Environmental crime is the perpetration of harms against the environment that violate current law. The term environmental harm is often interchanged with environmental crime and, for some, any activity that has a deleterious effect on the environment is considered an environmental crime. At the other end of the spectrum, the harm may be conceived of as a crime per se only if it is subject to criminal prosecution and criminal sanction.
The activities that are recognised in Australia as environmental crimes include:
- pollution or other contamination of air, land and water;
- illegal discharge and dumping of, or trade in, hazardous and other regulated waste;
- illegal trade in ozone-depleting substances;
- illegal, unregulated and unreported (IUU) fishing;
- illegal trade in (protected) flora and fauna and harms to biodiversity;
- illegal logging and timber trade;
- illegal native vegetation clearance; and
- water theft.
Compared with other crimes, environmental crime has taken longer to be accepted as a genuine category of crime. Changing perceptions about the vulnerability of the environment, particularly with respect to long-term outcomes of environmentally harmful practices, has altered this view to the extent that most behaviour with a potential environmental consequence is now tightly regulated.
Environmental crime has received some research attention in Australia but little in the way of a comprehensive account. This report aims to address this by assembling the available literature to examine the nature and extent of environmental crime in Australia and the laws and other processes in place to prevent, deter and sanction environmental offences.
Controls against environmental crime
Protecting Australia's environment is an especially complex process. Laws regarding the protection of Australia's environment are contained within a plethora of Commonwealth and state/territory statutes and associated regulations which prescribe rules pertaining to conservation and protection, environmental management and sustainable development. The content of these statutes reflect international expectations (as set down in multilateral environment agreements) and sovereign interests and standards. Supporting these statutes are numerous management plans that establish procedure for matters requiring specialised attention. The range of offences prescribed in environment protection statutes is vast and not always directly comparable between jurisdictions. Of greater variability is the magnitude of penalties assigned for similar offences.
Responsibility for environmental protection is similarly involved, with slightly different models of regulation being applied across the jurisdictions. Multiple agencies are involved in the protection and management of different aspects of the environment (eg wildlife, water) or regulation of environmentally harmful practices (eg pollution, waste disposal). These agencies sit at the Commonwealth, state/territory and local council level and often work independently of one another, although cross-jurisdictional contact does occur when dealing with issues requiring a multi-agency response.
Any activity that may produce an environmental harm usually requires some form of authorisation, most commonly in the form of a licence or permit with strict conditions attached. The detection of environmental offences is largely reliant on the identification of acts of non-compliance, discovered via routine monitoring/auditing or targeted operations.Compliance monitoring primarily serves to ensure certain practices are adhering to legislated provisions and to detect breaches of licence, but plays a support role as deterrent from 'threat' of exposure.
'Chance observation' serves as an alternate means of uncovering environmental offences and is valued by environment agencies. Many agencies have established hotlines or online complaint services whereby suspicious behaviour or apparent evidence of environmental harm can be reported and from which investigations can be launched. For some environmental offences, such as illegal native vegetation clearance, the 'nosy neighbour' has proved to be a particularly reliant informant (Bartel 2003).
In more recent times, agencies have been making the transition to a model increasingly focused on environmental outcomes and the prevention of environmental wrongdoing (eg see Vic EPA 2004a). While maintaining the core elements of direct regulation, there is increased use of supplementary methods of prevention. These include the development of specialised management plans, an emphasis on education, the use of economic tools and creation of partnerships with sister agencies, community groups, industry and non-government organisations (NGOs; Woodward 2008). While now the preferred approach for environmental protection, these new or additional roles have added to factors such as diminishing resources and priority juggling in how agencies feel they are adequately responding to the containment of environmental offences. To circumvent some of these pressures, regulators have expressed a need for capacity building, improved tools in which to monitor and measure acts of environmental harm and an extension on information- and intelligence-sharing arrangements.
Incidents of environmental harm have been treated somewhat leniently in Australia. Most illegal acts are dealt with using lesser sanctioning options, such as infringement notices. When matters are prosecuted, fines predominate—often at a fraction of the maximum penalty prescribed. This trend towards the application of lesser sanctions suggests that the majority of offences detected are 'minor' but it also ignores past evidence that the punishing of environmental offences in Australia has been largely unsystematic.
Criminal prosecution of environmental offences is not uncommon, although some jurisdictions or agencies are likelier to pursue this option than others. In two Australian states, specialists' courts have been established to hear environmental matters—the NSW Land and Environment Court (which sits at the Supreme Court level) and SA's Environment, Resources and Development Court. In other jurisdictions, matters are heard almost exclusively in Magistrates' courts.
The trying of cases in Magistrates' courts has been proposed as contributing to the generally low penalties handed down for environmental offences. It is suggested that this is due to a combination of factors including intermittent exposure to such cases, a lack of judicial training in dealing with environmental matters and (it has been argued) a 'lack of understanding' about this type of offending and the consequences of the harm produced (Hain & Cocklin 2001; Hartley 2004; Martin 2003; Pain 1993). The result has been inconsistent sentencing (Preston 2009). Environment agencies have also noted that difficulties in preparing and presenting cases for prosecution have probably affected both conviction rates and sentencing outcomes. The majority of environmental offences are now strict liability, which has eliminated a previous hurdle in eliciting successful prosecutions, but prosecuting agencies have faced challenges in quantifying and describing the concept of environmental harm to the satisfaction of the court.
While criminal prosecution might be seen as the ultimate deterrent, there is some disagreement about whether it is the best method for dealing with environmental offenders or specific offences. More pertinently is whether fines—the most common penalty handed down for environmental crimes—are the most suitable or effective mechanism for punishment or deterrence? Fines are readily absorbed as a 'cost of business' and the tendency towards low penalties has produced endemic recidivism among particular groups of offenders (Cole 2008; Martin 2003; Pain 1993). Nonetheless, some significant fines have been handed down in recent years, notably for pollution and native vegetation clearance offences.
There has been advocacy for the greater use of alternative sentencing options because of their capacity to both punish the offender and produce a 'more acceptable social order' (Cole 2008: 96). Alternative orders are seen as particularly useful as they can be tailor-made to suit the offence (Preston 2007) and, critically, are often seen by the offender to be the greater burden (Hain & Cocklin 2001). Some jurisdictions have embraced the use of alternative orders, specifically directions to publicise the offence, directions to restore or rehabilitate and environmental service orders/payments to offset an environmental wrong or contribute to the maintenance of a conservation/rehabilitation project. However, orders are not universally prescribed and not all courts have the option to use them.
The nature and extent of environmental crime in Australia
Gauging the true extent of environmental crime is no easy task. The incomplete nature of published data and analyses cannot be used to accurately describe trends in the prevalence of environmental crimes and recent increased enforcement and a move towards stricter punishment of environmental offenders blurs the picture further. What the data does suggest is that there is no real abatement in the commission of environmental offences, the cast of offenders is predictably diverse and offences run the spectrum of genuine ignorance of laws to deliberate environmental degradation.
Pollution and illegal disposal of waste
Pollution and the illegal disposal of waste was the first of the environmentally damaging practices to generate public concern and receive formal regulatory attention. Laws were first enacted in Australia in the early 1970s and combined with a broad range of additional statutory tools, such as National Environment Protection Measures and Environmental Protection Polices, to control the emission of pollutants and the dumping of hazardous and other controlled wastes.
The extent of illegal pollution and waste disposal in Australia, however, has received no formal analysis recently, other than that published in regulatory reports. If a prevailing polluting activity can be identified, it would be the illegal discharge and dumping of wastes, such as sewage, wastewaters emitted from mining and animal production sites, and demolition and construction debris (NSW DECC 2009a, 2008, 2007a; NSW DEC 2006a, 2005a, 2004; Qld EPA 2009, 2008, 2007, 2006, 2005, 2004a, 2003, 2002; SA EPA 2009a, 2008a, 2008b, 2007, 2006, 2005, 2004, 2003, 2002, 2001; Vic EPA 2009, 2008a, 2007, 2005, 2004b, 2003; WA DEC 2009, 2008a, 2007). Fuel spillages are another common problem. Added to this is the burgeoning load of 'new' wastes, typified by electronic waste (or e-waste). While the deposit of e-waste in prescribed landfill sites is not an offence in itself, there is no standard method as yet for the safe disposal of such items and the toxic components from which they are comprised.
Carelessness accounts for some of the polluting offences detected but incidents of waste discharge and disposal appear to be of a more deliberate nature. Much of that detected is perpetrated by small business, most likely as a means of 'cutting corners' and hence saving money. There are strict rules in Australia on how waste is transported and where and under what conditions it can be unloaded. Fees are also commonplace. By side-stepping these rules, operators can avoid additional expenses and improve profit-margins.
Waste disposal management has been infiltrated overseas by organised criminals and the business of dumping waste in Australia is not immune to similar penetration. The available evidence for an association with organised crime is presently anecdotal and specifics are lacking. However, the structure of the system, the ease in which waste can be transferred and the apparent formation of alliances between operators already working on the fringes of legal activity, makes it one of the likelier candidates for organised criminal activity (AIC Roundtable participants, personal communications 2009).
The effect of deliberate or haphazard polluting on the environment is recognised in Australia's environment protection laws by the magnitude of the harm produced. Some polluting acts produce immediate and disastrous harms, while others (the majority) represent much smaller harms, albeit harms in which the cumulative effect can be equally damaging. The environmental consequence of illegal pollution and waste disposal is reflected in the move towards the application of alternative sentence orders. These orders represent a financial penalty for the offender but, at the same, provide a means by which the damage produced by the original offence can be offset by the establishment of an environmental 'good' elsewhere.
Illegal trade in fauna and flora and harms to biodiversity
The illegal trade in fauna (wildlife) and flora (plants) involves the illegal export of native species, the import of exotic species and the breeding and trading of both natives and exotics within Australia. The size of this trade is generally considered to be 'small' when compared with overseas operations but it is likely to be on the increase (Alacs & Georges 2008) and probably involving more sophisticated operatives. Much of the detected trade involves wildlife—birds (and birds eggs), reptiles, turtles, spiders and insects—and species are targeted based on popularity and the profit they can generate.
Smuggling involves both Australian and foreign nationals, acting alone or associated with small, semi-organised groups. Human couriers and the postal system are the main methods by which fauna and flora are smuggled into and out of Australia, with the Internet playing an increasingly important role in facilitating the trade (International Fund for Animal Welfare 2008). An additional method is to smuggle wildlife (or plants) by defrauding the licensing system used to control trade in threatened species (Halstead 1992) but the extent of this practice has not been publicly documented. Between 2002–03 and 2006–07, over 26,500 wildlife and wildlife products were seized by Australian authorities. Most of these seizures were described as 'minor' as they did not lead to formal investigation or prosecution (Alacs & Georges 2008). For major cases (ie those that were prosecuted), almost half were for the illegal export of native species (mostly reptiles, birds and birds eggs) and a third for the illegal import of exotic species.
The dynamics of the illegal trade within and across Australian states and territories is less understood but almost certainly targets the same kinds of wildlife. Anecdotal evidence has suggested the involvement of outlaw motorcycle gangs in the illegal trade of snakes and other reptiles, spiders and scorpions (Blindell 2006; Peddie 2007). It is believed that the extensive bird breeding industry in Australia involves some co-mixing of captured wild birds and captive-bred birds, alongside inter-country smuggling activity. Legislative ambiguities, coupled with an over-complex regulatory system, have been cited as possible facilitators of the illegal activity (Halstead 1992).
Much of the discussion on environmental crime involving Australian fauna and flora neglects those harms perpetrated outside the trade cycle. These harms generally arise from otherwise deliberate behaviours to remove or destroy fauna or flora or damage critical habitat, which then impacts on species viability and diversity. The latter often occurs in the pursuit of development or other habitat affecting activities. Data is scarce but where available indicate that most offences that are prosecuted refer to the harming of protected faunal species or a breach of licence conditions regarding the taking or treatment of native fauna or flora.
Illegal, unregulated and unreported fishing
IUU fishing includes fishing ventures that contravene national fishing laws and regional and international obligations around fisheries conservation and management. For Australia, IUU fishing involves national and foreign fishers alike. Each step from the catching of fish to its end sale is compromised and the extensive range of offences can include (albeit are not restricted to):
- taking protected species;
- taking undersized fish;
- taking fish in excess of authorised quota;
- fishing in closed or restricted waters;
- using unauthorised equipment;
- failure to report catch;
- comingling legal with illegal catch;
- swapping catch between recreational and commercial catch;
- docketing fraud (ie misrepresent the size and/or species composition of the catch);
- possess, purchase, process or sell illegally taken fish; and
- cash sales of recreationally caught fish to clubs, restaurants etc.
On the domestic front, illegal fishing is described as mostly 'small scale' and 'akin to low-level non-compliance with fishing regulations' (Putt & Anderson 2007: 21). Both recreational and commercial fishing are tainted but it is in the commercial fishing industry where the more insidious behaviour takes place (Anderson & McCusker 2005; Palmer 2004). Overall rates of compliance by both recreational and commercial fishers are reported to be high and much of the illegal activity can be categorised as opportunistic exploitation. However, well-established illegal fishing ventures do exist. Fisheries officers interviewed for a study on crime in the Australian fishing industry stated that around one-fifth of commercial fishing operations in their locale were activity engaged in illegal fishing activity (Putt & Anderson 2007).
It has been estimated that anywhere between 20 to 60 percent of fish caught in Australia have been taken illegally (Palmer 2004; Vic ENRC 2002). High-value species, such as abalone and rock lobster, are particularly vulnerable. Most of the poached fish are destined for overseas (primarily Asian) markets but there is also a flourishing domestic trade with restaurants. The latter market is thought to have been occupied by loosely organised groups of recreational fishers, often ethnically- or culturally-based family groups, who become involved in poaching to supplement the household income (Putt & Anderson 2007).
Commercial fishing has been identified as vulnerable to organised criminal involvement due to the competitive nature of the industry, the preponderance of the itinerant workforce and its profitability (Putt & Anderson). These factors, combined with the entrepreneurship of organised crime groups, have enabled the actual and suspected permeation of organised crime into the commercial fishing industry. This involvement centres on the exploitation of high-value, low-volume species such as abalone and shark, although anecdotal evidence suggests possible cohabitation with other illegal activities like illicit drug distribution.
Illegal fishing by foreign nationals continues to be problematic despite concerted efforts to control it. The northern waters of the Australian Fishing Zone are regularly visited by Indonesian fishers to fish for trepang, shark (for shark fin), reef fish and other profitable marine species. The depletion of local waters from over-fishing, high international prices for target species and lowered economic prospects back home have all encouraged these ventures into Australian waters (Fox, Therik & Sen 2002; Sumaila, Alder & Keith 2004). In Australia's southern waters, illegal fishing ventures have targeted the ice mackerel fisheries around Heard and McDonald Islands but the ultimate intention has been to fish for the Patagonian toothfish. Unlike illegal fishing in Australia's northern waters, the nationality of the fishers and their holding companies is diverse and is often masked by working vessels flying so-called flags-of-convenience (FOC; Agnew & Barnes 2004; Gianni & Simpson 2005). In both regions, the result was that protected and highly-valued species were being taken at unsustainable rates.
The increase in illegal foreign fishing in northern waters was met with an escalation in enforcement activity involving multiple Australian Government agencies. This response was deemed a success since the number of foreign boats apprehended declined markedly, from a high of 368 in 2005–06 to just 27 in 2008–09 (AFMA 2009). Included in the measures to deter and punish foreign fishers has been the detention (and subsequent prosecution) of foreign fishers and the burning of their vessels. The apprehension of foreign fishers illegally fishing in the Southern Ocean has been far less numerous, in part because of fewer vessels operating in these waters, but also because of the challenges of patrolling this area. Nine arrests took place between 1997 and 2008, involving vessels with a combined catch value in excess of $1m (Griggs & Lugten 2007).
Illegal native vegetation clearance
Illegal native vegetation clearance is a comparatively 'new' phenomenon in that up until the late 1980s, the removal of native vegetation was a legally condoned practice. Laws on the clearing of native vegetation originated from concern about the effect that past practices, in particular broadscale clearing, had produced on the productivity and natural integrity of Australia's land. Most clearance, legal and illegal, had been done for agricultural purposes.
The shift to illegalising what was a long-standing permissible practice has proved to be a challenge in both gaining acceptance and achieving compliance (Bartel 2003; NSW OAG 2006; WA OAG 2007). Audits of native vegetation laws in New South Wales and Western Australia have revealed continuing illegal clearance. For example, of the 74,000 hectares of land cleared in New South Wales in 2005, 40 percent was found to have been cleared illegally (NSW OAG 2006). Some acts of illegal clearance were undertaken without any prior consent, while others involved landowners going beyond what the authorisation permitted. In some parts of Australia, such as west and northwest New South Wales, rates of illegal native vegetation clearance has been such that some of the activity was deemed to be a deliberate breach of the laws (NSW OAG 2006). This behaviour may be an inevitable consequence of the new regime, as it targets landowners who had not yet got around to clearing parts of their land.
The absence of precise methods to measure clearance activity has been found to conceal probable illegal clearance, as have unsystematic approaches in compliance monitoring and investigation of reported offences. To supplement information derived from compliance monitoring, regulators have relied on informants in the form of 'nosy neighbours and chance discovery' (Bartel 2003: 13), which have proved invaluable in uncovering cases of illegal clearance. Improvements in detection are being investigated in four states (New South Wales, Victoria, Queensland and South Australia) which have adopted or are looking to invest in satellite surveillance or aerial photography to map existing vegetation and monitor clearance patterns.
It remains to be seen what deterrent effect sophisticated technologies will have on rates of illegal clearance. More conventional approaches have not proved very successful. Up until recently, financial penalties for more serious incidents of illegal native vegetation clearance in New South Wales have been negligible (Bartel 2003, 2008a), although fines given in 2008 and 2009 have been more substantial. A pattern of increasing penalties should enforce the seriousness of the offence and encourage desistance from illegal activity. However, the prevention of illegal native vegetation clearance is also likely to benefit from other tactics, particularly education and consultation and the promotion of incentive schemes, where landowners are subsidised for the retention of important vegetative cover.
Illegal logging and timber trade
Illegal logging and the associated timber trade is synonymous with corruption. Illegal activity envelops the whole chain-of-custody. It extends from the cutting down of tree species from protected forest, illegally obtained concessions or outside mandated concession perimeters, to the processing of, and trade in, illegal logs, and their sale in consumer nations. Along with the generation of significant financial rewards, it also facilitates other environmental crimes, primarily the illegal trade in wildlife.
While not unknown, illegal logging is not endemic nor systematically performed in Australia (Schloenhardt 2008). Forestry, like fishing, is a tightly-regulated (and lucrative) enterprise in Australia and most illegal activity is likely to be small-scale or consist of minor acts of regulatory non-compliance. The concern for Australia is in its role as a consumer of illegal timber that has been harvested overseas and the current absence of a nationally-applied scheme to identify the importation of such timber.
Estimates of the proportion of illegal timber entering Australia are confined to the one study. Up to nine percent of all timber products imported into Australia in 2003–04 were considered of doubtful origin (Jaakko Pöyry Consulting 2004). Wooden furniture was particularly suspect, with an estimated 22 percent deemed of suspicious origin. While the type of timber being imported was not verified, other import data indicates that around a fifth of timber products imported into Australia are tropical woods (ITTO 2007), including the popular hardwood merbau, which is logged at unsustainable rates in countries such as Indonesia and Papua New Guinea.
Alongside tackling illegal logging at its source, consumer nations (such as the United States and the European Union (EU)) have responded by introducing measures to block or criminalise the importation of illegal timber and timber products. An amendment to the US' Lacey Act 1900 now enables criminal or civil prosecution of any company knowingly or unknowingly importing illegal timber into the United States. The EU, among other instruments, are establishing licensing schemes with partner nations involved in timber harvesting to verify the legality (and sustainability of extraction) of imported timber.
Australia relies on forest certification schemes to assess forest management practices but has not introduced a formal means to identify illegal timber or curb its importation. A 2004 survey of timber importers, wholesalers, industries and hardware suppliers found no 'structured system' to assist identifying 'suspect' timber products (Jaakko Pöyry Consulting 2004) and this situation continues today. In January 2010, an Australian Government-commissioned regulation impact statement concluded that the costs of regulating timber imports would outweigh the benefits gained and recommended Australia adopt a non-regulatory response (The Centre for International Economics 2010). In the absence of a national approach, a small number of Australian companies have independently introduced verification schemes to authenticate timber imported into the country.
Past practices in the distribution of water entitlements and allocations, coupled with the drought, have contributed to considerable water shortages in many of Australia's inland river systems. Consequently, water laws and accompanying water management plans have been revised to accommodate new restrictions on water access and use, and market-based schemes (such as water trading) have been introduced to better manage water distribution.
Water access and use has long been governed through a licensing scheme whereby an entitlement is granted to use water from a specified water source for a specified purpose. Allocations are established alongside entitlement arrangements, stipulating the volume of water that can be drawn from the entitled source. Exemptions are permitted—primarily for water used for domestic or stock purposes. Most Australian state and territories have remodelled this system in response to the worsening water situation, to the extent that allocations have been reduced, new licences are not being awarded for some regions or water systems and rights to water are no longer tied to land ownership (NSW DWE 2009a; Tas DPIW 2009a; WA Department of Water 2009a).
With added restrictions comes the temptation to rort the system and hence the purported increase in water 'theft'. Theft comes in multiple forms, including taking water for an unapproved purpose, from a source that one is not entitled to use, in excess of the amount allowed or tampering with equipment to measure usage. However, data on rates of theft are difficult to come by and much of the evidence is derived from media reports, anecdotal information and limited information published in regulators reports. All point to an increase in illegal behaviour, or at least greater recognition of how much theft had been going on. Where information is somewhat complete, it suggests that illegal behaviour is concentrated in certain regions, for specific sources of water (eg ground water) and by specific users (NSW DWE 2008a; SA DWLBC 2008a).
The impact of water theft affects the environment (healthy rivers, wetlands etc and the species dependent on them), agricultural productivity and livelihoods. Sanctions for breaches of water laws have tended to be low and offered no real deterrent effect. State and territory governments, notably New South Wales and South Australia, have acted on the increased incidence of water theft by reviewing penalty schemes and announcing considerable increases in pecuniary penalties for illegally taking water (NSW DWE 2009a; Rann 2009).
Redressing the research imbalance
The contrasting nature of the available information on environmental crime in Australia is conspicuous and challenges the ease in which a snapshot of the current situation can be assembled. Part of this relates to the limited dissemination of data and the scarcity of research on the dynamics of environmental crime as it affects Australia. In reviewing the literature, a number of research gaps were identified which could form more substantive analyses to aid a better understanding of environmental crime. Possible research activities identified as contributing to this understanding could include:
- an examination of the concept of harm, how it is defined and applied across different statutes, and the creation of a standardised set of rules on how to measure harm;
- an audit of regulatory approaches to detail the procedures, pitfalls and triumphs of differing regulatory models, policies and alternative methods of environmental protection;
- a thorough description of the mechanics of environmental offending, embedded within a historical analysis of patterns of offending and identification of vulnerabilities;
- an analysis of sentencing trends for environmental offences and complementary exploration of alternate means of addressing environmental harm within the criminal justice setting and
- an application of the tenets of crime prevention to environmental offences, with reference to initiatives employed overseas and in Australia, to propose a tailoring of preventative responses for different kinds of environmental harm.