AGL Energy Limited (AGL) and its subsidiary AGL Upstream Infrastructure Investments Pty Ltd (AGL Upstream) pleaded guilty in the Land and Environment Court to offences relating to the failure to disclose political donations (Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd  NSWLEC 2, per Moore J).
Failures to Disclose
Section 147(11) of the Environmental Planning and Assessment Act 1979 (EP&A Act) provides an offence where a person fails to make a disclosure of a political donation when making a planning application. The offence occurs where a person fails to make that disclosure where they knew, or reasonably ought to have known, that a disclosure was required to have been made under s 147.
In total there were 11 failures to make complete disclosure of political donations. The offences committed by AGL and AGL Upstream occurred over a period from 2008 to 2014. Donations were made to the Liberal Party, the Australian Labour Party and the National Party. The failures to disclose were in relation to both planning applications and modification of approval applications.
His Honour, handed down two fines of $8,000 and nine fines of $12,000. In his discretion, Moore J ordered that one half of the fines were to be paid to the prosecutor under s 122 of the Fines Act 1992 (Fines Act). Section 122 of the Fines Act provides that the court may make an order for up to one half of fines imposed, to be paid to the prosecutor, where the prosecutor is not a police officer and where the Act that imposes the fine does not make provision for the application of how the fine monies are to be used.
His Honour did not make a publication order as Moore J determined that to impose such orders would have amounted to an additional penalty and that was impermissible in the circumstances.
Change in policy
After the charges were laid on AGL and AGL Upstream, corporate practices were reviewed resulting in a change in company policy. AGL and its subsidiaries adopted the position that donations to political parties would no longer be made by way of financial contributions or by paying for a financial officer to attend political functions.
The full judgment is available here.
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