Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Hearing dates: 24 August 2016 Date of orders: 12 January 2017 Decision date: 12 January 2017 Jurisdiction: Class 5 Before: Moore J Decision: See [160] and [161] Catchwords: ENVIRONMENT AND PLANNING – prosecutions for failure to disclose political donations – disclosure required when making applications for approval of or modifications to development – eleven charges – early guilty pleas – for most charges, failure to disclose multiple donations – failures due to inadequacy of internal systems and were not deliberate SENTENCING – characterisation of offences – approach to consideration of offences collectively – offences with multiple failures to declare being toward the upper end of the range – offences with single failure to declare being in the middle of the range – accumulation and totality where multiple offences – fines imposed SENTENCING - publication orders – availability to be ordered when legislation providing for them came into force after commission of offences but before charges laid – legislative prohibition on retrospective application of increased penalty – are publication orders a penalty? – held publication orders are to be characterised as a penalty and not able to be required in these circumstances CRIMINAL PROCEDURE – prosecutor's application for moiety of fines imposed – purpose for ordering such payment being to compensate for investigation and other expenses – statutory power now available to make additional order for such purposes – appropriate to make an order in present circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986, ss 257B and 257G Election Funding Amendment (Political Donations and Expenditure) Bill 2008 Election Funding, Expenditure and Disclosures Act 1981 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 2014 Environmental Planning and Assessment Regulation 2000 Fines Act 1996 Fines and Penalties Act 1901 Local Government and Planning Legislation Amendment (Political Donations) Bill 2008 Protection of the Environment Operations Act 1995 Water Management Act 2000 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd (2013) 199 LGERA 176; [2013] NSWLEC 188 Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 EPA v Barnes [2006] NSWCCA 246 Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 Hawkesbury City Council v Foster & Mushroom Composters Pty Ltd (1997) 97 LGERA 12 Hawkesbury City Council v Mushroom Composters Pty Ltd (No 3) (1996) 90 LGERA 395 Markarian v The Queen 228 CLR 357; [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich 199 CLR 270; [1999] HCA 54 R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154 The Queen v Kilic [2016] HCA 48 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Texts Cited: Stroud's Judicial Dictionary 9th Edition Category: Principal judgment Parties: Secretary, Department of Planning and Environment (Prosecutor) AGL Energy Limited (152666 - 152675 of 2016) (Defendant) AGL Upstream Infrastructure Investments Pty Limited (153041 of 2016) (Defendant) Representation: Counsel: D Buchanan SC/and Ms A Mitchelmore, barrister (Prosecutor) T Howard SC (Defendant)