- Paper delivered at a Public Seminar entitled “Occupational Health and Safety and Environmental Protection: Current Policies and Practices in the Social Control of Corporate Crime”, convened by the Institute of Criminology, 25 October 1989
- “Keynote Address” in Lack, TJ., ed, Environmental Protection: Standards, Compliance and Costs p 19
- Sydney Morning Herald 21 July 1987 p 1
- Sydney Morning Herald 22 July 1987
- Sydney Morning Herald 10 April 1989 p 5
- Richardson, G., Ogus, A. and Burrows, P., Policing Pollution: A Study of Regulation and Enforcement (1982); Hawkins, K., Environment and Enforcement: Regulation and the Social Definition of Pollution (1984); Grabosky, P. and Braithwaite, J., Of Manners Gentle: Enforcement Strategies of Australian Business Regulation Agencies (1986)
- Rowan-Robinson, Watchman and Barker, “Crime and Regulation” (1988) Criminal Law Review 211, 212–214
- The principal legislation referred to is the State Pollution Control Commission Act 1970 (SPCCA), Clean Air Act 1961 (CAA), Clean Waters Act 1970 (CWA), Noise Control Act 1975 (NCA), Waste Disposal Act 1970. The potential of the more innovative, but no less discretionary, Environmentally Hazardous Chemicals Act 1985 has yet to be explored in practice.
- Franson, R.T., “Procedure in Environmental Regulation: Comment” in Finkle, P. and Lucas, A., eds, Environmental Law in the 1980s: A New Beginning (1981) 126
- Clauses 5 and 6 respectively
- Fisher, D.E., “Environment Protection and the Criminal Law” (1981) 5 Criminal Law Journal 184
- Unlicensed water pollution, however, is an offence: Clean Waters Act 1970 s. 16
- R. v. City of Sault Ste. Marie [1978] 2 S.C.R. 1299
- Alphacell Ltd v. Woodward [1972] A.C. 824, 848; Majury v. Sunbeam Corporation Ltd [1974] 1 NSWLR 659
- See, for example, Council of Europe, The Contribution of Criminal Law to the Protection of the Environment (1978); Law Reform Commission of Canada, Crimes Against the Environment, Working Paper 44
- Law Reform Commission of Canada, supra n. 15 at 1. For an update on legislative developments in Canada (in Ontario and at Federal level), see Jeffery, M., (1990) 7 Environmental and Planning Law Journal 61
- id. 2
- ibid.; Law Reform Commission of Canada, Our Criminal Law, Report 3 (1976)
- The degree of negligence required should be that which falls well below the standard of reasonable care required for ordinary or civil negligence: supra n. 16 at 31–33
- supra n. 16 at 14–15
- supra n. 16 at 43
- “It is flat-earth thinking…to suppose that the range of options begins and ends with fines”: Fisse, B., “Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault, and Sanctions” (1983) 56 Southern California Law Review 1141, 1243
- And see Jeffrey, op. cit. supra n. 16. Calls for increased prosecution and harsher sentencing can also be found in academic journals; for example, Comment, “Putting Polluters in Jail: The Imposition of Criminal Sanctions on Corporate Defendants under Environmental Statutes” (1985) 20 Land & Water Law Review 93
- Clause 11. As usual, an alternative procedural route via the Local Court and carrying lower penalties is also available—a salutary provision lest enforcement officers be deterred from pursuing minor violations. Maximum fines which the Land and Environment Court can impose for the serious offences under the CAA and CWA are, for corporations, $40,000, plus, in the case of a continuing offence, $20,000 for each day the offence continues; for individuals, $20,000 plus $10,000 per day (CAA s,32; CWA s.16; SPCCA s.17D (breach of licence condition), s.17K (breach of condition of pollution control approval)
- Clause 10. See also SPCCA s. 30B
- Clause 14. See also CWA s. 33A, SPCCA s. 30A, CAA s. 33A
- A successful prosecution under the Waste Disposal Act 1970 (NSW) provides a rare example of a maximum penalty being imposed for a pollution offence: Farreii v. Bridge (unreported, Land and Environment Court, 23 August 1988)—$1,000
- Swaigen, J. and Bunt, G., Sentencing in Environmental Cases, a Study Paper prepared for the Law Reform Commission of Canada (1985) p 71
- DiMento, J.F., Environmental Law and American Business—Dilemmas of Compliance (1986) pp 178–179
- See, for example, Fisse, op. cit. supra n. 22. With respect to the “deterrence trap”, see Coffee, “‘No Soul to Damn: No body to Kick': An Unscandalized Inquiry into the problem of Corporate Punishment” (1981) 79 Michigan Law Review 386, 389–393
- See, for example, Fisse, op. cit. supra n. 22; Fisse, B. and Braithwaite, J., “Corporate Offences: The Kepone Affair” in Weston, R., ed, Combatting Commercial Crime (1987) Ch. 4
- See, for example, Braithwaite, J., “Enforced Self-Regulation: A New Strategy for Corporate Crime Control” (1982) 80 Michigan Law Review 1466; Fisse, B. and French, P., “Corporate Responses to Errant Behaviour: Time's Arrow, Law's Target” in Fisse and French, Corrigible Corporations and Unruly Law (1985) Ch. 10
- Fisse and French, op. cit. supra n. 32
- See, for example, Fisse, “Sanctions Against Corporations: The Limitations of Fines and the Enterprise of Creating Alternatives” in Fisse and French, op. cit. supra n. 32 Ch. 7
- ibid.; Coffee, op. cit. supra n. 29
- The expression is that of Arie Freiberg, “‘Civilising’ Crime: Parallel Proceedings and the Civil Remedies Function of the Commonwealth Director of Public Prosecutions” (1988) 21 Australian and New Zealand Journal of Criminology 129
- See, for example, Fisse, supra n. 22
- Morris, J.S., “Environmental Problems and the use of Criminal Sanctions” (1972) 7 Land and Water Law Review 421; Grad, F., Environmental Law 2.08
- Kovel, A., “A Case for Civil Penalties: Air Pollution Control” (1969) 46 Journal of Urban Law 153; Grad, supra n. 38. See also Kadish, “Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations” (1963) 30 University of Chicago Law Review 423; Developments in the Law, “Corporate Crime: Regulating Corporate Behaviour through Criminal Sanctions” (1979) 92 Harvard Law Review 1227, 1365–1375
- Kovel, supra n. 39; Grad, supra n. 38
- Olds, D., Unkovic, J.C. and Lewin, J.L., “Thoughts on the Role of Penalties in the Enforcement of the Clean Air and Clean Water Acts” (1977) 17 Duquesne Law Review 1, 17. But strict liability needs to be understood within the totality of the regulatory scheme: Richardson, G., “Strict Liability for Regulatory Crime: the Empirical Research” [1987] Criminal Law Review 295
- Richardson, supra n. 41
- Dimento, J.F., Environmental Law and American Business—Dilemmas of Compliance (1986) p 49
- Coffee, supra n. 30 at 459
- See the landmark case of Sierra Club v. Ruckelshaus 344 F.Supp. 253
- There is similar legislation in Illinois, Minnesota, Massachusetts and Ohio.
- See, for example, Vogel, D., National Styles of Regulation (1986)
- With respect to enforcement strategy, see Grabosky, P. and Braithwaite, J., Of Manners Gentle (1986) Ch 3 Or (at p 2) non-strategy!
- Land and Environment Court Act 1979 (NSW) s. 20(3)
- Farrel v. Dayban Pty Ltd (unreported, 7 June 1989); following Peek v. NSW Egg Corporation (1986) 6 N.S.W.L.R. 1. Contrast Sydney City Council v. Lewy (1986) 58 L.G.R.A. 221
- Justice Cripps, “Administration of Social Justice in Public Interest Litigation”, Speech to the International Conference on Environmental Law, Sydney, 16 June 1989
- Causes 14 and 15
- Clause 16
- Clause 25
- Environmental Planning and Assessment Act 1979 (NSW) s. 123; Sydney City Council v. Building Owners' and Managers’ Association of Australia Ltd (1985) 55 L.G.R.A. 444
- Heritage Act 1977 (NSW) s. 153; National Parks and Wildlife Act 1974 (NSW) s. 176A; Wilderness Act 1987 (NSW) s. 27
- Section 57, which has never been used
- Swaigen and Bunt, supra n. 28 at 16
- Olds, et al, supra n. 41 at 17, 25. For a discussion of the ‘civilisation’ of organised crime in response to public concern, and the latent problems therein, see Freiberg, supra n. 35
- Clause 13
- 108th Annual Report, H.M.S.O. 1971 pp 11–14
- Thompson, A.R., Environmental Regulation in Canada: An Assessment of the Regulatory Process (1981) pp 42–43
- McCaffrey, S.C. and Lutz, R.E., eds, Environmental Pollution and Individual Rights: An Interantional Symposium (1978) p xxiii
- Gunningham, N., Pollution, Social Interest and the Law (1974) Ch 7
- Planning Our Environment, a bi-monthly newsletter from Pam Allan, Shadow Minister for the Environment and Tony Doyle, Shadow Minister for Planning, No. 2, December 1989
- [1972] A.C. 153. Contrast the Industrial Chemicals (Notification and Assessment) Act 1990 (Cth) S. 109; Hazardous Waste (Regulation of Exports and Imports) Act 1990 (Cth) s. 59
- I should like to thank Mr Matthew Baird, tipstaff to Justice Paul Stein of the Land and Environment Court, for his research assistance.
Current Issues in Criminal Justice
Volume 2, 1990 - Issue 1