Hi Simon,

I'd just like to make a couple of brief points...

"...all we can hope to do is minimise damage to our reputation and that of the industry."

I WOULD SUGGEST THAT THIS SHOULD BE THE LEAST OF A CONSULTANT'S WORRIES IF THEY HAVE BEEN CAUGHT UP IN THAT KIND OF ACTION BY A CLIENT.

"So what emerges from Mr Woolf's information is the priority to make it explicitly clear (in writing) to one's client, before any further action is taken. This protects the consultant at least, against the offence of aiding and abetting a crime."

BY ALL MEANS ENVIRONMENTAL CONSULTANTS SHOULD CLEARLY AND ACCURATELY ADVISE THEIR CLIENT, BUT - DEPENDING UPON THE CIRCUMSTANCES - SUCH ADVICE IN ITSELF MAY NOT NECESSARILY BE ADEQUATE PROTECTION FOR A CONSULTANT FROM LEGAL ACTIONS BY OTHER PARTIES.

"If the consultant wishes to play some role in a possible prosecution later, it is important to gather reasonable evidence of the presence of protected vegetation but this can't be done post hoc."

A CONSULTANT THAT ASSISTS IN A PROSECUTION AGAINST THEIR CLIENT (THROUGH EITHER THEIR OWN DECISION OR THAT OF A COURT MAY ALSO BE PREVENTED OR SERIOUSLY HAMPERED FROM DOING SO BY INJUNCTIONS FROM THEIR CLIENT OR OTHER AFFECTED PARTIES. INDEED, THE COLLECTION OF INFORMATION CALCULATED TO BE ACTUALLY OR EVEN POTENTIALLY USED AS EVIDENCE AGAINST THEIR CLIENT WOULD ADD A WHOLE NEW LEVEL OF RISK TO THE CONSULTANT, AND I WOULD CAUTION AGAINST SUCH INTENTIONS OR ACTIONS WITHOUT APPROPRIATE LEGAL ADVICE.

"The real contractual quandry is what a consultant does once they know a crime may have been committed. You are at just as much risk of being sued if you try to pull out of a contract, so you generally have to grit your teeth and see it through. Nevertheless, If I know an EEC has been destroyed and continue to offer advice, then I could be acquiescing to the crime."

WELL, NOT NECESSARILY. THE REAL QUANDRY IS TRYING TO BE A SORT OF "RUMPOLE OF THE BAILEY" AND AN ECOLOGICAL CONSULANT AT THE SAME TIME. IN CERTAIN SITUATIONS IT IS VERY EASY TO THINK THAT AN OFFENCE MAY HAVE OCCURRED IN REGARDS TO SUCH CLEARING ACTIVITIES, WHEN ONE HAS LIMITED UNDERSTANDING OF BOTH COMMONWEALTH AND STATE LAND LAW. THE ACTUAL SITUATION OF A PRESUMED ILLEGAL OR UNLAWFUL ACT MAY IN FACT LATER BE DEMONSTRATED IN COURT TO HAVE BEEN ACTUALLY A LEGAL ENTITLEMENT AND A LAWFUL ACTION. FROM MY OBSERVATIONS, ECOLOGICAL CONSULTANTS HAVE VERY LITTLE PRACTICAL KNOWLEDGE OR EXPERIENCE WITH PRIVATE PROPERTY RIGHTS AND LAW, SO THEY SHOULD EXCERCISE EXTREME CAUTION BEFORE THEY DECIDE TO BECOME ACCUSER, JUDGE AND JURY OVER A CLIENT'S ACTIONS.

"If anything, it is the government's responsibility to address the enforcement problem raised by Mr Woolf..."

YES, INDEED IT IS. HOWEVER, THE POLITICS OF CERTAIN ISSUES MAY AFFECT A DEPARTMENT'S CAPACITY OR EVEN DESIRE TO ACT AGAINST A CLIENT'S ACTIONS EVEN IF IT CAN BE REASONABLY DETERMINED THAT A POSSIBLE OFFENCE MAY HAVE OCCURRED.

"...and we can only make them aware of the problem."

AGAIN, BE VERY CAREFUL HERE ABOUT WHAT YOU SAY - AND TO WHOM YOU SAY IT - WHEN IT CONCERNS A CLIENT'S ACTIONS OR PROJECT. THERE ARE VERY SERIOUS COMMERCIAL LAW ISSUES HERE THAT MAY LEAVE A CONSULTANT EXPOSED TO DAMAGES - EVEN IF THE CLIENT IS EVENTUALLY CONVICTED OF AN OFFENCE.

"When it comes to ecological offences, we have to be very careful. In the absence of proof of existence of vegetation before the offence, or if there is any argument over whether the community actually met the benchmarks, a consultant could find themselves losing out to a technicality."

YES OF COURSE, BUT AS I HAVE STATED EARLIER, THERE'S FAR MORE TO WORRY ABOUT THAN SOME MERE "TECHNICALITY". STICK TO GOOD SCIENCE AND LEAVE THE LAW TO THE LAWYERS.

"I have never been in this unfortunate position but if the situation was desperate enough, my course of action would probably be to put nothing in writing, speak to someone in the government who I knew and trusted, and tell them they may want to cast an eye over an area but not specify why."

I DO HOPE THAT NONE OF YOUR CLIENTS READ THIS FORUM. IN ANY CASE I THINK YOU WOULD BE RATHER NAIVE IF YOU EXPECTED THAT "SOMEONE YOU KNEW IN GOVERNMENT" COULD BE TRUSTED TO KEEP YOU OUT OF THE POO IF YOUR INFORMATION WAS ACTUALLY USED IN A PROSECUTION. SUCH GOVERNMENT EMPLOYEES ARE LEGALLY BOUND TO NOT CONCEAL THEIR SOURCES IN THE EVENT OF A PROSECUTION. IN ANY CASE MOST RESPONSIBLE PUBLIC SERVANTS DIARISE EVERY PHONE CALL AND COMMUNICATION IN REGARDS TO POTENTIAL OFFENSES ETC, AND SUCH DIARIES AND NOTES ARE REGULARLY OBTAINED BY AGGRIEVED PARTIES THROUGH THE GOOD OLD F.O.I. AND THEN WHEELED INTO COURT FOR EXAMINATION AND OF COURSE CROSS-EXAMINATION.

"Otherwise, you call up anonomously...that way it can be attributed to a member of the public and the consultant can deny knowledge."

MMMM. SEE ABOVE.

"Clearly you have got nothing to lose since the client is not someone you are likely to work for again anyway..."

MMMMMMM. WELL, I THINK IT IS WISE TO NOT BURN YOUR BRIDGES...MOST OF THESE DEVELOPER TYPES ARE ALL OVER THE PLACE LIKE SHIT OUT OF A GOOSE, SO YOU ARE LIKELY TO CROSS PATHS WITH THEM ONE WAY OR THE OTHER IN THE FUTURE. IT PAYS TO CONTINUOUSLY TRY TO HELP THEM MEND THEIR EVIL WAYS - UNLESS OF COURSE...IF THEY ARE NON-PAYERS....THEN MAY A POX BE ON THEM FOR ALL ETERNITY AS FAR AS I'M CONCERNED !

"Perhaps in most cases, the consultant would be better off taking no further action and concentrating instead on leaving a substantial paper trail."

YES, and Amen to that !

Richard Wells

Hi,

I have only just read this and it is very interesting. I have always held the view that an offence, whatever the seriousness, is an offence and complicity on the part of a consultant would also be an offence. It seems that under NSW law and possibly Commonwealth law, the issue is more complicated than that.

Given Mr Woolf's diagnosis of the problem, the most important element of this discussion for ECA members appears to be the need to protect themselves. We shouldn't lose sight of this by worrying about trying to assume the role of law enforcement. It is perhaps a shameful thing to say but I don't think it is the ECA's job (for that matter, the job of consultants) to stop crimes being committed, that are outside their control. In these exceptional cases, all we can hope to do is minimise damage to our reputation and that of the industry.

So what emerges from Mr Woolf's information is the priority to make it explicitly clear (in writing) to one's client, before any further action is taken. This protects the consultant at least, against the offence of aiding and abetting a crime. If the consultant wishes to play some role in a possible prosecution later, it is important to gather reasonable evidence of the presence of protected vegetation but this can't be done post hoc. As early as possible in every job, a consultant would do well to document the vegetation by way of dated photos with a GPS position and some supporting evidence of plant communities. But this should be part of the paper trail for every job and is not a special circumstance for this example.

The real contractual quandry is what a consultant does once they know a crime may have been committed. You are at just as much risk of being sued if you try to pull out of a contract, so you generally have to grit your teeth and see it through. Nevertheless, If I know an EEC has been destroyed and continue to offer advice, then I could be acquiescing to the crime. In that situation, I would simply include in every piece of written correspondence, words to the effect that there is nothing further one can do, since the protected vegetation has already been removed (refer back to an original letter). Critically, one can offer no assistance that could be construed as assisting an application. The client can clearly choose not to include these statements in their planning application but at least the consultant is protected. We more or less do this on a daily basis for every job, though not the degree discussed in this case. Nevertheless, we continually advise clients as to what they need to do to satisfy the legal requirements. Again, this may be a more difficult situation but it is not unique in terms of maintaining a paper trail and rigour of approach. 

If anything, it is the government's responsibility to address the enforcement problem raised by Mr Woolf and we can only make them aware of the problem. 

In the mean time, there is only one real course of action but this is generally A LAST RESORT. When it comes to ecological offences, we have to be very careful. In the absence of proof of existence of vegetation before the offence, or if there is any argument over whether the community actually met the benchmarks, a consultant could find themselves losing out to a technicality. In other words, if the courts cannot prove an offence was committed, then there is clearly no grounds for breaching a confidentiality agreement! This is probably the biggest risk and was not identified in Mr Woolf's letter, with all due respect, because it was not the matter he was asked to consider. Nevertheless, it is in my view, the biggest risk.

I have never been in this unfortunate position but if the situation was desperate enough, my course of action would probably be to put nothing in writing, speak to someone in the government who I knew and trusted, and tell them they may want to cast an eye over an area but not specify why. Otherwise, you call up anonomously...that way it can be attributed to a member of the public and the consultant can deny knowledge. Clearly you have got nothing to lose since the client is not someone you are likely to work for again anyway, but you haven't jeopardised your own standing. There is still a risk but it is very much reduced.

The take home message is, protect your own interest first. If you can do that, consider your options carefully. Unless you can categorically prove that an offence was committed, don't go public. Maybe let someone know but do everything possible to leave no trace of communication. Because this method is not something that ECA or anyone else is likely to condone, it is not something to make a habit out of and is only ever likely to be appropriate in desperate situations. Perhaps in most cases, the consultant would be better off taking no further action and concentrating instead on leaving a substantial paper trail. 

Regards,

Simon.

I've copied and posted Greg Little's earlier response that was sent to everyone's email address:

Stephen

Gooday ECA