MONOGRAPH 40 volume 1

155 Research monograph 40 Appendices Appendix B Jurisdiction of the LEC — jurisdictional overlap with Supreme and Local Courts — Part 1: POEO Act and Part 2: EPA Act Supreme Court Land and Environment Court Local Court Various authorities Indictable matters Summary matters Summary matters Penalty notice Trial by judge (and jury, if required) ( Supreme Court Act 1970) Summary enforcement ( Land and Environment Court Act 1979, s 21, Class 5 matters) Summary enforcement ( Local Court Act 2007) By penalty notice Part 1: POEO Act Tier 1 offences Tier 1 and 2 offences Tier 2 offences Tier 3 offences (Tier 2 offences dealt with by PN) Maximum term of imprisonment Individual only: a 7 years (wilful); 4 years (negligent) Tier 1 offences, individual only: a 2 years (wilful); 2 years (negligent) N/A b N/A Maximum fine Tier 1 offences Corporation: $5 million (where the offence was committed wilfully); $2 million (committed negligently) Individual: $1 million (where the offence was committed wilfully); $500,000 (committed negligently) N/A N/A Tier 2 offences c Corporation: $1 million (plus $120,000 each day offence continues) Individual: $250,000 (plus $60,000 each day offence continues) $110,000 d As specified by the relevant regulation e Additional Orders Additional Orders under s 250(1)(a)–(h) made in addition to, or in lieu of, imposing a fine f Additional Orders, but not s 250(1) (c), (d), (e) and (h) g N/A a Under s 169A of the POEO Act , a company director (etc) found guilty of an “executive liability” offence is subject to the maximum penalty for the corporate offence (rather than the maximum penalty for the individual offence). This provision, therefore, precludes a penalty of imprisonment. Also relevant is s 169B concerning the liability of directors (etc) for offences by a corporation, where they are deemed to be an accessory to the commission of the offence(s). b A maximum penalty of 2 years’ imprisonment is available to the Local Court for certain offences under other Acts dealing with environmental offences. For example, s 118A of the National Parks and Wildlife Act 1974 carries a maximum penalty that can include 2 years’ imprisonment for the offence of harming or picking threatened species, endangered populations or endangered ecological communities. c The example given is for a s 120 pollute waters offence. Other Tier 2 offences carry the same or lower maximum monetary penalties. d The maximum monetary penalty that the Local Court may impose for a Tier 2 offence is $110,000: s 215(2) (that is 1,000 penalty units at $110 per unit). e Penalty notice amounts for the most serious offences under the POEO Act (including ss 91, 97, 120, 128, 142A, 143 (asbestos or hazardous waste, or any other waste exceeding prescribed volume or weight) and 144) were substantially increased under the Protection of the Environment Operations (General) Amendment (Fees and Penalty Notices) Regulation 2014 (Sch 1[14]). The penalty amount depends on who issues the penalty notice: when served by the officer of a local authority (that is, a local council), the penalty amount is $8,000 for corporations and $4,000 for individuals; when served by any other officer empowered to do so (eg an EPA officer), the penalty notice amount is $15,000 for corporations and $7,500 for individuals. For other POEO Act offences (ss 124, 125, 126, 143 (other waste), 152 and 167), when served by the officer of a local authority, the penalty amount is $4,000 for corporations and $2,000 for individuals; when served by any other officer empowered to do so (eg an EPA officer), the penalty notice amount for these offences is $8,000 for corporations and $4,000 for individuals. f Part 8.3 of the POEO Act empowers the LEC to make certain orders for restoration and prevention of environmental damage, recovery of clean-up and investigation costs of enforcement authorities, forfeiture of monetary benefits, publication of offences and funding of environmental projects. Under s 250(1A), the LEC also may order the offender to carry out a “restorative justice activity”, that is any social or community activity that would benefit persons or the community adversely affected by the offence. The offender must agree to carry out such activity. However, the Local Court is not authorised to make such an order. g Under s 250(1) of the POEO Act , the Local Court does not have the authority to make Additional Orders that involve: environmental restoration or enhancement projects — s (250(1)(c); environmental audits of activities — (s 250(1)(d); payments to the Environmental Trust — (s 250(1)(e); or, a financial assurance paid to the EPA for environmental purposes — (s 250(1)(h)). With regard to Additional Orders that it is authorised to make, the Local Court can order one or more Additional Orders instead of a fine, or impose a fine as well as one or more Additional Orders. The Local Court is not authorised to make an order to carry out any “restorative justice activity”: s 250(1A).