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These Fact Sheets are a guide only and are no substitute for legal advice relating to your particular issue. If you need legal advice about your particular issue, please call our FREE Environmental Law Advice Line
1.4 How are environmental laws enforced?Environmental laws can be enforced through:
Civil proceedings Most environmental laws in NSW can be enforced through civil proceedings and these are usually taken in the Land and Environment Court. One advantage of civil proceedings is that they are often faster and less complex than criminal proceedings. Also, civil action can be used to obtain court orders to prevent environmental damage from occurring whereas criminal proceedings are often only taken after the damage has been done. Examples of the types of orders that the Land and Environment Court can make in civil proceedings include:
Who can bring civil proceedings? In NSW, it is not just government authorities who can bring civil proceedings. Individuals, trade competitors, and local councils are also entitled to bring proceedings, although there may be some limitations. For more information about who can bring civil proceedings in the Land and Environment Court, see Fact Sheet 2.4, and for the Federal Court, see EPBC Act, Fact Sheet 3.1 section 7.1 which deals with standing in the Federal Court for EPBC Act matters. Penalty notices Minor breaches of environmental laws can often be enforced through penalty notices or environment protection notices (eg on-the-spot fines, clean-up notices). These are usually issued by local councils or the relevant government regulatory authority such as the Department of Environment, Climate Change and Water. Environment protection notices can also be used to prevent anticipated breaches (eg prevention notices). If the recipient complies with the notice within the specified time then they can usually avoid more serious criminal proceedings being brought against them. For more information on penalty and environment protection notices under pollution laws, see Fact Sheet 4.1 on pollution law. Criminal prosecutions More serious breaches of environmental laws can be enforced through criminal prosecutions. Most criminal cases are heard in the Land and Environment Court, although some lesser offences are heard in local courts. In criminal matters, the courts have the power to impose a fine, and in very serious cases, to imprison the offender. Courts also have the power to:
For more information on criminal proceedings in the Land and Environment Court, see Fact Sheet 4.1 on pollution law. Who can bring a criminal prosecution? Criminal prosecutions are brought by the government department or local authority which is responsible for the particular law which has been breached. For example, the Department of Environment, Climate Change and Water (DECCW) usually prosecutes breaches of the pollution laws (see Fact Sheet 4.1), and local councils prosecute breaches of planning laws (EPA Act). Individuals are only entitled to institute criminal proceedings in very limited circumstances (eg where DECCW has failed to prosecute and the court agrees to the action: see Fact Sheet 4.1 on Pollution law). WHICH COURTS HEAR ENVIRONMENTAL CASES? Land and Environment Court of NSW If the case involves NSW laws, the matter will probably be heard before the Land and Environment Court. This is a specialist court designed to deal with a wide range of environmental and planning matters including both civil and criminal matters. For further information about the Land and Environment Court see Fact Sheet 2.4 – Legal Proceedings in the Land and Environment Court, or go to the Land and Environment Court's website. Prosecutions of minor breaches of environmental laws can also be heard by local courts. Federal Court of Australia and Federal Magistrates Court The Federal Court of Australia hears civil and criminal cases relating to breaches and enforcement of Federal environmental laws, such as proceedings arising under the main Commonwealth law, the Environment Protection and Biodiversity Conservation Act 1999. The Federal Magistrates Court also hears some appeals under Federal environmental laws. The Federal Minister for the Environment (through the Department for Environment, Water, Heritage and the Arts) is responsible for bringing criminal enforcement proceedings in the Federal Court for breaches of the Environment Protection and Biodiversity Conservation Act 1999. In some cases, it is possible for individuals to bring civil enforcement action in the Federal Court. For more information on Federal environment laws, see Fact Sheet 3.1 on Commonwealth Environmental Law).
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