Ellen Chapple, NSW EPA
Tom Carr, TAS EPA
Steering Committee Sponsor: Monica Collins, Commonwealth
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The Legal Practice and Policy Working Group brings together legal and policy practitioners, including legal and para-legal officers, legal coordination officers, and policy officers working in litigation and legislative reform. The Group’s key focus is on networking, sharing information and collaborating on projects that will help build a repository of shared corporate knowledge on environmental legal issues, and help facilitate better environmental, community and legislative reform outcomes.
This project will enable Australian environmental regulators with simplified access to information about relevant prosecutions. Effective and timely prosecutions of environmental offences, accompanied by sentencing which achieves the anticipated or expected specific and general deterrence, is of increasingly high priority to the community and government. Prosecution outcomes are highly visible to the media (including social), with increased commentary as to how effectively the prosecution was conducted at all stages along the investigation and conduct of the matter in court.
Many environmental prosecutions are conducted in the lower courts, and consequently unreported. However, these decisions can be influential in similar interstate prosecutions. Further, litigation lawyers in AELERT member agencies could benefit from learnings regarding the conduct of environmental prosecutions, and the nuances employed by both the prosecution and defence, resulting in sentencing outcomes.
Jurisdictions have individually been working in this space for some time. If after a penalty is paid an offender still profits by noncompliance there is little incentive to comply. The removal of monetary benefit from offenders will ensure offenders are properly penalised, deter future noncompliance and level the playing field for compliant operators who are currently disadvantaged by investing in compliant operation while non-compliant competitors obtain an economic advantage over their competitors. Since 2011 the Legal Practice and Policy Working Group has been the vehicle for collaboration and the evolution of a monetary benefit toolkit (MBTK) which supports the NEAT model (Non-compliance, economic assessment tool) that Vic EPA has developed. The purpose of the model is to provide an independent analytical tool to assist agencies to quantify the economic benefit that may accrue to a business from delayed or avoided compliance with environmental laws. The use of the model has obvious benefits in Court room sentencing and the Group is further examining additional ‘non-courtroom’ uses for the model.