Guidelines for seeking environmental court orders

Contents

• Orders aimed at restoration/preventing a recurrence of the offence
• Orders aimed at punishing or deterring an offender/making the offender accountable

Overview

These guidelines deal with new sentencing options available for environmental offences. These new options were introduced into and apply in respect of offences committed against the Protection of the Environment Operations Act 1997. These guidelines discuss the purpose behind each of the potential orders and the principles the EPA will take into account in deciding whether to seek one or more of the orders in a prosecution.

The environment protection legislation that the EPA administers creates a number of offences. When a breach occurs, a number of options are available to the EPA, including prosecution, on-the-spot fines and warning letters. The decision whether or not to prosecute is taken in accordance with the EPA Prosecution Guidelines. If the EPA does prosecute, the case is generally heard before the Land and Environment Court or the Local Court.

Prior to 1 July 1999, under the environment protection legislation, the options available to the courts when sentencing offenders were

• to impose a jail sentence (only available for Tier 1 offences)
• to impose a fine
• to order the offender to take clean-up action or steps to prevent the offence continuing or recurring
• to order compensation to be paid to those who suffered damage to property as a result of the offence or who incurred costs in taking steps to clean up the harm caused by the offence

This meant that for the majority of offences committed before 1 July 1999, the most likely outcome was the imposition of a fine, as the offender would generally undertake any necessary clean up action or would compensate the person/entity that cleaned up or suffered damage well before the hearing of a prosecution. Although this was the environmentally responsible thing to do, there was also a clear incentive to do so as the court would take such actions into account when sentencing the offender. A number of people, including the courts themselves, expressed concern that the imposition of a fine only could be an inflexible and ineffective sentencing tool.

To address this situation, a number of new sentencing options were introduced into the Protection of the Environment Operations Act 1997 (POEO Act). They are

• Investigation costs order – order the offender to pay costs and expenses incurred during the investigation of the offence (see section 248 (1))
• Monetary benefits penalty order – order the offender to pay a sum up to the amount of the monetary benefit derived from the  offence (see section 249 (1))
• Publication order – order the offender to publish details of the offence and the orders made by the court in, for example, a newspaper and/or in a company's Annual Report (see section 250 (1) (a) & (b))
• Environmental service order – order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit (see section 250 (1) (c))
• Environmental audit order – order the offender to carry out a specified environmental audit of activities carried on by the offender (see section 250 (1) (d)).

The POEO Act also carries forward the Courts' powers to make clean up and compensation orders.

Under the POEO Act, these orders are available in addition to or in lieu of any fine or custodial sentence that may be imposed. One or more orders may be made against the offender (see section 244).  Further, the orders are available even if the offender is dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act 1999 (offence proven but no conviction recorded).

The POEO Act provides that a local court may not make a monetary benefits penalty order, an environmental service order or an environmental audit order.

Finally, some of the abovementioned orders are now also available under other legislation that the EPA administers (for example, the Pesticides Act 1999). The principles set out in these guidelines apply equally to proceedings under that legislation.

Purpose of the guidelines

As the courts have been given the new sentencing options in recognition of the fact that a fine/custodial sentence is not always an adequate or appropriate punishment, it is important that the EPA seek the new orders in appropriate circumstances. These guidelines discuss the main purpose behind each of the potential orders and the guiding principles that the EPA will take into account in deciding whether to seek one or more of the orders. Given that each case revolves around its own set of facts and circumstances, it is not intended that the guidelines be viewed as a formula to be applied rigidly. Rather, the guiding principles set out below will assist the EPA in deciding, on a case by case basis, which if any of the orders it will seek.

Characterising the orders

The EPA believes that the court orders can be broadly characterised into two groups as set out below.  The first group are those principally aimed at returning the environment and people involved/affected by the offence back to the position they were in before the offence was committed or at preventing a recurrence of the offence. The second group contains those that are principally aimed at punishing the offender and/or making the offender accountable. The purpose of the order will influence the circumstances in which it is sought.

Orders aimed at restoration/preventing a recurrence of the offence

Essentially, these orders are aimed at ensuring that, if possible, an offender does not profit from committing the offence; takes practical steps to clean up the harm caused by the commission of the offence; compensates those who may have cleaned up on the offender's behalf or suffered damage to property as a result of the commission of the offence; and takes steps to ensure that the offence is not committed again in the future.  Their purpose is therefore to attempt to return the environment, and those committing/affected by the offence, to the same position it/they were in prior to the offence and also to ensure that the offender takes steps to guard against future contraventions.

Clean up and compensation orders

If these steps have not been taken by the time the matter has come to court and it is still practical to seek a clean up or compensation order at the time the offender is sentenced, the EPA will ordinarily do so.  The main circumstance justifying a decision not to seek such orders would be if the EPA accepts that the defendant does not have sufficient funds to comply with such an order.

Of course, the EPA will only seek these orders if it considers it has sufficient evidence to satisfy the prerequisites for obtaining the order, for example, that a person has in fact incurred clean up costs or suffered damage to property as a result of the offence.

As noted above, clean up and compensation orders were available under legislation prior to the POEO Act. The above guidelines are consistent with the principles applied in seeking these orders under the old legislation.

The power a Court has to make a clean up order should not be confused with the EPA's power to issue clean up or prevention notices under the POEO Act. These notice powers are available to the EPA irrespective of whether a prosecution is contemplated or has been commenced.

Monetary benefits penalty and investigation costs orders

While these orders are new, the EPA considers that the same principles apply as for clean up and compensation orders. It is a fundamental principle that an offender should not profit from committing an offence. Therefore, the monetary benefits penalty order will generally be sought whenever the EPA can quantify the benefit obtained and it is satisfied that the offender has sufficient funds to pay all or a significant proportion of the benefit obtained. Again, the EPA will only seek the order where it is satisfied it has sufficient evidence to convince the Court that the order should be made.

The investigation costs order is aimed at ensuring that the EPA should not be out of pocket for enforcing the laws it administers. Accordingly, the EPA will generally seek to recover these costs.

Environmental audit orders

These orders are the hardest to characterise. They look to the future and in that sense are similar to those clean up orders that relate to the taking of steps to prevent the offence from recurring. They are potentially very broad in their operation, in that they can be sought in relation not only to the premises and activities involved in the offence but also other premises and activities of the offender. In essence, the purpose of the order is to ensure that an offender's enterprise is an environmentally acceptable one. The environmental audit order does not in the EPA's view seek to punish an offender.

In the EPA's view, it is appropriate to seek an environmental audit order in circumstances where the EPA believes that the defendant's operations lack essential environment protection systems or that there are serious ongoing failures in those systems.  The EPA will consider the defendant's prior record (in terms of both convictions and other regulatory action) in deciding this question.

The form and scope of the audit order will be determined on a case by case basis, depending on the seriousness of the problems and the defendant's prior record.

Orders aimed at punishing or deterring an offender/making the offender accountable

Fines/custodial sentence

A major reason that the imposition of a fine only has been seen as an inflexible and ineffective tool is that it does not allow for sufficient differentiation between defendants. Offenders the EPA prosecutes range from multinationals down to individuals of very limited means.  While a court is likely to take a defendant's means into account in determining a fine, it is certainly arguable that even the maximum fine available for a Tier 2 offence provides no real deterrent to a major corporation. On the other hand, courts are reluctant to and generally do not impose significant fines upon those who do not have the capacity to pay.

This does not mean that the ability to impose a fine/custodial sentence is not a useful sentencing tool.  Rather, the POEO Act extends the options available to the courts to allow them to deal with situations where a fine/custodial sentence is considered either an inappropriate or insufficient penalty.

Environmental service order

While a principal aim behind seeking an Environmental Service Order (ESO) is to punish/deter offenders, it is also considered that an ESO can deliver tangible environmental benefits to a community affected by the offence. The EPA may therefore decide to seek an ESO either in lieu of or in addition to a fine.

The primary circumstance in which an ESO will be sought in lieu of a fine is where a defendant's financial circumstances make the imposition of a fine an inappropriate penalty. In other words, the EPA will consider seeking an ESO in circumstances where it is meaningless to seek a fine (e.g. one that will never be paid or one that, because of the defendant's limited means, will not reflect the gravity of the offence).

There may, however, be additional circumstances where the EPA also considers it appropriate to seek an ESO either in addition to or in lieu of a fine. It is difficult to exhaustively list these circumstances. Perhaps the most important factors are whether suitable projects can be identified in the locality in which the offence was committed and whether the offender has the means, capability and willingness to undertake the works. Having said that, an ESO must be able to be seen for what it is, that is, a punishment. Accordingly, the EPA will not seek an ESO in relation to works that the defendant would or could have been expected to undertake in any event. Further, an ESO will generally only be sought in conjunction with a publication order. That is, for an ESO to be an effective sentencing tool, it is important to establish and publicise to the community at the time the ESO is made that the works being carried out are being undertaken as a result of the offender committing an offence and not for other reasons, such as the offender simply being a good citizen.

In deciding whether a particular project is suitable to be the subject of an ESO, the EPA will also consider the ease with which the proposed ESO can be administered and supervised. That is, projects will only be approved if they have easily measured outcomes.

Publication orders

(i) In what circumstances will the EPA seek a publication order?

The EPA believes that this type of order should mainly be reserved for corporate offenders as it is likely to be of the most deterrent value to them.  It is often suggested that fines, by themselves, provide little or inadequate deterrence to larger corporations.  Not only can a fine be of little significance given a corporation's revenue but it can also be passed on to consumers or subsumed as a cost of doing business.  Orders that are more likely to explain the circumstances surrounding a corporation's offence and which bring those circumstances squarely into the public gaze are more likely to act as a significant deterrent and make the offender accountable for the offence.

Other factors the EPA will take into account in deciding whether to seek a publication order include the defendant's culpability and prior record as well as the environmental harm threatened or caused by the incident that gave rise to the offence. On the other hand, factors such as cooperation in the investigation, the entering of a guilty plea or the expression of contrition will not be taken into account in deciding whether to seek a publication order. While it may be argued that these matters should militate against the seeking of a publication order, these factors occur after the event and  should not be considered when viewing the seriousness of the offence.

(ii) What form should the publication order take?

Options for the form of the order include:

• publication in a company's annual report or some other form of notice to shareholders
• publication in a newspaper and/or on television/radio
• letter drops to neighbours/the affected community
• letters to customers and/or suppliers of the company.

Ordinarily, if it proposes to seek a publication order, the EPA will seek at least:

(a) publication by way of notice in a newspaper circulating throughout the State

(b) in the case of public companies, publication in the executive summary of the company's annual report.

The EPA will consider the circumstances surrounding the offence in deciding whether to seek other forms of publication. For example, if an offence has generated significant interest in the immediate locality, the EPA may also decide to seek an order requiring the defendant to carry out a letter drop.

(iii) What should a publication order contain?

It is expected that the Courts will look to the EPA to provide guidance as to the specifics of any publication order sought. In practice, therefore, it will be up to the EPA to put forward a form of words to the Court when seeking a publication order. Section 250(1)(b) provides some guidance on the content. It refers to notification of 'the offence and its environmental and other consequences and any orders made against' the defendant.

While every publication order will be drafted on a case by case basis to reflect the actual offence committed and orders made, the EPA will generally seek to include the following in a publication order:

• details of the offence committed
• why/how the offence was committed, namely a short description of the relevant facts
• if it involved pollution, the nature of the pollution
• any aggravating or mitigating features
• the punishment imposed by the Court, that is a brief description of all orders made by the Court.