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What is environmental crime, and how much is happening in Australia? Dr Samantha Bricknell Following the Proceeds of Environmental Crime 22─23 February.

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Presentation on theme: "What is environmental crime, and how much is happening in Australia? Dr Samantha Bricknell Following the Proceeds of Environmental Crime 22─23 February."— Presentation transcript:

1 What is environmental crime, and how much is happening in Australia? Dr Samantha Bricknell Following the Proceeds of Environmental Crime 22─23 February 2010, University of Wollongong

2 Scoping study on environmental crime in Australia Literature review peer-reviewed papers and conference proceedings Commonwealth and state/territory annual, discussion and research reports special reports from NGOs and independent think tanks media releases

3 How to define environmental crime? Environmental crime, defined simply, is the perpetration of harm (intentional or otherwise) against ‘the environment’ that violates current law. There will always be sticking points e.g. ‘scientific’-whaling in the Southern Ocean non-sustainability versus illegality e.g. old growth logging in Tasmania (e.g. Green et al. 2007) ‘sudden’ criminalisation of once quite lawful practices e.g. native vegetation clearance; water

4 The ‘problem’ with environmental crime Traditionally, not viewed with the same moral repugnance as harms against person and property ‘Victimless’ / invisible: not always an immediate or obvious impact from harmful practice When is the environment the environment? BUT An increasing awareness and appreciation of the environment came a re-evaluation of what the environment can and cannot sustain Recognition that environmentally harmful practices need to be regulated and in some cases criminalised

5 What are environmental crimes? Pollution and other contamination of air, land and water Illegal discharge, transport or dumping of hazardous and other waste Illegal trade in prohibited and regulated substances Illegal trade in fauna and flora and harms to biodiversity Illegal, unregulated and unreported fishing Illegal logging (and timber trade) Illegal native vegetation clearance Illegal water usage (eg. ‘water theft’)

6 Australia’s environmental laws Rules pertaining to conservation and protection, environmental management and sustainable development Reflect international expectations (e.g. MEAs) and sovereign interests and standards Divided between the Commonwealth (incorporate commitment to international obligations) and state & territories (the bulk)

7 Environmental offences Broad spectrum of wrongdoing Essentially: producing the harm itself –gradations of harm (intensity, extent, target, actual or potential loss) a failure to comply with conditions attached to performing a regulated activity –licence or permit required, with strict provisions attached Vast range of offences – not always directly comparable across jurisdictions Even greater variability in the magnitude of penalties assigned to similar offences

8 Harm, take etc. threatened wildlife NSWHarming or picking threatened species, endangered populations or endangered ecological communities National Parks and Wildlife Act 1974 (NSW) (s118A) $220,000 and/or 2 years (Endangered sp.) VicHunting, taking or destroying threatened wildlife Wildlife Act 1975 (Vic) (s41) $27,221 and/or 2 years QldTaking protected animal and keeping or use of unlawfully taken protected animal Nature Conservation Act 1992 (Qld) (s88) $225,000 and/or 2 years (Class 1) SAProtection and taking of protected animals (s45) National Parks and Wildlife Act 1972 (SA) $100,000 and/or 2 years (Endangered or marine mammal) WATaking or possession of protected fauna Wildlife Conservation Act 1950 (WA) (s16–16A) $10,000 (Likely to become extinct or in need of special protection) TasUnauthorised take, keep, trade, process or disturb specimen of a listed taxon of...fauna (s51) Threatened Species Protection Act (Tas) $10,000 ACTKill, take, possess, sell or import/export native animal (ss44–48) Nature Conservation Act 1980 (ACT) $10,000 and/or 1 year (Special protection status) NTTake, interfere, possess or move in or out of state protected wildlife (s66) Territory Parks and Wildlife Conservation Act 2007 (NT) $110,000 and/or 10 years (Threatened species) CthKilling or injuring member of listed threatened species or ecological community (s196) or taking member of listed threatened species or ecological community (s196B) EPBC Act 1999 (Cth) $110,000 and/or 2 years imprisonment

9 Punishing offenders Profusion of lesser penalties: remedial measures, regulatory action and administrative sanctions Is this a reflection of mostly ‘minor’ offences being detected or the preferred, facilitative approach adopted by regulators? The effectiveness of criminal prosecution? Difficulties in mounting successful prosecutions Negligible penalties/inconsistent outcomes Irregular exposure/lack of training among the judiciary Matters heard at Magistrates Court level EXCEPT –New South Wales(NSW Land and Environment Court) –South Australia (Environment, Resources and Development Court)

10 Extent of environmental crime in Australia

11 Identifying the hot spots How do you measure where most of the harm is occurring? Number of incidents (fishing) Seriousness of harm (trade in threatened species; illegal water takes from the Murray Darling Basin) Escalation of behaviour (illegal dumping of waste) ‘Recalcitrance’ (illegal native veg clearance; water theft) Facilitation (illegal logging/timber trade)

12 Illegal logging and timber trade Tightly regulated (and lucrative) enterprise Native forests and plantations are Commonwealth, state or privately owned Spread of tenure arrangements and different forest holdings: legislation other than standard forestry laws may also apply Not ‘endemic’ – ‘no evidence of systematic illegal logging taking place within Australia’ (Schloenhardt 2008:79) Audit reports but data on compliance rates/sanctions not published However, should unsustainable forestry practices be excused just because they fit within a legalistic definition of lawful logging?...behaviour that is both deviant, in the sense that it is subject to, and significantly affected by, social processes of censure and sanction, and ‘criminal’ in the sense that it violates normative standards... (Green et al. 2007:1)

13 Unwitting beneficiaries Estimated nine percent of wood products imported into Australia of ‘dubious’ origin (JP Consulting 2004) Range from 1% paper/paperboard to 22% furniture Complicity established through: poor or non-existent import laws absence of systematic system of identifying ‘suspect’ timber uninformed consumer choice Exceptions do exist! RIS: Proposed new policy on illegally logged timber

14 IUU fishing: domestic Described as ‘small scale’ & ‘akin to low level non-compliance’ Fall into one of three offender groups: habitual or repeat offenders opportunists the ‘ignorant’ (the majority) Some recreational: exceed bag limits, take undersized fish Mostly by commercial fishers: one-fifth of Australian fishing operations actively engaging in illegal fishing 30–60 percent of catch is illegally taken (Palmer 2004) High-profit species: abalone, rock lobster, shark fin, sea horses (overseas market); reef fish, eel, squid etc. (domestic market) Cohabitation with other illegal activities? eg. drug trafficking, money laundering

15 IUU fishing: foreign fishers Northern waters of AFZ: Indonesian, Papuan fishers Shark fin, trepang and reef fin fisheries Illegal fishing boat apprehensions rose from 78 to 367 between 2000–06 Whole-of-government deterrence scheme → apprehensions dropped to 216 (2006–07), 156 (2007–08) & 27 (2008–09) Over 750 foreign fishers charged (under FMA 1991 (Cth); Torres Strait Islander Fisheries Act 1984 (Cth) or Criminal Code Act 1995 (Cth)) between 2006 –09 Southern waters Mackerel ice fisheries (Heard and McDonald Islands) Patagonian toothfish (CCAMLR) - nine arrests between 1997 and 2005. Estimated value of catch in excess of $1 million for most cases.

16 Pollution & illegal waste disposal First category of environmental harm to garner both public concern and regulatory attention Tight regulatory control (i.e. ‘command and control’) but also accused of lapsing into regulatory capture Introduce an environmental protection framework incorporating regulatory control, voluntarism and economic tools No formal analysis of extent

17 Woodward 2008 Environmental protection policy and economic tools adopted in NSW Risk based regulation and compliance Environmental audits Education campaigns Public reporting Remediation directions Voluntarism (environmental audits and remediation of sites) Risk based licensing schemes Polluter liability Pollution reduction programs Economic tools/market based instruments Tradeable emissions Waste levy Biocertification and biodiversity banking Environmental offsets

18 Considerable diversity in acts and culprits Illegal discharge or dumping of wastes (e.g. sewage and other wastewaters; petrol/oil; construction and demolition waste e-waste View from the regulators criminal behaviour mostly by the smaller operatives and ‘boundary riders’ (bigger players have a reputation to lose) likeliest setting for organised crime at risk of escalation (economic downturn)

19 Illegal trade in fauna and flora Size of trade described as ‘small’ (compared to overseas operations) – on the increase and now involving more serious operatives? U-shaped trend between 2002–03 and 2006–07 <1 percent (range: two to 28) described as ‘major’ breach (ie. formal investigation, prosecution) Six to 14 prosecutions per year Detected cases represent one percent or 99 percent of trade? Reptiles (snakes, lizards and turtles), birds (and their eggs), reptiles, insects and spiders – feature in bi-directional trade Totals $5 million (n.b: old estimate 1984–1992: Halstead 1992) Trade within Australia: ???? Birds and reptiles Exploitation of legislative ambiguities

20 Conservation harms Prosecuted offences against National Parks and Wildlife Act 1974 (NSW), 1 July 2003–30 June 2009 Harm protected fauna / animal in national park26 Use substance to harm protected fauna1 Possess protected fauna12 Sell protected fauna12 Import protected fauna3 Possess threatened species1 Approach marine mammal4 Damage known habitat of threatened species5 Pick plant that is part of threatened species10 Possess protected native plant1 Sell protected native plant1 Breach licence conditions19 Other1

21 Illegal native vegetation clearance Comparatively ‘new’ offence: First laws introduced in late 1980s (Vic & SA); Tasmania not until 2002 Considerable difficulty in generating widespread acceptance & compliance: new set of laws & less time for recognition Resource with no perceived ‘value’ (other than that generated by its removal) Long standing permissible practice used to ‘manage properties and expand businesses’ They were able to, why can’t I? Audits revealed unsustainable rates of clearance 40 percent of the 74,000 ha cleared in NSW in 2005 done without prior approval ‘Large’ number of cases in WA where pattern of clearance did not match specifications on permit application A bsence of past, reliable data on vegetation changes (legal or illegal) Current issues in monitoring – technology, resources but investment in satellite surveillance and aerial photography e.g. Qld, SA and NSW to improve detection Issuance of low fines An average of $37 a hectare (Bartel 2008) BUT recent cases have elicited substantial fines (upwards of $400,000)

22 Water theft Extensive regulatory framework with complex provisions Current predicament: generous distribution of water entitlements and allocations; entrenched drought Response is to tighten laws re: allocation, use and metering, restrict issuance of new licences and implement associated schemes such as water trading Significant increase in penalties for unlawful taking of water e.g. NSW and SA (but jury still out on effect) Little published data but anecdotal evidence suggest illegal taking of water is ‘rife’: anywhere between 5 to 30 percent of non-urban water consumption is illegally harvested New restrictions, increased competition and the culture of entitlement No formal method of water accounting and sporadic (but increasing) spread of metering

23 Sanctions that work The sanctioning of environmental offences has been notorious for its leniency and unsystematic in application surfeit of administrative sanctions (e.g. infringement notices) when prosecuted, a reliance on fines and often a fraction of the maximum imposed Why? complexity of making the punishment fit the crime judiciary’s low exposure to such cases and comparative lack of training in dealing with such matters sentencing provisions – ‘failure’ of traditional penalties and recommendation for greater use of alternative orders

24 Alternative sentence orders Permit the creation of a sentence ‘tailor made’ to the offence 1.Directions to publicise the offence (‘court ordered adverse publicity) Spotlights the offence Greater public exposure e.g. peers, the general public 2.Produce an environmental good Directions to restore/rehabilitate Environmental service orders and payments

25 See ‘Environmental crime’ under Crime Types for other AIC publications Thank you

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