In determining the appropriate sentence to be imposed on Queanbeyan City Council (Council) for polluting waters under section 120 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), the NSW Land and Environment Court recently held that environmental harm that had occurred in another jurisdiction was a relevant consideration to be taken into account: Environment Protection Authority v Queanbeyan City Council (No 3)  NSWLEC 220.
The Council was ordered to pay a penalty of $80,000 for the water pollution offence in the form of an environmental services order, together with Environment Protection Authority (EPA) legal costs of $343,000 and investigation costs of $1,189.
Circumstances of the incident
The pollution incident that was the subject of the charge occurred in November 2007 and resulted in the discharge of up to 1.1 megalitres of raw sewage into the Queanbeyan River, NSW.
The discharged sewage travelled 1.2 km downstream across the New South Wales border into the Australian Capital Territory (ACT) and subsequently flowed into the Molonglo River, resulting in the temporary closure of part of Lake Burley Griffin.
The discharge occurred due to a pump failure at Council’s Morisset Street sewage pumping station in Queanbeyan, and was undetected for several hours because a telemetry system failed to send a text message alerting Council of the pump failure. This led to a breach of a retention structure designed to prevent a spill in the event of a pump failure.
It was the second overflow incident within 24 hours as a result of the pump and telemetry failure.
The extent of environmental harm considered relevant in sentencing
The Court is required to impose a sentence that proportionately reflects both the objective circumstances of the offence and the subjective circumstances of the Council; Veen v The Queen  HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2)  HCA 14; (1988) 164 CLR 465 at 472.
The Council submitted that the NSW POEO Act does not operate extraterritorially and therefore the Court is unable to take into account, as a relevant objective circumstance, the environmental harm that occurred beyond the NSW border in determining the appropriate sentence.
In presenting its reasoning, the Council argued that the term “waters” in 120 of the POEO Act is to be read as the waters of NSW only, having regard to the objects of the POEO Act, which include “to protect, restore and enhance the quality of the environment in New South Wales” (at  and ).
The Council also argued that the Act dealt specifically with extraterritoriality in sections 109 and 170 of the POEO Act on environment protection notices and pollution entering into the State from acts or omissions outside the State and that the issue of extraterritoriality was confined to these circumstances (at ). The Court found that it had jurisdiction to determine the sentence as a result of the fact that the initiating act and some of the resulting pollution occurred in NSW; Lipohar v R  HCA 65; (1999) 200 CLR 485 at  – .
Justice Pepper held that whilst section 120 of the POEO Act was generally concerned with the protection of NSW waters, the NSW POEO Act did not preclude the Court from examining the totality of the harm caused by the commission of the offence despite part of the harm occurring in another jurisdiction. Her Honour stated that “the physical connection to the pollution that has occurred in the ACT as a result of the commission of the offence in NSW cannot be sensibly ignored and is sufficient to extend the reach of the Court’s consideration”. This consideration was not relevant to whether or not the offence was committed, but as to the extent of the environmental harm that occurred, including harm to other jurisdictions, in determining the imposition of an appropriate sentence.
In reaching her conclusions, Pepper J also held that if the Council had only discharged sewage into ACT receiving waters, it is likely that no offence would have been committed under section 120 of the POEO Act because there would have been no pollution of NSW waters.
However, in this instance both the waters of NSW and ACT were polluted and her Honour further stated that: “The protection of Australia’s unique environment ought not be thwarted by artificially construed legal boundaries; polluting events do not cease to be polluting merely because they traverse jurisdictional lines” (at ).
The extent of actual environmental harm caused was found to be insignificant based on joint expert evidence, despite the large volume of effluent that was discharged. There was a potential for harm to public health and the environment based on these large volumes and the fact that the waters were used for recreational activities, although this potential was also considered to be low.
Other factors considered relevant in sentencing
The Court also considered, as an aggravating factor, whether the Council had acted without regard for public safety, finding that this had not been established beyond reasonable doubt. Rather, the Court acknowledged that the Council had contemplated the failure of pumps and put in place measures to ensure the pumps were monitored, despite those measures being inadequate.
In considering the objective seriousness of the offence, the Court considered the reasons for the commission of the offence including whether there was any financial gain. It was accepted by the Court that the Council was providing a beneficial community service rather than conducting a “business enterprise”. However, the Court held that “there is an obligation on councils who provide services to the community to carry out these services in [a] manner so as to avoid harm to the environment” (at ).
The extent to which the Council could reasonably have foreseen the harm caused by the commission of the offence, the control the Council had over the causes that gave rise to the offence, the Council’s prior criminal record, assistance provided to authorities and both the general and specific deterrence for repeating the conduct were also held to be relevant factors to be taken into account in determining sentence.
Lessons from the decision
This case demonstrates the willingness of courts to ensure the objects of environmental protection legislation are upheld in determining the appropriate penalty for offences committed, regardless of differences in jurisdictional boundaries and the natural environment.
From a practical perspective, this case demonstrates the importance of assessing environmental risks and ensuring appropriate measures are in place to prevent or mitigate foreseeable risks of harm. The obligation to prevent environmental harm clearly extends to government authorities providing community services, regardless of whether or not profit is derived.