By Jack Kerr
It is 30 years since Victorian legislation was changed so illegal polluters could be sent to jail, and environmental lawyers like Brad Jessup believe it is time authorities finally put that power to use.
“They need to come down hard on someone,” said Mr Jessup, a lecturer at the University of Melbourne Law School.
“And someone big.”
Like the magistrate in the recent Corkman Irish Pub case, in which two developers were fined for dumping asbestos from a demolition in the middle of suburbia, he believes more needs to be done to stop industrial polluters.
The Environment Protection Act’s offence of aggravated pollution attracts a maximum jail term of seven years and was added to the act in 1988.
But the state’s Environment Protection Authority (EPA) has told the ABC it has no record of prosecuting anyone using that provision — one of the few laws at its disposal that allow for prison, and the only one directly related to polluters.
“Our Prosecutions Register (which goes back to 2001) shows no cases which include Section 59E,” an EPA statement said.
“They [the EPA] go for the easy targets, the easy wins,” Mr Jessup said, and that means settling for lower penalties than they might be able to push for if they worked a case harder.
While they won the Corkman case, it was an outcome that frustrated Magistrate Richard Pithouse, who told the developers he would have thrown them in jail if he could have.
Instead, he imposed a $605,000 penalty — the third-largest in the EPA’s history.
But there are some who believe that is a small price to pay.
“It’s sometimes the case that people [will] just factor the costs of fines and penalties into the cost of doing business,” said lawyer Brendan Sydes, the CEO of Environmental Justice Australia.
“The possibility of imprisonment ups the ante [and would send] the really strong message that pollution harming the community, harming the environment isn’t acceptable.
“The Corkman hotel is a fairly extraordinary situation, but not an isolated incident.”
The EPA said it “lays the most relevant charge or charges in a case” and noted aggravated pollution is “only one of many offences” it can use to prosecute.
“EPA wants all prosecutions to send a strong message to the community that our environmental and public health shouldn’t be put at risk for commercial or personal gain,” CEO Cathy Wilkinson said.
Eagle deaths punishment ‘insufficient’
Last week’s sentencing of a farm worker who killed hundreds of eagles on properties in Victoria’s east has also come under fire, despite it being the first time a person has been jailed for such an offence.
Murray James Silvester pleaded guilty to killing 406 of the protected birds over an 18-month period.
Other protected species including a kookaburra, ravens and a raptor were also found dead.
Silvester was sentenced to 14 days jail, and fined $2,500 for the mass poisoning.
Per bird, it equates to less than an hour behind bars and a payment of around $6 a head.
Outrage on social media was summed up by Paul Dutton on Twitter, who wrote that “Aboriginal kids have been jailed for longer for stealing fruit”.
“The penalties seem light, given the number of eagles killed here,” said Mr Sydes.
“The maximum jail term is a relatively low six months, but even given that, the 14 days does seem fairly low.”
In addition to stronger penalties being introduced, Mr Sydes would also like to see the Department of Environment, Land, Water and Planning (DELWP) develop a stronger enforcement culture.
“Increasing the number of prosecutions and pursuing investigations more vigorously would assist in developing a culture where this sort of action is just not acceptable.”
However, he acknowledged the significance of a jail term being delivered.
“It’s a positive that the crime has come to light [and] that there has been proceedings taken,” he said.
A DELWP spokesperson said the department was “committed to holding those that break the law to account”.
“This is a serious sentence that means the individual involved has to serve an immediate term of imprisonment, something that may not have happened if a larger monetary penalty alone was pursued, due to the individual’s circumstances.
“The magistrate made it clear that if the accused didn’t plead guilty and had not shown remorse and provided assistance to the authorities, a larger custodial sentence would have been considered.”
Uncertainty over new laws
A new suite of environmental protection laws — which have been described as prevention focused — come into effect in 2020, and the EPA is hopeful they can boost its enforcement capabilities.
“We know that penalties may not always meet community expectations,” the EPA’s Dr Wilkinson said.
“Which is why the organisation worked with the Government to overhaul the EPA Act and bring it into line with the value Victorians place on the current and future health of their environment.”
She said the new act gave the EPA stronger powers and increased penalties for a number of offences.
Intentional or reckless breaches of the general environmental duty could result in five-year jail terms, she said, and repeat illegal dumpers faced two years behind bars.
Financial penalties will also increase, with corporations liable for payments of $3.2 million — double the current limit — in the most serious instances.
When asked why the public should be confident offenders would be imprisoned under the news laws, given the EPA’s record under the existing law, Dr Wilkinson said the “decision on penalties rests with the presiding magistrate or judge, who acts within the penalty options available in the relevant legislation and within their jurisdiction”.
Mr Sydes was hopeful the new laws would have an impact.
“We’re kind of entering into new territory, where there’s now a new set of expectations around how the whole range of sanctions available under the new Environment Protection Act might be utilised,” he said.
However, Mr Jessup was less convinced.
He said the current laws already had plenty of muscle, and perhaps their biggest problem was that they were not properly enforced — a similar criticism to those levelled at financial regulators during the recent banking royal commission.
“The EPA is frightened to take on big business … and I think they need to bite the bullet,” he said, noting how unusual it was for a law to be in place for three decades and never be used.
“So maybe before we change the law, we need to actually have a go at using some of the provisions that exist within the law right now.”
This story was published by the ABC on 3 October 2018.