A recent prosecution in NSW suggests that environmental enforcement agencies are becoming more willing to prosecute senior employees, not just their organisations. The decision in Garrett v Freeman (No. 5) [2009] NSWLEC 1, the first time a senior council employee has been prosecuted for actions undertaken as part of his job, should be a warning to everyone.
Mr Freeman was the director of infrastructure at Port Macquarie Hastings Council. An area had been identified as requiring remediation. To facilitate access to the area Mr Freeman initiated the construction of dirt roads. The construction damaged the habitats of various threatened species, an offence under National Parks and Wildlife Act 1974 (NSW).
Mr Freeman was found guilty in 2007, but his punishment has only just been determined. The NSW Land & Environment Court assessed his penalty to be fines totalling $57,000, but he must also pay the prosecutor's costs which amount to $167,500.
To put this into context, the council which employed him was also found guilty and was ordered to pay total fines of $45,500 plus $114,000 in prosecutor's costs for the offences under the Act. It was also ordered to pay $35,000 and prosecutor's costs of $80,000 for an offence under the Fisheries Management Act 1994 (NSW).
While provisions deeming directors and people involved in the management of a corporation to be guilty of their corporation's contraventions have been a feature of NSW environmental law since the late 1980s, enforcement agencies have not used them very often. The prosecution of Mr Freeman, the first of a council employee, indicates that enforcement agencies might be looking to use these provisions more frequently.
The key message for directors and managers in NSW is that compliance with environmental protection laws are not a luxury but a necessity.
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