- 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
- Soil Conservation Service of New South Wales, Land Degradation Survey, NSW 1987–88 (1989)
- Benson, J.S., “The Effect of 200 Years of European Settlement on the Vegetation of New South Wales, Australia: An Overview.” Paper presented at the XIVth International Botanical Congress, West Berlin, July 1987
- Cranston, R., Law, Government and Public Policy (1987) pp 149–152; Colebatch, H.K., “Regulation and Paradigms of Organisation: Six Theses” in Tomasic, R. and Lucas, R., Power Regulation and Resistance (1986) p 19
- Cranston, R., “Regulation and Deregulation: General Issues” in Tomasic, R., Business Regulation in Australia (1984) pp 23–27
- Vogel, D., National Styles of Regulation: Environmental Policy in Great Britain and the United States (1986) p 196; Hawkins, K., Environment and Enforcement (1984) p 3
- Kagan, R.A., “On Regulatory Inspectorates and Police” in Hawkins, K and Thomas, J.M., Enforcing Regulation (1984) f.n. 5
- See the Environmental Offences and Penalties Act 1989 (NSW)
- A detailed discussion of the ideology of private property is beyond the scope of the present paper. See McAuslan, J.P.W.B.M., The Ideologies of Planning Law (1980) pp 24; Bradsen, J.R., Soil Conservation Legislation in Australia (1988) pp 5–9, 12–17. On the changing concept of property, see Macpherson, C.B., Property: Mainstream and Critical Positions (1978) pp 1–13
- See the example in Baumol, W.J. and Oates, W.E., Economics, Environmental Policy and the Quality of Life (1979) p 114
- The literature here is immense. For an introductory analysis, see Baumol and Oates, ibid.; Seneca, J.L. and Taussig, M.K., Environmental Economics, (3rd ed. 1984); Stiglitz, J.E., Economics of the Public Sector (2nd ed. 1988); Burrows, P., “Government Intervention” in Richardson, G., Ogus, A. and Burrows, P., Policing Pollution: A Study of Regulation and Enforcement (1982); Kneese, A.V., Economics and the Environment (1977)
- Boer, B., “Social Ecology and Environmental Law” (1984) 1 EPLJ 233; Tribe, L.H., “Ways Not To Think About Plastic Trees: New Foundations for Environmental Law” (1974) 83 Yale Law Journal 1315
- OECD, Economic and Ecological Interdependence (1982) pp 34–42
- See especially Kent v. Johnson (1973) 21 FLR 177
- The following points are made by Krutilla, J.V., “Conservation Reconsidered” [1967] American Economic Review 777. See also Krutilla, J.V. and Fisher, A.C., The Economics of Natural Environments (1975)
- id. p 11 et seq.
- As are whales, for example
- Part IV, Division 2, discussed below
- Hawkins, op. cit. supra n. 6 pp 3–7, and see below
- Soil Conservation Act 1938
- Irrigation and Water (Amendment) Act 1946, s. 2(1)(q). The licensing body was originally the Forestry Commission
- Forestry, Soil Conservation and Other Acts (Amendment) Act 1972, s. 6(h)
- Local Government Act 1919, s. 309
- Local Government Act 1919 Pt. XIIA, inserted in 1945
- Farrier, D., Environmental Law Handbook (1988) pp 205–207
- ibid, and Baulkham Hills S.C. v. O'Donnell (1987) 62 LGRA 7
- Lang, A.G., Crown Land In New South Wales (1973) pp 138–140. On South Australia, see McPhail, I.R., and Dendy, T., “Biological Conservation in South Australia” (1989) 2(2) Australian Biologist 18
- Re Ross (1913) 23 LCC 52
- See Western Lands Commission, Policy on Clearing in the Murray Geological Basin in the Western Division p 3
- For a general survey, see Thackway, R. and Stevenson, P., Nature Conservation Outside Reserves, ANPWS Report Series No. 11 (1989)
- The literature is extensive: Fowler, R.J., “Vegetation Clearance Controls in South Australia—A Change of Course” (1986) 3 EPLJ 48; Chatterton, B. and Chatterton, L., “Conserving Native Vegetation on Private Farms in South Australia” (1986) 14(4) Habitat 9; Dendy, T. and Harris, C., “South Australian Heritage Agreements: A Progress Report” Heritage Australia, Autumn 1988 p 45; McPhail, I.R., and Dendy, T., “Biological Conservation in South Australia” (1989) 2(2) Australian Biologist 18; Native Vegetation Authority, Native Vegetation Management in South Australia
- Soil Conservation Act 1939 ss. 12a (repealed in 1984) and 13
- Fowler, op. cit. supra n. 32 at 49
- Chatterton and Chatterton, op. cit. supra n. 32
- South Australian Heritage Act 1978 Part IIIA
- Section 16a(1)(c)(i)
- Section 16b(3)
- Haywood v. Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
- Section 16b(1)(a)
- McPhail and Dendy, op. cit. supra n. 30 at 22
- Fowler, op. cit. supra n. 32 at 49
- Planning Act 1982 ss. 46, 47. See Fowler, id.
- McPhail and Dendy, op. cit, supra n. 32 at 23; Fowler, ibid.
- Dorrestijn v. SA Planning Commission (1984) 59 ALJR 104: Fowler, ibid.
- McPhail and Dendy, op. cit. supra n. 32 at 23; Fowler, ibid.
- Section 27(2)
- Section 27(1)
- Section 28(1)
- 12th May 1983: s. 27(6)(a)
- Sections 26(1) and 27(6)
- Section 26(6)(d)
- Section 28(2) In other words, the landholder is expected to donate 12.5 per cent of his holding for the purposes of vegetation conservation.
- Annual Report of the Native Vegetation Authority for 1987–88, Appendix 2
- McPhail and Dendy, op. cit. supra n. 32 at 24
- op. cit supra n. 54 at 11
- id. Table 3
- Native Vegetation Management Fact Sheets 1 and 2/1987
- op. cit. supra n. 54 at 11
- Section 28(4)
- After amendments to the Act made by the Wildlife and Countryside (Amendment) Act 1985, the notification comes into force immediately but the landholder must be invited to submit comments/objections and the Council has nine months in all, from the date of notification, to decide whether or not to confirm it: ss. 28(2), 28(4A)
- Section 28(5)-(8))
- Under s. 16(1) of the National Parks and Access to the Countryside Act 1949 or, more usually, under s. 15(1) of the Countryside Act 1968
- Section 29(1)-(2). The Council believes that all SSSIs serve a national function and its policy is to seek an order whenever this is the only means of protecting an area. But in 1984/85 the Minister refused an order in three cases: Nature Conservancy Council, 11th Report at 15-16. Three orders were made in 1986/87: 13th Report at 15–16
- Section 30
- Section 29(3)-(7). During this further cooling-off period the landholder commits an offence punishable with a fine of up to 1,000 pounds if specified operations are carried out, unless they are emergency operations (s. 29(8)-(9)). Upon conviction, the court can also order remedial measures to be carried out (s. 31)
- Operation and Effectiveness of Part II of the Wildlife and Countryside Act, 1981, The Government's Reply to the First Report from the Environment Committee, Session 1984–85, Cmnd. 9522, para 2. 3
- The enforced waiting period under s. 28 was not part of the original Bill and the amendment was attacked by farmers' organisations as constituting an abandonment of the voluntary approach: Lowe, P. et al, Countryside Conflicts (1986) p 145
- Friends of the Earth, Sites of Special Scientific Interest: 1984 (July 1984) p 17
- National Parks and Access to the Countryside Act 1949 s. 23
- On the process of renotification, see Adams, W.M., Nature's Place (1986) pp 112–126
- Nature Conservancy Council, 11th Report, 1 April 1984–31 March 1985 p 12. See also Friends of the Earth, Sites of Special Scientific Interest: 1984 (July 1984). More recently, as the notification and renotification programme nears completion, incidents of damaging agricultural activity seem to be diminishing to some extent only to be replaced by other kinds of damage—for example, the activities of public bodies: Nature Conservancy Council, 13th Report p 12.
- Department of Environment Circular 4/83. See Adams, op. cit. supra n. 71 pp 142–154; Council for the Protection of Rural England, The Price of Conservation? (October 1982) and The Wildlife and Countryside Act Revisited (October 1984) pp 3–5
- Nature Conservancy Council, 13th Report p 12
- Adams, op. cit. supra n. 71 pp 148–153; Lowe, op. cit. supra n. 68 pp 158–162; Friends of the Earth, op. cit. supra n. 69 pp 13–17
- Nature Conservancy Council, op. cit. supra n. 74 p 12
- id. 8
- The Report by consultants Lawrence Gould is discussed in Friends of the Earth, Towards the Demise of Part II of the 1981 Wildlife and Countryside Act (June 1986)
- 9th Report p 4
- op. cit. supra n. 67 at para 3.22
- op. cit. supra n. 72 p 13
- op. cit. supra n. 74 p 13. The practical difficulties are discussed by Friends of the Earth, op. cit. supra n. 69 p 17
- Countryside Act 1968 s. 15(4); National Parks and Access to the Countryside Act 1949 s. 16(4)
- Sections 21C, 21D
- Section 21B
- There are a number of exceptions: s. 21C
- Soil Conservation (Further Amendment) Act 1986
- Section 20(1A), inserted in 1978, and later amended by the Soil Conservation (Amendment) Act 1985 Schedule 3(3)(a)
- Interviews with the Executive Officer of the Catchment Areas Protection Board: 27 August 1989 and 6 October 1989
- Report of the Catchment Areas Protection Board for the period 1 January 1980 to 30 June 1984
- Section 111. Where an activity is likely to significantly affect the environment, the Board must require the landholder to submit an environmental impact statement: s. 112. See generally Farrier, op. cit. supra n. 26, chapter 14
- Parramatta Sports Club Ltd v. Hale (1982) 47 LGRA 319
- Standard Conditions for Authorities Issued in Respect of Trees on Protected Land Adjacent to Rivers and Lakes
- Section 21B(6)
- A public consultation process is currently being carried out in a third area where there are problems of dryland salinity
- supra n. 89
- Section 18DB(1)-(3)
- Western Lands Regulations c1.50C
- Section 49(1)(a)
- Section 18D(9)
- Farrier, op. cit. supra n. 26 p 221
- Western Lands Commission Newsletter No. 5, October 1986
- ibid.
- Western Lands Commission, Policy on Clearing in the Murray Geological Basin in the Western Division, 4 May 1989
- Local environmental plans also frequently provide for the making of tree preservation orders: Farrier, op. cit. supra n. 26 pp 207–208
- Section 70(1)(c)
- Sections 106-109
- The existing use provisions do not allow any increase in the area of land used “from the area actually physically and lawfully used”, or any “intensification” of the use (ss. 107(2)(b), (b1) and 109(2)(b),(c), except within the narrow limits set out in Part VI of the Environmental Planning and Assessment Regulation 1980 if consent is obtained.
- See also SEPP 26: Littoral Rainforests
- Environmental Planning and Assessment Act 1979 ss. 77(3)(d) and 98
- Section 90(1)(b)
- Section 4(1)
- Section 90(1)(m1)
- Section 90(1)(d): Bauer Holdings Pty Ltd v. Sydney CC (1981) 48 LGRA 356
- The vast majority have had nothing to do with agricultural land clearing proposals but involve such things as canal estates, drainage for agricultural purposes and roads.
- Sections 122, 125, 126
- Compare the provision in Soil Conservation Act s. 21 CA and Western Lands Act s. 47, discussed above, which allow remedial notices to be issued without having to obtain a prior court order.
- Section 127(7). In theory a criminal conviction could be secured first and then proceedings taken under s. 123, but this would be highly unlikely in practice.
- Section 126(3)
- It may also not be physically practical in some environments.
- Hawkins, op. cit. supra n. 6 p 204, 207
- In spite of all this, prosecution for breach of SEPP 14 has been considered on two occasions both involving large scale clearing for agricultural purposes. In one case, where the prosecution was brought by the Department, the summons was held over on condition that the vegetation was allowed to regenerate. In the other, a prosecution by a council went ahead even though the aim was clearly remedial rather than punitive, but the land was sold so that no order under s. 126(3) could be made. There is an argument that an order could have been made against the new owners if proceedings had been brought under s. 123, rather than prosecution. But the Land and Environment Court has a broad discretion: Warringah SC v. Sedevcic (1987) 63 LGRA 361. It is clear that the Department and councils have not yet realised the potential of s. 123.
- Section 127(1), (3), (6)
- Sections 24-34
- Sections 35A-55
- Section 4(1). See, generally, Farrier, op. cit. supra n. 26 pp 87–89; 174–176
- Section 57
- Section 157
- Sections 160-162
- Section 153
- Sections 91A, 91B
- Section 91B(3)
- Section 91G
- Section 91D
- Section 69C
- Section 69E
- Section 69C(2),(3)
- Once, however, an agreement has been concluded, it must be taken into consideration by the consent authority when deciding whether or not to give consent under this legislation: s. 90(1)(a1)
- As well, to some extent, against public authority developers: s. 69I
- Section 69G: damages, as opposed to an injunction, can only be obtained where the breach stems from “an intentional or reckless act or omission”
- Hawkins, op. cit. supra n. 6 p 23; Richardson et al, op. cit. supra n. 11 chapters 3 and 4
- Richardson, et al, op. cit. supra n. 11 pp 194–195 found that the pollution control agencies which they studied applied a principle of uniformity when it came to setting formal conditions, but that little emphasis was placed on this when it came to enforcement
- Reiss, A.J. Jr., “Selecting Strategies of Social Control Over Organizational Life” in Hawkins, K. and Thomas, J.M., Enforcing Regulation (1984) pp 23–24
- Hawkins, op. cit. supra n. 6
- Richardson, et al, op. cit. supra n. 11
- id. 127 et seq.
- Hawkins, op. cit. supra n. 6 p 103. See pp 122 et seq.
- id. 133
- Grabosky, P. and Braithwaite, J., Of Manners Gentie: Enforcement Strategies of Australian Business Regulation Agencies (1986) pp 190–191
- op. cit. supra n. 90 pp 15, 20
- Western Lands Commission Newsletter No. 8, August 1989 pp 2–3
- Western Lands (Amendment) Act 1989 Schedule 5(4), inserting s. 52(4)
- Cummins, E.J., “Fifty Years of Service to the Farmers- Rural Soil Conservation 1938–1988” (1988) 44(1) Journal of Soil Conservation NSW 14; Soil Conservation Service of NSW, Corporate Plan (June 1989) p 4; Cunningham, G.M., “Total Catchment Management (TCM)” (1988) 44(1) Journal of Soil Conservation NSW 42
- See Farrier, op. cit. supra n. 26 pp 218–219
- Hawkins, op. cit. supra n. 6 pp 204–207
- See also s. 46
- Western Lands (Amendment) Act 1989 Schedule 5(3)(b), inserting s. 49(1)(a1)
- Hawkins, op. cit. supra n. 6 p 130
- But see the Second Report of the Joint Select Committee of the Legislative Council and Legislative Assembly to Enquire into the Western Division of New South Wales, Session 1983–84, P.P. 163, especially at pp 36–37; 46–47
- Adams, op. cit. supra n. 71 pp 126–129
Current Issues in Criminal Justice
Volume 2, 1990 - Issue 1