Offences for clearing native vegetation are prosecuted under the Environmental Protection Act 1986 (WA) (EP Act). An offence under section 51C carries a maximum head penalty of $250,000 for an individual and $500,000 for a corporation and a daily penalty of $50,000 for an individual and $100,000 for a corporation. Proceedings are brought under the jurisdiction of the criminal division of the Magistrates Court.
In practice, penalties imposed on defendants by the Magistrates Court are considerably less than the maximum under the EP Act. To our knowledge, no fine imposed has exceeded $50,000. Higher penalties are imposed where clearing was undertaken in the presence of aggravating factors, such as commercial gain or in an environmentally significant area.
In a recent case we were involved in, the Magistrate accepted a submission in mitigation that there should not be a linear relationship between the amount of vegetation cleared and the appropriate penalty to be imposed. All the facts and circumstances of the case before the Magistrate have to be taken into account in determining the appropriate penalty. While this means that clearing a significant area of native vegetation may not necessarily result in a severe penalty, it also means that clearing a relatively small area of native vegetation may not result in a low penalty.
In certain circumstances, the Court can make orders for the remediation or revegetation of the area cleared under the EP Act.
Offences for taking flora without a licence are prosecuted under the Wildlife Conservation Act 1950 (WA). Depending on the status of the flora taken, fines can range from $4,000 to $10,000 per charge. There have not been many reported decisions on point. In Russell & Ors v Pennings  WASCA 115 the Court of Appeal upheld the Magistrate’s decision to fine each of the four applicants $3,000 for taking 31 different species.
Currently, a Biodiversity Conservation Bill 2015 is before the Western Australia Parliament and if passed, will introduce more severe penalties for taking protected or threatened flora. The penalty for taking specially protected flora is $200,000 and in any other case, a fine of $50,000. Higher penalties of between $300,000 and $500,000 apply for taking threatened flora. This significant increase may be an indication that sentences should be increased to reflect Parliament’s revised view of the gravity of offences for taking flora.
Potential offences under Commonwealth environmental laws can also be relevant if native vegetation has been cleared or taken. This will be discussed in a future blog article.
Glen McLeod Legal acts for numerous clients that face real or potential clearing offences. In many circumstances, there are valid and arguable defences or exemptions that may be applicable. In other situations, the reasons that led to the alleged offending may be significant mitigating factors that, if argued strongly before a court, can result in the imposition of a penalty that is realistic and not manifestly unreasonable.