Australia should give victims a voice in tackling environmental crimes

Hadeel Al-Alosi, Western Sydney University and Mark Hamilton, UNSW

Contrary to popular belief, crimes against the environment are not “victimless”. They affect many people, animals, plants and landscapes. Crimes against the environment should not be taken lightly.

Broadly defined, environmental crimes are those that harm the environment. This includes acts such as polluting water or air, illegal fishing or trade in wildlife, and water theft. The international Environmental Investigation Agency reports environmental offending is “one of the most profitable forms of criminal activity”.

Australia is currently missing out on a hugely useful tool in the fight against environmental crime: restorative justice. This approach, which has been used successfully in New Zealand, deserves a nationwide commitment.

Read more:
Why a narrow view of restorative justice blunts its impact

Restorative justice conferencing

Australia is a world leader in using restorative justice to deal with both adult and young offenders.

Simply defined, restorative justice is a process in which the victim, offender, and other parties affected by a crime come together to discuss the aftermath of the offence and its impact. Each party plays a role in resolving the dispute with the help of an impartial facilitator.

Restorative justice is all about restoring harm, preventing the crime from reoccurring, and fixing (or building) relationships.

Research has found that, compared with the traditional criminal court process, restorative justice can reduce the chances of reoffending, increase victim satisfaction, and prompt offenders to feel more responsibility for their actions.

During a conference, victims can explain the effect a crime had on them, and ask questions – giving them a voice in traditional proceedings. Offenders can give reasons why the crime happened, and apologise. A range of other outcomes may be agreed to in a conference, including compensation and community work.

However, our research reveals that conferencing is underused when it comes to environmental crimes in Australia.

New Zealand leads the way

New Zealand is leading the world in using restorative justice to deal with environmental crimes. This is largely a result of two pieces of legislation passed in 2002. First, the Victims’ Rights Act 2002 says that, if possible, the court (or other representative) must arrange a restorative justice conference at a victim’s request. Second, the Sentencing Act 2002 makes it mandatory for a judge to take into account any outcomes reached in a conference.

While more research focusing on the precise benefits is needed, anecdotal evidence from shows New Zealand’s approach is effective. Several judges, prosecutors and facilitators have praised environmental justice in addressing environmental crime.

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Australia is failing to reap the benefits

Unlike New Zealand, Australian courts have not embraced restorative justice for environmental offending. In fact, Australia has only used restorative justice conferencing in two cases of environmental crime: Williams (2007) and Clarence Valley Council (2018).

Both Williams and Clarence Valley Council involved offending against Aboriginal cultural heritage, in breach of New South Wales’s National Parks and Wildlife Act. The outcomes reached in the conferences went well beyond what a court could have imposed on the offenders.

For example, in Williams, where a mining company built exploratory pits and a private railway siding across areas of Indigenous significance, the maximum penalty at the time was a fine of A$5,500 and 6 months’ imprisonment. The judge suggested the parties engage in a restorative justice conference, during which Craig Williams donated A$32,200 worth of items to the local Aboriginal people.

In Clarence Valley Council, which concerned the council cutting down a protected tree, the council agreed in the conference to donate A$300,000 to the local Aboriginal community to fund research into cultural heritage. The council also agreed to create employment opportunities and youth initiatives for Aboriginal people.

These outcomes are far better in repairing the damage done than a mere fine or prison term.

Complementary to traditional prosecution

Despite these significant benefits, restorative justice conferencing is not a replacement for prosecution. It should be used only after the offender has been assessed as suitable, as in the cases of Williams and Clarence Valley Council.

Restorative justice conferencing can be suitable for all sorts of environmental crime, from water pollution to breaches of planning laws. In the case of offending against Aboriginal cultural heritage, conferencing may be appropriate given its ability to give a voice to members of the Aboriginal community who would otherwise be unable to participate in the formal court process.

The ideal time to integrate conferencing is after conviction but before sentencing, which we refer to as a “back-end model” of conferencing (the method most commonly used in New Zealand).

Typically, a back-end model involves the prosecution bringing charges before the court. The court then considers holding a restorative justice conference and, if appropriate, the proceedings are postponed to allow the conference to occur. The matter is later referred back to the court for sentencing.

This creates an opportunity for the sentencing judge to consider any results from the conference, but maintains a court’s essential oversight role by ensuring the outcomes reached are adequate, achievable and legally binding.

A more environmentally friendly response

Restorative justice conferencing can provide a more effective way of dealing with environmental harms because, according to Trevor Chandler, a facilitator in Canada, “punishment makes people bitter, whereas restorative solutions make people better”.

Of course, conferencing is not without limits. Just as restorative justice may not work for all young people, it may not work for all environmental offenders. Conferencing can require more time, money and energy than traditional court processes. However, this may be an investment well worth making for the environment.

Read more:
Restorative justice may not work for all young offenders

It is time for Australia to follow New Zealand’s example by embracing a back-end model of restorative justice.

This would give victims a much-needed voice in the process, and create a better chance to heal ruptured relationships and restore the harm done to the environment as far as possible.The Conversation

Hadeel Al-Alosi, Lecturer, School of Law, Western Sydney University and Mark Hamilton, PhD Candiate (Law); Sessional tutor in criminology (School of Social Sciences), UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.


This centuries-old river red gum is a local legend – here’s why it’s worth fighting for

Euan Ritchie, Deakin University

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In Dr Seuss’s The Lorax, his titular character famously said:

I am the Lorax. I speak for the trees. I speak for the trees, for the trees have no tongues.

In the midst of a global extinction crisis, the Lorax’s call to preserve what is precious couldn’t be more apt. The greatest threat to the survival of species globally continues to be habitat destruction and modification.

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The ring trees of Victoria’s Watti Watti people are an extraordinary part of our heritage

A potential and local victim of this ongoing environmental catastrophe is a single tree, and a tree I have a deep personal connection with. The tree I refer to is Bulleen’s iconic 300-year-old river red gum (Eucalyptus camaldulensis).

To me this tree has been a constant in my life. While everything else has changed around me, it has stood there, solid, just as solid as its red gum fibres are known to be.

As a child I fondly remember looking up at this tree in awe, as we’d often stop at the nearby service station on a hot summer’s day to buy a cold drink or ice-cream on the way to Saturday sport, the nearby Birrarung (Yarra River), or my grandmother’s house.

The Conversation

Bulleen’s majestic river red gum

It’s estimated to be approximately 20 metres in height with a canopy spread of 17 metres. And its trunk measures a whopping two metres across.

The tree is thought to be the oldest remnant of a once substantial red gum forest, and was saved by a local resident when the rest of the area was cleared for the construction of a service station.

It now faces destruction, as it is within the preferred path of construction for Victoria’s North East link.

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While the measurements of this tree are impressive, the splendour and value for me is that it has survived for so long and, in more recent times, against tremendous odds.

Surviving against all odds

The Bulleen red gum stands beside one of Melbourne’s busiest roads and the immediate area is covered with concrete and bitumen. The tree’s roots and health have therefore been challenged for a long time, and yet this massive red gum stands, as if in defiance of the modern world and the development that has encircled it.

Since this tree has survived for so long, it undoubtedly holds a special connection with so many: the Wurundjeri-willam people of the Kulin Nation, members of Australia’s famed Heidelberg school of artists who lived and worked in the near vicinty, everyday commuters that have driven or walked by or stopped to admire it, or the war verteran Nevin Phillips who once apparently defended it with his rifle against it being chainsawed.

Very old trees such as Bulleen’s river red gum deserve our respect and protection, for these trees have substantial environmental, economic and cultural value.
National Trust

Further proof of the value of this tree to so many is that it was awarded The National Trust of Australia’s (Victoria) 2019 Victorian Tree of the Year.

Why we must speak for and save old trees

I grew up near this tree and, like the Lorax, I would like to speak for it.
Trees as old as the Bulleen river red gum are now increasingly rare in our world, and beyond their strong personal and cultural values, including in some places as Aboriginal birthing sites, they are tremendously important for other reasons as well.

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Vic Stockwell’s Puzzle is an unlikely survivor from a different epoch

These trees provide shade and help keep our cities cooler, improve our mental health and wellbeing, and store considerable amounts of carbon aiding our fight against climate change.

Perhaps most importantly, under their bark and in their cracks and hollows, they provide homes for many of Australia’s precious but increasingly imperilled native wildlife, including bats, birds, possums and gliders, snakes and lizards, insects and spiders.

These homes are prime wildlife real estate, especially in our big cities, where such large old trees are vanishingly rare but where considerable wildlife, common and threatened, still persists. And yet more could survive with a helping hand from us.

A powerful owl chick in a tree hollow, in outer Melbourne.
John White (Deakin University)

As cities like Melbourne continue to grow around the world, there will be more and more cases where arguments of progress are used to justify the further destruction of what nature remains. But progress shouldn’t come at any cost, and in the case of preserving iconic and valuable trees such as Bulleen’s river red gum, it would seem there’s more than enough reasons to ensure this tree’s life and its many values continue.

Perhaps again the wise sage, the Lorax, says it best.

Unless someone like you cares a whole awful lot, Nothing is going to get better. It’s not.

Sign up to Beating Around the Bush, a series that profiles native plants: part gardening column, part dispatches from country, entirely Australian.The Conversation

Euan Ritchie, Associate Professor in Wildlife Ecology and Conservation, Centre for Integrative Ecology, School of Life & Environmental Sciences, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.