1.5 Criminal, civil and administrative laws
This Fact Sheet is about how environmental matters are regulated in the Northern Territory.
Three types of law are commonly used to regulate environmental matters:
Criminal law – which creates criminal offences for harming the environment
Civil law – which gives regulators and affected people the right to take action to manage and stop environmental harms
Administrative law – which gives people the right to challenge government decision making by bringing judicial review or merits review proceedings. For more information, read our Fact Sheet about Judicial review and merits review.
Serious environmental crimes are punishable by criminal law. Criminal offences can occur under Northern Territory laws and Commonwealth laws. A court must be satisfied “beyond reasonable doubt” that an offence has been committed.
Criminal laws typically impose a fine or a jail sentence if a person is found to be guilty of having committed an offence. The court may also make orders requiring offenders to publicise the fact that they have committed an environmental offence, or make good any environmental damage.[i] Generally, less serious environmental harms or unintentional harms carry less severe penalties.
Criminal law in the Northern Territory
There are a wide range of criminal offences for causing harm to the environment under Northern Territory laws. Criminal offences can be categorised in three ways:
Crimes – these are criminal offences for which the penalty is imprisonment for more than 2 years
Simple offences – these are criminal offences for which the penalty is imprisonment for 2 years or less
Regulatory offences – these are also criminal offences for which the penalty is imprisonment for 2 years or less.
These three ways of categorising criminal offences determine how a defendant can be convicted in court. A defendant can only be prosecuted and convicted for a crime on indictment. This means that a judge and jury must hear the case. However, for simple offences and regulatory offences, a defendant can be convicted summarily. This means that a single judge can hear the case.
Because the penalties for criminal offences for causing harm to the environment vary, some criminal offences for causing environmental harm are crimes and others are simple offences. You may also find that some offences are described as environmental offences. This means that the penalty for an environmental offence is set by the Environmental Offences and Penalties Act. This Act standardises the penalties for causing serious environmental harms, material environmental harms and environmental nuisances.
There are 4 levels of environmental offences. They correlate to 4 levels of penalties under the Environmental Offences and Penalties Act.[ii] Level 1 is the most severe penalty for serious offences. It is a fine between $54,285 and $542,850 and/or up to five years imprisonment for an individual, or a fine of between $271,284 and $2,712,840 for a body corporate. This means that an environmental offence level 1 would be categorised as a crime.
The Act that creates the criminal offence will set the penalty for the offence. Often penalties are expressed in “penalty units”. The Penalty Units Act sets out the dollar value of a penalty unit. For more information, read our Fact Sheet on Penalties.
Each Act sets out the Department or person responsible for compliance, investigation and enforcement of environmental laws. In some cases, only designated officers of a government department are able to bring prosecutions.
In other cases, it may be possible for third parties, such as members of the public, to bring prosecutions. This is called a private prosecution. It is always necessary to look at the relevant Act to check whether there is a right for a member of the public to commence prosecutions and find out whether or not you need to get consent from an officer of a government department. The right to bring a private prosecution must usually be exercised in the public interest. The Director of Public Prosecutions may intervene in matters and bring legal proceedings to an end if he or she does not think that a private prosecution is in the public interest.
Criminal law of the Commonwealth
Breaches of certain Commonwealth environmental laws can also give rise to criminal offences. For example, under the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 a person who takes an action that is likely to have a significant impact on a matter of national environmental significance, without first obtaining approval, can be liable for a criminal penalty of up to seven years imprisonment and/or a penalty of up to $46,200.[iii]
For more general information about criminal laws and enforcement in Australia for environmental offences, visit the website of the Australian Institute of Criminology.
Civil enforcement is a type of enforcement that can be conducted by regulators, or in some situations members of the public, in the civil courts. In civil courts, the standard of proof which must be met in order to prove that a breach of the law has occurred is “on the balance of probabilities”. This is a lower standard of proof than in the criminal courts.
Remedies under the civil law are also different to criminal law. Instead of punishment and deterrence, the purpose of civil laws is often to compensate for or remediate environmental damage.
In the Northern Territory, the main civil enforcement remedies are:
Pollution abatement notices[iv] – these require a person to take specific action within a specified time. For example, to take action to prevent pollution or to clean up polluted land.
Compliance plans [v] – these require staged improvements in waste management and/or measures to prevent, reduce, control, rectify or clean up pollution or environmental harm resulting from pollution.
Environmental audits [vi] – these can require assessments to be conducted into: waste and pollution at a site, site management systems, onsite compliance, or the likelihood of environmental harm occurring.
Damages – this is an award of money paid to a person as compensation for a loss or injury they have suffered. For example, an owner or occupier of land may recover damages from a person who has done or failed to do something which has caused pollution on the claimant’s land resulting in environmental harm.[vii] Damages can be claimed under legislation or under the common law, depending on the cause of action.
Injunctions – this is an order to stop an activity before environmental damage occurs or is made worse.
In the Northern Territory, civil disputes are heard in the Local Court of the Magistrates Court if they concern damages claims less than $100,000. Damages claims larger than $100,000 and other civil cases are heard in the Supreme Court of the Northern Territory. The Lands, Planning and Mining Tribunal hears cases concerning mining, exploration, land titles, ownership of licence areas, heritage, and water.
Civil law of the Commonwealth
At the Commonwealth level, the Environment Protection and Biodiversity Conservation Act 1999 also provides civil remedies. These include:
Civil penalties – fines for breaking the law
Injunctions – a court order that stops someone doing an activity
Remediation of environmental damage
Cases concerning breaches of civil and criminal Commonwealth environmental laws are heard in the Federal Court of Australia.
Decisions made by a government Minister, government department, or a statutory authority are called administrative decisions. When administrative decisions are made, the decision-maker must follow the correct legal process.
If the legal process is not followed, the decision may be open to legal challenge. There are two main types of legal challenge. These are called judicial review and merits review. For more information, read our Fact Sheet on Judicial review and merits review.
[i]See s 97 of the Waste Management and Pollution Control Act.
[ii] See Environmental Offences and Penalties Act for the scale of penalties.
[iii] See the Australian Government Department of Environment website for more information on compliance and enforcement mechanisms under the Environment Protection and Biodiversity Conservation Act 1999.
[iv] See ss 77-82 of the Waste Management and Pollution Control Act.
[v] See ss 55-65 of the Waste Management and Pollution Control Act.
[vi] See ss 47-54 of the Waste Management and Pollution Control Act.
[vii] See ss 100 and 105 of the Waste Management and Pollution Control Act.