Increasing the courts power
to impose higher financial penalties on environmental offenders
Under section 249 of
the Protection of the Environment
Operations Act 1997 (NSW) (POEO Act)
the court has the power to
“order the offender
to pay, as part of the penalty for committing the offence, an additional
penalty of an amount the court is satisfied, on the balance of probabilities,
represents the amount of any monetary benefits acquired by the offender, or
accrued or accruing to the offender, as a result of the commission of the
offence.”
Monetary benefits
means monetary, financial or economic benefits.
The amount that the
court may order an offender to pay is not subject to any maximum amount.
However, the regulations may prescribe a protocol to be used in determining the
amount that represents the monetary benefit acquired by the offender.
Currently there is
no protocol identified in the regulations that deals with monetary benefits.
However, this may be
about to change.
The NSW Environment
Protection Authority (EPA) is
looking to develop a protocol, through consultation with industry in the near
future. This will include the creation of a calculator for determining the
quantity of the monetary benefit.
This could mean that
courts may be able to impose much higher penalties on offenders depending on
the circumstances of the offence.
Recent example that may
have been caught
In 2015 the NSW Land
and Environment Court found that a former waste operator and two of his
companies were guilty of offences for the unlawful transportation of waste and
for using a property as an unlawful waste facility.
See Environment Protection Authority
(Prosecutor); Foxman Environmental Development Services (Defendant); Botany
Building Recyclers Pty Ltd (Defendant); Phillip Foxman (Defendant) [2015]
NSWLEC 105 at
The commission of these
offences caused the Defendants substantial financial gain.
The introduction of
a protocol within the regulations may, if drafted appropriately, increase the
courts power to impose higher financial penalties on environmental offenders
who benefit from the commission of an offence.
At this early stage,
there still remains the next important question of what will happen with any
money that is obtained through the potential protocol.
If you would like to discuss any aspect of this, please contact Kim Glassborow (Partner) G&B Lawyers on M: 0481 287 528.
G&B Lawyers
Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000
Mail: GPO Box 1849, Sydney, NSW 2001
M: 0481 287 528
E: info@gandblawyers.com.au
W: www.gandblawyers.com.au
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