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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Environmental Offences (WA)


Environmental offences under Western Australian law encompass a wide range of activities that harm the environment. The main piece of legislation that governs environmental offences in the state is the Environment Protection Act 1986.

Department of Environmental Regulation

The authority is the state’s environmental regulator, responsible for compliance, investigation and enforcement of environmental laws. It administers the Act as well as the Contaminated Sites Act 2003 and the Waste Avoidance and Resource Recovery Act 2007.

What are environmental offences?

Under the Act, environmental offences cause harm to the environment.

“Environmental harm” means direct or indirect:

  • harm to the environment involving removal or destruction of, or damage to native vegetation;
  • the habitat of native vegetation or indigenous aquatic or terrestrial animals;
  • alteration of the environment:
    • to its detriment or degradation or potential detriment or degradation;
    • to the detriment of potential detriment of an environmental value;
    • of a prescribed kind.

“Material environmental harm” is harm that:

  • is neither trivial or negligible; or
  • results in actual or potential loss, property damage or damage costs of an amount, or amounts in aggregate, exceeding $100,000.

“Serious environmental harm” is harm that:

  • is irreversible, of a high impact or on a wide scale; or
  • is significant or in an area of high conservation value or special significance; or
  • results in actual or potential loss, property damage or damage costs of an amount, or amounts in aggregate, exceeding $500,000.

A person who unlawfully causes material harm to the environment, or allows it to be caused, faces a maximum penalty of a fine of $125,000. If a person does this intentionally or negligently, the maximum penalty is $250,000 or 3 years imprisonment or both.

A person who unlawfully causes serious harm to the environment, or allows it to be caused, faces a maximum penalty of a fine of $250,000 or 3 years imprisonment or both. If a person does this intentionally or negligently, the maximum penalty is a fine of $500,000 or 5 years imprisonment, or both.

If a court is not satisfied a person is guilty of serious environmental harm, it can find the person guilty of material environmental harm.

The Act contains a range of other environmental offences. Examples are causing pollution and dumping waste.

Pollution

Pollution is defined as the direct or indirect alteration of the environment to its detriment or degradation, which involves an emission.

A person who causes pollution, or allows pollution to be caused, faces a maximum penalty of a fine of $250,000 or 3 years imprisonment or both. A person who does this intentionally or negligently, faces a maximum penalty of a fine of $500,000 of 5 years imprisonment or both.

A person who emits an unreasonable emission (of noise, odour or radiation) from any premises, or who causes this to happen, faces a maximum penalty of a fine of $62,500. A person who does this intentionally or negligently, faces a maximum penalty of a fine of $125,000.

Dumping waste

A person who dumps solid or liquid waste, or allows it to be dumped, in water to which the public has access faces a maximum penalty of a fine of $62,500. The same maximum penalty applies if the waste is dumped in or on any place, other than water to which the public has access.

If a person causes or allows waste to be placed where it could reasonably be expected to escape into the environment and pollute it, the maximum penalty is $250,000. If a person does this intentionally or negligently, the fine doubles.

Enforcement

The Act provides for a range of enforcement options for authorities. It allows several types of notices to be issued where a person or company is not complying with legislation, including an environmental protection notice, stop order and vegetation conservation notice.

If the department reasonably suspects there is, or is likely to be, an emission from a premises that has caused or is likely to cause pollution, it can issue an environmental protection notice to the owner or occupier, or both, of the premises. The notice can require the person to:

  • investigate the extent and nature of the emission, pollution and environmental harm;
  • prepare and implement a plan to prevent, control or stop the emission, pollution and environmental harm;
  • take measures the department considers necessary to prevent, control or stop the emission, pollution and environmental harm;
  • monitor and report on the effectiveness of any these actions.

A person who does not comply with an order faces a maximum penalty of a fine of $62,500. If a person does this intentionally or negligently, the maximum penalty is $250,000.

If the non-compliance is causing or is about to cause conditions seriously detrimental to the environment or dangerous to human life or health, the department can issue a stop order that the person stop carrying on the whole or any part of the trade, process of activity to which the environmental protection order relates. Non-compliance with a stop order incurs a maximum fine of $162,500.

The department can issue a vegetation conservation notice to the owner or occupier of land when it reasonably suspects unlawful clearing is taking place, has taken place, or is likely to take place. It can require the person to:

  • repair any damage caused by the clearing;
  • re-establish and maintain vegetation on any area affected to a condition as close as to the condition before clearing occurred;
  • prevent the erosion, drift or movement of sand, soil, dust or water;
  • ensure that specified land, or a specified watercourse or wetland, will not be damaged or detrimentally affected, or further damaged or detrimentally affected by the clearing.

Court orders

The court can make a range of orders in addition to or instead of any other penalty it may impose for an environmental offence.

  • A monetary benefit order requires a person to pay an amount they accrued as a result of the offence;
  • An adverse publicity order requires a person to publicise their offending or any impacts of it on human health and the environment, and any penalties or orders made;
  • A prevention order requires a person to prevent, minimise or remedy any harm caused, and eliminate the risk of further harm;
  • A restoration project order requires a person to carry out a project to restore or enhance the environment in a public place for the public benefit.

For advice or representation in any legal matter, please contact Armstrong Legal.

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