Environmental Civil Penalties in Australia: Towards deterrence?

This article examines the extent to which environmental civil penalties in Australia are a means to deter contraventions of environment protection laws. It considers five environmental civil penalty cases under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the role that deterrence plays in determining the civil penalties ordered in those cases. The article then analyses and evaluates the South Australian civil penalty scheme, the first of its kind in Australia. It considers, in particular, its unique features such as the ability for the South Australian Environment Protection Authority (EPA) to negotiate an out-of-court civil penalty and the ability for a person, against whom the South Australian EPA proposes to commence civil penalty proceedings, to elect to be prosecuted for the alleged offence in a criminal court. With these mechanisms the South Australian scheme avoids the criticism often levelled at civil penalty schemes, namely that they compromise fundamental human rights and procedural standards. However, this article concludes that these mechanisms render the scheme completely voluntary and may deprive the scheme entirely of the efficiency benefits that a civil penalty scheme is designed to provide, including the ability to develop this innovative tool as a vehicle for general deterrence with respect to contraventions of environment protection laws.