By Kim Glassborow and Katherine Edwards

THE NSW EPA is looking to develop a new protocol where it will be able to calculate the profits gained by a waste operator who has deliberately not complied with environmental legislation in order to gain significant financial benefit.

Under Section 249 of the Protection of the Environment Operations Act 1997( NSW)( POEO Act) the Court has the power to“ order the offender to pay, as part of the penalty for committing the offence, an additional penalty of an amount the court is satisfied, on the balance of probabilities, represents the amount of any monetary benefits acquired by the offender, or accrued or accruing to the offender, as a result of the commission of the offence.”

In this context, monetary benefits mean monetary, financial or economic benefits. Further, there is no cap on the amount that the Court may order an offender to pay.

This is especially the case where

Section 249( 2A) of the POEO Act allows that the regulations may prescribe a protocol to be used in determining the amount of the benefit, but there has been no protocol developed. This is despite the fact that this provision has been in the legislation since 1997.

However, this may be about to change 20 years after the fact.

The EPA is looking to develop this protocol, through consultation with industry in the near future. This will include the creation of a calculator for determining the quantity of the monetary benefit.

The fundamental idea behind the protocol is that an offender should not profit from committing an offence. It appears that persons or companies who demonstrate intent or a disregard for the law will be targeted.

If the protocol is effectively drafted and promptly enforced, it may well be that copping a fine as part of“ the cost of doing business” will become uncommercial.

In 2014, the monetary benefits

provision was extended to the Contaminated Land Management Act 1997( NSW) and the Radiation Control Act 1990( NSW) in the same form displayed in the POEO Act. It will be interesting to see whether a one size fits all protocol will be developed.

Why now?

The driving factor behind the creation of the protocol 20 years down the track may be the well-known Chester Hill waste and recycling facility incident and the substantial profits that were made and then dissipated by the phoenix company, now inevitably in administration.

Further, in 2015, the NSW Land and Environment Court found a former waste operator and two of his companies guilty of offences for the unlawful transportation of waste and for using a property as an unlawful waste facility( see Environment Protection Authority( prosecutor); Foxman Environmental Development Services( defendant); Botany Building Recyclers Pty Ltd( defendant); Phillip Foxman( defendant)

[ 2015 ] NSWLEC 105). In this situation, any profits obtained by the illegal operation may be subject to the new protocol.

The introduction of a protocol within the regulations

G & B Lawyers partner Kim Glassborow.

may, if drafted appropriately, change the attitudes of some operators within the waste industry. If enforced, it may also assist in levelling the very rocky playing field.

However, at this early stage, one important question remains – what will happen with any money that is obtained through the potential protocol?

Details of the protocol are due to be publicly released in the near future, so stay tuned for part two of this update.

Kim Glassborow and Katherine Edwards are G & B Lawyers’ partner and lawyer respectively. Contact: kglassborow @ gandblawyers. com. au or kedwards @ gandblawyers. com. au iw