Statute ‘loophole’ sees NSW Forestry avoid fines

Chris Dobney

The Environment Protection Authority (EPA) took so long to investigate breaches by NSW Forestry Corp during its controversial 2013 harvesting on private land at Whian Whian that the body was able to avoid paying fines as a result of the time that had elapsed.

The gung-ho operation, which saw the death of one forestry worker and the destruction of numerous threatened habitat trees, was only investigated, the EPA admits, owing to public pressure.

In a remarkable letter to the Whian Whian Forest Alliance dated December 18, EPA forestry director Gary Whytcross admitted that the investigation ‘took an extended time to complete’ so that ‘these penalty notices were only issued just before the statute bar period’.

Then, in an extraordinary twist, NSW Forestry sat on the notices for more than the legal limit of 28 days so when it finally informed the State Debt Recovery office of its intentions to go to court the statute bar period had expired.

EPA says the incident has revealed a loophole in the legislation, which will ask the government to investigate and fix.

The authority also said it was unable to determine whether NSW Forestry had broken the law in constructing a logging track in too-close proximity to threatened Arrow Head vines as insufficient surveying of the species had taken place.

As a result of the EPA’s investigations NSW Forestry was fined $5,500 for each of two breaches: not implementing a 20 metre exclusion zone around protected koala trees and a similar failure over an endangered Slender Marsdenia plant (Marsdenia longiloba).

EPA also found the exclusion zones of four Red Bopple Nut plants (Hickbeachia pinnatifolia) were not implemented.

Despite the trees being threatened NSW Forestry was only issued with cautions over this breach.

But the real sting of the letter was in the EPA’s admissions that none of the fines would now have to be paid.

‘When a penalty notice is issued the recipient can either pay the fine or elect to have the matter determined by the court. For these penalty notices FCNSW elected to have the matters determined in court. Unfortunately, in this circumstance this court election was not effected until after the statute period had expired. Due to the timing of this decision the EPA is therefore unable to continue this matter through the courts,’ Mr Whytcross wrote.

‘The State Debt Recovery Office (SDRO) manages the penalty notice process once they are issued. The recipient of a penalty notice is required to inform the SDRO of their intentions within 28 days of receiving the notice. FCNSW did not notify the SDRO within the 28 days and by the time they did the statute period for the offences had expired,’ he continued.

Mr Whytcross said the EPA was ‘very disappointed that we are now not able to now prosecute this matter in court’.

‘These are very unusual circumstances and as a result of this the EPA is reviewing its procedures for issuing penalty notices to ensure that this situation does not occur in the future. The EPA will ensure that all matters are electronically recorded and tracked.

‘The EPA Board has been informed of the matter and has requested the EPA to examine the legislative framework, including the Fines Act, to determine if changes are required to ensure these circumstances do notoccur again.

Mr Whytcross admitted it was ‘a disappointing outcome given the time and effort that has been put into this investigation.’

But he added ‘on a positive note… the EPA and the EPA Board have been keen to see a significant increases in forestry related penalties and were pleased to see minister Speakman’s confirmation that the government will have announcements about these penalties in the new year.’