A meaningless sentence

The following is a guest post by David Morris, Principal Lawyer of the Environmental Defenders Office (NT).

The Northern Territory already carries a 1 billion dollar burden for legacy mines. These are mine sites where the company has walked away and left ongoing environmental degradation for the taxpayer to repair. We’d like to think that this is a thing of the past, but recent events show that this not the case. The recent demise of Western Desert Resources (WDR) is a good example. WDR illegally cleared 175km of native vegetation, the company went into administration and, with no likely buyers of the mine, the taxpayer is left to manage the erosion issues and to remove illegal waterway crossings. The fine for the director of the company? $7500! (See ABC article when the decision was handed down in April).

The maximum penalty for the offence of illegally clearing native vegetation is $30,600 for an individual (still woefully inadequate when you consider that the same offence in Victoria can attract a maximum penalty of $182,000). Questions remain about why the penalty given was so low. By comparison, in 2011, a developer in Victoria was fined $40,000 for the illegal removal of 40 trees. It appears that the decision for such a low penalty was made in ignorance of the ongoing cost of managing this area for taxpayers, the loss of credibility for the mining industry and the precedent this establishes.

The principle of general deterrence is of central importance when sentencing environmental offenders. That is, sentences should be sufficient to clearly state to the rest of the community that this type of conduct will not be tolerated. In essence it’s about saying we’re not going to allow you to get off with a slap on the wrist when you prioritise your profit over the long term health and prosperity of the environment.

In the NSW case of Stephen Garret v Dennis Charles Williams, Chief Justice Preston of the Land and Environment Court stated:

“Courts have repeatedly stated that the sentence of the court needs to be of such magnitude as to change the economic calculus of persons in relation to compliance with environmental laws. It should not be cheaper to offend than to prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains. The amount of the fine should be substantial enough so as not to appear as a mere licence fee for illegal activities.”

As mentioned earlier, the court fined the director of WDR $7,500. In 2013, that same director was paid $429,167 (excluding super) to manage the company. It is difficult to see how the penalty of $7,500 in this case would operate as a general deterrence to others at all. I would argue that the penalty is in reality, meaningless. We’d like to see the NTG ask for the penalty to be reviewed. We’d also like to hear the Minerals Council’s position.

Furthermore, we’d like to see clear guidelines for determining penalties of this type of activity. Determination of the penalty needs to consider the extent of area cleared, the type of area cleared (not all vegetation types are considered the same), an assessment of the economic burden by taxpayers to repair the damage, an assessment of the implications to other parties, and a consideration of reputational loss to the industry.

The issues of industry accountability and the use of legislation to deter activities that might cause environmental harm have arisen during the NTG review of petroleum legislation for fracking. The argument is that if new and improved legislation is introduced to regulate the gas industry, then the potential for environmental damage arising as a consequence will be diminished. If we can learn anything from the recent case against the director of WDR, it is that there are still cowboy operators in the Territory and that penalties must be increased dramatically to deter illegal activity.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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9 Responses to A meaningless sentence

  1. paul frijters says:

    yes, an economist at my school is working on precisely this issue. Absolutely scandalous stuff, a very clean example of politicians giving enormous public resources to a few buddies. I believe that in Queensland they just voted in a law that will make sure this graft continues. Galling.

  2. Bob Gosford says:

    Does anyone have a copy of the decision?

  3. Peter Johnson says:

    I agree with the sentiments which could be transferred across to ALL law courts that continue to ‘smack offenders on their wrists’ [particularly if they wear a ‘nice’ suit or other ‘respectful dress’ to court as in ‘The principle of general deterrence is of central importance when sentencing [Criminal] environmental offenders. That is, sentences should be sufficient to clearly state to the rest of the community that this type of conduct will not be tolerated. In essence it’s about saying we’re not going to allow you to get off with a slap on the wrist when you prioritise your [personal advantage or ‘rights’] profit over the long term health and prosperity of the environment.

  4. Jim says:

    I think Australia could actually learn something from PNG, where compensation for loss of land (where the definition of land is pretty broad) is negotiated between mining companies and Traditional Owners. I’ve been involved in projects to cost some of the potential damage (and hence potential compensation payable). Payments are made during the life of the mine. From what I’ve seen, the cost signal is having an influence on mines’ decision making.

  5. Moz of Yarramulla says:

    I assume that restitution was neither ordered nor offered? I can certainly understand if the defendant made good the losses before trial that the sentence would reflect that. But since I’ve seen environmental offences before I would stunned speechless if that was the case.

    More generally, I would strongly prefer to see remediation included as well as punishment. Frankly, I do not give a damn if fixing the problem is hard, expensive, or costly. In fact where that is the case I think the argument for requiring it is stronger rather than weaker.

    We see this with many “workers entitlements” now, where there is a levy on the industry and strong action to recover “lost” funds from those responsible when a company can’t pay. I have benefited from this, an employer stopped paying me until eventually I rang the fair work people to ask what I could do, they demanded details and mysteriously for no apparent reason my employer paid up a few days later with no further action on my part.

    I think a similar scheme for environmental remediation could be put in place with no great difficulty. Great sums of money, certainly, but the fair work scheme shows how it can be run. The phrase “hound to the ends of the earth” sums up how I think that should be done. Possibly with “even unto the sixth generation”.

  6. R. N. England says:

    This is clearly something that makes people throw up their hands in horror, but it’s not much use howling for punishment if the money’s gone. A bond system can get around that problem, with payments made on a regular basis as the project develops. As long as it’s up to date (with policing of that done at the explorer’s expense), the mess can be fixed if the explorer’s money runs out.

    Fashions in punishment change over time. The awful mess made 100 years ago becomes a “heritage area”. Then you can get punished for cleaning it up.

  7. Moz of Yarramulla says:

    It’s probably worth noting the mining remediation bond review underway in NSW right now specifically because those bonds are often far short of the actual cost, and mining companies often actively work to evade responsibility.

    • R. N. England says:

      Thanks for that interesting link, Moz. Unfortunately politics has polarised into mates and enemies of the mining industry, and “do nothing” is the easy solution for mates when they are in power.

  8. Tim Macknay says:

    I think this problem is cultural, in the sense that magistrate’s courts are not particularly well equipped to deal with environmental offences. We have a similar problem in WA, where environmental offences are also generally dealt with in magistrate’s courts, and where the sentences are frequently woefully low, even where the maximum penalty has been set quite high in order to provide a signal to the judiciary as to the relative seriousness of the offence. It’s a strong argument for a land and environment court, IMHO.

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