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R v Rumble – implications for executive officer liability for environmental harm offences – Environmental Law



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In this case, former Linc Energy executives were charged with
offences against Queensland’s Environmental Protection Act
1994
after a Linc Energy underground coal gasification project
near Chinchilla caused serious environmental harm. The Court of
Appeal decision in R v Rumble has implications for
executive officer liability in environmental harm offences under
Australian environmental legislation.

Brief overview of the Environmental Protection Act
1994
(Qld)

Under section 493 of the Act, if a corporation commits an
offence, each of the executive officers of the corporation also
commits an offence of failing to ensure the corporation’s
compliance with the Act.

‘Executive officer’ is defined in Schedule 4 of the Act
to mean a person who is either:

  • a member of the governing body of the corporation

  • concerned with, or takes part in the corporation’s
    management,

whatever the person’s position is called, and whether or not
the person is a director of the corporation.

An earlier decision concerning Linc Energy found that
environmental obligations of a company under the Act can apply to
liquidators.

Executive officer liability

In R v Rumble, the Court of Appeal found that, to
establish an environmental harm offence under section 493 of the
Act, two elements are required:

1. The status of the offender in a position of executive officer
of the corporation must be contemporaneous to the commission of the
offence.

2. An environmental harm offence is committed at the time when
the harm results from the unlawful causative acts or omissions (not
at the time when the acts or omissions occurred).

This means that an executive officer of the corporation at the
time that the environmental harm results, notwithstanding that the
causative acts or omissions were done before or after their tenure,
can be found liable.

There is a defence under section 493(4) if the executive officer
can prove either:

  • they took all reasonable steps to ensure the corporation
    complied with the relevant provisions of the Act

  • they were not in a position to influence the conduct of the
    corporation in relation to the offence.

While former executive officers who are not executive officers
of the corporation at the time that the environmental harm occurred
may escape liability (which was the scenario in R v
Rumble
) the Court cautioned that such a person may still
be:

  • convicted as a principal offender under the Act if there is
    proof of the person’s actual involvement

  • criminally liable as an accomplice under the Criminal
    Code
    .

There is also the possibility of civil liability.

This decision is likely to apply to other forms of environmental
harm under the Act (e.g. serious environmental harm offences,
material environmental harm offences and environmental nuisance
offences under sections 437, 438, 439 and 440) and similar
environmental offences in other Australian jurisdictions.

How can the risk be mitigated?

Directors and other officer holders, and potentially
liquidators, involved in a company that may previously have
committed acts or omissions that result in environmental harm can
be personally liable under the Act. They should consider these
risks carefully and ensure they have the appropriate protections to
manage their personal and financial exposure.

Clearly, it is also important for executives to be fully
informed of a company’s environmental track record and ensure
the company has appropriate environmental management systems,
controls and measures in place to comply with environmental
protection laws.

©
Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in
Brisbane.

This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
Lawyers.

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