The Law Handbook 2024

Chapter 11.3: Environment and planning law 1039 enable community participation. They can also enable system and behaviour change for the duty holder, extending often to its sector or industry colleagues. Where the EPA accepts an enforceable undertaking it is required to publish the terms of the undertaking on the public register (s 456). In matters where the EPA determines that proceedings should be bought against a person, there are a range of orders that can be sought by the EPA, in addition to any penalty the court may impose (Part 11.6 EP Act). The orders that can be made by a court when sentencing (for criminal proceedings) or judgement (for civil proceedings) include any of the following orders: a a general order requiring a payment other than a fine (s 328 EP Act); b a monetary benefit order to redress any benefit or profit made by the offender by breaching the EP Act (s 329); c an adverse publicity order to publicise the nature of contravention or offence, and any impacts to the community (s 330); d a general restoration and prevention order to prevent, minimise or remedy harm, and to reduce and prevent any further recurrence (e.g. establishing an education and training program, revising internal operations and systems) (s 331); and e a restorative project order or payment to the ‘restorative project account’ for a project for restoring or enhancing the environment (s 332). This range of penalty orders will help to ensure that, as an outcome of legal proceedings, the EPA has helped to achieve a combination of outcomes. These measures can achieve specific and general deterrence along with punitive and restorative outcomes. Collectively, they enable courts to ensure that orders take account of and fully reflect the impacts of an offence or contravention. Restorative justice avenues The consequences of a contravention or offence can be various, and complex, and often with significant impacts to multiple people and communities. Restorative processes are designed to allow those who have been affected or harmed, to be involved in some way, in the just resolution of the matter. Generally, a restorative process is one that enables the participation of those impacted or involved, allowing all parties to speak directly, and to be heard in a facilitated forum. A restorative process is purposeful and is designed to enable participants to shape and inform the resolution of the matter, whether it is to achieve compliance, prevention of further issues, or to inform an enforcement outcome. Ultimately, the purpose of a restorative process is to support the resolution of conflict, and to bring about a new understanding, and collaboration in working out solutions to prevent a continuing or reoccurrence of issues. The EP Act establishes new ways to achieve restorative outcomes. Through enforcement proceedings these include: • an enforceable undertaking process , which includes a participatory process to inform ways of ensuring the community and those impacted by an offence or contravention are involved in the enforceable undertakings brought about to address the issues in question (s 300 EP Act); • a court-ordered restorative justice project as part of the outcome of civil or criminal proceedings (s 332); • the hearing and receiving of an impact statement (s 335) from a person, organisation or community that is affected by the contravention or offence; and • by a restorative justice procees in which court proceedings are adjourned to facilitate affected parties to seek to resolve the matters arising from the alleged contravention and by agreeing on an outcome that recognises the harm caused to the community or the environment (s 336). The option of a restorative justice process is of particular significance, as it is a new avenue that can enable those impacted by a contravention or offence to participate directly in the proceedings. Two landmark cases in the New South Wales Land and Environment Court – Garrett v Whitlam (2007) 151 LGERA 92 and Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 – are examples of how a restorative justice process might work under the EP Act. Both cases involved the destruction of cultural heritage of significance to Aboriginal Traditional Owners. Garrett v Whitlam involved the destruction by Pinnacle Mines (near Broken Hill) of a landscape of sacred cultural significance to its Traditional Owners. The Clarence Valley Council matter involved the destruction of a sacred scarred tree in the centre of town, by