MONOGRAPH 40 volume 1

67 Research monograph 40 2. Findings 2.2.7 Additional Orders The LEC has sentencing powers beyond those of the Local Court. One major difference is the Additional Orders it may impose under Pt 8.3 of the POEO Act . 396 Where the LEC finds an offence against the Act or regulations proved, it may make orders “in addition to any penalty that may be imposed” 397 or “regardless of whether any penalty is imposed, or other action taken, in relation to the offence”. 398 Notwithstanding the increase in the monetary penalties it can impose, 399 the Local Court is constrained in the “Additional Orders” it can make under s 250 of the POEO Act . 400 The LEC is not subject to such restrictions, and under s 250(1) is permitted to make a range of orders, including orders that the offender: (a)  take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person (b)  take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its environmental and other consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct) (c)  carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit (d) carry out a specified environmental audit of activities carried on by the offender (e) pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes (f)  attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court (g) establish, for employees or contractors of the offender, a training course of a kind specified by the court (h) if the EPA is a party to the proceedings, provide a financial assurance, of a form and amount specified by the court, to the EPA, if the court orders the offender to carry out a specified work or program for the restoration or enhancement of the environment. Notably, the Local Court is not authorised to make an order referred to in s 250(1)(c), (d), (e) or (h) above. Furthermore, s 169(1A) states that (without limiting orders made under paragraph (c) above) the LEC may order the offender to carry out any social or community activity for the benefit of the community or persons that are adversely affected by the offence (a “restorative justice activity”) that the offender has agreed to carry out. Again, the Local Court is not authorised to make such an order. Talbot J in EPA v Byron Shire Council , 401 noted that the Attorney General explained the purpose behind s 250 of the POEO Act in his second reading speech to the Legislative Council on 5 December 1997: Court proceedings and sentencing: In addition to doubling the penalty regime for application by the courts, the Bill clarifies who can initiate court proceedings and also gives the courts a wider range of sentencing options. We are working to broaden the options available to the courts. We want changed behaviour and improved environmental performance and are giving the courts an opportunity to teach a salutary lesson to those who have been found guilty. For example, the court can require a guilty party to publicise the facts of their offence in the media or require them to perform an environmental service such as restoring a public place. 396 Also under s 126(3) of the EPA Act . 397 POEO Act , s 244(2). 398 POEO Act, s 244(3). For this reason, “Additional Order(s)” is used as a proper noun (and capitalised) to distinguish these orders from other orders available to the court; and as a specific type of order that is not just an adjunct to a penalty. 399 Donnelly et al, above n 303, at p 12 reported that “in February 2012, the maximum monetary penalty that the Local Court can impose for an offence under the POEO Act increased from $22,000 to $110,000”. 400 POEO Act , s 250(1). It may also make, with limited exceptions, other orders under Pt 8.3 (for example, orders for restoration and prevention under s 245). Additional Orders can also be imposed by the Local Court, with similar restrictions, under the following Acts: NPW Act , Pt 15, Div 3; Threatened Species Conservation Act 1995, Pt 9B, Div 3; Mining Act 1992, Pt 17A, Div 4; Water Management Act 2000, Ch 7, Pt 3A; Pesticides Act 1999, Pt 10, Div 4. 401 [2002] NSWLEC 128 at [17].