EPA Prosecution Guidelines - Section B
Principles of prosecution
2. Purpose of guidelines
2.1 The purpose of these guidelines is to identify for the benefit of the public, including those within the regulated community, and other prosecutorial organisations:
(a) the basis on which the EPA will make a decision to prosecute;
(b) the factors to be taken into account in deciding which persons are the appropriate defendants;
(c) the factors to be taken into account in deciding which charges to lay;
(d) the factors to be considered in determining the appropriate mode of trial;
(e) those significant co-operative measures that may influence the EPA's decision to prosecute or, the EPA will submit, may operate as important mitigating factors on sentence;
(f) instances in which the EPA may recommend the indemnification of witnesses; and
(g) factors considered by the EPA before commencing an appeal against a sentence imposed on an environmental offender.
2.2 The Guidelines are not legally binding on the EPA or any other organisation. They reflect the current policies of the EPA. Those policies will be kept under review and any changes will be notified publicly.
3. The decision to prosecute
Evidence
3.1 The basic pre-requisite of any prosecution is that the available evidence establishes a prima facie case. However, as noted in the Prosecution Policy and Guidelines of the Office of the Director of Public Prosecution, New South Wales:
It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute 'wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest'. That is still the dominant consideration.
Sir Hartley Shawcross QC,
UK Attorney General and former Nuremberg trial prosecutor,
speaking in the House of Commons on 29 January 1951 (at page 3).
Discretion
3.2 Sufficiency of evidence is therefore not the sole criteria for prosecution:
(a) not every breach of the criminal law is automatically prosecuted – the laying of charges is discretionary; and
(b) the dominant factor in the exercise of that discretion is the public interest.
3.3 The Prosecution Policy of the Commonwealth states:
The decision whether or not to prosecute is the most important step in the prosecution process ... The criteria for the exercise of this discretion cannot be reduced to something akin to a mathematical formula; indeed it would be undesirable to attempt to do so. The breadth of the factors to be considered in exercising this discretion indicates a candid recognition of the need to tailor general principles to individual cases. (At para 2.2 and 2.3).
3.4 In criminalising breaches of environmental laws a primary, though not the sole, aim of Parliament is deterrence. By extending criminal liability to a wide range of people who may be involved in some way with environmental breaches, e.g. owners of substances, owners of containers, directors and managers of corporations, the legislation generates increased awareness and responsibility for environmental performance both vertically within corporate hierarchies and laterally across a broad spectrum of those with responsibility for preventing environmental harm. Potential liability, however, does not mean automatic prosecution.
3.5 Parliament has recognised that prosecution may not always be the appropriate response. The EPA has a discretion as to how to proceed in relation to environmental breaches and section 219(3) of the Operations Act envisages that the EPA may pursue non-prosecution options to prevent, control, abate or mitigate any harm to the environment caused by an alleged offence or to prevent the continuance or recurrence of an alleged offence. Where the EPA uses these alternatives, prosecution by third parties is precluded under the Operations Act.
3.6 Prosecution will be used, therefore, as part of the EPA's overall strategy for achieving its objectives. Each case will be assessed to determine whether prosecution is the appropriate strategic response. It will be used as a strategic response where it is in the public interest to do so.
Factors to be considered
3.7 Factors which alone or in conjunction arise for consideration in determining whether the public interest requires a prosecution include:
(a) the seriousness or, conversely, the triviality of the alleged offence or that it is of a 'technical' nature only;
(b) the harm or potential harm to the environment caused by the offence;
(c) any mitigating or aggravating circumstances;
(d) the degree of culpability of the alleged offender in relation to the offence;
(e) the availability and efficacy of any alternatives to prosecution;
(f) whether the offender had been dealt with previously by non-prosecutorial means;
(g) whether the breach is a continuing or second offence;
(h) whether the issue of Court orders are necessary to prevent a recurrence of the offence;
(i) the prevalence of the alleged offence and the need for deterrence, both specific and general;
(j) the length of time since the alleged offence;
(k) the age, physical or mental health or special infirmity of the alleged offenders or witnesses;
(l) whether there are counter-productive features of the prosecution;
(m) the length and expense of a Court hearing;
(n) the likely outcome in the event of a conviction having regard to the sentencing options available to the court;
(o) any precedent which may be set by not instituting proceedings;
(p) whether the consequences of any conviction would be unduly harsh or oppressive; and
(q) whether proceedings are to be instituted against others arising out of the same incident.
3.8 The EPA adopts the cardinal principle that a prosecution must not be brought for improper purposes. A decision whether or not to prosecute will not be influenced by:
(a) any elements of discrimination against the person e.g. race, nationality, political associations;
(b) personal empathy or antipathy towards the offender; or
(c) the political or other affiliations of those responsible for the prosecution decision.
The role of the Board of the EPA
3.9 As discussed in 1.4 above, the Administration Act provides that the EPA Board must determine whether the EPA should institute proceedings for serious environment protection offences. The Board has nine part-time members. In exercising their functions, members of the Board recognise their duty is to the Board, irrespective of the policies or interests of their affiliates:
Once a group has elected a member that member assumes office as a member of the board and becomes subject to the over-riding and predominant duty to serve the interests of the board in preference, on every occasion upon which any conflict may arise, to serving the interests of the group which was responsible for the appointment. With this basic proposition there can be no room for compromise. (Bennets v Board of Fire Commission of NSW (1967) 87 WN. at 311 per Street, J.)
Decisions by the Board in relation to prosecutions will be made fairly and impartially on the merits of the case and taking into account any discretionary aspects as set out in these guidelines.
3.10 The Board of the EPA recognises that openness and consultation is desirable in carrying out most of its functions. However, in the interests of fairness to defendants, the following considerations will be followed by the Board in relation to deliberations on prosecutions:
(a) all such deliberations will be in confidence;
(b) the decision will be recorded as a decision of the Board without dissenting votes being recorded;
(c) any decision to prosecute will be communicated to the Director-General who will be responsible for instituting Court action;
(d) any public comment in relation to the institution of proceedings will be made by the Chairman or the Director-General on behalf of the EPA at the time the proceedings are instituted; and
(e) in any subsequent post-hearing public statements, Board members will not comment on the initial decision to prosecute.
3.11 Prosecutions against DEC or SCA are discussed in Section A1 of these Guidelines. In relation to any such prosecutions, the reference to the Director-General in paragraph 3.10 should be read as a reference to the Deputy Director General, Environment Protection and Regulation Division.
4. Who may prosecute
4.1 Under the Operations Act, responsibility for bringing prosecution proceedings for environmental offences is given to various parties. The EPA can bring proceedings for any environmental offence against the Operations Act, whether or not the EPA is the appropriate regulatory authority in relation to the offence (section 217 (1) of the Operations Act). Other public authorities, such as local councils, can bring proceedings where they are the appropriate regulatory authority in relation to the offence (section 217 (2) of the Operations Act). Other persons, such as police officers, are also given the ability to commence proceedings in relation to specific environmental offences (section 218 of the Operations Act).
4.2 The EPA has primary responsibility for bringing prosecution proceedings in relation to offences against the environment protection legislation referred to in section 3 of the Administration Act. This legislation includes the Contaminated Land Management Act 1997 (the Contaminated Land Act) (section 94) and the Pesticides Act 1999 (section 73).
4.3 Further, other people may bring prosecution proceedings for offences against the Operations Act and the Contaminated Land Act but only if they have obtained leave of the Land and Environment Court (section 219(1) of the Operations Act and section 95 (1) of the Contaminated Land Act).
4.4 The Land and Environment Court may only grant leave where it is satisfied that the EPA has decided not to take relevant action in respect of the act or omission constituting the alleged offence or has not made any decision to take such action within 90 days of being requested to institute proceedings (section 219(2) of the Operations Act and section 95(2) of the Contaminated Land Act). Under the Operations Act, such action includes using statutory powers to address any harm to the environment caused by the alleged offence or otherwise taking action to prevent the continuance or recurrence of the offence (section 219(3) of the Operations Act). Under the Contaminated Land Act, such action includes taking action under that Act to ensure compliance with an investigation or remediation order (section 95(3) of the Contaminated Land Act).
4.5 As a general principle, where a serious breach of the environment protection laws comes to the attention of the EPA, the EPA will lead any investigation and take any appropriate action. This principle recognises that, because of its
functions, powers and objectives and because of the legal and specific expertise within the organisation, the EPA is generally in a better position than most other parties to investigate and prosecute serious breaches.