Penalties are the same for all acts of coastal water pollution in New South Wales, Victoria, Queensland and Tasmania, regardless of the type of material dumped. A penalty scale is applied in Western and South Australia, dependent on the type of substance discharged, whereas in the Northern Territory it is the intentional nature of the act and the degree of resultant harm that determines the maximum penalty applicable.

Nature and extent

Despite being one of the most highly regulated areas of environmental control in Australia, there has been no formal analysis of the extent of illegal polluting and waste disposal activities occurring in the country. This stands in contrast with the number of published accounts coming from countries such as the United States and United Kingdom. Much of the research attention in Australia has centred on a critique of pollution laws and regulatory approaches, with scant discussion on how big a problem this category of environmental crime actually is. The fact that polluting activities are a fact of the industrialised world and are so strictly regulated here suggests pollution and waste disposal offences were, are and will continue to be, judged as a high-risk area for environmental crime.

In the absence of more formalised studies, the next best step is to assemble a picture based on the types of offences recounted in regulatory agency reports and the focus of one-off research studies. This method of assembly is acknowledged as somewhat flawed. The former source provides just a snapshot of the range of pollution harms known to have occurred, or they highlight only the more serious incidents. The latter, while providing more detail, are narrower in scope. Nonetheless, they provide a sample of what the more commonly detected offences probably entail.

A survey of pollution and illegal waste disposal offences in the five largest states reveals a considerable diversity of polluting acts and culprits (NSW DECC 2009a, 2008, 2007a; NSW DEC 2006a, 2005b, 2004; Qld EPA 2009, 2008, 2007, 2006, 2005, 2004a, 2003, 2002; SA EPA 2009a, 2008a, 2008b, 2007, 2006, 2005, 2004, 2003, 2002, 2001; Vic EPA 2009, 2008a, 2007, 2005, 2004b, 2003; WA DEC 2009, 2008a, 2007). If a prevailing polluting act exists, it would appear to be the illegal discharge or dumping of waste, generally into water sources via storm water drains, or directly into rivers, creeks and the sea or onto land. Waste discharge offences discovered over the last few years have involved liquid wastes of sewage and animal effluent; pumping of contaminated wastewaters from mining operations (eg tailings), abattoirs and meat processing factories, construction sites, medical industries and other manufacturers; and other forms of soil contamination (eg acid sulphate soils). Petrol and oil spillages are the next most common problem (from leaking, improperly serviced pipelines or following accidents or sloppy procedure at service stations or on industrial sites).

From the published information, the dumping of construction and demolition waste seems to be especially problematic and mostly done to avoid tipping fees. For example, one demolition company prosecuted in Victoria for dumping and burning demolition waste on a rural property did so to avoid $10,000 in tipping fees (Vic EPA 2008b). The company were eventually fined $11,000 and ordered to pay the EPA costs of $5,773.57. Dumping at unlicensed waste deposit sites is a related offence that is occasionally detected. Illegal dumping and waste disposal was highlighted by regulators attending the AIC's roundtable on environmental crime as an environmental crime of concern, with the prediction that the economic downturn, combined with the entry of less scrupulous operators, would see wastes increasingly being moved and dumped illegally to reduce operating costs.

Recorded incidents of serious air pollution are relatively uncommon and when cases are pursued they are overwhelmingly (at least in New South Wales) for smoky vehicle violations (under the Protection of the Environment Operations (Clean Air) Regulations 2002; NSW DECC 2009a, 2008, 2007a). Of the few offences listed in annual reports, they refer to the emission of a proscribed gas (sulphur dioxide) and failure to undertake mandatory monitoring activities as being the next most common offences. Air pollution is possibly the most strictly enforced of all polluting activities. EPAs run their own monitoring programs on specified gases, air toxins and particles. Industry, mining and other production and extractive businesses are mandated to monitor and report on air pollutant emissions.

E-waste

The disposal of e-waste is an area of environmental concern that has gained a lot of attention in recent years (see Interpol 2009b), mostly through the exposure of developed companies exporting huge quantities of e-waste to developing nations that do not have the infrastructure to dispose of it safely (Pellow 2007). It is estimated that e-waste now constitutes five percent of all municipal solid waste and the amount of waste generated across the world continues to rise, making up 20–50 million tonnes a year (Greenpeace 2009). Electronic items consist of various materials which require different disposal methods. Most importantly is their concentration of toxics, such as lead, cadmium, polyvinyl chloride (PVC), mercury and beryllium, under which even stricter disposal regimens are essential. E-waste does not breakdown and stockpiling in landfill runs the great risk of toxic leaching into surrounding soils and when landfill is unlined, possibly into ground water. A steady build-up of toxics has the potential to cause significant environmental harm.

While there are no formal estimates of how much e-waste is generated in Australia each year, the figures cited below indicate it is substantial. Australian households are estimated to own an average 22 electronic items, totalling 92.5 million items across the country (IPSOS 2005). Constant upgrading of technologies and the absence or costliness of appropriate recycling facilities has led to many of these items ending up in landfill. A report by the then Australian Government Department of Communications, Information Technology and the Arts (DCITA 2002) estimated that up to 1.6 million computers were sitting in landfill and 1.8 million were in storage. Only half a million ended up in recycling schemes. A more recent study by the Total Environment Centre calculated there were 123 million e-waste items sitting in Australian landfill at the end of 2008—37 million computers, 17 million televisions, 56 million mobile phones and 70 million fluorescent lights (Total Environment Centre 2008). Today's culture of disposal is to blame for the burgeoning number of items ending up in landfill, promoted by the desire to continually upgrade. Mobile phone users are particularly susceptible, with an average replacement rate of 18 months (Total Environment Centre 2008) but computing equipment is also regularly replaced. Between 2006 and 2008, Australian households replaced nine million computers, five million printers and two million scanners (IPSOS 2005).

Reporting and detection

The enforcement of environment protection laws falls under the auspices of the state environment department or independent statutory authorities known as EPAs. Arrangements vary across jurisdictions, as summarised in Table 13. EPAs with enforcement powers currently operate in Victoria, South Australia and the Australian Capital Territory; until recently New South Wales also had an EPA but their responsibilities were subsumed into the then Department of Environment and Climate Change in 2007. Different manifestations of the EPA exist in Western Australia, Tasmania and the Northern Territory, which act primarily as advisory bodies but also have (in Western Australia and Tasmania) a role in environmental impact assessments and compliance auditing. In New South Wales, Queensland, Western Australian, Tasmania and the Northern Territory, enforcement is undertaken by the principal environment department. In 2003, Western Australia established Environmental Enforcement Units under the Department of Environment and Conservation to investigate breaches of the Environmental Protection Act 1986 (WA); other jurisdictions employ enforcement officers under environment protection or similar divisions. Enforcement activities may also be shared with other government departments and local government. For example, the NSW Department of Environment, Climate Change and Water can devolve enforcement of so-called non-scheduled activities to local councils and the Queensland Department of Environment and Resource Management devolves responsibility for illegal waste disposal and waste management to local councils.

Table 13: Administration and enforcement of state and territory environmental protection statutes
Jurisdiction Enforcement agency Arrangements

NSW

Department of Environment and Climate Change (Environment and Protection Division) (DECC)

DECC performs regulatory and compliance activities and can commence prosecutions under the Protection of the Environment Operations Act 1997. DECC is the regulatory authority for scheduled activities and local councils for non-scheduled activities

The EPA Board approves significant prosecutions and exemptions

Vic

EPA

The Enforcement and Environmental Monitoring Units sit within the Environmental Services Directorate of the Victorian EPA and lists their responsibilities as including works approvals, licences, enforcement, pollution, collaboration, sustainability advice and monitoring

Qld

Department of Environment and Resource Management

The Department administers and enforces the Environmental Protection Act 1994 in conjunction with local government and other government departments (eg Department of Natural Resources and Water, Department of Primary Industries and Fisheries). Under s 514 of the Act, the EPA can devolve enforcement of matters related to litter, illegal waste disposal and waste management facilities to local government

WA

Department of Environment and Conservation (DEC)/EPA (WA)

Environmental Enforcement Units were established under DEC in 2003 and act under the auspices of DEC to provide investigative and enforcement support. DEC undertakes regulatory activities, compliance audits and enforcement actions

The EPA provides independent policy and other advice to the Western Australian Government, as well as initiating EPPs and undertaking environmental impact assessments and performance and compliance audits

SA

EPA

The SA EPA sits within the environment and conservation portfolio. The Regulation and Compliance Division provides licensing and regulatory services, as well as conducting investigations

Tas

Department of Primary Industries, Parks, Water and Environment (DPIPWE) (Environment Division)/EPA

The Environment Division of DPIPWE is responsible for enforcement of the Environmental Management and Pollution Control Act 1994, while the EPA (Tas) looks after environmental assessments, agreements, audits and improvement programs. The Tas EPA came into effect on 1 July 2008 and is governed by an independent board

ACT

EPA

The EPA is a statutory position held within the newly established Department of the Environment, Climate Change, Energy and Water. The EPA's powers include approving environmental authorisations, issuing environmental protection agreements and enacting enforcement actions such as fines, notices, environment protection orders and prosecution

NT

Department of Natural Resources, Environment, the Arts and Sport (Environment, Heritage and Arts Division)/Environment Protection Authority

Compliance auditing and investigation, among other roles, is undertaken by the Environmental Management section of the Department of Natural Resources, Environment, The Arts and Sport

The NT EPA, also established in 2008, is not a regulatory body but provides independent advice, determines priorities and establishes guideline criteria to the Minister and Department on selected environmental themes

 

Compliance monitoring and mandatory auditing are the formal means by which polluting offences are detected. Monitoring relies heavily on site visits (announced and unannounced) to inspect soundness of processes and facilities, and to check that emissions and/or disposal of pollutants and wastes is done in accordance with licence conditions and environmental guidelines. At the same time, entities engaged in scheduled activities are expected to self-monitor and provide regulatory agencies with audit reports. The provision of false information is an offence in all jurisdictions; in Victoria, a proven charge of wilful provision of false information may be punished with a fine of up to $272,208.

When a spill or leakage occurs, or more than the prescribed amount of pollutant is emitted, the liable company are expected to report the incident within a prescribed timeframe (usually within 24 hours). Some do but when they do not, or they are unaware of the polluting event, it is often members of the public that alert the regulatory agency. Many of the recent cases prosecuted in Victoria came to the attention of the Victorian EPA following reports from the public. EPAs encourage the public to report actual or suspected cases of polluting and dumping by operating hotlines or online reporting sites.

Sanctioning

As described earlier, environment protection agencies have a broad mix of enforcement options to discipline practitioners of environmentally damaging actions. There is little information, though, as to how these responses are meted out. Comino and Leadbeter (2005) compared the enforcement of environment protection laws in New South Wales and South Australia, observing that New South Wales has become increasingly reliant in recent years on prosecuting offenders, whereas South Australia has tended to apply civil and administrative sanctions. Prosecution is the ultimate deterrent effect and in Comino and Leadbeter's (2005) estimation, South Australia's apparent failure to prosecute has diminished the state's ability to enforce environmental protection laws. When prosecutions did occur in South Australia, the ERD Court tended to hand down conventional (and arguably less effective) sentences (ie fines). This was in contrast with Victoria and New South Wales where there was a shift towards the use of alternative orders (Cole 2008; Martin 2003).

Published data from environmental protection agencies shows that New South Wales continues to follow the prosecution pathway when dealing with environmental protection offences. Between 2007–08, the then NSW Department of Environment and Climate Change completed 125 prosecutions under environment protection laws (see Table 14). Prosecutions were less common in the other jurisdictions. Infringement notices comprised the largest proportion of enforcement actions utilised and the great majority of these were for littering. Not so in Queensland where 64 percent were issued for the release of contaminants into water, 17 percent for breach of licence conditions and six percent for release of waste.

Table 14: Sanctions applied for offences against state and territory environment protection statutes, 2007–08
Jurisdiction Infringement notices Orders/notices Prosecutions
NSW 14,954a n/a 125 (finalised)
Vic 18,633 133b 18
Qld 2,285 97c 10 (finalised); 3 (continuing)
WA 50 2d 1
SA n/a 53e 3 (criminal); 1 (civil)
Tas 12 18f 3 (finalised); 6 (continuing)
ACT 25 2 0g
NT n/a n/a 0

a: Excludes notices issued for littering offences. Includes notices issues by authorised officers from the Department and local government

b: 101 pollution abatement notices and 32 clean-up notices

c: 44 environment protection notices, 47 transitional environment programs and 6 restraint orders

d: Modified penalty notices

e: Environment protection orders only

f: Four formal written warnings and 18 environment protection notices

g: Excludes one out-of-court settlement

Note: n/a=not applicable

Source: ACT TAMS 2008; NSW DECC 2008; NT NRETA 2008; Qld EPA 2008; SA EPA 2008a; Tas DEPHA 2009a, 2009b; Vic EPA 2008a; WA DEC 2008a

With a few exceptions, most recently prosecuted cases under environmental protection statutes resulted in the offender receiving a fine. Offences ranged from pollution of waters, causing or permitting an environmental harm (or hazard), illegal transport and/or dumping of waste and breaches of licence conditions. Three cases prosecuted under Commonwealth legislation refer to two incidents of illegal discharge into the Great Barrier Reef Marine Park and a third involving illegal export of hazardous material (AFP 2005, 2004). The former two cases were pursued in 2002–03 and 2004–05 following the discharge of 700,000–1,000,000 litres of untreated sewage water from a Club Med and a 100km oil spill from a ship. The convicted were sentenced to fines of $6,000 and $180,000 respectively.

Of note is Victoria's practice of reserving fines for the payment of environmental restoration, rehabilitation or conservation works. Courts may order offenders, in lieu of or alongside another penalty, to carry out specified actions or projects. In Victoria, this translates to

the restoration or enhancement of the environment in a public place or for the public benefit (even if the project is unrelated to the offence) (Environment Protection Act 1970 (Vic), s 67AC(2b)).

Environmental protection statutes in other jurisdictions include this provision but from the data considered, it is Victoria that favours this approach over the imposition of a standard pecuniary penalty. Persons or corporations proven guilty of committing environmental offences may also be directed to undertake environmental audits and publicise the offence, usually in selected print media publications.

Summary

Due to their dual functions as regulator and enforcer, EPAs and their equivalents have been charged in the past with adopting too conciliatory a relationship with the entities they are meant to be scrutinising. Now tasked with prevention, and not just mitigation, the role of the EPA has evolved to focus on environmental outcomes, which comes with a new range of responsibilities. Enforcement options have broadened and some jurisdictions are now likelier than others to follow the prosecutorial pathway. And while lesser sanctions are still more commonly applied and fines the predominant penalty if a case is tried, there is a discernable movement, at least in Victoria, to use alternative sanctions in which the offender pays financial assistance to a designated conservation or rehabilitation project. To what extent these sanctions elicit future good behaviour remains to be seen but, at a minimum, they facilitate some counteraction of an environmental harm caused in one place, through contribution to an environmental good in another.

Cost-cutting, along with profit-making, are recognised as key motivators for environmental crime and probably best explains current and predicted rates of illegal polluting and waste disposal practices. Such behaviour is likely to arise from either a deliberate flouting of the laws, in order to cut corners and save money, or an apathetic respect for the rules. Sloppy or careless practice is another contributing factor and possibly more commonly associated with instances of spillage or illegal emissions. Where offences are detected, smaller operatives appear to be the primary culprits and it has been suggested that this might be because larger companies have more to lose (such as corporate respectability) if found in contempt of environmental laws. The flip-side to this argument, of course, is that larger companies might just be better at hiding or covering up their transgressions.

As yet, there has been no rigorous analysis as to the extent of illegal polluting and waste disposal activities in Australia, other than that briefly described in regulatory agency reports. This is a finding not unique to this category of environmental crime, but what is evident from these reports is the broad array of offences that are committed and regularly so. From the available data, it is not possible to establish whether there has been any change in the prevalence, or indeed in the nature of, the offences committed. Recent summaries of cases investigated, however, suggest that the illegal discharge of waste (eg sewage and other wastewaters), petrol and oil spillages (on land and out at sea) and unauthorised dumping of waste (eg industrial waste) are ongoing problems. If any act of environmental harm is thought of as being at greatest risk of worsening, it would be, according to regulators, the illegal discharge and dumping of waste. Australia has not seen a concerted influence of organised crime on the waste disposal business. However, present economic restraints and evidence of the formation of alliances between players operating on the boundaries of legality, suggest that greater collusion is inevitable and incidents of illegal waste disposal likely to escalate. Much of this diversion into illegal practices will probably arise in order to avoid paying operating costs, specifically (increasing) fees for using authorised modes of transporting and disposing of wastes.

With ongoing technological advances come new forms of pollutants and wastes harmful to the environment and in need of specialised attention. A huge surge in the availability and desire for electronic items, notably mobile phones and computer equipment, is a case in point and there has been a corresponding swell in items discarded into Australian landfill as new or better models are acquired. Notwithstanding the burgeoning volume of e-waste, the issue is that these items contain toxic components and additives and Australia has not acquired a standardised means of disposing of these items safely. The disposal of personal e-waste is currently outside the reach of legislative and regulatory consideration but as an area which is only going to worsen (in size and potential harm), some attention is warranted.