Communicating the Culpability of Illegal Dumping: Bankstown v Hanna (2014)

Publisher:
Macquarie University, Division of Law
Publication Type:
Journal Article
Citation:
Australian Journal of Environmental Law, 2015, II (3), pp. 57 - 76
Issue Date:
2015
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The use of criminal law as a means to prevent harms to the environment is increasingly common. Despite this, environmental offences tend to be seen as not ‘real’ crimes. Research has consistently demonstrated low rates of identification of perpetrators of illegal dumping, low prosecutions and low penalties. Through a close reading of Bankstown v Hanna (2014) this paper analyses not only the criminalisation of illegal dumping by the state through legislation, but the process through which illegal dumping becomes regarded as sufficiently culpable to justify criminal sanctions, that is, that it is a ‘real’ crime. This paper analyses the process of substantive criminalisation in terms of the formal labelling of illegal dumping as criminal, the imposition of criminal penalties, and a normative account of illegal dumping as sufficiently blameworthy to justify the imposition of criminal penalties. Although the state has formally labelled illegal dumping criminal, this is undermined by the laws, regulation, procedures and enforcement of offences which are a mix of civil and criminal procedures. The history of cases against Hanna reveals a process of shifting from civil to increasingly serious criminal penalties, communicating not only to the general public but also regulators, courts and the wrongfulness of his behaviour. Hanna (2014) asserts a substantive normative account of illegal dumping as blameworthy, drawing upon narratives of harmful consequences and subjective culpability to emphasise the criminality of Hanna’s actions. These narratives draw upon and are informed by principle that the criminal law should only be used to censure people for substantial wrongdoing. This process has accomplished the substantive criminalisation of illegal dumping, such that legal and non-legal actors now perceive this type of behaviour as sufficiently blameworthy as to justify the application of the serious criminal sanction of imprisonment in response to serious offending.
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