MONOGRAPH 40 volume 1

93 Research monograph 40 2. Findings Considering specifically a Tier 2 pollute waters offence (and its equivalent under previous legislation), the maximum penalty under the repealed CW Act for a corporate offender was $40,000 and $20,000 per day for a continuing offence, but this increased over time to $1 million and $120,000 per day under the current version of the POEO Act . Thus, the set penalty amount increased by 25 times, and the daily penalty amount increased by six times during the course of the 15-year study period. 535 Confusion around “pollute waters” and “cause waters to be polluted” offences Section 120 of the first version of the POEO Act appears to have generated some degree of confusion. This was because the POEO Act which operated between 1 July 1999 and 30 June 2002 — and applied to offences committed during that timeframe — specified not one but three different “types” of pollute waters offences. For example, quoting the version of the Act valid at 30 June 2002: 120 Prohibition of pollution of waters (1) Prohibition on polluting — a person must not pollute any waters. (2) Prohibition on causing pollution —a person must not cause any waters to be polluted. (3) Prohibition on permitting pollution — a person must not permit any waters to be polluted. (4) Offence — a person who contravenes this section is guilty of an offence. 536 535 Across the same period, inflation increased by a total amount of 45% (or an average inflation rate of 2.5% over the 15-year period from 1991 to 2006). (Reserve Bank of Australia, Inflation Calculator (2015) at www.rba.gov.au/calculator/annualDecimal. html, accessed 16 May 2017; and, RateInflation (2015) at www.rateinflation.com/inflation-rate/australia-historical-inflation- rate, accessed 16 May 2017. Considering only inflationary increases, the 2006 equivalent of a $40,000 fine in 1990 would be approximately $174,000 (not $1 million) and the 2006 equivalent of a daily fine of $20,000 fine in 1991 would be approximately $29,000 (not $120,000). Expressed another way, retrospectively, the 1991 equivalent of a $1 million fine would have been around $690,000 (not $40,000); and, the 1990 equivalent of the 2006 daily rate of $120,000 per day would have been in the vicinity of $83,000 (not $20,000). 536 POEO Act , Ch 5, Pt 5.3, s 120 (historical version for 14 December – 30 June 2002) a t www.legislation.nsw.gov.au/#/view/ act/1997/156/historical2001-12-14/chap5/part5.3/sec120, accessed 16 May 2017. Act Section Offence Maximum penalty (Fine) Penalty date range Corporations Current POEO Act 120(1) Pollute waters $1,000,000 + $120,000 per day 01/05/2006–present Previous (all repealed) POEO Act 120(1) Pollute waters $250,000 + $120,000 per day 01/07/2002–30/04/2006 POEO Act 120(1) Pollute any waters $250,000 + $120,000 per day 01/07/1999–30/06/2002 POEO Act 120(2) Cause any waters to be polluted $250,000 + $120,000 per day 01/07/1999–30/06/2002 POEO Act 120(3) Permit any waters to be polluted $250,000 + $120,000 per day 01/07/1999–30/06/2002 CW Act 16(1) Pollute any waters $125,000 + $60,000 per day 01/01/1991–30/06/1999 16(1) Pollute any waters $40,000 + $20,000 per day 15/01/1988–31/12/1990 Individuals Current POEO Act 120(1) Pollute waters $250,000 + $60,000 per day 01/05/2006–present Previous (all repealed) POEO Act 120(1) Pollute waters $120,000 + $60,000 per day 01/07/2002–30/04/2006 POEO Act 120(1) Pollute any waters $120,000 + $60,000 per day 01/07/1999–30/06/2002 POEO Act 120(2) Cause any waters to be polluted $120,000 + $60,000 per day 01/07/1999–30/06/2002 POEO Act 120(3) Permit any waters to be polluted $120,000 + $60,000 per day 01/07/1999–30/06/2002 CW Act 16(1) Pollute any waters $60,000 + $30,000 per day 01/01/1991–30/06/1999 16(1) Pollute any waters $20,000 + $10,000 per day 15/01/1988–31/12/1990 Table 12: NSW pollute waters legislation: present and past statutory offences and associated maximum penalties — Tier 2 offences