In 2019 and 2020, NSW Forestry Corporation clear-felled 14,440 square metres of mature native hardwood forest.
By ‘clear-felled’, I mean that they left not one living thing standing. Hundreds of trees, thousands of animals.
This is nothing particularly novel of itself. That’s the way NSW chooses to lose its hard-earned money – $29 million was thrown away in the hardwood division in 2024. That’s a lot of youth crime projects spent, instead of subsidising those who only vote National anyway.
The unique feature in this case is that Forestry Corporation was not clearing its own land as it was meant to. It was clearing its neighbour’s. That would be tragedy enough if the land was yours or mine, but it gets even worse. It was part of Bindarri National Park. Yes, let’s read that slowly again. Forestry NSW, an habitual offender for this kind of malarkey, levelled every piece of vegetation in a huge swathe of national park.
This of course is a serious criminal offence. It carries fines in excess of $1 million and prison terms. Directors of companies like Forestry Corporation can also be liable if they have failed to properly manage, or been grossly negligent, or reckless. And you’d have to think, in the days of GPS on every phone, that it’s not brain surgery to avoid hacking down hundreds of trees on your neighbour’s plot.
But where is the prosecution in this case? Nowhere. Why? Because NSW National Park Service, or their masters in the Department of Climate Change, Energy, Environment and Water decided not to prosecute.
No transparency
Why? Because they got a better deal by entering into a deed where one government authority gives another government authority just under $1 million in cash and in kind. And where is the agreement publicly available? Nowhere. Of course.
And when did they choose to publicise this abomination? On December 20, 2024, five years after the secret destruction, by way of a wee website posting. Such a pathetically obvious Christmas smoke screen.
And why would National Parks agree to such a deal? In defending the decision not to prosecute, department boss Anthony Lean said: ‘The deed imposes significant obligations on Forestry Corporation to ensure we get a better outcome than would have been secured through litigation’.
Outrageous arrangement
There is so much wrong with this outrageous arrangement it is hard to know where to start.
Criminal prosecutions should never be determined on the ability of the defendant to pay.
This is fundamental, and ought to be obvious to all those who signed off on this dirty sweetheart deal.
Two hypotheticals illustrate this: First, imagine that it was a private logging company that levelled the national park, but had no funds. Would they be prosecuted because they could not come up with $1 million in blood money?
Second, if Gina Reinhardt is caught drink driving, (mmm, maybe a bad example because she likely has a team of chauffeurs – but bear with me) should she be able to avoid prosecution by paying big dollar-bucks to the state coffers?
Of course not, and that is because determining criminal litigation on financial capacity has never, and should never, play a part in our justice system.
Shocking as this is, it is even worse when it is taxpayers’ money being shifted from one pile to another in a so-called litigation outcome that is ‘better’ than a criminal court penalty. There is a clear and obvious advantage to government in not having the scrutiny and commentary inherent in judicial determination of punishment and compensation. Such an arrangement between government agencies stinks to high heaven.
For NSW Forestry, this is the best deal ever. The Christmas parties must have been buzzing like a chainsaw. Last time they were fined hundreds of thousands for illegal logging, the court specifically rejected the contention that they were sufficiently remorseful, and discounted a submission that they were unlikely to offend in the future.
The court judgment contains line after depressing line, detailing the offending history of this loss-making venture over decades in searing, deprecating detail, with particularly telling commentary on the CEO’s evidence.
No wonder it is better to dig into our coffers to pay off another state body rather than have to go through that again. I mean, if you can pay to hide your dirty washing, who wouldn’t huh? Especially with yet another criminal matter entering penalty phase over even more illegal logging at Wild Cattle Creek.
There is nothing wrong with a court ordering, or noting compensation being paid from perpetrator to victim. It is also appropriate that this can impact sentence as an indication of remorse, and by reparation. However, payment of lucre ought never be grounds for a decision not to prosecute as it robs the community of the opportunity for appropriate scrutiny, public airing, transparency and independent determination.
After all, the court may have been able to get to the bottom of how this could ever occur, identify the executives concerned, and help make sure it never happens again.
That is one of the functions of the criminal justice system.
Yet again, Forestry NSW has shown itself to be unworthy as a custodian of public resources.
♦ David Heilpern is Dean of Law at SCU and a former magistrate.
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