Prosecution Guidelines - WaterNSW · Prosecution Guidelines D2016/132663 Review Date: December 2019 6 4. WaterNSW’s ability to prosecute Section 14 of the Criminal Procedure Act

Prosecution Guidelines


D2016/132663 Review Date: December 2019 2

Contents

1. Introduction ...................................................................................................................... 3

2. WaterNSW functions and potential prosecutions .......................................................... 4

2.1 Functions ....................................................................................................................................... 4 2.2 Potential prosecutions ................................................................................................................... 4

2.2.1 WaterNSW Act ................................................................................................................. 4 2.2.2 WM Act and Water Act ..................................................................................................... 4 2.2.3 POEO Act ......................................................................................................................... 4 2.2.4 EP&A Act .......................................................................................................................... 4

3. The role of prosecutions in WaterNSW’s compliance approach .................................. 5

4. WaterNSW’s ability to prosecute ..................................................................................... 6

5. Preparation for prosecution ............................................................................................ 7

5.1 The Investigation Process............................................................................................................. 7 5.2 Selecting the appropriate defendant ............................................................................................. 7

5.2.1 Corporate liability .............................................................................................................. 8 5.2.2 Employees liability ............................................................................................................ 8 5.2.3 Director’s liability ............................................................................................................... 8 5.2.4 Public authorities .............................................................................................................. 8

6. The decision to prosecute ............................................................................................. 10

6.1 The role of the WaterNSW Board ............................................................................................... 10 6.2 Discretion – Is the prosecution in the public interest? ................................................................ 10

6.2.1 Evidence ......................................................................................................................... 10 6.2.2 Reasonable prospects .................................................................................................... 11 6.2.3 Discretionary factors ....................................................................................................... 11

6.3 Disclosure and cooperation ......................................................... Error! Bookmark not defined.

7. Matters that will not influence a decision to prosecute ............................................... 13

8. Undertaking the prosecution ......................................................................................... 14

8.1 Selecting the appropriate court ................................................................................................... 14 8.2 Application of Professional Standards ........................................................................................ 14

9. Glossary .......................................................................................................................... 15



1. Introduction

The Board of WaterNSW (Board) has adopted these WaterNSW Prosecution Guidelines (Prosecution Guidelines) as one element of WaterNSW’s broader compliance approach so as to:

1. identify the role of prosecutions in WaterNSW securing the regulatory compliance and

management outcomes associated with its functions;

2. set out those matters which WaterNSW will consider in the exercise of its discretion to prosecute, if in the public interest, for offences under the various NSW Acts; and

3. provide a publicly available document that assists WaterNSW to educate water users and the wider community about WaterNSW’s objectives, compliance approach and potential prosecution activities.

Prosecutions for offences under legislation administered by WaterNSW consist of bringing criminal proceedings in the NSW Local Court, the NSW Land and Environment Court or the NSW Supreme Court and may result in convictions and significant fines. Prosecution is therefore the most serious form of enforcement action that WaterNSW can take in response to an offence. The initial step is to determine if a prosecution is the most appropriate compliance action to take. The decision to commence a prosecution is a discretionary one that is made taking into account a range of factors detailed in these Prosecution Guidelines. Ultimately the decision to prosecute will be made by the Board. The Board and the Chief Executive Officer oversee the implementation and maintenance of the Prosecution Guidelines. The Prosecution Guidelines reflect current practices in WaterNSW. WaterNSW will review these Prosecution Guidelines every three years and amend them, where appropriate, to take into account further operational experience. All amendments will be subject to the approval of the Board. If there is any inconsistency between the Prosecution Guidelines and any legislation, the legislation will prevail to the extent of any inconsistency. Part 9 provides a dictionary of defined terms used in these Prosecution Guidelines.



2. WaterNSW functions and potential prosecutions

2.1 Functions

The Water NSW Act 2014 (NSW) (WaterNSW Act) commenced on 1 January 2015. On 1 July 2016 WaterNSW was conferred functions previously performed by the Department of Primary Industries – Water (DPI Water). As a result of the conferral, WaterNSW is responsible for various compliance activities under the Water Management Act 2000 (NSW) (WM Act), Water Act 1912 (NSW) (Water Act) and associated legislative instruments.

2.2 Relevant legislation

WaterNSW has functions under a number of Acts including:

1. the WaterNSW Act;

2. the WM Act and Water Act;

3. the Protection of the Environment Operations Act 1997 (NSW) (POEO Act); and

4. the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). WaterNSW’s compliance activities arise from WaterNSW’s performance of functions under these Acts and their subordinate legislation. Furthermore, the potential prosecutions that WaterNSW may initiate as a result of offences under these Acts will be undertaken to promote the objectives of each specific Act. 2.2.1 WaterNSW Act

Aside from establishing WaterNSW, the objectives of the WaterNSW Act are primarily focused on WaterNSW’s ‘capture, store, release’, water quality, declared catchment and storage functions. 2.2.2 WM Act and Water Act

The WM Act controls the extraction of water, the use of water, the construction of works and the carrying out of activities on or near water sources in NSW. The WM Act is replacing the long-standing Water Act, which remains in force in some areas of the state. The objectives of the WM Act are to provide for the sustainable and integrated management of the water sources of the state. 2.2.3 POEO Act

The POEO Act is the primary NSW statute regulating pollution of the environment. Its objectives include the protection, restoration and enhancement of the environment, providing public access to information on pollution and reducing risks to human health and the environment. Relevantly for WaterNSW, it includes offences involving harm to the environment and land pollution, for non-scheduled activities that affect or are located within the WaterNSW declared catchments and controlled areas. 2.2.4 EP&A Act

The EP&A Act is the primary NSW planning legislation. Its focus is on ensuring development meets the needs of people, protects the environment and encourages the proper management,



development and conservation of resources (natural and artificial). Relevantly for WaterNSW, it includes a ‘special provision relating to development in Sydney water catchment relating to water quality.’

3. The role of prosecutions in WaterNSW’s approach to compliance

A summary of WaterNSW’s approach to compliance is shown below: This approach reflects WaterNSW’s focus on achieving voluntary compliance through the appropriate use of a range of compliance tools. Provision of information and education are the preferred approaches. As voluntary compliance becomes less likely and the consequences of non-compliance become more severe, WaterNSW utilises regulatory and administrative enforcement tools, including criminal enforcement through prosecution. The WaterNSW decision to initiate criminal enforcement is informed by a range of factors in each case including the nature of the offence, culpability of the alleged offender, harm, or potential for harm to the environment or other water users, prevalence of the offence and the negligent or wilful conduct of the alleged offender. These factors will be considered and weighed up in order for WaterNSW to determine whether enforcement action is an appropriate response for achieving its principal objectives. Enforcement action will be used as a strategic response only where it is in the public interest to do so. The purpose of taking enforcement action against a person is to bring about a compliance outcome. The outcome WaterNSW seeks to achieve is to reduce the likelihood of non compliance by preventing future breaches or restraining an existing breach, remedying the effects (harm) of a breach as well as imposing an appropriate penalty on behalf of the community which also assists in deterring future breaches. In deciding which particular compliance action is appropriate, WaterNSW will apply the proportionality principle and not go beyond what is required to bring about the compliance outcome. Part 6 provides further detail of this decision-making process.

Criminal enforcement via prosecution

Regulatory and administrative

enforcement, including notices and orders

Warnings, cautions and

targeted advice/ information

Education, guidance and general advice

Increased likelihood of

voluntary compliance

Severity of non-compliance

and/or failure to comply with

earlier compliance measures




4. WaterNSW’s ability to prosecute

Section 14 of the Criminal Procedure Act 1986 (NSW) provides any person with the right to institute a prosecution in respect of an offence under an Act, unless that right to institute the prosecution is expressly conferred by that Act on a specified person or class of persons. Therefore, WaterNSW has a general ability to institute a prosecution in respect of an offence under any NSW Act, but relevantly, each of the Acts that it performs functions under – the WaterNSW Act, WM Act, Water Act and POEO Act. In relation to the WaterNSW Act and WaterNSW Regulation, WaterNSW is also the Regulatory Authority under section 61 of that Act for the purposes of exercising regulatory functions. In relation to the POEO Act, WaterNSW recognises that the NSW Environment Protection Authority (EPA) is the primary environmental regulator in NSW in bringing prosecutions under that Act. However, WaterNSW has a similar regulatory role to that of local councils in relation to activities and premises that are not licensed by the EPA. WaterNSW is committed to work with the EPA and local councils to achieve its regulatory outcomes.



5. Preparation for prosecution

5.1 The Investigation Process

WaterNSW undertakes surveillance activities including targeted inspections, patrols and reports from WaterNSW staff as well as reports from members of the public and other government agencies to detect non-compliance with relevant Acts. Some offences normally require minimal investigation as the facts are incontrovertible and generally do not result in prosecutions. Where the offending conduct is more serious or more complex, investigations are carried out by authorised officers to establish the elements of an offence or a range of offences. These investigations may rely on statutory notices requiring the production of information and records, formal recorded interviews, scientific investigations, properly approved searches of databases and entering of premises. Authorised officers may be appointed by the Chief Executive Officer under delegation from the Minister. Prior to appointment as a compliance officer or authorised officer these persons will have demonstrated their suitability to undertake investigative work and will have completed designated training courses such as a Certificate IV in Government (Investigations). Compliance and authorised officers are required to undergo regular refresher training which must include work health and safety components. The purposes for which authorised officers can exercise their powers are outlined in the relevant Act. In addition, compliance officers and authorised officers are expected to exercise their functions and powers under the Act in a manner that includes being:

1. consistent with their safety and the safety of others;

2. within their delegated authority;

3. in accordance with the law;

4. in accordance with the rights of the persons either under investigation or potential witnesses;

5. in accordance with the provision of natural justice which includes:

a) providing a fair hearing – allowing a person who may be adversely effected by a decision to present their case;

b) ensuring impartiality in the decision making process – no question of bias, officers are fair, impartial and competent;

c) making decisions based on evidence – decision are based on credible evidence; and

d) acting in good faith.

5.2 Selecting the appropriate defendant

One of the main aims of an investigation is to establish who is the person or persons who have committed an offence. A number of people may commit an offence arising out of one incident. However, it is not always appropriate to prosecute every person who may be liable for an offence.



Considerations that may be taken into account in determining the appropriate defendant(s) are:

1. Who is primarily responsible for the alleged offence, that is, who was primarily responsible for the acts or omissions giving rise to the alleged offence or the material circumstances leading to the alleged offence or who formed any relevant intention.

2. In relation to the matters set out in (1) above, what was the role of the proposed defendant.

3. The effectiveness of any Court orders that might be made against the proposed defendant.

5.2.1 Corporate liability

The various Acts impose liability on corporations as well as individuals. Where an offence is committed by employees, agents or officers of a corporation in the course of their employment, proceedings will usually be commenced against the corporation. Where, however, the offence has occurred because the employee, agent or officer has embarked on a venture of their own making and volition, outside the scope of their employment, proceedings may be instituted against the employee, agent or officer and not against the corporation.

5.2.2 Employee’s liability

The guiding principle in deciding whether to prosecute an employee is the degree of culpability involved. Factors relevant to assessing the degree of culpability include:

1. whether the employee knew or should have known that the activity in question was illegal;

2. the seniority of the employee and the scope of the employee's employment duties; and

3. whether, having regard to the employee's seniority and employment duties, the employee

had taken reasonable steps to draw to the attention of the employer or any other relevant person the impropriety of the practice.

An employee who, in good faith, followed a specific environment management procedure would not normally be prosecuted for an offence occasioned by following that procedure.

5.2.3 Director’s liability

Various Acts, including the WaterNSW Act, establish certain offences that attract officer liability. Generally an officer will be considered to have committed an offence if they:

1. knew or ought reasonably to have known that the executive liability offence (or a similar offence) would be or was being committed, and

2. failed to take all reasonable steps to prevent or stop the commission of that offence.

5.2.4 Public authorities

The issue of deciding in what circumstances public authorities should be prosecuted is a specific instance of determining whether prosecution is in the public interest and acknowledges that there are two competing public interests in relation to the prosecution of public authorities.

1. The public has an expectation that Government authorities will abide by the laws that protect water quality and quantity, the environment and public health.



2. The resources available to prosecute are finite. This is of particular relevance where one agency of government decides to prosecute another. The result is that public monies are expended on the taking and response to a prosecution and the payment of any fine imposed by the Court.

The Premier’s Memorandum M1997-26, Litigation Involving Government Authorities, is expressed not to apply to a State Owned Corporation. However, WaterNSW accepts that the memorandum’s guidance provides a sound approach for the management of litigation and disputes and will be considered where the offender is a government authority. Councils are not considered Government Authorities in this case.



6. The decision to prosecute

The decision to commence a prosecution is a discretionary one that is made taking into account a range of factors detailed in these Prosecution Guidelines. Ultimately, the decision to prosecute will be made by the Board.

6.1 The role of the Board

The Board must approve the commencement of all court proceedings. Appeals from prosecutions to the Court of Criminal Appeal will be subject to the approval by the Board. The Board will consider representations from persons seeking to have criminal prosecution commenced against them discontinued. In making decisions about prosecutions, the Board:

must have regard to the principles set out in these guidelines; and

may also seek legal advice or the advice of other relevant experts to assist it in its deliberations.

6.2 Discretion – Is the prosecution in the public interest?

Not every criminal offence detected and investigated by WaterNSW must be the subject of a prosecution, as there are other compliance and enforcement mechanisms available. Furthermore, WaterNSW must use its resources in an appropriate manner. It is important that these resources are not wasted pursuing matters that are not in the public interest to prosecute. The exercise of discretion to prosecute requires the application of consistent principles to individual cases in a fair, honest and transparent manner. The public interest test involves a consideration of the following factors:

1. whether or not evidence is available in the form of witnesses or documents which is

admissible and capable of establishing each element of the offence;

2. whether or not there are reasonable prospects of obtaining a conviction having regard to any possible defences which may be available to the defendant;

3. whether or not other enforcement measures are more suited to achieving the principal objectives of the relevant Act; and

4. consideration of the discretionary factors in section 6.2.3.

6.2.1 Evidence

A prosecution will not be commenced unless the investigation results in evidence that is admissible in court and which indicates a prima facie case against the alleged offender. Evidence, for example, may not be admissible in court if a confession was illegally obtained by means of duress. WaterNSW will take care to make sure that the evidence collected is of a sufficient quality to support the prosecution of an offence. The weight that a court may give to the evidence of a witness is diminished if, for example, the witness:



1. exaggerates;

2. has a faulty memory;

3. is hostile or friendly to the defendant;

4. gives evidence that is untruthful;

5. provides a statement that may not stand up to cross examination;

6. is materially in conflict with other eye witnesses to the incident;

7. is unable to identify the defendant;

8. makes contradictory statements in relation to their observations; or

9. is not likely to be accepted by the court as a witness of credit.

6.2.2 Reasonable prospects

In criminal proceedings instituted by WaterNSW, WaterNSW must prove all of the elements of the offence. The required standard of proof is “beyond reasonable doubt”. Establishing a case beyond reasonable doubt also relies on the defendant not having defences available to them.

6.2.3 Discretionary factors

Once WaterNSW is satisfied that there is a prima facie case on the available evidence, it will consider a range of factors as to whether a prosecution should be instituted. The following discretionary factors will be considered by WaterNSW (where relevant) in deciding whether to commence a prosecution in the public interest:

1. seriousness or, conversely, the triviality of the alleged offence or whether it is only ‘technical’ in nature;

2. the harm, or potential harm, caused by the offence;

3. any mitigating or aggravating circumstances;

4. the degree of culpability of the alleged offender in relation to the offence (such as whether the offence arose from deliberate or willful conduct);

5. the availability and efficacy of any alternatives to prosecution

6. the previous conduct of the alleged offender and whether any enforcement measures have been used by WaterNSW against the alleged offender for other incidents;

7. whether the alleged offender had been prosecuted by another agency for similar conduct;

8. whether another agency is considering undertaking a prosecution arising from the same incident;

9. whether the breach is a continuing or repeat offence; 10. whether the issue of specific Court orders (such as restraining orders, restoration,

prevention, cost recovery) are warranted in the circumstances;

11. the prevalence of the alleged offence and the need for deterrence, both specific and general;



12. whether the time period for commencement of the prosecution has expired;

13. whether the prosecution will be too costly or resource intensive;

14. the age, physical or mental health or special infirmity of the alleged offenders or

witnesses;

15. whether there are counter-productive features of the prosecution;

16. the likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the Court;

17. any precedent which may be set by not instituting proceedings;

18. whether proceedings are to be instituted against others arising out of the same incident;

19. whether the alleged offender acted in accordance with WaterNSW advice or advice from another government agency;

20. whether the alleged offender reported the incident; and

21. whether or not the alleged offender is willing to co-operate or has cooperated in the investigation (such as making available all relevant information) or prosecution of others.

The applicability of and weight to be given to the above factors will depend on the circumstances and facts of each particular case.



7. Matters that will not influence a decision to prosecute

In reaching a decision to prosecute WaterNSW will have no regard to the following matters:

1. any elements of discrimination against the alleged offender or any other person involved,

for example, race, religion, sex, nationality, social affiliations, political affiliations or political associations, activities or beliefs of the alleged offender or any other person involved;

2. personal feelings concerning the alleged offender;

3. possible political advantage or disadvantage to any level of government or any political group or party;

4. possible media or community reaction to the decision; and

5. possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.



8. Undertaking the prosecution

8.1 Selecting the appropriate court

In choosing the appropriate court in which to take the proceedings, after having regard to legal advice, WaterNSW will consider factors such as:

1. the maximum penalty that can be imposed in a Local Court compared to the Land and Environment Court or Supreme Court;

2. instituting all charges arising out of the same incident in the same jurisdiction (and

preferably at the same time) so the Court has the option to hear them together;

3. the likely cost and complexity of court procedural requirements having regard to the outcome sought to be achieved from the commencement of the prosecution; and

4. other considerations such as potential publicity, deterrence, or establishment of legal precedent.

8.2 Application of Professional Standards

A prosecutor appointed by WaterNSW is required to discharge his or her duties in a manner that has regard to and applies the New South Wales Barrister’s Rules dated 6 January 2014, Prosecutors Duties, rules 82 to 94 and the New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules) published by the Law Society of New South Wales, Rule 29-Prosecutor’s Duties. These rules set out a prosecutor’s duty to the court and the manner in which prosecution is to be conducted so as to provide fairness to the accused.



9. Glossary

authorised officer means a person appointed under:

section 65 of the WaterNSW Act;

section 390 of the WM Act; or

section 187(2) of the POEO Act.

declared catchment area means an area of land for the time being declared under the Water NSW Act to be a declared catchment area declared controlled area means an area of land for the time being declared under the Water NSW Act to be a declared controlled area EP&A Act means the Environmental Planning and Assessment Act 1979 (NSW). penalty notice is a notice described in:

section 102 of the WaterNSW Act;

section 365 of the WM Act;

section 223 of the POEO Act; or

section 127A of the EP&A Act. POEO Act means the Protection of the Environment Operations Act 1997 (NSW). Water Act means the Water Act 1912 (NSW). Water NSW Act means the Water NSW Act 2014 (NSW). Water NSW Regulation means the Water NSW Regulation 2013 (NSW). WM Act means the Water Management Act 2000 (NSW).

Documents

Prosecution Guidelines - WaterNSW · Prosecution Guidelines D2016/132663 Review Date: December 2019 6 4. WaterNSW’s ability to prosecute Section 14 of the Criminal Procedure Act