Strengthening Access to Justice and Protection of Rights in Viet NamA comparative analysis of environmental criminal law in the People’s Republic of China, the Republic of Indonesia and the State of New South Wales, Australia.

Matthew Baird

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Table of Contents

Strengthening Environmental Compliance and Enforcement in Viet Nam......4

Introduction.......................................................................................................................... 4

Overview................................................................................................................................ 4

Viet Nam Overview............................................................................................................. 6

The concept of environmental crime...........................................................................9Polluter pays principle..........................................................................................................................10

The role of the Judiciary................................................................................................. 11

Environmental Criminal Law in the PRC...................................................................12Introduction................................................................................................................................. 12Overview of administrative, legal and political system................................................12Environmental Criminal Law Framework.........................................................................13Legislation.................................................................................................................................... 13Environmental Criminal Procedure....................................................................................19Penalties and Sanctions........................................................................................................... 20Lessons from China.................................................................................................................... 21

Environmental Criminal Law in Indonesia..............................................................25Introduction................................................................................................................................. 25Overview of administrative, legal and political system................................................26Legislation.................................................................................................................................... 28Environmental Criminal Procedures..................................................................................35Penalties and Sanctions........................................................................................................... 37Lessons from Indonesia........................................................................................................... 38

Environmental Criminal Law in NSW (Australia)..................................................41Introduction................................................................................................................................. 41Overview of administrative, legal and political system................................................42Environmental Criminal Law Framework.........................................................................43Legislation.................................................................................................................................... 43

Planning and Land Use Laws..............................................................................................................44Contaminated Land Laws.....................................................................................................................45Pollution Control Laws..........................................................................................................................46Biodiversity Conservation Laws........................................................................................................47

Environmental Criminal Procedure....................................................................................47Powers of investigating officers........................................................................................................47Corporate liability....................................................................................................................................51Occupiers liability....................................................................................................................................51Director’s liability in environmental offences.............................................................................52

Penalties and Sanctions........................................................................................................... 53Lessons from NSW......................................................................................................................56

Access to environmental justice..................................................................................56

Recommendations........................................................................................................... 57Annexure 1................................................................................................................................... 62

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Strengthening Environmental Compliance and Enforcement in Viet Nam

Introduction

1.1. In the field of environmental law it has been noted that despite Constitutional provision, national laws and environmental regulations, there remains “a wide gap between legislative goals, declared national policies and their implementation. Whether it is constraint of resources, financial or technical, or lack of capacity or lack of will to commit to environmental protection and sustainable development, the harsh reality is that laws and policies are not effectively enforced.”1

1.2. All indicators points to increasing environmental degradation and land, air and water pollution in Asia over the next 20 years. Unless clear and powerful actions are taken by 2035 it is highly likely that Viet Nam will have followed the People’s Republic of China into environmental catastrophe.

1.3. Viet Nam has also taken some small steps to try to stem the environmental and social consequences of uncontrolled and unsustainable economic growth. Despite an early commitment to sustainable development within ASEAN, the reality has proved to be a polluted and contaminated wasteland, decreasing and endangered eco-systems and regulatory failure.

Overview1.4. This Report looks examine some options for increasing the

effectiveness of environmental enforcement with a focus on environmental crime. It compares three varied jurisdictions with different approaches to the criminalisation of breaches of environmental laws.

1.5. The comparative analysis identifies some issues that must be addressed to promote more effective compliance with environmental obligations.

1.6. The first is that the realty must equal the rhetoric. The consequences of breaches of environmental law included toxic land, toxic air, toxic water and suffering communities. If governments genuinely desire to take action to avoid environmental catastrophe then governments will be required to take strong action, and clear leadership, supported by sufficient resources to take action against powerful individuals and corporations who are polluting the environment and

1 Hassan, (2007).

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illegally destroying the natural capital of Viet Nam and surrounding countries.

1.7. Above all else the polluter must pay for the environmental, social and economic harm caused by their pollution. The system should focus on compliance and avoidance of harm, but when that fails the polluter must compensate the State, the people and the ecosystem for any harm caused.

1.8. The second is that the laws on environmental crime need to be clear and cover all aspects of harm to the environment and failure to comply with the law. There should be different remedies available to require compliance with environmental law and there should be different remedies available to compel individuals, corporations and the government to comply with their lawful obligations.

1.9. The third is that the regulatory body tasked with ensuring compliance with environmental laws must be given sufficient regulatory powers to compel compliance and sufficient resources to manage the process of compliance and enforcement. The regulatory body must also have sufficient political stature and independence to pursue and compel all offenders to comply with their environmental obligations.

1.10. The fourth is that criminal enforcement through the Court system should only be one of the options available to the regulator. The regulator should have access to administrative and civil penalties as well as fines and imprisonment. The key element is that the regulator should use whatever options which best protects the environment and achieves environmental compliance.

1.11. The fifth issue is that there must be a reversal of the onus of proof on the offender. The owner or occupier or licence holder must be responsible for any environmental harm that occurs on of from that land. They must show that their actions were within the law and did not cause environmental harm. Additionally directors and senior managers of corporations must be made liable for the actions of their employees and the corporations.

1.12. The sixth is that the regulatory must have the legal mechanisms to require production of information within regard to any principles against self-incrimination. The regulator should have the power to compel the production of all information relating to environmental compliance.

1.13. The seventh is that process to achieve compliance with environmental laws should be innovative. Whether it is a self-regulatory model used in Indonesia, or the ability of NGOs to bring civil suits to compel compliance with environmental obligations, as in

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China or New South Wales, the regulator must constantly seek new ways to ensure compliance with environmental laws.

1.14. The eighth is that a specialized environmental court, with appropriate stature, resources and power, is necessary to ensure better compliance with environmental obligations and to provide the best possible chance for environment criminal acts to be dealt with and punished accordingly.

1.15. The experiences in Indonesia, China and New South Wales are not completely encouraging. China has had environmental protection laws since 1979. Yet since then its environmental has continually been degraded. It is estimated that China was to spend US$372 Billion from 2012-2014 on tightening pollution control and energy efficiency.2 In August 2013 the Chinese government proposed US$277 Billion from 2013-2017 for steps to clean up air pollution – in Beijing alone.3

1.16. It was estimated in 2007 that the cost for environmental pollution in China approached 781 Billion Yuan (US$125 billion) or 5-6% of GDP on annualised basis.4

1.17. Given that the published annual GDP increases were estimated at 8-9% it can be seen that economic growth was clearly divorces from environmental sustainability.

1.18. Viet Nam has made impressive gain in economic growth however this too has been achieved at significant environmental and social costs. How better to avoid further environment costs is the key question ask by this Report.

Viet Nam Overview1.19. Viet Nam is a civil code jurisdiction based on socialist legal theory

and French civil law.5 The Constitution of Socialist Republic of Viet Nam was adopted on 28 November 2013.6 Environmental regulation is relatively recent in Viet Nam. The 1992 Constitution provided that the national’s land, forests, wildlife, water and natural resources belong to the people Viet Nam and are to be managed by the government and the specific groups it may appoint.7

2 International Business Time 28/08/2012 ibtimes.com3 ww.chinadialogue.com 01/08/20134 SEPA 2007. 5 ABA 2014, p.8116 http://en.vietnamplus.vn/Home/The-Constitution-of-the-Socialist-Republic-of-Vietnam/20141/45126.vnplus7 ABA 2014, p.812

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1.20. The Law of Environmental Protection was introduced in 1994 and this has been updated with the Law on Environmental Protection 2005 (LEP).

1.21. Viet Nam also has a number of other law relating to environmental protection including:

Law on Land (2003); Law on Foresty Protection (2004) Law on Minerals (2010) Law on Biodiversity (2008)

1.22. The Ministry of Natural Resources and Environment (MONRE) was established in 2002 to manage Viet Nam’s natural resources and environment.8 The National Environmental Administration of MONRE helps to manage national environmental protection activities throughout Viet Nam and there are Department of Natural Resources and Environment for the Provinces and the five cities under central government administration.9

1.23. The Environmental Police Agency was established in 2007 to conduct inspections and administer administrative sanctions for environmental violation.10

1.24. Despite the extensiveness of Viet Nam’s environmental protection and natural resources management system commentators have noted that “in practice environmental policy is crippled by weak, inconsistent, and often arbitrary enforcement.”11

1.25. In 2011, the Prime Minister promulgated Decision No. 282.QD-TTg on enhancing the Party’s leadership over crime prevention and control. The objective of the Decision was take initiative in “preclude and preventing the cases of and conditions for commission and development of crimes in order to incrementally curb and reduce crimes, especially new and serous crimes.”

1.26. In the Assignment of Responsibilities the Ministry of Environment was given the takes “to take the initiative in coordination with the Minister of Public Security in preventing, detecting and stopping violations in the exploitation of natural resources, minerals, marine resources, management of land and environmental and ecological protection.”12

1.27. Viet Nam does already prosecute environmental crimes. The Supreme People’s Court from 2007 to 2014 determined 2801 cases

8 ABA, p.8129 ABA, p.81210 ABA, p.81211 ABA, p.81212 Chapter III, section 19(b)

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with 5357 defendants. Of these cases, 2299 were for forestry related crimes.13 Only a small amount perhaps less than 100 per year were for wildlife related crime.14

The Constitution of Viet Nam

1.28. Article 43 of the Constitution of Viet Nam provides

Everyone has the right to live in a clean environment and has the obligation to protect the environment.

1.29. Article 53 provides

Land, water resources, mineral resources, resources in the sea and airspace, other natural resources, and property managed or invested in by the State are public property, owned by all the people, and represented and uniformly managed by the State.

1.30. Article 56

Agencies, organisations and individuals shall practice thrift and combat waste, and prevent and fight corruption in socio-economic activities and the state management.

1.31. Article 63

1.The State shall adopt environmental protection policies; manage and use natural resources in an efficient and sustainable manner; conserve nature and biodiversity; and take the initiative in preventing and controlling natural disasters and responding to climate change.

2. The State shall encourage all activities for environmental protection and the development and use of new energy and renewable energy.

3.Organisations and individuals that cause environmental pollution, natural resource exhaustion or biodiversity depletion shall be strictly punished and shall rectify and compensate for damage.

1.32. These provisions provide that the Socialist State of Viet Nam has a clear objective to promote sustainable development for the benefit of the people and the Country.

The concept of environmental crime2.1. There is no standard definition of environmental crime. In broad

terms, environmental crime encompasses any illegal act or omission

13 Articles 175, 176 and 189 of the Penal Code. Le Van Minh (2014), 14 Article 190 of the Penal Code. Dam Van Dao (2014).

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that causes environ- mental harm. Environmental offences differ considerably from the traditional criminal model that focuses on crimes against persons and private property. Factory owners, managers and government agencies do not fit comfortably into the criminal stereotype. When corporate activities cause environmental degradation, the application of criminal law becomes equally problematic. Frequently, the activities complained of may be very close to what are generally regarded as legitimate business practices, making it difficult to regard such offences as true crimes. For example, in all Australian jurisdictions, licensed pollution is lawful, while unlicensed pollution — or pollution in excess of licence conditions — is prohibited.

2.2. For these reasons, environmental offences were initially regarded as being of a purely regulatory nature and quite distinct from “real” crime.15 Regulatory offences were generally punishable without proof of fault, with lower penalties and no provision for imprisonment. Thus, they were designed to protect the public interest but at the same time minimise any stigma to the offender.

2.3. There can be different definitions of environmental crime, for example, Situ and Emmons define environmental crime as:

an unauthorised act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanction. This offence harms or endangers people’s physical safety or health as well as the environment itself. It serves the interest of either organizations—typically corporations—or individuals.16

2.4. In contrast Clifford and Edwards conceive an environmental crime is as:

an act committed with the intent to harm or with a potential to cause harm to ecological and/or biological systems and for the purpose of securing business or personal advantage.17

2.5. Bricknell observed:

The recognition and acceptance of environmental crime as a genuine criminal offence (or rather array of offences) has perhaps been more problematic than other crime types. Traditionally, harmful practices against the environment were not viewed with the same moral repugnance as offences directed against the person or property. To some extent, this reflected the reality of the age in which they were being committed, by whom and why. With an increasing awareness and appreciation of the environment came a re-evaluation of what the environment can and cannot sustain and an acknowledgement of the

15 Bates (2013), p.78216 Bricknell, p.317 Bricknell, p.3

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need to regulate, and in some cases, criminalise these harmful practices.18

2.6. Like other forms of commercial crime, a primary incentive for committing environmental crimes is personal gain. These gains are obtained directly through benefits achieved from performing a specified act but also through the resources saved by ignoring standardised codes as to how certain practices should be performed.19 Grabosky proffered that ‘greed’ and ‘ignorance’ are the foundations of environmental crime.20 For some business enterprises, such as logging, the illegal version is preferred as it can be more lucrative than the legal form.21

2.7. The attractiveness of the profits is enhanced by the often minimal investment that is needed to commit environmental crimes and the relatively low risk of getting caught and prosecuted.22 Many forms of environmental crime are not easily observed or detected, do not make an obvious impact and are not always a constant on the law enforcement radar. Regulatory loopholes and weaknesses, combined with the sometimes inefficiency or corruptibility of investigating officials, either reduces the chances of being detected or actually assists the criminal behaviour to continue.23

Polluter pays principle

2.8. The best known of the means of internationalisation of external environmental costs is the polluter pays principle. Expressed simply, the principle holds that those who generate pollution and waste should bear the costs of containment, avoidance or abatement. It requires the polluter to take responsibility for the external costs arising from its pollution. This can be done by the polluter cleaning up the pollution and restoring the environment as far as practicable to the condition it was in before being polluted. The polluter ought also to make reparation for any irremediable harm caused by its conduct, such as death of biota and damage to ecosystem structure and functioning.24

2.9. For environmental crime the system must be designed and implemented that those who cause harm to the environment must pay the costs associated in cleaning up that harm. It is a question of changing the equation so that compliance becomes the best option for both individuals and corporations.

18 Bricknell, p.219 Bricknell, p.320 Grabosky 2003, p.237.21 OECD 200722 Bricknell. P. 623 Bricknell, p.624 Preston (2009)

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The role of the Judiciary2.10. The ADB has been working with judges in Asia and in ASEAN on

environmental decision making and advancing environmental law in the region since 2010. Viet Nam has been a major participant in these Forums and hosted the most recent ASEAN Chief Justices Roundtable.

2.11. At the First Asian Judges’ Symposium on Environmental Decision Making, the Rule of Law, and Environmental Justice in Manila in July 2010, over 110 Chief Justices, senior judges and Ministry of Environment officials met to consider how to bolster judicial capacity for environmental enforcement. Participants agreed on several key messages, including:

ensuring effective compliance and enforcement of environmental law requires the entire environmental compliance and enforcement chain to be effective,

judges play a unique role,

and expanding access to environmental justice involves both the formal justice system and informal ways to resolve disputes.25

2.12. The ASEAN Chief Justices Roundtable on Environmental Law and Enforcement was held in Jakarta in 2011 adopted a Common Vision on Environment for ASEAN Judiciaries.26

2.13. The Second Asian Judges Symposium was held in Manila in December 2014.

2.14. The Third ASEAN Chief Justices Roundtable on Environmental Law and Enforcement was held in Thailand and the Fourth ASEAN Chief Justices Roundtable on Environmental Law and Enforcement was held in December in Hanoi. The Chief Justice of Viet Nam Truong Hoa Binh addressed the Roundtable at the Opening Ceremony and outlined the many advanced of the new Viet Nam Law on Environment Protection 2014.27

Environmental Criminal Law in the PRC

Introduction3.1. Since 1997, China has promulgated a wide range of environmental laws

and policies, including dedicated pollution control laws and eight major pollution control programs. More recent reforms have seen the

25 ADB (2013), p.4.26 Annexure 1.27 www.asianjudges.org

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introduction, and rapid growth in number, of dedicated environmental courts. These environmental courts, along with the rest of the judicial system, can adjudicate on a range of alleged environmental crimes. Despite these achievements, environmental challenges in China continue to grow. A major ongoing problem is the lack of regulatory compliance and criminal enforcement.28

Overview of administrative, legal and political system3.2. China is a unitary state, with a central government from which all

administrative power flows.29 In addition to the central state, China comprises 31 provincial level administrative bodies, and hundreds and thousands of administrative units at the municipal/prefectural and district/community levels.

3.3. The central government resembles a parliamentary system with the head of government (the Premier) chosen from, and forming a cabinet (State Council) with other members of, the legislature (the National People’s Congress). The separate head of state (the President) is also appointed by the National People’s Congress, as are the presidents of the Supreme People’s Court (SPC, the highest court) and the Supreme People's Procuratorate (SPP, the prosecutorial agency).30 The State Council is divided into various ministries (including the Ministry for Environmental Protection and Ministry for Public Security) and other agencies.31

3.4. This system of people’s congresses and administrative bodies, with separate judicial and prosecutorial arms, is repeated at each lower level of administration, provincial and local. Hence, there are provincial and local environmental protection bureaus and public security authorities, as well as local court structures and procuratorates.

3.5. The hierarchy of China’s laws and regulations is as follows:32

Constitution Laws passed by the NPC Administrative Regulations issued by the State Council Local People’s Congress Regulations by provincial-level local

people’s congresses Rules issued by governments of provinces, and Ministry Rules

issued by central-level ministries, commissions, and agencies under the State Council

28 Lin, unpublished draft.29 Liu, 2013, 1.30 Liu, 2013, 1, 3.31 Liu, 2013, 3.32 Liu, 2013, 4.

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3.6. Judgments of China’s courts have no formal precedential effect. However, the SPC and SPP have legal authority to issue judicial interpretations, essentially interpretive regulations, and procuratorial interpretations, respectively, on questions of law arising out of specific cases. The SPC actively utilizes this role, often issuing detailed judicial interpretations that are effectively supplementary laws.

3.7. In addition to the formal administrative structure, the Chinese Communist Party (CCP) operates a shadow system of government that essentially replicates the formal system at all levels. Liu discusses the significant, non-transparent influence this Party structure has on China’s public administration as follows:33

The result is that even if the law specifies particular requirements, the policies of the Communist Party organization, through the party’s influence over the government officials who are also CCP members, may greatly influence how the government implements or otherwise follows the law. The result has been significant transparency issues regarding governmental decision-making, including decision-making related to projects that have major impacts on the environment.34

Environmental Criminal Law Framework

Legislation

3.8. Environmental Law in the People’s Republic of China (China) is not new. An analysis in 2000 of China’s environmental protection regime identified six groups of environmental laws.35

3.9. The Constitution (1982) in Article 26 provides that:

“the State protects and improves living environment and ecological environment, prevent and controls pollution and other public hazards”.

3.10. The first “comprehensive basic law” of environmental protection was the Environmental Protection Law of 1979 (and further 1989). The purpose of the Environment Protection Law is “to protected and improve living environment, to prevent and control pollution and other public hazards; to protect human health; and to promote the socialist modernization of PRC”.36

33 Liu, 2013, 3.34 Liu, 2013, 3.35 Wang Xi (2000). 36 Art 1 of the Environment Protection Law of the PRC.

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3.11. The Environment Protection Law also established the governmental organization on environmental regulation and the system of environmental administration in China.

3.12. All units and citizens have a duty to protect the environment and the right to report to the government or to file a lawsuit against the violators of environmental law.37

3.13. In addition to the Environment Protection Law, a number of laws were passed to control and limit pollution, including:

Marine Environment Protection Law (1982), Law on Prevention and Control of Water Pollution (1984), Law on Pollution and Control of Air Pollution (1987) and the Law on Prevention and Control of Pollution Caused by Solid

Wastes (1995).

3.14. The Criminal Law of 1997 specified environmental crimes as a new category of crime.38 This provided for criminal punishment on those who committed crimes related to radioactive wastes, toxic substances, hazardous wastes, aquatic resources, endangered wild animals, land management, mineral resources and forest management.39

3.15. Given the 35 years of laws governing environmental protection and the 17 years of criminalization of environmental offences, it is clear that environmental pollution remains a significant problem for the government and the country. Reports of soil contamination, water pollution and air pollution are daily reported in China.

3.16. In addition to laws covering pollution, China has adopted Environmental Impact Assessment (EIA) in 1979.40 However it was not until 1986 that Provisions on Environmental Management of Construction Projects were issued.41

3.17. In addition the principle of the “three simultaneities” or “three at the same time” was adopted.42 The principle was aimed to ensure that “the facilities for the preventing and controlling pollution in any construction project must be designed, built and put into operation at the same time as the main project.”

3.18. To complement these laws, China has also adopted comprehensive systems for responsibility for environmental protection objectives,

37 Art 6 of the Environment Protection Law of the PRC.38 Wang Xi (2000), p.739 Articles 338-346, Criminal Law of PRC.40 Wang Xi (2000), p.2141 Ibid, p.2142 Cai Shouqui (2000).

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emission standards, and reporting standards.43 All of the systems have been in place for 20-30 years. All EIA for construction projects are required to address environmental and social impact in accordance with the Evaluation of Environmental Effects Law 2002.44

3.19. These written reports are assessed by an expert panel and the EIA Law also encourages public participation within the EIA process.

3.20. The comprehensiveness of China’s environmental protection and EIA system hides one of the most significant deficiencies, namely the lack of serious or effective compliance and enforcement. The amendments to the Environment Protection Law of 24 April 201445 reiterate that:“All units and individuals shall have the obligation to protect the environment. Local People’s government at various levels shall be responsible for the environment quality within areas under their jurisdiction.”46

3.21. Chapter VI of the Environment Protection Law is entitled Legal Liability. Under Article 61, construction projects that have commenced construction within having submitted an EIA or within the EIA approval certificate can be ordered to stop construction by the relevant government department.

3.22. Article 64 provides that environmental pollution and ecological destruction may give rise to liability for damages under the provisions of the Tort Liability Law of the People’s Republic of China. Article 66 seems to limited the “validity period for prosecution with respect to compensation for environmental pollution damage” to three years.

3.23. The Environment Protection Law maintains the ability of citizens and other organizations to report and complain about environmental pollution and ecological damage47 and the right to obtain environmental information and participate and “supervise the activities on environmental protection in accordance with the law”.48 Some focus has been made of the inclusion of the provision of Art 58 to allow some social organizations to file litigation to the people’s court.49

3.24. The core of China’s environmental criminal law is found in the Criminal Law (promulgated in 1979 and most recently amended in

43 Cai Shouqui (2000), p.544 See Art 1 and Art 2. 45 Unofficial English translation of the Law. 46 Art. 647 Art 57. 48 Art 53.49 Art 58.

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2011). The Criminal Law expressly includes 25 environmental crimes and specific penalties.50 These crimes can be summarized as follows:51

Smuggling rare animals and rare animal products (Chapter II, Article 151, Paragraph 2);

Smuggling of rare plants and rare plant products (Chapter III, Article 151, Paragraph 3);

Smuggling waste (Chapter VI, Article 339, Paragraph 3); Illegal transfer of land use rights (Chapter III, Article 228); Escaping the quarantine of animals and plants (Chapter VI,

Article 337); Major pollution incident (Chapter VI, Article 338); Illegal disposal of imported solid waste (Chapter VI, Article 339,

Paragraph 1); Unauthorized imports of solid waste (Chapter VI, Article 339,

Paragraph 2); Illegal fishing of aquatic products (Chapter VI, Paragraph 340); Killing rare and endangered wildlife (Chapter VI, Article 341,

Paragraph 1); Illegal acquisition, transport, sale of precious and endangered

species of wild animals and their products (Chapter VI, Article 341, Paragraph 1);

Illegal hunting (Chapter VI, Article 341, Paragraph 2); Illegal occupation of arable land (Chapter VI, Article 342); Illegal mining (Chapter VI, Article 343, Paragraph 1); Destructive mining (Chapter VI, Article 343, Paragraph 2); Illegal logging and the destruction of valuable trees (Chapter VI,

Article 344); Illegally chopping down trees (Chapter VI, Article 345, Paragraph

1); Illegal denudation (Chapter VI, Article 345, Paragraph 2); Illegal acquisition of timber through illegal logging and

deforestation (Chapter VI, Article 345, Paragraph 3); Illegal issuance of tree-cutting licenses(Chapter IX, Article 407); Neglect of duty concerning environmental monitoring (Chapter

IX, Article 408); Illegal approval of requisition and occupation of land (Chapter IX,

Article 410); Illegal sale of use rights of state-owned land with low price

(Chapter IX, Article 410); Practicing favouritism and committing irregularities in

quarantine of animals and plants (Chapter IX, Article 413, Paragraph 1);

Neglect of duty concerning quarantine of plants and animals (Chapter IX, Article 413, Paragraph 2).

3.25. In addition to the Criminal Law, many of China’s 70-plus laws and regulations on environment and natural resources protection also

50 Faure and Zhang, (2011), p.10028-9.51 Faure and Zhang, (2011), p.10042.

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provide for environmental crimes. These ‘subsidiary’ environmental criminal laws take various forms and often refer back to provisions of the Criminal Law, especially to reference sanctions and penalty ranges.52

3.26. More generally, there is a strong relationship between China’s administrative law and criminal law. Administrative laws provide specific duties or prohibitions that may involve criminal liability, and which often apply to environmental cases. Similarly to specific environmental laws, these administrative laws generally do not include penalty provisions and instead refer back to the Criminal Law.53

3.27. Faure and Zhang demonstrate the dependence between administrative and criminal law by reference to the crime of causing major environmental pollution (Article 338 under the Criminal Law). They note that what is arguably the most serious environmental crime is only triggered when the pollution is caused by actions “in violation of the regulations of the state,” meaning that there is no independent environmental crime without an associated administrative offence.54

3.28. China’s environmental criminal law is strongly focused on protecting the administration of public order, with less emphasis given to the direct protection of the environment. Relatively few articles establish crimes that are directly concerned with penalizing pollution.55 Where environmental impacts are considered, it is often in the context of the economic consequences of any such degradation.56 Importantly, however, the Standing Committee of the National People’s Congress issued a new definition in 2010 to clarify that major financial loss, injury or death are not requirements for criminal liability for pollution incidents.57

3.29. The focus on protecting the administration of the public order is further demonstrated in a guidance document (a “Judicial Interpretation”) issued by the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) in 2013 that, inter alia, states:

“Whoever constitutes the crime of disrupting public service by committing … [a crime under Articles 338 or 339 regarding blocking environmental supervision and inspections, or blocking investigations on environmental emergencies] shall be subject to the joinder of penalties

52 Faure and Zhang, (2011), p.10028-9.53 Faure and Zhang, (2011), p.10035.54 Faure and Zhang, (2011), p.10038.55 Faure and Zhang, (2011), 10029.56 Faure and Zhang, (2011), 10031.57 Stern, (2014), 67.

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for the crime of environmental pollution and the crime of disrupting public service.”58

3.30. Further highlighting the use of environmental criminal law to maintain public order, Stern points out that environmental protesters in China can face criminal charges “in retribution for actions perceived as overly demanding or violent.”59

3.31. The SPC and SPP also aimed to assist courts adjudicate cases involving severe pollution by providing accompanying guidance to the 2013 Judicial Interpretation in the form of four actual cases considered to be typical. For each of these cases, the guidance highlighted the facts and judgements, noting the nature of criminal liabilities and the sentences issued. The four cases are:60

a major environmental pollution accident at the Zijinshan Gold and Copper Mine;

a major environmental pollution accident involving arsenic wastewater;

an environmental pollution case involving hazardous waste export and dumping; and

a case involving the dumping of hazardous substances in violation of a regulatory prohibition on wastewater discharge.

3.32. The 2013 Judicial Interpretation also sought to clarify the application of criminal liability in pollution cases involving companies and other legal entities. It provides that:61

“Where an entity commits any of the crimes provided in Articles 338 and 339 of the Criminal Law, the directly liable person in charge and any other liable persons shall be convicted and punished according to the relevant conviction and sentencing standards for crimes committed by individuals as prescribed in this Interpretation, and the entity shall be imposed a fine.”

Environmental Criminal Procedure

3.33. The Criminal Procedure Law of China (first adopted in 1979 and most recently amended in 2013) establishes the process by which an environmental crime is investigated, prosecuted and punished. First, suspected environmental crimes must be reported by the environmental protection bureaus and other agencies to the public security authorities. Their specific responsibilities are to investigate

58 Supreme People’s Court and Supreme People’s Procuratorate, 17 June 2013, Article 4.59 Stern, (2014), 62.60 Lin, unpublished draft.61 Supreme People’s Court and Supreme People’s Procuratorate, 17 June 2013, Article 6.

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these cases and to exercise powers of arrest and criminal detention. Once the public security authorities consider a case warrants prosecution, they must place it on file for investigation, collect evidence, and identify the facts and involved parties.

3.34. Neither the Ministry for Environmental Protection, nor provincial or local environmental protection bureaus, have any in-house investigators or lawyers dedicated to environmental criminal enforcement. Public prosecution is initiated, following investigation, by the people’s procuratorate, which is also responsible for supervising any trials by the people’s court and supervising any execution of court decisions by the criminal reform institutions.62

3.35. Between 2007 and 2013, over 130 environmental courts were established in China.63 These courts are increasingly hearing environmental criminal cases, but their roles are still evolving. Stern argues that “China’s new environmental courts are not a step toward judicial empowerment, as international observers might be tempted to conclude, but an effort to enlist courts to serve alongside government bureaus in a multi-pronged environmental campaign.”64 Such a view sees environmental courts as not just arbiters of environmental cases, but as additional forums for governmental policy development, awareness-raising and social control objectives.65

3.36. Environmental criminal cases have been more prominent in some environmental courts than others.66 One recent analysis of environmental courts in three cities found many criminal cases initiated by the procuratorate in Kunming and Guiyang, but more cases seeking court enforcement of government administrative orders in Wuxi. This is considered to reflect increased cooperation between the environmental protection bureau and the environmental court in Wuxi.67

3.37. Lin refers to the 2010 National Environmental Statistics Bulletin data to demonstrate the nationwide disparity between administrative and criminal actions: in 2010, environmental protection bureaus around the country issued 116,820 administrative enforcement orders, while only 11 criminal cases involving “major environmental pollution

62 Wang, 1996, 3-4.63 Stern, 2014, 53.64 Stern, 2014, 54.65 Stern, 2014, 61-2.66 Stern, 2014, 62.67 Stern, 2014, 64-65.

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accidents” were concluded in courts.68 Even the environmental courts themselves complain about the lack of cases brought before them.69

3.38. This reflects the broader history of those responsible for major pollution incidents avoiding criminal liability. Less than 5% of the 387 serious pollution accidents that were reported between 1997 and 2003 involved criminal prosecution, while the Ministry of Environmental Protection reports that only 26 such cases were prosecuted between 2006 and 2010.70

3.39. To date, those environmental criminal cases that have been prosecuted have involved only a handful of high-profile polluters, whereas significantly greater numbers of ordinary rural residents have been targeted.71 Stern’s study of cases brought in 2010 showed that none of the 103 environmental criminal prosecutions in Guiyang were for pollution accidents. In contrast, the majority “were small-fry prosecutions of poor people,” with only six cases involving allegations of serious crimes including illegal mining and abuse of official authority.72 This sample arguably provides further emphasis of the idea that environmental criminal law in China remains more concerned with maintaining public order than tackling major environmental problems. At the very least, as Stern notes, these statistics do nothing to challenge China’s historically problematic ‘pollute first, clean up later’ model of economic development.73

Penalties and Sanctions

3.40. While some of the environmental criminal laws allow the imposition of a fine up to 1,000,000 RMB (about $163,300 USD), maximum fines available under the regulations are more commonly around the 200,000 RMB mark. The average fines imposed are 100,000 RMB or less.74

3.41. Other penalties are also relatively low. Faure and Zhang note that many commentators have criticized the penalty for serious environmental pollution (under Article 338 of the Criminal Law) of “imprisonment or criminal detention of not more than three years and/or a fine” as being lower than sanctions for similar offenses against property.75

68 Lin, unpublished draft, citing National Environmental Statistics Bulletin (http://zls.mep.gov.cn/hjtj/qghjtjgb/).69 Bao et al, 2014.70 Lin, unpublished draft.71 Stern, 2014, 62.72 Stern, 2014, 68.73 Stern, 2014, 69.74 Faure and Zhang, (2011), 10037.75 Faure and Zhang, (2011), 10031.

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3.42. In this context, the recent Judicial Interpretation on environmental crime added, for the first time, four situations that warrant heavier punishments for perpetrators convicted of environmental crimes. These are:76

Attempting to block environmental inspections; Removing pollution control facilities, leaving them unused, or not

allowing their proper functioning; Discharging, dumping or disposing of wastes containing

radioactive substances, infectious disease pathogens, toxic substances or other hazardous substances following an environmental authority’s order to correct such violations; and

Discharging, dumping or disposing of wastes containing radioactive substances, infectious disease pathogens, toxic substances or other hazardous substances at or near densely inhabited areas such as hospitals, schools or residential areas.

3.43. This 2013 Judicial Interpretation also made clear that the death penalty is available in severe pollution cases.77

Lessons from China3.44. The above discussion of the context and structure of China’s

environmental criminal law framework, and the relatively low rate of environmental criminal prosecution to date, highlights a number of ongoing challenges with enforcing environmental criminal law as a mechanism for addressing China’s enormous environmental problems. These challenges include the:

influence of the non-transparent shadow system of administration by the CCP;

implications of the structure of the environmental criminal law procedure;

low priority currently afforded to environmental criminal prosecution;

lack of clarity in some aspects of environmental crimes and penalties;

relatively low level of penalties applicable to environmental crimes; and

capacity of all stakeholders to investigate, prosecute, adjudicate and enforce judgements in environmental cases.

3.45. Lin has identified that the environmental criminal procedure contains a concealed problem: environmental protection bureaus are often reluctant to report potential environmental crimes to the public security bureaus out of fear of their own officials being prosecuted for dereliction of duty (e.g. for monitoring pollutant discharge levels) –

76 Lin, unpublished draft.77 Stern, 2014, 67 (references removed).

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such criminal charges carry the threat of up to three years imprisonment.78 Stern has also noted that such reluctance to pass cases to public security bureaus can instead be about saving face – that is, avoiding what might be perceived as an admission of failure on the part of the environmental protection bureau. She also notes, however, that the two arms of public administration working together can help reinforce the validity of the environmental protection bureaus.79 Regardless of the cause of such disincentives, they indicate that criminal procedures should be designed in ways to encourage all stakeholders to take appropriate action against potential illegal activity.

3.46. The continued low number of environmental criminal cases brought before the courts demonstrates that criminal prosecutions do not receive the same level of priority as other responses to environmental problems, such as administrative measures. Perhaps more significant is Stern’s recent findings that the majority of defendants in those environmental criminal cases that are prosecuted are small-scale rural farmers or other individuals, rather than large entities or high-profile polluters.

3.47. This situation may reflect the emphases of Chinese criminal law (both in general and in the environmental field) on maintaining social order and stability, and on protecting economic interests rather than intrinsic environmental values. Whatever the reasons for these low levels of environmental criminal prosecution, they arguably contribute to the relatively low status of China’s still-new environmental courts, which “have not yet become strong environmental advocates.”80

3.48. In cases that are prosecuted, the sanctions available to courts to date are relatively insignificant, especially for large businesses. As Faure and Zhang note, fines in the order of 100,000 RMB for failure to operate pollution control equipment can in reality be significantly cheaper to pay (if the violation is identified, prosecuted and proven) than the costs of installing and operating the equipment in the first place.81 The sanctions available to courts when sentencing defendants, therefore, generally are insufficient to serve as disincentives for others.

3.49. Finally, as with many aspects of the environmental legal regime in China, environmental criminal law practitioners are relatively inexperienced. Capacity building efforts will continue to be undertaken, but the inescapable fact is that it takes time to develop expertise and experience in this field. This requires environmental criminal prosecutions to continue to be supported and impediments to

78 Lin.79 Stern, 2014, 72.80 Stern, (2014), p.54.81 Faure and Zhang (2011), p.10037.

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cases removed. The environmental protection bureaus need additional support and encouragement to refer cases to the public security authorities, and the preference to pursue administrative actions in cases that warrant criminal prosecution needs to be lessened. Guidance and encouragement from the central government in these regards, such as through Judicial Interpretations, is critical.

3.50. It is estimated that Chinese Courts dealt with 15,000 environmental cases in 2010 up from 10,000 in 2004. By comparison the courts deal with approximately 10,000,000 cases per year in total.82 So environmental cases are still less that 1% of the total cases, with environmental criminal cases being estimated a 2/3rd of total environmental cases. Zhang Minchun concludes that “most environmental courts remain more experimental than part of a well-functioning system”.83

3.51. The effectiveness of environmental enforcement by the State, can be seen in the record of the environmental Court in Qingzhen.84 First established in 2007, there are now are 365 environmental protection Courts or tribunals. The success of the Qingzhen Environment Court has much to do with the role and capacity of the Judges and the support from the Local Authority and the community. But an investigation by Rachel Stern into 103 publicly available decisions from the Qingzhen District (in Guiyang) environmental court’s 2010 criminal docket, roughly 80% of the criminal cases that year found that the typical environmental criminal had no more than a middle school education and lacked legal representation:

Ninety-two percent of crimes were either accidental fire setting or illegal logging. Reading between the lines, most law-breaking stemmed from poverty, a mistake (fires set by smokers who fell asleep, for example) or bad luck, as seen in a collection of cases in which wind turned an incense-burning ritual at a gravesite into a forest fire.85

3.52. However recent changes within the Supreme Peoples Court have also demonstrated a willingness of the Courts to take a very tough line on pollution. In January 2015, six polluting companies in Jiangsu were orders to pay 160 million yuan in restoration costs for illegally dumping almost 25,000 tonnes of chemical waste in two rivers in 2012.86

82 Zhang Minchun (2012). p. 36783 Zhang Minchun (2012). p. 38984 https://www.chinadialogue.net/article/show/single/en/7116-China-s-first-environmental-court-a-seven-year-winning-streak-for-public-interest-cases85 www.chinadialogue.net Stern 24/04/2013 86 www.chinadialogue.net

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Environmental Criminal Law in Indonesia

Introduction

4.1. The territory of the Republic of Indonesia is an archipelago totaling more than 18,000 islands, comprising 33 provinces and 434 regencies/cities. Each province and regency/city has its own regional administration.

4.2. Indonesia’s population, estimated in 2007 at 234 million is projected to increase to more than 274 million in the year 2025. In the year 2000, the total population living in urban areas was only 47 million people. In the year 2025, this number is projected to increase to approximately 187 million people.

4.3. Indonesia faces significant environmental challenges, including an expected increase in urbanization from 23% in 2000 to 68% by 2025.87 High concentrations of population translates into high concentrations of pollution resulting from urbanization as well as high exploitation of natural resources as demand for raw materials in urban centers increases.88

4.4. Environmental Pollution and environmental degradation has mirrored Indonesia’s economic development. A 2007 MoE report, Provincial Environmental Impact Control Agencies conducted monitoring of 35 rivers in Indonesia, which revealed that all 35 rivers were unusable as a drinking water source and relegated as a second class water source, suitable for a water recreation, fish cultivation, irrigation and other similar uses. Surface water and ground water pollutants came mostly from industry, agricultural activities and households.89 The MoE Report also noted that the worsening air quality due to pollution from transportation and industry was most apparent in big cities such as Jakarta, Surabaya, Semarang, Bandung and Medan.90 Recent years of large scale vegetation burning have created international problems and national concern.

4.5. Environmental destruction in Indonesia includes land, forest, coastal and marine ecosystems. The Department of Forestry, as quoted in the Indonesian Status of the Environment Report 2006, stated that land and forest area destruction reached almost 59.2 million hectares, with a deforestation rate of about 1.19 million hectares per year. This high

87 AECEN, p.688 AECEN p.689 AECEN p.690 AECEN p.6

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rate of decline has had a significant effect on biological diversity in forest ecosystems. Land and forest destruction in general is a result of land and forest fires, illegal logging, land settlement, conversion of forest functions and mining.

4.6. Unsustainable management has also caused devastation in Indonesian coastal and marine areas. Ninety percent of Indonesia’s coral reefs have been damaged or destroyed in the last 50 years as the consequence of unsustainable and environmentally destructive fishing practices, sedimentation and terrestrial pollution and coral mining. Meanwhile, Indonesia’s mangrove forest, which covered about 3.7 million hectares in 1993, was reduced to only 1.5 million hectares in 2005. This amounts to a 59% decrease in the total number of mangrove-covered hectares in the span of just 12 years.91

Overview of administrative, legal and political system

4.7. The Republic of Indonesia is established as a republic based on the rule of law. The Constitution provides for an elected President and Vice-President and a national assembly directly elected by the people of Indonesia. Although established as a unitary state, it is divided into provinces, regencies (kabupaten) and municipalities (kota). These regional authorities “exercise wide-ranging autonomy”92

4.8. The hierarchy of Indonesia’s laws and regulations is as follows93:

4.9. 1945 Constitution/UUD People’s Consultative Assembly Decision/Ketetapan Majelis

Permusyawaratan Rakyat (KepMPR) Law/UU Government Regulation in lieu of Law/Peraturan Pemerintahan

Pengganti Undang-Undang (PerPPU) Government Regulation/Peratuan Pemerintah (PP) Presidential Regulation/Peraturan Presiden (PerPres) Provincial Regulation/Peraturan Daerah Provinsi (Perda Provinsi) Regency/City Regulation/Peraturan Daerah Kabupatan/Kota

(Perda Kabupaten/Kota).

4.10. The provincial and regency/city administrations govern and manage their administrative affairs in keeping with the autonomy principle and the medebewind principle (assistance assignment/tugas pembantuan). The regional administration has the right to establish local regulations to implement the autonomy and the assistance assignment. While the

91 AECEN p.792 The Constitution Chapter VI93 Law No. 12/2011 on the Formulation of Laws and Regulations, Article 7(1). Law No. 12/2011 repealed Law No. 10/2004. http://rulebook-jica.ekon.go.id/english/4778_UU_12_2011_e.html

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sub-national administrations exert autonomy as widely as possible within their jurisdiction, the law excludes administrative affairs that are reserved for the central government.94

Overview

4.11. In Indonesia, enforcement authority has been weak and fragmented,95 and environmental regulators96 make limited and inconsistent use of enforcement options available to them.

4.12. The limitations of MoE were so severe that in April 1987, The Minster of Environment, Mr. Emil Salim commented that:

"Experience has taught us that an environmental agency can only be functional if it has access to a nation's highest level of authority, and to planning and resource allocation processes at the highest level."97

4.13. The State Ministry of Development Supervision and Environment was established in 1983 and then became the Ministry of Environment in 1993. In 1990, the Government of Indonesia formed the Environmental Impact Control Agency (BAPEDAL), which answered directly to the President and was led by the State Minister of Environment. In 1994, the Government formed Local Environmental Impact Control Agencies (BAPEDALDA) in 30 provinces and 111 Local Environmental Impact Control Agencies at the regency/city level. However, the Government dissolved the BAPEDAL in 2002 and transferred its functions to MOE. The local environmental impact control agencies then were subsumed into the provincial and regency/city administrations

4.14. Capacity weaknesses are significant. Indonesia, while having about 9,600 large and medium-scale and 134,000 small-scale potentially polluting firms, it has only 476 environmental inspection officers that are spread out over 20 out of the country’s 33 provinces. Decentralization of enforcement authority to the provincial and municipal levels98 seems to have worsened lack of staff and funding, as local governments have been unable to provide sufficient resources and qualified staff.99

4.15. AECEN reported other governmental agencies also have related environmental compliance and enforcement authority. National line agencies, provincial and regency/city governments have authority to supervise and impose administrative sanctions, which exceeds MoE’s

94 AECEN p.995 AECEN, p.996 See AECEN (2008), p. 10, and Bedner (2010), pp. 38-6097 Cited in Afsah (2011)98 Following decentralization laws adopted in 1999 and 2004.99 van Rooij p.8

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authority. In addition, national line agencies, and provincial and regency/city governments have the legal authority to investigate environmental crimes. Frequently, there are conflicts of authority between environmental investigators and other civil investigators in conducting investigations. For instance, conflicts may arise between MoE’s investigators and the Ministry of Forestry’s investigators or the Ministry of Agriculture’s investigators in investigating forest fires cases.100

4.16. The EPM 2009 provides for three types of administrative sanctions namely: government order (paksaan pemerintah), payment of a certain sum of money, and revocation of business/activity license. The Ministry of the Environment, however, has no authority to impose any of the three administrative sanctions. Rather, the Governor/Head of Province has the authority over the “government order” sanction and “payment of a certain sum of money” sanction.

Legislation

Constitution

4.17. The Indonesian Constitution explicitly states and guarantees the right of any individual to a good and healthy environment.101

100 AECEN p.14101 The Indonesian Constitution was created in 1945 and has been amended four

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4.18. Article 28 (1) of the Constitution states that: “Every person shall have the rights to live in physical and spiritual prosperity, to have a home and to enjoy a good and healthy environment, and shall have the right to obtain medical care.”

4.19. Article 33 (4) of the Constitution provides that:“The organization of the national economy shall be based on economic democracy that upholds the principles of solidarity and efficiency along with fairness, sustainability, keeping the environment in perspective, self-sufficiency and by maintaining the balance between progress and the unity of the national economy.”

4.20. According to the ADB are literally thousands of regulations and legislation 14 related to or directly governing environmental management and protection in Indonesia. These regulations and legislation may be classified into five categories, namely: General Environmental Legislation (GEL); Sector Environmental Legislation (SEL); Ratified Environmental Convention (REC); Provincial Environmental Legislation (PEL); and Local Environmental Legislation (LEL).102

4.21. No. 23 of 1997 regarding Environmental Management (frequently referred to as the Environmental Management Law or EM Law 1997) was "the basis for the evaluation and adjustment of all laws that contain applicable environmental provisions, namely laws concerning irrigation, mining and energy, forestry, conservation of biological resources and its ecosystem, industry, settlement, spatial management, land use, etc.”

4.22. This law was amended in 2009 by the Law on Environment Protection and Management (EPM Law).103 The Principle of the EPM Law is outlined in Chapter II:

Chapter II Principle, Goals and Scope Part OnePrincipleArticle 2

Environmental protection and management shall be executed on the basis of principles:a. state responsibility;b. conservation and sustainability;c. Harmony and equilibrium;d. Integration;

times. The First Amendment was made in 1999, the Second Amendment in 2000, the Third Amendment in 2001 and the Fourth Amendment in 2002.102 AECEN p.7103 EPM Law 2009, Law No 32/2009

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e. Benefit;f. Prudence;g. Justice;h. Eco-region;L biological diversity;j. polluter pays;k. participation;L local wisdom;m good governance; andn. Regional autonomy.

4.23. For the first time in Indonesia, the EPM Law expressly incorporated principles contained in the 1992 Rio Declaration104: state responsibility; polluter pays; participation; and recognition of the importance of indigenous knowledge and traditional practices. Including these principles in national law was politically, as well as legally, important because they support the interests of sustainable environmental management when those interests conflict with short-term economic interests.

4.24. The EPM Law also enabled criminal prosecution as a first resort, with one exception: the State may prosecute violations of environmental quality standards only for non-compliance with an administrative sanction or for repeated violations.105 Businesses and their officers may be criminally liable under the EPM Law. The EM Law of 1997 provided criminal liability for a business, but not for its management.106 The EPM Law also stipulates criminal sanctions when government officials intentionally failing to supervise compliance.107

4.25. However the EPM Law also delegated substantial responsibility to governors, regents and mayors, authorizing them to: administer the environmental impact assessment (EIA) process in their jurisdictions108; issue environmental licenses109 and other licenses110; hold and manage environmental guarantee funds111; delegate responsibility for environmental monitoring and enforcement to the environment agency in their jurisdiction and appoint the agency’s personnel112; conduct inspections to monitor compliance113; and

104 Rio Declaration 1992.105 EPM Law 2009, Section 100(2).106 EPM Law 2009, Sections 116-119.107 EPM Law 2009, Section 112.108 EPM Law 2009, Articles 29-39.109 EPM Law 2009, Article 36(4) 110 EPM Law 2009, Articles 20(3) and 61.111 EPM Law 2009, Article 55(2).112 EPM Law 2009, Article 71.113 EPM Law 2009, Article 72.

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impose administrative sanctions114. Sub-national environmental authorities do not report to the Ministry of Environment, but to their respective governors, regents and mayors.

4.26. The following outline was provided in the 2008 AECEN Rapid Assessment Review discloses the complexity of the enforcement arrangements at a national and regional level in Indonesia.

Environmental Management Framework

Provincial Governments.4.27. Provincial governments have responsibility for implementing

environmental management policy in their territories, especially with respect to environmental problems pertaining to cross-regency/city matters. In addition, the provincial governments also have the power to monitor compliance, manage supervision and impose several administrative sanctions limited to industries and enterprises within their jurisdiction.

Regency/City Governments. 4.28. The regency/city governments are responsible for implementing

environmental management policy within their own territory. In addition, the regency/city government also has the power to issue location permits, building permits and nuisance licenses (HO), to monitor compliance, to undertake supervision and to impose

114 Law No. 32/2009, Article 76(1).

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administrative sanctions for license requirement violations.

National Police. 4.29. The National Police of the Republic of Indonesia is the national entity

authorized to maintain security and public order. Among these duties, National Police officers are also responsible for enforcing environmental law. More specifically, provisions in the Criminal Procedure Code (KUHAP) authorize the National Police to undertake investigations and inquiries against all criminal acts, including environmental crimes. The National Police's authority to undertake environmental investigations does not reduce the authority held by other investigators, including environmental public servant investigators (PPNS LH).

Public Prosecutor. 4.30. The Office of the Public Prosecutor of is the government institution

that prosecutes crimes. The functions of the Public Prosecutor are performed by the Office of the Attorney General, the High Prosecutor’s Office and the Public Prosecutor’s Office. The Attorney General is located in Jakarta and its jurisdiction includes the state jurisdiction. The High Prosecutor is located in provincial capitals and its jurisdiction covers the provincial territories, while the Public Prosecutor is located in the regency/city capital and its jurisdiction covers the regency/city territory. In an environmental criminal context, the Public Prosecutor’s duty involves (a) carrying out prosecutions against violators, (b) executing judge rulings and court decisions, (c) supervising and administering conditional criminal decisions, and (d) completing cases sometimes requiring coordination with investigators. Similarly, in an environmental administrative and civil context, the Public Prosecutor has wide latitude to act both inside and outside of court in the name of the government.

Judiciary. 4.31. The judiciary consists of four different jurisdictions under the

Supreme Court. Two subsystems are closely related to environmental cases, namely the general judiciary (District Court/Pengadilan Negeri and High Court/Pengadilan Tinggi) and the administrative judiciary (Administrative Court/PTUN and High Administrative Court/PTTUN). The general judiciary has jurisdiction over criminal and civil cases. The state administrative judiciary has jurisdiction over administrative disputes. Two other subsystems, the religion and military courts, do not relate to environmental cases

Legal Authority of the MoE in environmental Compliance and Enforcement

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4.32. In addition Indonesia has a complex system of Environmental Protection Licenses that are issued by mayors/head of Regency and other line Ministries.

Public Disclosure for Corporations in Indonesia

4.33. In 1995 Bapedal, Indonesia’s national pollution regulator, launched a new initiative called Program for Pollution Control Evaluation and Rating (PROPER). The first phase of the program (which ran until 1998) produced a rating system to rate the water pollution performance of 187 industrial firms, including medium and large-scale polluters from Sumatra, Java and Kalimantan. According to Bapedal

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data, two thirds of these factories were not in compliance at the time. The first phase ended in 1998 amidst the fall of the Suharto government, and the second phase was initiated in 2002. During the second phase, the program expanded from 85 firms in 2002, to 627 firms in 2009.115 By 2010 the total number of companies in the program had expanded to 690. With the increased budget for the PROPER program, the Ministry has also set the target to reach more than 750 companies by 2011.116

4.34. The enforcement innovation here is twofold: First, the compliance data have been gathered by a combination of inspections and self-reporting by industries; second, compliance is disclosed in a simplified form that is readily accessible to civil society, consumers and shareholders who can then act upon it. The combination of self-reporting and inspection could if it worked well reduce detection burden and thus capacity issues, while disclosing compliance data broadens the number of actors that can issue sanctions against violators. The PROPER program originated in a context again of disappointing administrative enforcement and persistent non-compliance.

4.35. Afsah concluded in 1997:During its first two years of operation, PROPER has proven quite effective in moving poor performers toward compliance, and motivating some firms to pursue higher ratings by abating beyond the requirements and investing in pollution prevention. Undeniably, public information is having an important impact on industrial pollution control in Indonesia. Inspired by this example of public information in action, the governments of Philippines, Colombia, Mexico and Brazil are now moving rapidly toward developing their own public disclosure programs.

To conclude, we must rethink the regulator’s role in pollution management once we recognize that local communities, consumers, and investors may all provide incentives for pollution control if empowered to do so. In the information age, the regulator’s role is no longer confined to producing and policing rules and standards. Instead, the regulator can gain important leverage through programs such as public disclosure, which harness the power of communities and markets. A broader implication is that one size no longer "fits all" for regulatory policy design. Optimal combinations of regulatory tools, including new information strategies, will depend on country-specific social, economic and institutional conditions. 117

4.36. But he was less positive in the 2011 review. Although the overall compliance with effluent standards increased from 33% to more than 50% without a single enforcement action. But with the onset of the financial crisis in 1997 and the political changes that followed, it was

115 von Rooij, p.20116 Afash 2011, p.20117 Afash 1997.

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politically unfeasible to continue with the disclosure of ratings118

Environmental Criminal Procedures

4.37. Considering the extensive legal framework that has developed in the country over the past thirty years, relatively few environmental cases have been filed in Indonesian courts. From 1982-2002, only 24 environmental cases were filed with the courts, including four with the administrative courts. There seems, however, to be an increase in cases being files with the judicial branch of government, since 68 cases were filed in 2008. The low volume of cases filed with courts have been attributed to a number of factors, including lack of procedural access, limited financial resources of environmental litigants, evidential obstacles in successfully prosecuting environmental cases, a perceived lack of judicial independence and corruption within the system.119 This apparent reluctance to seek judicial recourse suggests that improvements are needed in order to increase access to environmental justice by citizens and civil society groups.

4.38. The slow development of environmental jurisprudence could be illustrated by a study of environmental cases filed from 1982-2002.120 As previously mentioned, only twenty-four cases were filed before the General Courts during this period comprising 10 public interest and 14 private interest cases. Of the 24 filed, seventeen lost and 7 won partial decisions at the District Court level, while 2 succeeded on appeal. All four of the cases submitted to the Administrative Court for consideration were denied.

4.39. Fragmentation has also occurred in the establishment of a separate Fishery Courts to hear cases involving fishery crimes.121 Law No. 31/2004 stipulated that the Fishery Courts be located in North Jakarta (Jakarta Special Region), Medan (North Sumatra Province), Pontianak (West Kalimantan Province), Bitung (North Sulawesi Province) and Tual (Maluku Province).

4.40. In October 2007, the Chief Justice launched the five Fishery Courts with 28 ad hoc judges assigned to work in three-person teams comprised of a presiding judge and two other judges. The Chief Justice cited economic losses due to illegal fishing as the reason for creating the Fishery Courts.122 Law No. 31/2004 also required specialized prosecutors. Ninety prosecutors with education and training in fishery

118 Afash 2011, p.19119 Nicholson. (2009), pp. 267- 275.120 Nicholson. (2009), p. 321.121 The Fishery Law No. 31/2004, Article 71, established the Fishery Courts. Law No. 45/2009 amended Law No. 31/2004.122 Barrie (2007).

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affairs prosecute cases in the Fishery Courts. The Fishery Courts hear cases involving violations by national and foreign fishing vessels.

Judicial Training

4.41. The Supreme Court in cooperation with the Indonesian Centre managed a nationwide training initiative from 1999-2005 for Environmental Law (ICEL), the Australian Centre for Environmental Law and the University of South Australia. Approximately 1,500 individuals participated in the training, including 800 judges from all levels of the judiciary being trained and certified. In May 2000, the Minister of Environment and Chief of Police signed a Charter of Cooperation.

4.42. A nationwide training initiative was managed from 1999-2005 by the Supreme Court in cooperation with the Indonesian Centre for Environmental Law, the Australian Centre for Environmental Law and the University of South Australia. Approximately 1,500 individuals participated in the training, including 800 judges from all levels of the judiciary being trained and certified. This judicial training was continued from 2005 to 2009.

4.43. ICEL has been a leader in improving environmental enforcement and compliance, including through encouraging judicial education and specialization in environmental law. ICEL provided trainers from Indonesia for the program, and Australia provided a blue-ribbon panel of experienced judges and academics from Australia with strong backgrounds in environmental law. The trainers were organized into three person training-teams, which usually included a judge to enhance the respect and interest of participants from the judiciary.

4.44. In 2004, a joint decree123 on Integrated Environmental Law Enforcement (Known as “One Roof Enforcement System” – ORES) was signed by the Ministry of Environment, Chief of Police, and Attorney General. ORES aimed to improve integration in the implementation of law enforcement through investigation, prosecution and supervision.

4.45. In 2009, the Supreme Court and the Ministry of Environment signed a Memorandum of Understanding (MOU) to establish a working group for designing the capacity building program for environmental adjudication of Indonesian judges. The Working Group comprised of senior justices, officials of the Ministry of Environment, and NGO/civil society stakeholders, including ICEL.

4.46. As discussed above, the government has decided to move forward with creation of a Certified Environmental Judges Program. In support of this program, the Supreme Court and the Ministry of Environment

123 No. KEP-04/MENLH/04/2004, No. Pol. KEP-19/IV/2004, Number KEP-208/A/JA/04/2004

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signed a Memorandum of Understanding (MOU) on June 18, 2009 on cooperation to improve the role of environmental law in sustainable development. Under this MOU, the Supreme Court agreed to establish a working group which was tasked with the following:

developing a training methodology and curriculum development for certification;

developing the concept of certification of environmental judges; preparing the operational mechanism for delivering

environmental justice; preparing a monitoring and evaluation mechanism for

environmental cases; and preparing a Bench Book on environmental cases for Judges.

4.47. In July 2011, the Minister of Environment, Head of National Police, and the Attorney General on Integrated Environment Law Enforcement (ORES) issued a joint decree for coordination and capacity building of the legal enforcement chain in handling environmental cases. This decree also established an integrated environmental law enforcement team involving the three agencies.

4.48. In September 2011, the Chief Justice of Indonesia issued Decree No. 134/KMA/SK/IX/2011 concerning the Certification of Environmental Judges. . The Decree stipulates that only judges the Supreme Court has certified as environmental judges may try environmental cases.124 Under the Decree, environmental cases include administrative, civil, and criminal cases125, which means that judges from both general and administrative courts are eligible for the certification program.

Penalties and Sanctions

4.49. The criminal sanction for environmental crimes according to the EPM 2009 may be in the form of: (1) a jail sentence between 3-15 years; (2) a fine between Rp 100,000,000 and Rp 750,000,000 (between US$ 10,000 – US$ 80,000), or (3) accessory penalties. Accessory penalties may be in the form of: (1) confiscation of benefits from the crime; and/or (2) closing part of or an entire company; and/or (3) rehabilitation of the impact of the crime; and/or (4) obligation to do what was neglected without any rights; and/or (5) nullification of what is neglected without any rights; and/or (6) to place the company under reprieve for a maximum period of three years.

4.50. Criminal responsibility for an environmental crime may be imposed on an individual or a legal entity. If the crime is committed by or on behalf of a legal entity, company, union, foundation or other organizations,

124 Supreme Court Decree No. 134/2011 on Certification of Environmental Judges, 125 Supreme Court Decree No. 134/2011 on Certification of Environmental Judges,

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then the criminal sanction is added by a third of the punishment.126

4.51. The criminal sanctions for a legal entity are in the form of fine and accessory penalties The MoE divides criminal cases into three components, namely:

environmental criminal cases (obtained from the results of PROPER evaluations);

environmental criminal cases of forest/land fire; and strategic environmental pollution and/or damage cases.127

Lessons from Indonesia.

4.52. There are a number of key lessons to be learned from Indonesia. Those key problems identified with the fragmented nature of the licensing and permitting system and that lack of lack of clear coordination between the central and regional governments lead to problems with compliance and enforcement.

Lack of implementation of compliance monitoring guidelines4.53. There is also a lack of implementation of compliance monitoring

guidelines. Although detailed procedures are established for all phases of compliance monitoring, lack of sufficient resources to enforce environmental laws prevent compliance monitoring from being implemented effectively and on a widespread basis.

Lack of standard procedures in self-monitoring4.54. Indonesia has relied on the self-monitoring and self-reporting program

(PROPER). Whilst this moves some of the burden away from the regulator it has been observed that there is a lack of clear regulation and guidance on self-monitoring. This innovative program needs to be supported by clearer guidelines. There is no standard operating procedure for the gathering, collection, record keeping and reporting of environmental performance by the company. There are also no clear regulations that detail the administrative or criminal sanctions when businesses fail to comply with the self-reporting requirement.

Lack of follow-up for non-compliance with self-monitoring obligations4.55. Self-monitoring and self-reporting need to be followed up with

sanctions and penalties for breaches. The imposition of daily penalties, should a corporation not comply with its reporting obligations, and penalties to be imposed if a corporation fails to self-report incidences of environmental harm or breaches of environmental law will assist in promoting self-monitoring and self-reporting.

Weak coordination between the central and local governments. 4.56. The four main challenges are: (1) lack of coordination in monitoring

126 EPM Law, Section 116-119,127 AECEN p.28

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and inspection activities; (2) lack of strategy in sharing cases between the central and local governments; (3) weakness in reporting and data exchange between regency/city governments, provincial governments and the MoE; and (4) lack of consistency in implementing environmental compliance and enforcement programs among regency/city governments, provincial governments, and the MoE.

Weak coordination between agencies with sector responsibilities. 4.57. The role and function of MoE in coordinating the planning and

implementation of environmental compliance and enforcement policy among sectoral agencies has not been well implemented.53 Coordination is limited in formulating the policy between ministries, departments and other government institutions; monitoring sector institutions issuing business licenses and the local governments; and investigation and prosecution.

Limited financial resources for environmental compliance and enforcement.

4.58. The main financial source for environmental compliance and enforcement programs is the state budget (APBN), which to date has proven insufficient.

Insufficient human resources at all levels. 4.59. The number of inspectors and investigators is insufficient, while

recruitment and placement of quality staff remains weak. Government officers who have been trained as environmental inspectors or investigators are often not placed in units relevant to inspection and investigation. Behavioral supervision, integrity development and remuneration are inadequate.

Complex criminal and civil enforcement processes. 4.60. Criminal and civil enforcement depends heavily on the time-

consuming trial process. The severity of the punishment depends on the judge’s discretion, and the Supreme Court has not issued any guidelines concerning the handling of environmental cases. It is also difficult to access information on penalties and sanctions imposed on pollution.

Overlapping authority in investigation and prosecution of criminal cases. 4.61. The police and MoE’s civil servant investigators both play a role in the

investigation process, which leads to coordination problems and inconsistencies. Environmental investigators are usually not involved when the case is being handled by the police. The Public Prosecutor’s Office also often deems cases unacceptable for presentation to the court.

Lack of consistency and limited use of administrative penalties. 4.62. The fragmentation of authority to impose administrative sanctions

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across various agencies, including sector agencies (such as the Departments of Industry, Forestry, Mining, etc.), provincial governments, regency/city governments, and the Minister of Environment, has resulted in inconsistent administrative sanctions.

4.63. Since decentralization in 1999, Indonesia faces similar enforcement problems as China, as local governments protect local industry fearing loss of income if their enforcement action forces companies to move elsewhere. Local governments also face the risk of factories mobilizing workers organizing protests and demonstrations outside their offices if their environmental agencies act against their factories. In addition, they risk losing the necessary financial and political support they need from such companies.128

4.64. Despite reforms over the past 10 years little seems to have changed with Indonesia. Cases are not being brought to the Court and the system of self-regulation has not lead to further actions for non-compliances.129

128 van Rooij p.10129 See DLU (2006).

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Environmental Criminal Law in NSW (Australia)

Introduction

5.1. Environmental crime is a rapidly growing area of criminal law in Australia. In the last twenty years, there has been a plethora of legislation providing criminal sanctions for actions causing harm to the environment. This legislation extends to diverse areas such as pollution, waste disposal, ozone offences, native vegetation clearing, threats to flora, fauna and biodiversity, illegal fishing, illegal logging and water theft.130

5.2. The legislation not only targets individual offenders, but also makes provision for corporate liability and some form of personal liability for directors and man- agers. This has necessitated changes to our perceptions of criminality. It has also required modification of the traditional common law principles of criminal liability. In addition, it poses a considerable challenge to legislators to develop innovative sentencing mechanisms to target corporations and directors. These aspects will be examined in this article.

5.3. As our knowledge of the environment has developed, there has been increasing recognition of the serious harm that some offences pose to the environment and that different treatment is required for different types of environmental offences. Accordingly, over the last 20 years, all Australian jurisdictions have enacted legislation imposing high penalties, including the possibility of imprisonment, for serious environmental offences. This legislation usually contains an amalgam of offences of strict liability and fault-based liability within the same statute.131

5.4. 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 response132

5.5. The activities that are recognised in Australia as environmental crimes include:

130 Bricknell (2010), Executive Summary.131 Bates (2013), p.782132 Bricknell (2010), p.xi

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failure to comply with development consent or EIA conditions; breach of a permit or licence or approval; 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.133

5.1. The use of the preface ‘illegal’ in the listed activities constituting environmental crime, reflects the fact that some component or level of these activities is still condoned and that it only becomes illegal once a set boundary has been passed. This tipping point of illegality contrasts environmental crimes with other established criminal offences. For example, the act of emitting (some) pollutants into the atmosphere is not itself illegal in Australia but becomes so when the amount or nature of pollutants emitted is outside prescribed guidelines and done without the relevant authority. Another example refers to the protection of threatened species—by and large, it is an offence to take a threatened animal, but in some instances it is not, as long as the purpose for taking a threatened species (eg for zoological research) has been notified to and approved by the relevant regulatory authority.

Overview of administrative, legal and political system5.6. In Australia, land use planning, natural resource management and

environmental protection are all matters that are reserved to the control of the various State Governments. Australia is a federation, established in 1901. Under the Australian Constitution, only certain matters are in the power of the national government. Those matters are enumerated in s.51 of the Constitution of the Commonwealth of Australia. All other matters are in the power of the State governments.134

5.7. The heirachy of Australian law and regulations is as follows:

The Australian Constitution Law passed by Commonwealth Parliament135

Commonwealth Regulations State laws State Regulations Local Governments.

133 Bricknell (2010), p.xi134 See Lyster (2012), p.15ff135 For those laws that the Commonwealth has jurisdiction over.

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5.8. The High Court of Australia is also the Court established under the Constitution as in the final appeals Court and also determines the constitutionality of legislation. Over the past 30 years the High Court held that the Commonwealth may exercise power to discharge many environmental responsibilities imposed under international treaties in addition to powers for which it is granted under the Constitution.

5.9. The Commonwealth Government has exercised powers for environmental protection in marine matters, World Heritage Properties management, fisheries and biodiversity conservation. However the primary obligation for environmental protection and enforcement rests with the State governments.136

5.10. Environmental law was developed early in NSW. In 1979 the NSW Labor Government introduced an Environmental Planning and Assessment Act 1979 and the Land and Environment Court Act 1979. This established a framework land use planning system in NSW, including the provision for Environmental Impact Assessment of major projects.

5.11. The NSW Land and Environment Court (LEC) rationalized and replaced a number of courts and tribunal dealing with land use planning matters and administrative matters and land valuation. It was the first specialist environmental court established as a superior court of record in the world. It deals not only with environmental crime but also land use planning, development approvals, environmental impacts assessment, and natural resources issues.137

5.12. Under the NSW land use planning system there is also a strong involvement of local governments. These are also able to commence prosecutions for breaches of environmental laws.

Environmental Criminal Law Framework

Legislation

5.13. The Land and Environment Court Act (LEC Act) lists most of the Statutes under which there will be criminal or civil enforcement for environmental planning and protection. The LEC has jurisdiction (referred to in this Act as “Class 5” of its jurisdiction) to hear and dispose of the following in a summary manner:

proceedings under Parts 8.2 and 8.3 of the Protection of the Environment Operations Act 1997,

proceedings under section 67, 70, 71, 73, 74, 77, 80, 81, 84, 92, 93 or 94 of the Water NSW Act 2014 or offences under

136 See Bates (2013), Chapter 5, p. 129ff.137 Lyster (2012), p.43

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regulations made under that Act, proceedings under section 23 of the Ozone Protection Act 1989, proceedings under Divisions 1, 3 and 4 of Part 10 of the Pesticides

Act 1999, proceedings under section 47 (5) of the Dangerous Goods (Road

and Rail Transport) Act 2008, proceedings under section 158 of the Heritage Act 1977, proceedings under section 127 of the Environmental Planning

and Assessment Act 1979,  proceedings under Divisions 1, 2, 2A and 4 of Part 10 of the

Contaminated Land Management Act 1997, proceedings under section 12 of the Uranium Mining and Nuclear

Facilities (Prohibitions) Act 1986, proceedings under section 691 of the Local Government Act 1993, proceedings under section 364 of the Water Management Act

2000. proceedings under section 277 (1) (c) of the Fisheries

Management Act 1994, proceedings under section 53 of the Sydney Water Act 1994, proceedings under section 176 (1AA) of the National Parks and

Wildlife Act 1974, proceedings under section 21 of the Very Fast Train (Route

Investigation) Act 1989,  proceedings under sections 127S, 127ZI and 127ZR of the

Threatened Species Conservation Act 1995, proceedings for an offence under section 15 of the Trees

(Disputes Between Neighbours) Act 2006, proceedings for an offence under the Marine Pollution Act 2012,

5.14. The LEC also has jurisdiction to hear and dispose of appeals by any person who has been convicted or sentenced by the Local Court with respect to an environmental offence.

Planning and Land Use Laws

5.15. Under the Environmental Planning and Assessment Act 1979 (EP&A Act) any person may take action in the LEC to for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

5.16. Offences against the EP&A Act can be brought if there is a failure to do and act or thing that is required by the law. This can be the failure to complete or comply with an Environmental Impact Assessment Report or a condition of consent attached to an approval or licence or permit to build an factory or other premises.138

138 Section 123 and s.124 EP&A Act.

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5.17. The EP&A Act establishes severe penalties for breach of the EP&A Act. Penalties for offences against the EP&A Act can be for a maximum of AU$1,000,000 with a daily penalty of up to AU$10,000.139

5.18. Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and to provide security for the performance of any obligation imposed,

5.19. It is important that offences under the EP&A Act can be wide and varied. As this is the legislation that requires development consent for any form of construction or activity, including those requiring the preparation of an EIA, proceedings are often brought in the LEC for a breach of a condition of development approval.

5.20. The usual prosecutor in the event of a prosecution for the failure to comply with a condition of an EIA or development consent is the local government authority (LGA). If the breach has resulted in environmental harm then the EPA may bring the prosecution. Usually it is the LGA that engages an independent law firm with specialist expertise to bring criminal proceedings against the offender.

5.21. The failure to comply with an Environmental Management Plan (EMP) or failure to act in accordance with the conditions of consent are all offences under the EP&A Act.

Contaminated Land Laws

5.22. NSW also has strict laws governing the responsibility for contamination of land. Under the Contaminated Land Management Act 1997 a person or corporation is responsible for contamination of land if the person caused the contamination of the land (whether or not any other person also caused the contamination of the land), or the person or corporation is the owner or occupier of the land and the person knew or ought reasonably to have known that contamination of the land would occur and the person failed to take reasonable steps to prevent the contamination.

5.23. The person or corporation will be required to pay for the cost of the remediation of the land unless it is established that the contamination was not caused by the person or corporation.

Pollution Control Laws

139 S.126 EP&A Act

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5.24. Proceedings under Parts 8.2 and 8.3 of the Protection of the Environment Operations Act 1997 (POEO) include air pollution, waste pollution140, pollution of waters, noise pollution, land pollution and littering.

5.25. In particular under s.120 of the POEO a person who pollutes any waters is guilty of an offence. The POEO provides that it is a defence to the charge if the regulation or a licence allows the discharge to occur. The onus is on the offender to prove the defence.141

5.26. It is also an offence under the POEO Act if a corporation or individual fails to notify the EPA of a pollution incident that threatens or causes material harm to the environment.142 Material harm is defined in s.147 to mean:

(a)  harm to the environment is material if:(i)  it involves actual or potential harm to the health or safety of

human beings or to ecosystems that is not trivial, or(ii)  it results in actual or potential loss or property damage of an

amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and

(b)  loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment.

5.27. The POEO also provides for a continuing offence. It a person is required to do a certain thing by a certain time, then the offence continues until such time as the person complies with the requirement.143 They are also liable for daily penalties as long as they are in breach. Penalties range from a maximum AU$250,000 to $1,000,000 and/or seven years imprisonment for individuals and up to $5,000,000 for a corporation.144

Biodiversity Conservation Laws

5.28. Wildlife offences under the National Parks and Wildlife Act 1974 (NPW Act) include harming or picking vulnerable or endangered species,

140 A person who transports water, or causes or permits waste to be transported and who allows the premises to be used to receive waste is guilty of an offence. See ss.143 and 144 of the POEO Act, 141 s.122 POEO Act 1997142 s.148 POEO Act. Environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings.(EP&A Act 1979)

143 s.242 POEO Act 1997144 POEO Act 1997.

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harming protected species, damaging habitat and unauthorised import or expert of flora and fauna.

5.29. Between 2003-2009 there were 96 prosecutions under the NPW Act.145 Not all of these resulted in convictions and fine varied considerably.

5.30. In addition the Native Vegetation Act 2003 created an offence of damaging or destroying native vegetation. This replaced previous legislation that had also criminalized large scale native vegetation clearing. Between 1998 and 2005 29 prosecutions were conducted in the LEC. Eighteen were successful, six unsuccessful and five were withdrawn.146 However it is estimated that during that time over 600 breaches were identified, a prosecution rate of 5%. Fines ranged from $40,000 to $400,000.

5.31. However 523 compliances action occurred which included:

Warning letters; Remediation agreements; Remediation notices; and Stop work orders.

Environmental Criminal Procedure

Powers of investigating officers

5.32. Investigating officers of the EPA, and local government authorities, have also been given significant powers to gather evidence of breaches.

5.33. This includes the power to enter and search premises,147 the power to take samples, and examine the premises and inspect any equipment, examine and inspect any record and copy any records, take photographs or recordings and also the power to seized items that may have been used in the commission of the offense.148

5.34. Officers may also request the production of answers and require attendance by a person to answer questions. The questions must be answered even if the answer may incriminate the person. The officers may also require a person to answer a series of questions and attend a place for further questioning, and to produce documents and other information. 149

5.35. NSW adopts a three-tired system for environmental offences:

145 Bricknell, p.31146 bricknell, p.34147 POEO Part 7.4 but this does not include residential premise.148 S.198 POEO Act.149 S.203 POEO Act.

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Tier 1 offences require proof of willingness or negligence in the commission of the illegal act and evidence of environmental harm or likely harm, for prosecution to proceed.

Tier 2 offences are strict liability or result offences that required no proof of mens rea or intent.

Tier 3 offences are offences dealt with under the system of penalty infringement notices (PIN). Only if the notice is not paid or challenged does the matter then become a criminal offence. Payment of the penalty notice conclude the proceedings. 150

5.36. In NSW proceedings for offences can be taken in the Local Court and the Land and Environment. The Court system in NSW is outline below.

5.37. In addition NSW provides for a broad range of civil proceedings. These are usually to obtain injunctions requiring a polluter or offenders to stop polluting or to comply with their obligation under the law. In many statutes “any person” may bring civil proceedings, including NGOs, without needing to satisfy any test of standing.151

5.38. Proceedings for an offence in Class 5 of the Court’s jurisdiction are to be commenced by summons. The summons is to claim an order under s 246(1) of the Criminal Procedure Act in respect of the offence and claim that the defendant be dealt with according to law for commission of the offence (Pt 5 r 5.3(1) of the Land and Environment Court Rules). An order under s 246(1) of the Criminal Procedure Act is that the defendant appear before the Court at a specified date, time and place to answer to the offence charged in the order, or for the apprehension of the defendant for the purpose of being brought before a judge of the Court to answer to the offence charged in the order.

150 See s.114 POEO Act 1997. ELRANZ (2008)151 s.252 POEO Act, s.123 EP&A Act.

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Figure 2.

5.39. One of the important aspects of environmental crime is the need for consistency of sentencing. The Court, in conjunction with the Judicial Commission of New South Wales, established in 2008 the world’s first sentencing database for environmental offences, as part of the Judicial Information Research System (JIRS). Sentencing statistics for environmental offences display sentencing graphs and a range of objective and subjective features relevant to environmental offences. The user is able to access directly the remarks on sentencing behind each graph.

5.40. The Court also reports annual on the numbers of cases commenced and desalt with during the course of the year.

Of the new prosecutions commenced in 2013: 50% were by the Environment Protection Authority or Office of Environment and Heritage30% were by local councils20% were by the NSW Office of Water, NSW Office of Coal Seam Gas, Newcastle Ports Corporation and the Division of Planning and Infrastructure. 

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Of the prosecutions determined by the Court in 2013:75% involved a guilty plea25% involved a not guilty plea

Of the prosecutions determined by the Court in 2013:75% resulted in a conviction23% resulted in an acquittal2% were proved but no conviction recorded

The penalties imposed included fines, orders to pay clean up or investigation costs, publication orders and environmental service orders. Fines ranged from $1,000 to $1,200,000.

Table 1: Prosecutions in Land and Environment Court 2013.

5.41. In 2013, 90% of criminal prosecutions were finalised within 16 months of commencement. The median completion time was 203 days.

2009 2010 2011 2012 2013

5.42. New South Wales has the highest number of prosecutions, with 124 convictions recorded during 2011–12, 56 by the NSW Environment Protection Authority (EPA) (pollution and related legislation) and 72 by the NSW Office of Environment and Heritage (vegetation clearing and fauna protection).152 In the same period, the Victorian EPA recorded 11 convictions153 and Queensland recorded 30 (13 for pollution offences and 17 for vegetation clearing and fishing).154 Four convictions for pollution offences were recorded in South Australia.155 In Western Australia, 21 prosecutions (including pollution and land clearing) were brought in 2011–12, 15 of which are still proceeding and six of which are subject to final determination.156 There were no

152 NSW Department of Premier and Cabinet, Annual Report, 2011–12153 EPA (Victoria), Annual Report, 2011–12.154 Department of Environment and Heritage Protection (Queensland), Annual Report, 2011–12.155 EPA (South Australia), “Completed prosecutions and civil penalties”, Public Register Directory, 2011–12.156 Department of Environment and Conservation (Western Australia), Annual

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convictions in the Australian Capital Territory and the Northern Territory.

5.43. In addition NSW issued 15,000 Penalty Infringement Notices from Tier 3 offences.

Corporate liability5.44. All environmental legislation makes provision for corporate liability.

To the extent that corporations are owners or occupiers of licensed or regulated premises, they may be liable for offences committed on such premises. Where it is sought to prosecute a corporation for an offence involving proof of a mental element, most environmental legislation provides that the state of mind of a corporation can be established by proof that an officer, employee or agent, acting in the scope of their employment, had that state of mind.157 This imputation can generally be refuted by showing that the corporation exercised due diligence.

5.45. Under NSW environmental crime law corporations are not able to claim a privilege against self-incrimination. This means that corporations must produce documents in response to notices from the EPA and local councils even if this means that these documents will establish the proof of the offence.158 It also means that directors of corporations may also have to provide incriminating material in accordance with the provisions of the statute.

Occupiers liability

5.46. In environmental offences, although the offenders is still innocent until proven guilty, the onus of proof often is placed on the offender. Under the POEO Act, it is for the offender to prove that they had a reasonable excuse or lawful excuse159. In addition the occupier of premises responsible for pollution from premises unless is it proven otherwise.160

5.47. As most pollution offences are strict liability offences or result offences that do not required proof of mens rea or intent.

5.48. Most environmental legislation imposes some form of personal criminal liability on corporate officials for corporate offences. The rationale for this is that since corporations are managed by individuals, corporate policy can only be changed by targeting the officers who make the decisions.

5.49. In environmental offences the Courts have also adopted the principle of ‘vicarious liability’ where one person is held legally liable for action

Report, 2011–12.157 For example, POEO Act, s 165; Environmental Protection Act 1986 (Vic), s 66B(2); Environment Protection Act 1993 (SA), s 127158 This was upheld by the High Court in EPA v Caltex Refining Co Lot (1993) 82 LGERA 51.159 S.256 POEO Act.160 S.257 POEO Act.

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or intent of another. Environmental legislation commonly imposes vicarious liability on corporation and directors and manages of corporations but principles of vicarious liability may also extend to employers that are not corporations to landowners and occupiers, and to owners of materials such as waste and other substances.161

5.50. There have also been cases where a corporation has been held to be liable for the act of a sub-contractor or independent contractor. This is usually when the factual situations show a degree of control or knowledge by the corporation.162

Director’s liability in environmental offences.

5.51. The Council of Australian Governments (COAG) has introduced a number of guidelines for “nationally consistent and principles-based reforms” to legislation governing the criminal responsibility of corporate officers for criminal offences.163 These principles were approved by COAG in July 2012 and agreed to by all jurisdictions in Australia. They are designed to limit wide-ranging personal liability for corporate officers.

5.52. Broadly, the reforms remove the presumption of corporate officer liability except for a small number of serious environmental offences, which were considered justified by “compelling public policy”. These offences are known as “special executive offences” and are identical to the liability provisions prior to the amendments. Directors or managers are held personally liable for offences by their corporation without proof of fault. The defence of “lack of influence” or “due diligence” is available, but the onus of establishing these defences rests on the defendant.

5.53. This liability attaches to 19 of the more serious offences in the POEO Act. It applies to all Tier 1 offences (ss 115–17) and a number of the more serious Tier 2 offences, including pollution of waters, air and land; certain waste offences; breach of licensing provisions (ss 49(2), 64(1)); and failure to notify a pollution incident (s 152).

5.54. The selection of specific pollution offences for special executive liability is reasonable, given the likely harm to the environment that could result. However, it is unfortunate that special executive liability has not been extended to some of the serious offences in other environmental legislation, such as harming or picking threatened/endangered species, and vegetation clearing.164

161 Bates p. 801. Also Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715. The SPCC was a forerunner to the EPA. 162 Bates p.802163 COAG Reform Council, Personal Liability for Corporate Fault: Guidelines for Applying the COAG Principles, 31 July 2012, developed as part of the National Partnership Agreement to Deliver a Seamless National Economy, 2008.164 See Native Vegetation Act 2003 (NSW), s 12; National Parks and Wildlife Act 1974 (NSW), ss 118A(1), 118A(2).

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5.55. It is still clear that directors and senior managers of corporations must take an active involvement in environmental protection issues for their companies. Failure to do so will result in possible prosecution for an environmental crime.

Executive liability offences

5.56. The less serious offences in Tier 2 of the NSW POEO Act and the most serious offences in other legislation are now classified as “executive liability offences”.165 For these offences, the presumption of corporate officer liability no longer applies. The prosecution must establish that an executive liability offence has been committed by the corporation and that the defendant is a director or manager, and is in a position to influence its conduct. The director must also be shown to have known, or ought reasonably have known, that the offence would be committed and to have failed to take reasonable steps to prevent it.

5.57. “Reasonable steps” include, but are not limited to, the following actions:

assessing compliance and ensuring regular professional assessments of the corporation’s compliance with executive liability provisions;

ensuring that employees, agents and contractors are given appropriate information, training and supervision;

ensuring the appropriateness of plant, equipment, resources, structures, work systems and processes relevant to compliance; and

creating/maintaining a corporate culture that does not direct, encourage, tolerate or lead to noncompliance.

5.58. These actions have replaced the requirement of “due diligence”, which is still used in relation to special executive liability offences. From the examples provided, there seems little difference between “reasonable steps” and “due diligence”. It is therefore unclear why different terminology has been used, which could lead to confusion.

Penalties and Sanctions

5.59. A common feature of environmental legislation is that penalties for corporate offenders are frequently double, and sometimes 10 times higher than, those for individuals. This difference recognises that corporations generally have more resources than individuals and are potentially greater sources of environmental degradation.

5.60. Since criminal penalties were first introduced for environmental offences, the maximum financial penalties have been increased on a number of occasions in all jurisdictions in Australia.166 Penalties for

165 s 169A; Native Vegetation Act 2003 (NSW), s 45; National Parks and Wildlife Act 1974 (NSW), s 175B.166 R Pepper (2012)

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pollution offences in New South Wales are higher than in any other state or territory. Tier 1 penalties under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) have increased since 1997 from a maximum of $1 million–$5 million for a corporation and from $250,000–$500,000 for an individual. Maximum penalties for Tier 2 penalties have also increased, from $250,000–$1 million for a corporation and from $120,000–$250,000 for an individual, with a corresponding doubling of daily penalties for continuing offences. By way of an anomaly under the legislation, penalties for the Tier 2 offence of failure to notify a pollution incident (s 152) have doubled, making it the only Tier 2 offence for which a maximum penalty of $2 million is available. The penalty for an individual offender has also doubled, to a maximum of $500,000.

5.61. Potential penalties are often discounted by a range of sentencing considerations. In assessing the appropriate sentence, the court has regard to the objective circum- stances of the offence and of the offender. It then takes into account the mitigating subjective circumstances of the offender. In some states, sentencing legislation specifically outlines a range of factors to which the court must have regard in mitigation of the penalty to be imposed. One of these factors is a guilty plea. The LEC has allowed a discount of between 10% and 25%, having regard to the time at which the plea is entered and the complexity of the issues. Discounts in sentence have proved a great incentive for defendants to plead guilty and this has been the trend in most prosecutions over the past five years. Although this has resulted in a considerable saving of judicial and administrative resources, it seems inappropriate in the case of a corporation and not in keeping with the common law view that a guilty plea is an indication of remorse.

5.62. In determining the appropriate sentence, the courts also have regard to the purposes of sentencing relevant to the offence and the offender. A key principle is that the fine should be large enough to be an appropriate deterrent, both for the offender and generally. This is particularly the case with corporations, where potential penalties should outweigh any gains so as not to appear as a mere licence for an illegal activity. It is notable that the maximum penalty for corporations is at least twice, and sometimes even 10 times, that which can be imposed on an individual offender. Yet, this factor does not appear to be reflected in sentencing.

Alternative sentencing orders

5.63. Fines are not always an appropriate penalty, especially for a large corporation that can write it off as a cost of doing business or pass it on to consumers. Fines are also not appropriate in the case of an impecunious defendant. In recent years, a number of jurisdictions have introduced a range of innovative sentencing options that empower the courts to make ancillary orders in addition to, or as an alternative to, a fine.

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Restoration orders

5.64. A particularly valuable innovation is the power to order the defendant to carry out a specified project for the restoration or enhancement of the environment. Where an environmental service order has been made, the EPA normally imposes a publication order so that the community is aware that the works are being undertaken as a punishment and not for any other reasons, such as good citizenship. Environmental service orders are often a better option than a fine that would otherwise be absorbed into consolidated government revenue.

Publication

5.65. Publication orders can be made separately or in conjunction with an environmental service order. They are generally reserved for corporations because of their deterrent value. The adverse publicity resulting from public awareness of the offence can have a greater impact on the corporation’s bottom line than a large fine, since corporations rely on goodwill for successful business operations. These orders are regularly made in Victoria and New South Wales. In 2011–12, 19 publication orders were made by the NSW LEC, all against corporate offenders or local councils.

Community service orders

5.66. Community service orders widen the range of penal- ties available for environmental offences and enable the court to deal more effectively with defendants who have no financial means or assets. In addition to punishing past behaviour and deterring offenders, they can be used to remedy any harm done and to enhance the environment. These remedies are only available for serious offences for which a term of imprisonment can be imposed. Community service orders are used sparingly by the NSW LEC, but to good effect. For example, in Environment Protection Authority (EPA) v Wattke; EPA v Geerd,39 the defendants, a director and a manager of a waste disposal company who had pleaded guilty to an offence under s 115(1) of the POEO Act, were ordered to undertake 460 hours of community service and to pay a fine of $50,000 and the prosecutor’s costs of approximately $140,000.

Complementary remedies

5.67. Reliance on criminal enforcement alone is unlikely to protect the environment. Criminal law is reactive, since it only operates after the damage has occurred. Furthermore, the evidentiary onus on the prosecution and the safeguards available to defendants make it difficult to obtain convictions. For these reason, a number of jurisdictions in Australia have introduced administrative and civil remedies to complement criminal prosecutions.167

5.68. Restorative justice is also being examined by the LEC as a way of

167 Bricknell, p37

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focussing on the protection of the environment.168

5.69. It is important to see that these sanctioning options – administrative, civil and criminal – form a continuum. They allow the regulatory agency to determine which is the best form for the particular offence and based on certain criteria. This also takes into account the harm caused to the environment and the response taken by the offender in responding to the incident.169

Lessons from NSW5.70. Some of the lessons from the NSW experience include the

establishment of a primary office to investigate and prosecute environmental offences. Whilst other Department and Ministries are also able to commence prosecutions, they can also make use of the EPA’s experience, both legal and scientific.

5.71. It is also clear that the legislative framework in NSW puts the onus of the offender to prove that the action was lawful. As most offences are ‘result offences’

5.72. NSW also has a wider variety of enforcement options, from orders to PINs to civil and criminal proceedings. By allowing all of these options to be used by the regulators in a transparent and open manner it creates community and private sector trust in the system of enforcement of environmental obligations.

5.73. The role of the LEC in the enforcement of environmental obligations and the prosecution of environmental offences cannot be underestimated. A specialist tribunal with appropriate qualified judges that is able to hear and dispose of cases quickly and efficiently is fundamental to combat environmental crime.

5.74. Each of these elements would be insufficient individually but together they create a system of enforcement of environmental protection laws.

Access to environmental justice5.75. Development of effective ECTs is a major step forward to achieving

access to environmental justice. The signing of the Rio Declaration in 1992 by 178 governments was the start of the developing notion of access to justice in environmental matters. Principle 10 of the Rio Declaration lays the foundation for three pillars of good environmental governance: transparency, inclusiveness, and accountability. As Lalanath De Silva, Director of The Access Initiative notes, these “basic pillars have matured into “access rights” embedded in local and national laws, regional and international agreements, and judicial decisions.”170

168 Bricknell, p.12169 Bricknell p.18170 Pring and Pring, p.x.

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5.76. The Access Initiative has identified four principal purposes served by access to justice in environmental decision-making:

Strengthening freedom on information Allowing citizens the means to ensure that they participate

meaningfully and appropriately included in decision-making. Empowering groups that may not have influence due to lack of

resources. Increasing the public’s ability to seek redress and remedy for

environmental harm.171

5.77. Part of the process of access to justice in the availability of public interest environmental litigation. The ability of members of the community to seek judicial redress for abuses in process or remedy for environmental harm is an integral part in achieving environmental justice.

RecommendationsRecommendation: Make the reality match the rhetoric. Make the Polluter Pay.

6.1. The realty must equal the rhetoric. The consequences of breaches of environmental law included toxic land, toxic air, toxic water and suffering communities. If governments genuinely desire to take action to avoid environmental catastrophe then governments will be required to take strong action, and clear leadership, supported by sufficient resources to take action against powerful individuals and corporations who are polluting the environment and illegally destroying the natural capital of Viet Nam and surrounding countries.

6.2. Above all else the polluter must pay for the environmental, social and economic harm caused by their pollution. The system should focus on compliance and avoidance of harm, but when that fails the polluter must compensate the State, the people and the ecosystem for any harm caused.

Recommendation: Establishment of an Environmental Crimes Prevention Office (ECPO) or an Environmental Protection Agency with a clear mandate and with a focus on integrity of the prosecution process.

Recommendation: Clarify the list of Environmental Offences and ensure that owners/occupiers and corporations are required to prove that their action are lawful. The burden must be shifted from the Regulator to those being regulated.

6.3. The laws on environmental crime need to be clear and cover all aspects of harm to the environment and failure to comply with the law.

171 Pring and Pring, p.xi.

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There should be different remedies available to require compliance with environmental law and there should be different remedies available to compel individuals, corporations and the government to comply with their lawful obligations.

6.4. The regulatory body tasked with ensuring compliance with environmental laws must be given sufficient regulatory powers to compel compliance and sufficient resources to manage the process of compliance and enforcement. The regulatory body must also have sufficient political stature and independence to pursue and compel all offenders to comply with their environmental obligations.

6.5. The office should be sufficiently resourced to be able to investigate and report of environmental criminal offences. In addition it should be empowered to impose administrative fines and sanctions.

6.6. It should have the power to prepare matters for prosecution and be able to handle the prosecution of serious cases of environmental harm.

6.7. The ECPO should also prepare for public comment its own Prosecution Guidelines modelled on the NSW EPA Prosecution Guidelines 2013. In particular focus must be placed on prosecuting:

The person or entity with the primary responsibility for the offence;

Those offences that are causing or have caused significant environmental harm;

The directors of companies who knew or ought to have know of the offence or the failure of the company to take appropriate steps to avoid the environmental harm;

Persistent, high profile or continual offenders.

6.8. It is important, in order to maintain the integrity of the system of environmental protection that the most serious cases of environmental harm are quickly and effective brought to justice.

6.9. The ECPO must also be given strong investigative powers to be able to require the production of documents and records that can be used in the event of prosecutions. The ECPO should also be able to pursue immediate or injunctive relief to protect or preserve the environment from further harm.

6.10. Criminal enforcement through the Court system should only be one of the options available to the regulator. The regulator should have access to administrative and civil penalties as well as fines and imprisonment. The key element is that the regulator should use whatever options which best protects the environment and achieves environmental compliance.

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6.11. There must be a reversal of the burden of proof on the possible offender. The owner or occupier or licence holder must be responsible for any environmental harm that occurs on of from that land. They must show that their actions were within the law and did not cause environmental harm. Additionally directors and senior managers of corporations must be made liable for the actions of their employees and the corporations.

6.12. The regulatory must have the legal mechanisms to require production of information within regard to any principles against self-incrimination. The regulator should have the power to compel the production of all information relating to environmental compliance.

6.13. In many countries it is also a requirement that a permit holder who breaches the permit must report the breach to the regulator. Failure to report the breach, and failure to report incidents of environmental harm is itself an offence.

Recommendation: Promote innovation in models of compliance to maximise compliance and minimise the need for regulatory action.

6.14. The process to achieve compliance with environmental laws should be innovative. Whether it is a self-regulatory model used in Indonesia, or the ability of NGOs to bring civil suits to compel compliance with environmental obligations, as in China or New South Wales, the regulator must constantly seek new ways to ensure compliance with environmental laws.

Recommendation: Establish a Specialized Environmental Court

6.15. A specialized environmental court, with appropriate stature, resources and power, is necessary to ensure better compliance with environmental obligations and to provide the best possible chance for environment criminal acts to be dealt with and punished accordingly.

6.16. There are 12 characteristics that are required for an ECT to operated successfully in practice:

Status and authority; Independent from government and impartial; Comprehensive and centralized jurisdiction; Judges and members are knowledgeable and competent; Operates as a multi-door courthouse; Provides access to scientific and technical expertise; Facilitates access to justice; Achieves just, quick and inexpensive resolution of disputes; Responsive to environmental problems and relevant; Develops environmental jurisprudence; Underlying ethos and mission; Flexible, innovative and provides value-adding function.172

172 Preston (2013)

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6.17. These characteristics can be the basis of discussions as to how to meet the challenges faced by environmental cases, both civil and criminal. Justice Preston argues that effective ECTs usually have both broad jurisdiction to deal with environmental matters and broad powers to control case management and case flow, impose relevant orders and remedies and compel compliance with those orders or remedies.173 One conclusion from the works of both Pring and Pring174 and Preston175 is that successful and effective ECTS are due to the combination of factors, not least the leadership of the Court or Tribunal in environmental law. Effective judicial leadership is an essential criteria for success.

6.18. Independence and impartiality from government has often been recognized as necessary for the effective operation of Courts.176

6.19. There is considerable advantage for an ECT to have comprehensive jurisdiction. Not only in terms of the ability to hear and determine a wide range of environmental matters but also with the power to issue all the necessary orders and grant remedies appropriate to the needs of the cases before it.

6.20. Preston also notes “Centralisation and rationalisation of jurisdiction enables a court to enjoy a comprehensive, integrated, and coherent environmental jurisdiction.177 It also facilitates the bringing together of jurisdiction and all laws covering the different legal aspects of environmental disputes, and may in some circumstances enable an ECT to adopt a creative and innovative “problem solving” approach to restraining, remediating or compensating for environmental harm.178

Recommendation: Involve the NGOs and the Community

6.21. NGOs and the community play a critical role in exposing environmental offences.179 They should be able to lodge complaints and be heard in cases of environmental harm. They should also be able to claim compensation for environmental and social harm, in particular in the cases of land, air and water pollution.

6.22. The use of alternative dispute resolution (ADR) provides innovative opportunities for environmental dispute resolution (EDR). Many

173 Preston (2013), p.40174 Pring and Pring (2009)175 Preston (2013)176 See for example: Universal Declaration of Human Rights (Art 10.), International Covenant on Civil and Political Rights (Arts. 14(1)), and the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region.177 Preston (2012), pp. 424 – 425. 178 Preston (2013), p.17. 179 Bricknell, p.17

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tribunals in different countries have acknowledged that resolving an environmental dispute is more about creating solutions and ecological outcomes rather than focusing on a win/lose outcome. This also allows the communes to be heard.

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Annexure 1

Common Vision on Environment for ASEAN Judiciaries.180

(i) The ASEAN judiciaries will collaborate among themselves and, as appropriate, others engaged in the environmental enforcement processes, to significantly improve the development, implementation, and enforcement of, and compliance with, environmental law and collaborate upon Action Plan to achieve it;

(ii) The ASEAN judiciaries will share information on ASEAN countries’ common environmental challenges among their own members and, as appropriate, among the legal profession, law schools, and the general public;

(iii) The ASEAN judiciaries will share information on environmental challenges and legal issues, and best practices in environmental adjudication among themselves, acknowledging the differences among their respective legal systems;

(iv) The ASEAN judiciaries will impose sanctions and penalties in accordance with their respective laws that are appropriate to the scale of environmental case or crime, and consider innovative remedies, in accordance with their respective legal systems, such as community environmental sentencing, or probation;

(v) The ASEAN judiciaries will strengthen specialized environmental courts, tribunals, benches, and specialization programs (such as environmental certification), where they exist and consider establishing them where they do not yet exist;

(vi) The ASEAN judiciaries will implement special rules of procedure for environmental cases where these already exist and consider developing and implementing them where they do not yet exist, which may include special rules of evidence for environmental cases, expediting cases, special remedies, injunctive relief, and other innovative environmental processes;

(vii) The ASEAN judiciaries will implement special rules and procedures for alternative dispute resolution in environmental cases where these already exist and consider developing and implementing them where they do not yet exist;

(viii) The ASEAN judiciaries will seek to ensure that judicial decisions on environmental cases are made available to the public and shared within the Asian Judges’ Network on Environment;

(ix) The ASEAN judiciaries will ensure that timely and appropriate training on environmental legal issues is available for new and junior judges, and all other judges adjudicating environmental cases, including through national judicial institutes, and will share among themselves information on different ways to impart this training, and make training a working component of the ASEAN Chief

180 Annexure 3.

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Justices’ Roundtable on Environment; (x) The ASEAN judiciaries will encourage law schools to include

environmental law in their respective curricula and legal professional associations to provide continuing legal education that includes environmental law and jurisprudence; and

(xi) The ASEAN judiciaries will seek to hold an ASEAN Chief Justices’ Roundtable on Environment annually to further cooperation on environment, as a subregional grouping of the Asian Judges Network on Environment.

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