Australia is currently seeing vast growth in numerous industries and there is great need to deter these industries from polluting by implementing an effective enforcement strategy with a range of enforcement tools that ensure the harm inflicted on the environment is minimised. In the current political climate which sees environmental protection in the context of economic development, the state may be reluctant to ‘use the big stick’ to enforce penalties for polluting on those industries which are directly involved in productive economic activity. It is argued that unless we enforce compliance when licences are breached and pollution occurs, there is little point in having an effective enforcement strategy as it is the anticipation of enforcement action that confers the ability to deter. Incidences of environmental crime are treated somewhat leniently in Australia. The majority of offences are dealt with using lesser sanctioning options, such as infringement notices and when matters are prosecuted, fines are the predominate enforcement action utilised and are often at a fraction of the maximum penalty prescribed.
Whilst an array of enforcement actions seem to be available to EPA’s questions have been raised as to whether the current enforcement framework does in fact act as a deterrent to industrial pollution especially when small monetary fines are the predominant penalty for environmental offences. There is a perceived culture of under enforcement in the state EPAs and this is particularly evident in the use of fines. Fines for breaches of Australian pollution control regulation are on the lower rather than higher end of the scale. In Victoria in the 2003/2004 period the maximum penalties laid down in the legislation ranged from $250,000.00 to $1 million and the 34 prosecutions lead to a total fine of only $154,000, an average of approximately $4,529 per fine. It is argued that for many companies which have presumably accumulated substantial wealth, fines of $4,529 cannot act as a deterrent or even a slap on the wrist.
Enforcement will induce compliance where the benefits derived from non-compliance are less than the expected sanction, as determined by the probability and associated costs of an enforcement response. A fine of $4529 will be unable to act as a deterrent simply because non-compliance would produce greater financial benefit. Even if prosecution were frequent and fines were high, where large corporations with immense wealth are the polluter, fines will not act as a deterrent as they are considered to be part of everyday business losses. Scholarly debate has centred around whether fines are the most suitable or effective mechanism for punishment or deterrence and it is argued that where fines are readily absorbed as a ‘cost of business’ coupled with the tendency towards low penalties, an endemic recidivism among particular groups of offenders is witnessed and they are no longer capable of acting as a deterrent.
In order to deter offenders from polluting Australian environmental protection authorities must show that they will utilise the ‘big stick’. With Australia seeing enormous growth in numerous industries, namely gas and mining which overseas experience has shown can lead to a vast array of negative impacts on our environment, it is vital that we enforce compliance and protect our land and people.