Maddocks recently acted for Port Macquarie-Hastings Council (Council) in a watershed case involving prosecutions of both Council and a Council officer for breaches of environmental legislation. It is a rare example of a governmental agency and its officers being prosecuted. This rare prosecution serves as a timely reminder of the risk of prosecution for breaches of environmental legislation applies to both the public and private sector.
The Recent Judgment Of Lloyd J
On 6 February 2009, Justice Lloyd handed down his judgment sentencing both defendants in the proceedings for offences under the National Parks & Wildlife Act 1979 (NPWA) and Fisheries Management Act 1994 (FMA).1 The defendants were Council and Mr Geoff Freeman who held an executive position with Council.
The Council in its corporate capacity was convicted for three offences under the NPWA. The Council carried out road construction works that caused damage to the habitat of three threatened species in a wetland with high ecological value. The conduct of the road construction works was a breach of section 118D(1) of the NPWA.
The Council in its corporate capacity was also convicted of an offence under the FMA. The Council carried out "reclamation work" without the authority of a permit issued by the Minister. The unauthorised work was a breach of section 200 of the FMA.
Mr Freeman was convicted of two offences under the NPWA. Mr Freeman was a person concerned in the management of the Council and managed the conduct of the road construction works that lead to the Council's convictions. Mr Freeman's conduct was in breach of section 175B of the NPWA that makes officers or corporate bodies personally liable for offences.
No custodial sentences were handed down by the Court.
The Council was sentenced to a fine (being $80,500 for the four offences) and a requirement to pay the prosecutor's costs in the proceedings (being $194,000). The magnitude of the fine is considered to be in the 'lower range' because the offences carried a maximum penalty of fine reductions because of the early guilty plea and other mitigating factors including:
- The Council has established and is implementing a restoration and management plan for the site of the offences that is expected to take 10 years to complete.
- The Council had secured funding for the site's rehabilitation.
- The implementation of the restoration and management plan has begun and site restoration and revegetation was proceeding well.
- The site is earmarked for future re-zoning for conservation purposes.
- The Council's implementation of more robust project planning and development systems, and processes by which Council had addressed deficiencies in the Council's "corporate culture", which was found to have contributed to the offences.
Mr Freeman was also sentenced to a fine (being $57,000) and a requirement to pay the prosecutor's costs in the proceedings (being $167,500). Importantly, the prospect of imprisonment was also considered by the Court but not invoked.
These prosecutions serve as a timely reminder of the need to strictly comply with environmental protection requirements in the conduct of construction works of any kind. This is especially the case in areas of increased environmental sensitivity.
Particularly relevant (for both the public and private sector) is the fact the prosecutors were successful in securing a conviction against a Senior Manager involved in the activity that was held to be a contravention of environment protection legislation. The introduction of laws that seek to 'lift the corporate veil' is now common in laws relating to environment protection and laws relating to occupational health and safety. One objective of the introduction of these laws is to drive increased awareness of persons involved in the management of a body corporate (or a body politic in the case of NSW Councils). Successful prosecutions like this one will help to ensure that this objective is achieved.
These prosecutions also demonstrate a willingness by prosecutors and the Court to convict those involved in the management of an organisation (be they a Council officer or a company director) where there is knowledge (imputed, constructive or actual) of an offence being perpetrated within the organisation's chain of management. The personal cost of these prosecutions cannot be overstated because they may involve criminal convictions.
The Court's acceptance of the Council's submissions seeking fine reductions is also important. The Court's comments about the steps taken by Council to remedy the environmental harm and improve its internal processes are noteworthy, as these steps led to an eventual reduction in penalty. These steps should be treated as a guide to the things that both the public and private sector should adopt and implement in situations where a breach of environmental protection legislation is found to have occurred.
1. Only the Council was charged for an offence under section 200 of the Fisheries Management Act 1994.
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