Environmental considerations form the parameters of almost all commercial conduct. Those parameters are set by numerous laws, which have been implemented at state, territory, and federal levels. In a commercial sense, environmental protection laws are quite well known. Australia is renowned for maintaining a high standard of environmental management, and such management contributes to the manner in which businesses are operated nationwide. However, the liability attracted by contraventions of environmental law is widely considered to be civil in nature. In reality, though, environmental laws at both state and federal levels impose criminal liability on companies and individuals who fail to comply with their legal obligations.
At a Commonwealth level, environmental crimes are governed by the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
In terms of environmental protection at a federal level, the most relevant statute is the Environment Protection and Biodiversity Conservation Act 1999. This act imposes several obligations upon businesses to discharge their functions in an environmentally considerate way. Any failure to do so attracts either, or in some cases both, civil and criminal liability. Within the act, there are many provisions that make an offence of non-compliant conduct. Those provisions, as a result, are the ones that carry criminal penalties. Criminal liability in the Act is brought into force by chapter 2 of the Criminal Code (Cth). According to section 7 of the Environment Protection and Biodiversity Conservation Act, that chapter of the Code applies to all offences against the Act, and underscores the seriousness of environmental crimes.
At a state level, environmental crimes are governed by the Environmental Protection Act 1994 (Qld)
Governing environmental crimes involves a complex intermingling of jurisdictions. That is why each state and territory offers its own legislative frameworks of environmental management, complete with offences for non-compliance. In Queensland, the relevant legislation is the Environmental Protection Act 1994. This Act, with much the same effect as its federal counterpart, governs commercial conduct and its environmental effects. Offences are created by various provisions throughout the Act. However, Chapter 8 is the most notable in that regard. Chapter 8 of the Act sets out general environmental offences, and in doing so, establishes the terms of criminal liability relative to environmental crimes.
In most cases, environmental crimes are offences of strict liability. Here’s what that means
The legislation governing environmental conduct is largely concerned with effects. As a result, most provisions in environmental legislation do not demand any degree of intention. That is to say, it is not important whether a company intended to cause environmental damage; any environmental damage is an offence regardless of intention. Such provisions have the effect of creating strict liability for environmental crimes. The purpose of doing so is to create a higher standard of environmental care in Australia. Environmental regulators therefore have it within their power to prosecute companies who fail to comply with their environmental obligations, whether intentionally, or otherwise.
Non-compliance: the obligation to comply with the act is a positive one
A common theme among offences rendered by environmental statutes is the term ‘non-compliance.’ That term is connected to the notion of positive obligation. To give effect to their collective purpose of environmental protection, the relevant acts impose upon companies various obligations to act in an environmentally conscious manner. Specifically, companies must not only refrain from certain conduct, but also actively engage in other conduct pursuant to the relevant legislation. Doing what is prohibited, or failing to do what is required, therefore attracts civil or criminal liability under the relevel legislation.
Not all environmental transgressions amount to crimes, but knowing which do is challenging
The complexity surrounding liability under environmental law often leaves companies uncertain of the correct actions to take. Given the combination of both positive obligations and restrictions under the law, establishing the correct procedures can be challenging. To ensure compliance with environmental laws at state and federal levels, it is always important to seek proactive legal advice.
By Finian McGrath
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