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Building a research portfolio on environmental crime

Unravelling environmental crime is a considerable task. It comprises a complex group of unlawful acts, is controlled by a multitude of laws and is monitored and dealt with by a large number of agencies sitting at different levels of government. The purpose of this report was to help disentangle this category of crime by assembling a literature-derived 'stock-take' on the nature and extent of environmental crime in Australia and describe current approaches to deter, detect and sanction environmental offences.

The available literature has proved to be widely diverse in source, content and focus. Consequently, the depth of detail available to describe the primary categories of environmental crime varied considerably and this is reflected in the discussion presented in the theme sections. Some of this variation in information is almost certainly a product of the difficulties associated with uncovering, and hence reporting on, environmental crime. However, it is also related to the limited dissemination of hard data—on rates of prevalence, facilitators, perpetrators, and application of sanctions—and the intermittent research attention environmental crime has received in Australia.

This chapter describes a number of research avenues that could be feasibly taken, based on caveats of practicality and scope, and which best attempt to redress current gaps in knowledge.

Regulating the environment

For the most part, Australia relies on a regulatory approach that encourages self-compliance but is increasingly embracing enforcement. Authorisation, in the form of licences or permit (or works approvals etc), is mandatory before environmentally-harmful practices can be undertaken and routine monitoring and targeted operations frequently used to uncover illegal behaviour. Self-regulation is granted for some operations, notably private forestry and state-managed forestry in Tasmania, but a command-and-control philosophy permeates most regulatory arrangements, albeit one which has moved with the times. Environmental outcome, rather than a fixation on regulatory procedure, is the new objective for regulatory agencies, with prevention, not just the maximisation of compliance, the operative goal.

Nevertheless, regulatory agencies acknowledge ongoing problems with their role and agencies who only recently adopted the mantle of regulator are still negotiating the regulatory culture. The push towards a more enforcement dominated role, promoted by the Australian public's increased appreciation for the seriousness of environmental crime, adds additional pressures. Then there is the challenge in promoting and sustaining inter-agency cooperation, with respect to reciprocal support, intelligence- and information-sharing, co-investigation and group development of cases for prosecution. While many of these obstacles were described by regulators attending the roundtable, the literature was mostly silent on the specificities of these pressures and how they impact on the discovery and punishment of environmental crimes.

In trying to understand how environmental crime might be better deterred, a thorough overview of regulatory practice in Australia is critical. Rob White (personal communication 2009) has recommended there be an auditing of 'what is done on the ground' and a subsequent modelling of best practice. Such analysis might take the form of a comparative review of a selected group of agencies, from different jurisdictions and who enforce difference environmental laws, to fully describe the procedures and pitfalls of controlling against environmental crime in Australia. An important subset of this research would be to highlight the procedures or policies that are thought to, or can be shown to, have produced 'results', such as changes in attitude toward environmental laws, better engagement between regulator and regulated, and a quantifiable drop in specified offences.

How much environmental crime is there really?

The preceding theme sections used a combination of measures, such as the number of offences reported, investigated and sanctioned, to illustrate the prevalence of specific categories of environmental crime and regulatory non-compliance. However, the marked variability in the type and detail of data published made it impractical to construct a national picture on what environmental offences were frequently (or not so frequently) being committed. The limited nature of this data also restricted any comment being made regarding trends or hotspots of illegal activity. Part of this problem lay with the sole use of published data; gaining access to unpublished data may have provided better representation of the scale of illegal activity occurring.

To properly measure the prevalence of environmental crime, there needs to be a comprehensive analysis of methodologies of offending. A historical assessment of trends in environmental offending is also desirable. An observation made at the AIC environmental crime roundtable was that regulators had a good idea of 'the who' and 'the what' of environmental offending but they did not have the time to fully investigate the mechanics of the crime. Such research could confirm where suspected vulnerabilities lie and discover others that are not immediately obvious or are easily exploited. If we consider illegal waste, which was recommended by stakeholders as an area in need of further examination, topics for investigation could comprise:

  • industry sectoral involvement, size of enterprise and history of compliance with waste laws;
  • relationship between type of product and crime risk (class of waste being dumped, what form its being dumped in, hazardous nature of the waste);
  • preferred sites for dumping (eg specially constructed illegal dumping sites, on-site or 'backyard blocks');
  • methods used to conceal dumping activities (eg waste streams);
  • motivations for dumping (profit-making versus cost-saving);
  • associated criminal activity (eg fraud, price-fixing, bribery, other fiscal offences, collusion); and
  • the environmental impact of dumping.

An historical analysis might consider tracking patterns in the perpetration of offences against:

  • the timing of legislative amendments (eg changes to penalty regimes);
  • introduction and fine-tuning of policy initiatives;
  • transitional changes in mode of regulatory approach taken; as well as
  • measures of changing social norms and perceptions of environmental crime.

Of interest would be to spotlight and compare categories of environmental crime:

  • that are presently tightly regulated, yet predicted to experience a resurgence in commission (eg illegal waste disposal);
  • continue to be problematic in enforcing (eg native vegetation clearance); or
  • that have been the recent target of substantial publicity and strengthening of penalties (eg water theft).

An additional scope to such a study could be harm analysis—evaluating the costs and impact of environmental crimes. As well as estimating the conventional costs of crime through, for example, its economic and social impact, it is recommended there be exploration as to how to calculate the intrinsic value of the environment and the harms perpetrated against it. How best to quantify the 'value' of the environment and the harms caused was highlighted by roundtable participants as being critical to successful prosecutions.

Sanctions that work

Environmental wrongdoing is dealt with using a sequence of sanctions, from a verbal warning that unlawful behaviour has been observed and needs to rectified, all the way through to fines and custodial sentences. Published data show that most environmental offenders receive relatively minor sanctions, which is a probable reflection that many environmental offences committed in Australia are (or determined to be) themselves relatively minor. However, the view that leniency is a trait characteristic in the sanctioning of environmental offenders necessitates some caution. For more serious offences, penalty orders (or a version of) are commonly given, and when cases go to court, it is a fine. There is a view, however, that traditional penalties have largely failed to circumvent environmental crimes. Alternative sentencing orders, namely the use of directions for the offender to publish the offence (thus producing the requisite shame) and to make an environmental good (often by the diversion of monies to conservation or environment projects), are championed as one such constructive approach and are increasingly being used in some Australian states.

Two themes emerging from the literature on sanctioning that are in need of addressing is a more thorough analysis on sentencing trends for environmental offences and further exploration of alternate means of addressing environmental harm within the criminal justice setting. The absence in Australia of a centralised warehouse of sentencing data has recently been rectified with the newly established NSW Land and Environment Court Environment Sentencing Database, a ready resource on which a study of patterns of sentencing can now be readily undertaken. Analysis would be used to gauge what offences are regularly being prosecuted, the type and combination of sentences they are attracting, considerations used to determine the penalty and evidence for a cultural change in the manner in which environmental offences are being dealt with. A secondary line of analysis could consider the feasibility of extending sentencing databases into other jurisdictions and the compilation of data into a national database.

The second inquiry considers the role for restorative justice in addressing environmental harms. Restorative justice is a feature of environmental sentencing in New Zealand and while little used in Australia, has been applied in cases related to defacement of cultural heritage. Building on a first inquiry by Hamilton (2008), an exploration could be made on how restorative justice is applied in cases of environmental crime elsewhere and its applicability with Australian environmental laws and sentencing practices. Finding from this research could be used to evaluate how and under what circumstances restorative justice might be administered for incidents of environmental wrongdoing and the proposed benefits of doing so.

Environmental crime prevention

This report purposefully avoided any major discussion of models of crime prevention and preventative measures adopted in Australia, as it represented the one area where scrutiny would be best served in a complementary report. As stated earlier, regulatory agencies have made a conceptual shift towards prevention but as White (2008b) points out, the design and implementation of preventative strategies is complicated because of the nature of environmental crimes. Some questions raised by White include:

  • When do we address environmental crimes as mandated in statutes and when do we consider environmental harm that is still 'legally condoned'?
  • Under what circumstances does the precautionary principle need to be applied and how do we evaluate what those circumstances might be?
  • What is the best way to address the different harms individual crimes produce and the differential range in scale, motivation and technique environmental crimes are characterised by?
  • When should prevention refer to minimisation and when to eradication?

Any development of environmental crime prevention needs to consider these questions, as well as being mindful that the 'specificity of the harm should (always) drive the type of intervention' created (White 2008b: 4).

A two-step research agenda on crime prevention is valuable. The first, generally exploratory study would consider environmental crime as 'a whole' and extrapolate how the tenets of crime prevention—situational crime prevention, routine activities theory, rational choice theory and crime prevention through environmental design—have been used and could be used to minimise and prevent environmental harm. A focus study would then examine a specified offence or category of offences to provide evidence for a tailored approach to preventing that type of environmental crime and to emphasise the intricacies of designing preventative strategies for such crimes.

Assembling the portfolio

This chapter has proposed areas of research identified as missing from the published collection of environmental crime research and just as importantly, judged as feasible in their undertaking. The next decision is whether to connect these potentially disparate topics under a thematic umbrella. White (2008b) made the observation that the development of crime prevention strategies are strengthened if supplemented with studies such as scoping analyses of regulatory procedure and relationships, and harm analysis. An obvious approach would be to focus on a specific environmental harm or category of environmental crime, in order to create a comprehensive analysis of its characteristics and implications, and the array of current and potential preventative, enforcement and punishment responses.

A number of the research topics proposed above would lend themselves to forming a concise set of core analyses on a selected category of harm—the audit of regulatory practice, historical and harm analysis, methodologies of offending, sentencing statistics and examination of crime prevention strategies. One topic might be illegal waste (including e-waste) but areas of intransigence (native vegetation clearance, water theft) or areas of consistent criminal activity (illegal fishing) are just as viable. Alternatively, research topics could be married together under broader themes (for example, harm to biodiversity), connecting the criminal component with the wider and longer-term impact on ecological viability.