Civil penalties are a further regulatory tool for the EPA. They enable the EPA to respond to less serious contraventions of the Act and are imposed as an alternative to criminal prosecution for strict liability offences. The EPA is able to negotiate a civil penalty directly with a person who has committed an offence. Alternatively, the EPA can apply to the Environment Resources and Development Court for an order that the offender pay to the EPA an amount as a civil penalty [see Environment Protection Act 1993 (SA) s 104A].
It is important to note that this is a voluntary system. A person may choose not to negotiate a civil penalty with the EPA. If the EPA wishes to apply to the Court for a civil penalty a person may also elect to the prosecuted under the higher criminal burden of proof rather than be heard in the civil jurisdiction of the court.
The maximum amount which can be negotiated is the amount specified in the Act for the offence or $120 000 whichever is the lesser. The maximum amount which the court may impose as a civil penalty is the criminal penalty specified in the Act for the offence.
Importantly there is no criminal conviction of guilt where this system is used. The EPA has developed a policy for the calculation of civil penalties to guide negotiations in this area. The policy was last updated in 2013.
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