UNDP Report Version 7

Strengthening Access to Justice and Protection of
Rights in Viet Nam
A comparative analysisof environmentalcriminal law in the People’s
Republicof 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...................................................................... 9
Polluter pays principle..........................................................................................................................10
The role of the Judiciary.......................................................................................... 11
Environmental Criminal Law in the PRC.............................................................. 12
Introduction..................................................................................................................................................12
Overview of administrative, legal and political system......................................................12
Environmental Criminal Law Framework...................................................................................13
Legislation......................................................................................................................................................13
Environmental Criminal Procedure................................................................................................19
Penalties and Sanctions..........................................................................................................................20
Lessons from China...................................................................................................................................21
Environmental Criminal Law in Indonesia.......................................................... 25
Introduction..................................................................................................................................................25
Legislation......................................................................................................................................................28
Environmental Criminal Procedures.............................................................................................35
Lessons from Indonesia.........................................................................................................................38
Environmental Criminal Law in NSW (Australia) ..............................................41
Introduction..................................................................................................................................................41
Environmental Criminal Law Framework...................................................................................43
Legislation......................................................................................................................................................43
Planning and Land Use Laws..............................................................................................................44
Contaminated Land Laws ....................................................................................................................45
Pollution Control Laws..........................................................................................................................46
Biodiversity Conservation Laws.......................................................................................................47
Environmental Criminal Procedure................................................................................................47
Powers of investigating officers........................................................................................................47
Corporate liability ...................................................................................................................................51
Occupiers liability....................................................................................................................................51
Director’s liability in environmental offences. ...........................................................................52
Lessons from NSW.....................................................................................................................................56
Access to environmental justice............................................................................56
Recommendations....................................................................................................57
Annexure 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.
Overview
1.4. 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).

5
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

6
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 Overview
1.19. 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.com
3 ww.chinadialogue.com 01/08/2013
4 SEPA 2007.
5 ABA 2014, p.811
6 http://en.vietnamplus.vn/Home/The-Constitution-of-the-Socialist-Republic-of-
Vietnam/20141/45126.vnplus
7 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
8 ABA, p.812
9 ABA, p.812
10 ABA, p.812
11 ABA, p.812
12 Chapter III, section 19(b)

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1.27. Viet Nam does already prosecute environmental crimes. The
Supreme People’s Court from 2007 to 2014 determined 2801 cases
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.
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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The concept of environmental crime
2.1. There is no standard definition of environmental crime. In broad
terms, environmental crime encompasses any illegal act or omission
that causes environmental 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
15 Bates (2013), p.782
16 Bricknell, p.3
17 Bricknell, p.3

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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
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’ arethe 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
18 Bricknell, p.2
19 Bricknell, p.3
20 Grabosky 2003, p.237.
21 OECD 2007
22 Bricknell. P. 6
23 Bricknell, p.6
24 Preston (2009)

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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.
The role of the Judiciary
2.10. 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
25 ADB (2013), p.4.
26 Annexure 1.
27 www.asianjudges.org

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Environmental Criminal Law in the PRC
Introduction
3.1. 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
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 system
3.2. 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
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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 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
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”.
33 Liu, 2013, 3.
34 Liu, 2013, 3.
35 Wang Xi (2000).

14
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
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
36 Art 1 of the Environment Protection Law of the PRC.
37 Art 6 of the Environment Protection Law of the PRC.
38 Wang Xi (2000), p.7
39 Articles 338-346, Criminal Law of PRC.
40 Wang Xi (2000), p.21
41 Ibid, p.21

15
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,
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
42 Cai Shouqui (2000).
43 Cai Shouqui (2000), p.5
44 See Art 1 and Art 2.
45 Unofficial English translation of the Law.
46 Art. 6
47 Art 57.

16
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
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);
48 Art 53.
49 Art 58.
50 Faure and Zhang, (2011), p.10028-9.
51 Faure and Zhang, (2011), p.10042.

17
 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
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,
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.

18
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
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
57 Stern, (2014), 67.
58 Supreme People’s Court and Supreme People’s Procuratorate, 17 June 2013,
Article 4.
59 Stern, (2014), 62.
61 Supreme People’s Court and Supreme People’s Procuratorate, 17 June 2013,
Article 6.

19
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
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
62 Wang, 1996, 3-4.
63 Stern, 2014, 53.
64 Stern, 2014, 54.
65 Stern, 2014, 61-2.
66 Stern, 2014, 62.

20
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
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
67 Stern, 2014, 64-65.
68 Lin, unpublished draft, citing National Environmental Statistics Bulletin
(http://zls.mep.gov.cn/hjtj/qghjtjgb/).
69 Bao et al, 2014.
71 Stern, 2014, 62.
72 Stern, 2014, 68.
73 Stern, 2014, 69.

21
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
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 China
3.44. 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;
74 Faure and Zhang, (2011), 10037.
75 Faure and Zhang, (2011), 10031.
77 Stern, 2014, 67 (references removed).

22
 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) –
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
78 Lin.
79 Stern, 2014, 72.
80 Stern, (2014), p.54.

23
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
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
81 Faure and Zhang (2011), p.10037.
82 Zhang Minchun (2012). p. 367
83 Zhang Minchun (2012). p. 389
84 https://www.chinadialogue.net/article/show/single/en/7116-China-s-first-
environmental-court-a-seven-year-winning-streak-for-public-interest-cases

24
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
85 www.chinadialogue.net Stern 24/04/2013
86 www.chinadialogue.net

25
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
87 AECEN, p.6
88 AECEN p.6
89 AECEN p.6
90 AECEN p.6

26
a deforestation rate of about 1.19 million hectares per year. This high
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
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).
91 AECEN p.7
92 The Constitution Chapter VI
93 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

27
The regional administration has the right to establish local regulations
to implement the autonomy and the assistance assignment. While the
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
94 AECEN p.9
95 AECEN, p.9
96 See AECEN (2008), p. 10, and Bedner (2010), pp. 38-60
97 Cited in Afsah (2011)
98 Following decentralization laws adopted in 1999 and 2004.
99 van Rooij p.8

28
agencies, provincial and regency/city governments have authority to
supervise and impose administrative sanctions, which exceeds MoE’s
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
100 AECEN p.14

29
of any individual to a good and healthy environment.101
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 One
Principle
Article 2
Environmental protection and management shall be executed on
the basis of principles:
a. state responsibility;
101 The Indonesian Constitution was created in 1945 and has been amended four
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.7
103 EPM Law 2009, Law No 32/2009

30
b. conservation and sustainability;
c. Harmony and equilibrium;
d. Integration;
e. Benefit;
f. Prudence;
g. Justice;
h. Eco-region;
L biological diversity;
j. polluter pays;
k. participation;
L local wisdom;
m good governance; and
n. 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
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).

31
personnel112; conduct inspections to monitor compliance113; and
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
112 EPM Law 2009, Article 71.
113 EPM Law 2009, Article 72.
114 Law No. 32/2009, Article 76(1).

32
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
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

33
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

34
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
115 von Rooij, p.20
116 Afash 2011, p.20
117 Afash 1997.

35
financial crisis in 1997 and the political changes that followed, it was
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
118 Afash 2011, p.19
119 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.

36
the Fishery Courts.122 Law No. 31/2004 also required specialized
prosecutors. Ninety prosecutors with education and training in fishery
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.
122 Barrie (2007).
123 No. KEP-04/MENLH/04/2004, No. Pol. KEP-19/IV/2004, Number KEP-
208/A/JA/04/2004

37
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
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.
124 Supreme Court Decree No. 134/2011 on Certification of Environmental Judges,
125 Supreme Court Decree No. 134/2011 on Certification of Environmental Judges,

38
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,
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 guidelines
4.53. 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-monitoring
4.54. 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 obligations
4.55. 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
126 EPM Law, Section 116-119,
127 AECEN p.28

39
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
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.

40
Lack of consistency and limited use of administrative penalties.
4.62. The fragmentation of authority to impose administrative sanctions
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.10
129 See DLU (2006).

41
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 managers. 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.782
132 Bricknell (2010), p.xi

42
 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.
5.6. 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
133 Bricknell (2010), p.xi
134 See Lyster (2012), p.15ff
135 For those laws that the Commonwealth has jurisdiction over.

43
 State Regulations
 Local Governments.
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
136 See Bates (2013), Chapter 5, p. 129ff.
137 Lyster (2012), p.43

44
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
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

45
or a condition of consent attached to an approval or licence or permit
to build an factory or other premises.138
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.
138 Section 123 and s.124 EP&A Act.
139 S.126 EP&A Act

46
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
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
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 1997
142 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 1997

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