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Focus: Unauthorised clearing of native vegetation punishable by jail time

19 August 2010

In brief: In a recent decision, the Supreme Court of Western Australia sentenced a farmer to three months' jail for contempt of court involving the breach of an interim injunction restraining the clearing of native vegetation without a permit. Special Counsel Robyn Glindemann (view CV) and Law Graduate Kate Naude report.

How does it affect you?

  • A breach of the clearing provisions of the Environmental Protection Act 1986 (WA) (the EP Act) cannot result in a jail sentence. However, where an injunction has been granted by a court, a breach of that injunction by undertaking further clearing in breach of the EP Act can result in a finding of contempt of court. Where the contempt is found to be serious and undertaken wilfully, a custodial sentence may be imposed.
  • The decision in Chief Executive Officer, Department of Environment and Conservation v Szulc1 serves as a timely reminder of the seriousness with which courts view contempt and breaches of the EP Act.

Background

On 8 October 2009, the CEO of the WA Department of Environment and Conservation (the DEC) applied to the Supreme Court for an injunction restraining a farmer, Maxwell Szulc, from clearing native vegetation on his rural property.

Under the EP Act, an injunction may be applied for to prevent a person engaging in improper conduct as defined under the EP Act. Improper conduct relevantly includes a contravention of section 51C of the EP Act that makes it an offence to clear native vegetation without a permit.

On 2 November 2009, the Supreme Court granted an interim injunction in favour of the DEC, restraining the carrying out of any further clearing, as the court considered there was a strong case that the clearing had occurred in breach of section 51C of the EP Act.

In May 2010, an officer from the DEC inspected the property and found that a further 42 hectares of vegetation had been cleared since the injunction was issued.

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Contempt of court

The wilful breach of an order of the court will naturally be viewed as very serious by the court. If contempt is established, the court is empowered to impose either a fine or a term of imprisonment, with the amount of the fine or length of the term of imprisonment being determined by the court at its discretion.

Imprisonment for contempt of court is not subject to the Sentencing Act 1995 (WA) and, as such, a person sentenced to imprisonment for contempt is not entitled to parole and must serve the full jail term.

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The decision

The Supreme Court found that the contravention of the interim injunction by the clearing of 42 hectares of additional vegetation was wilful and deliberate. In imposing the sentence of 3 months' imprisonment, the court expressed the view that this contravention of the injunction provisions in the EP Act, was a particularly serious case of contempt.

The defendant had ignored several notices from the DEC seeking to restrain the unauthorised clearing. The court commented that the EP Act provisions, under which the interim injunction was granted were very important in protecting the public interest in the preservation of native vegetation.

The Supreme Court noted that a custodial sentence was necessary to make it clear that a continuing contravention of the EP Act would not be tolerated. Furthermore, principles of general deterrence meant that it was necessary to make it clear to the community as a whole that the public interest was upheld by respecting the requirements of the EP Act.

This is the first time a person has been jailed in relation to the native vegetation clearing provisions under the EP Act.

Footnotes
  1. [2010] Western Australian Supreme Court 195 (Unreported, Martin CJ, 30 July 2010).

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