Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales

Land and Environment Court (NSW)|2017-08-25|Before: Robson J

Judgment

The defendant, The Forestry Corporation of New South Wales ('Forestry Corporation'), is charged with an offence under the now repealed s 133(4) of the National Parks and Wildlife Act 1974 (NSW) ('Parks Act') in that, being the holder of a threatened species licence ('licence') under Part 6 of the Threatened Species Conservation Act 1995 (NSW) ('Threatened Species Act'), it failed to comply with a condition attached to that licence. The offence is alleged to have occurred between 18 April 2013 and 22 August 2013 at or near Compartment 2021 in Badja State Forest, New South Wales. Specifically, it is alleged that Forestry Corporation failed to comply with condition 5.2(a)(xiv) of the licence in that it did not appropriately mark a cliff at or near Map Grid of Australia 1994 (MGA94) Zone 55 Easting 727829, Northing 5998111 ('site').
Forestry Corporation contests the charge. The sole area of dispute between the parties is whether or not the rock feature the subject of the charge is a cliff for the purposes of the licence.
For the reasons that follow, I find that the rock feature the subject of the charge is not a cliff.

Background

The parties filed a document entitled "Agreed Facts on Liability" on 16 August 2017 ('Agreed Facts'), which I summarise below.
Badja State Forest is located east of Cooma, and incorporates a number of compartments. It is an area of forest designated for forestry management purposes, principally for the cutting and removal of timber.
Forestry Corporation conducts forestry operations in Badja State Forest under the authority of the Integrated Forestry Operations Approval for the Southern Region ('Forestry Approval'), which is granted under the Forestry and National Park Estate Act 1998 (NSW) ('Forestry Act'). Appendix B to the Forestry Approval contains the terms of a licence under Pt 6 of the Threatened Species Act. Under s 69U of the Forestry Act, any person carrying out forestry operations under a Forestry Approval is taken to hold a licence under the Threatened Species Act. Pursuant to s 69V of the Forestry Act, the terms of such a licence are to be enforced in the same way as any other licence issued under the Threatened Species Act.
The preamble to the licence provides: This licence is issued to the Forestry Commission of New South Wales and any person carrying out forestry operations defined in the Integrated Forestry Operations Approval (IFOA) under Part 4 of the Forestry and National Parks Estate Act 1998 of which this licence is Annexure B. ... This licence authorises the conduct of forestry operations in the SFNSW estate within South Coast Sub-region of the Southern Region (as shown on Map 1 of the NSW Southern Region Forest Agreement) that are likely to result in: 1. Harm to a threatened species (being an animal) or protected fauna; 2. The picking of a threatened species (being a plant) or a protected plant; or 3. Damage to the habitat of a threatened species.
Condition 5.2(a)(xiv) of the licence provides: Compartment Mark-up Surveys An adequately trained person must conduct a thorough search for, record and appropriately mark the following threatened and protected species features during marking-up of a compartment. ... xiv. Rocky outcrops and cliffs; ...
The term "cliff" is defined in the licence as follows: Cliff means a rocky slope greater than 70 degrees steep and greater than three metres in height.
The term "rocky outcrop" is defined as follows: "Rocky outcrop" means an area where rocks or exposed boulders cover more than 70% of an 0.1 hectare area (30 metres by 30 metres); OR areas with skeletal soils (areas with shallow soils where rocks are exposed), supporting heath or scrub (sometimes with occasional emergent trees); OR a combination of both. These sites may occur where the geology varies from the surrounding area (e.g. rhyolite outcrops). Rocky outcrops include, but are not limited to, all areas of FT "rock" (FT no. 234).
The term "marking-up" is not defined in the licence, however the parties concur in the Agreed Facts that this is the process by which tape, spray paint or other materials are applied to trees or other prescribed features to guide forest works during their operations, and to provide geographic limits to harvesting operations.
In accordance with the licence, Forestry Corporation carried out pre-harvest, pre-logging and pre-roading surveys of Compartment 2021. Forestry Corporation also prepared a harvest plan in accordance with the licence.
Compartment 2021 contains a rock feature with sections that are both greater than three metres in height and greater than 70 degrees in slope. Annexure E to the Agreed Facts contains a number of diagrams, including surveys of the rock feature, a diagram that separates the height of the rock feature into one metre increments, a diagram that shows the gradient of the rock feature in 10 degree increments, and a diagram that shows the sections of the rock feature that are both greater than three metres in height and greater than 70 degrees in slope.
The rock feature at the site was not identified as a cliff by Forestry Corporation during its surveys, and accordingly was not appropriately marked during or before the marking-up of Compartment 2021.
The alleged offence came to the attention of the Environment Protection Authority ('EPA') on or around 11 December 2013, following a report by a volunteer organisation known as South East Forest Rescue. The EPA then conducted an investigation, which involved issuing notices, conducting interviews and undertaking inspections.
It is agreed that if the Court finds that the rock feature is a cliff for the purposes of condition 5.2(a)(xiv) of the licence, the Court would find Forestry Corporation guilty of the offence.

Relevant legislation

Forestry Corporation has been charged under the now repealed s 133(4) of the Parks Act, which provided: 133 Conditions and restrictions attaching to licences and certificates and variation of licences and certificates ... (4) The holder of a licence or certificate (whether issued under this Act or under Part 6 of the Threatened Species Conservation Act 1995) shall not contravene or fail to comply with any condition or restriction attached to the licence or certificate under this Act or Part 6 of the Threatened Species Conservation Act 1995. Maximum penalty: (a) in the case of an individual - 100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or (b) in the case of a corporation - 200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues. Note. An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation - see section 175B. ...

The rock feature

On 24 August 2017, the Court conducted a site visit and inspected the rock feature in the Badja State Forest. As noted by the EPA, since the commission of the alleged offence, Forestry Corporation has conducted logging in the area around the rock feature, thereby altering the feature's surrounding area.
The rock feature, whilst relatively tall, can be circumnavigated without excessive difficulty. It slopes away steeply on each side and, as mentioned above, it is common ground that sections are both greater than three metres in height and greater than 70 degrees in slope. A copy of a photograph of the rock feature, which was included in Annexure D to the Agreed Facts, is provided at Annexure A to this judgment.

EPA's submissions

The EPA submits that to demonstrate non-compliance with condition 5.2(a)(xiv) of the licence it will need to show that the rock feature satisfies three elements, namely: 1. the feature must be "rocky"; 2. the feature must have a slope greater than 70 degrees steep; and 3. the feature must be greater than three metres in height.
In relation to the three elements, the EPA submits that it is an agreed fact that the relevant feature is a "rock feature", and therefore the feature is agreed to be "rocky". Further, the EPA submits that the Agreed Facts also indicate those parts of the rock feature that have a slope of 70 degrees or greater, and a height of greater than three metres. The EPA submits that there is no scope to import further parameters into the definition of a cliff, and accordingly the Court will be satisfied that the rock feature is a cliff for the purposes of the licence.
The EPA notes that forestry activities are prohibited within a 20 metre exclusion zone, which the licence states "must be implemented around all rocky outcrops of more than one hectare and/or cliffs". It was observed by the EPA that the exclusion zone operates slightly differently with respect to cliffs than to rocky outcrops in that, because it is anticipated that a cliff is the sheer face of a rock, the exclusion zone is measured from that face rather than the furthest extent of an area, as with a rocky outcrop.
In relation to the construction of the licence, Forestry Corporation submits that the licence was issued by the authority delegated with the power to issue such licences pursuant to Part 6 of the Threatened Species Act, and is accordingly a statutory instrument. As such, the EPA submits that the general rules of statutory interpretation apply (see Whittaker v Comcare (1998) 86 FCR 532 at 543, followed by Lloyd J in Canada Bay City Council v Optus Mobile Pty Limited [2004] NSWLEC 611 at [58]). Nevertheless, the EPA submits that the word "cliff" is clearly defined in the licence, and that there is no rule of statutory interpretation that will assist in ascertaining the meaning of the word.

Forestry Corporation's submissions

Forestry Corporation submits that the three elements to the definition of a cliff in the licence are: 1. the feature is a rocky slope; 2. the feature is greater than 70 degrees steep; and 3. the feature is greater than three metres in height.
Forestry Corporation accepts that there are sections of the rock feature that are both greater than 70 degrees in slope and greater than three metres in height, however notes that there is ambiguity as to whether the criteria in the definition is only satisfied in respect of that part of the feature that is "greater than" each criterion, meaning only a particular section of the rock feature is capable of satisfying elements two and three of the definition of a cliff.
The primary reason Forestry Corporation denies the rock feature is a cliff, however, is that the rock feature is not a "rocky slope". Forestry Corporation submits that the EPA has conflated the word "rock" with the concept of a "rocky slope", and the mere fact that the feature comprises rock is not sufficient to classify it as a "rocky slope". Rather, Forestry Corporation's position is that the rock feature is a "sloping rock". For the reasons set out below, Forestry Corporation submits that the Court should not be satisfied beyond reasonable doubt that the rock feature is a rocky slope.
Forestry Corporation submits that the licence regulates "cliffs" and "rocky outcrops", however not all rocks are captured by these definitions, and that it follows that "rocks" and "boulders" are only regulated in prescribed circumstances. Forestry Corporation submits that if the licence intended for all "rocks" of three metres in height and 70 degrees gradient to be regulated, it would have so stated. Given the distinction between the definitions of "rocky outcrops" and "cliffs", Forestry Corporation submits that a cliff must be something other than a rocky outcrop, which is defined as rocks and boulders within a particular area.
Forestry Corporation submits that the phrase "rocky slope" denotes something different to a "rock" or a "boulder", and that, given the use of these terms in the definition of "rocky outcrop", it must be that the drafter of the licence deliberately did not define a cliff by reference to these terms.
Considering the language used, Forestry Corporation submits that the word "rocky" is adjectival to the noun "slope". On the EPA's construction, Forestry Corporation submits, the Court is being asked to ignore the words written and substitute the words "sloped rock". Forestry Corporation submits this is to confuse the grammar to be applied, and fundamentally, and erroneously, to change the subject of the definition of "cliff" from a slope to rocks and boulders.
In the alternative, if the Court does not accept this construction, Forestry Corporation submits that, given there is ambiguity in the definition, that ambiguity should be read against the EPA. Forestry Corporation relies on R v Adams (1935) 53 CLR 563; [1935] ALR 421 ('Adams') at 567-8: No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provision and subject matter of the legislation, then it ought not be construed as extended any penal category.
While Forestry Corporation acknowledges that neither the Parks Act nor the Threatened Species Act is penal in nature, it submits that where criminal law is used to enforce these statutes, the principle denoted above should be taken into account.

Consideration

Section 3 of the Interpretation Act 1987 (NSW) defines the term instrument as meaning "an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includ[ing] an instrument made under any such instrument". It is agreed by the parties that the licence falls within this definition, and that consequently the ordinary approach to statutory construction should apply: see Whittaker v Comcare (1998) 86 FCR 532 at 543.
There are no strict rules which govern the interpretation of statutes. There is, however, an accepted approach. The words of a statute should be read in context, having regard to their purpose. Legislative intention is to be gleaned from reading the words themselves. Submissions as to the purpose of a provision cannot dislodge the clear, natural meaning of the words used.
In an oft-quoted passage, the High Court in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] said: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself (citations omitted).
A further point should be made which follows from the fact that the ordinary approach to statutory construction is to be used. The principle in Adams, to which Forestry Corporation refers, will apply insofar as it is relevant. As that matter is argued in the alternative, I shall return to it later.
It is not the case, however, as Forestry Corporation appeared to put it at one point in its submissions, that in criminal proceedings the Court must be satisfied beyond a reasonable doubt about the meaning of a provision. That standard of proof applies to the elements of an offence which the prosecutor must make out, and not the process of construction which is carried out in the ordinary manner.
I note that the definition of "cliff" is restrictive in the sense that a cliff is defined to mean, rather than to include, something which satisfies the definitional criteria. There is consequently no scope to find that anything which is not a "rocky slope", of greater than three metres in height, and with a gradient of more than 70 degrees is a cliff for the purposes of the licence.
Reading the definition of "cliff", in the context of the entire licence, shows that the words "rocky slope" are used in contradistinction to the words "rocks or exposed boulders" found in the definition of "rocky outcrop".
I accept that the word "rocky" is used adjectively. Indeed, as Forestry Corporation submitted, it is a word that can only ever be so used. The consequence of the use of the word rocky is that slopes of other kinds (e.g. hills) are excluded from the definition of "cliff".
In the context of the definition, the word slope is clearly used as a noun. The sixth edition of the Macquarie Dictionary provides four definitions of the word 'slope' as a noun which are instructive as to its meaning in common parlance: Inclination or slant, especially downwards or upwards… a deviation from the horizontal… an inclined surface… (often plural) an area of sloping ground…
In the course of oral argument, Mr Hemmings, senior counsel for Forestry Corporation, submitted that the effect of the prosecutor's approach is to ignore that the definition of "cliff" is directed towards the identification of a slope. Rather, Forestry Corporation submitted, the rocky feature the subject of this case is a "rock", albeit one with sloping elements.
That submission should be accepted. The rocky feature is incapable of being identified as a "slope" within the ordinary meaning of the word. It is more readily identified as a boulder or, in Forestry Corporation's submission, a "sloping rock".
As Forestry Corporation correctly submitted, had the legislature intended that the definition of cliff extend to rock formations that could not properly be described as "slopes", other wording was clearly available to it, wording that can be found employed in the definition of "rocky outcrop".
Forestry Corporation's approach to construction also conforms to the use of the word "cliff" in ordinary parlance. The concept of a slope is integral to the notion of a cliff, and an approach to the definition that accords with the word's ordinary meaning is to be preferred to one which strains it, especially when such a meaning is clearly available.
The most favourable interpretation for the prosecutor is not that the rock feature is a cliff, which I find it is incapable of being, but rather that it includes or contains a cliff. Although this argument did not arise in the written submissions or in the course of oral argument, it may be gleaned from what was said during argument that the submission of Forestry Corporation on this point would have been that because the rock feature is a rock, it cannot also be a cliff. In oral argument, Mr Hemmings referred to the example of Uluru. In his view, Uluru would not be a cliff for the purposes of the licence because it cannot be described as a "slope".
This approach finds support, as Mr Hemmings said in oral argument, in the fact that the prosecutor struggled to identify where the exclusion zones for the rock feature should have been because one would not generally try to find exclusion zones for cliffs "in the round". The somewhat artificial nature of the process in which the prosecutor was engaged is, in Forestry Corporation's submission, a result of a misconception of the definition to be applied. That submission should be accepted.

The rule of strict construction

In the alternative, if the preceding analysis is incorrect and an ambiguity arises in the definition of "cliff", Forestry Corporation submits that any such ambiguity should be read against the EPA. As outlined above, in doing so Forestry Corporation relies upon the rule espoused by Rich, Dixon, Evatt and McTiernan JJ in Adams at 567-8 that penal provisions should be construed narrowly ('the rule of strict construction').
Though the rule of strict construction remains a consideration to which regard should be had in the process of interpreting a statute which has penal consequences, I consider that subsequent cases have reduced the circumstances in which it can be said to be determinative.
In Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55 (Beckwith) at 576, Gibbs J summarised the position with respect to the interpretation of penal statutes as follows: [T]he rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. The rule is perhaps one of last resort (citations omitted).
In Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12 (Waugh v Kippen), Gibbs CJ, Mason, Wilson and Dawson JJ cited the comment of Gibbs J in Beckwith with approval. The legislation in that case concerned workplace safety provisions which, if abrogated, could have penal consequences. The question that confronted the Court therefore was what weight to give the rule of strict construction in circumstances where it comes into conflict with the aim to which the legislation is directed. At 164-5, Gibbs CJ, Mason, Wilson and Dawson JJ observed that the statute: …should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have… [I]n such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue.
In Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53 (Newcastle v GIO), the High Court considered a provision which made it an offence for an insurer not to inform clients expressly and in writing that certain cover was not offered by a particular policy. Counsel for the respondent had stressed that a narrow reading should be adopted in line with the rule of strict construction. At 102-3, Toohey, Gaudron and Gummow JJ said that the provision "casts an obligation upon the insurer, in aid of remedial measures passed for the protection of those dealing with insurers. In such a context, the rule of strict construction of penal provisions is one of last resort" (at 102-3). Similarly, McHugh J at 109 held that "if any conflict arises from the operation of the two rules of construction, the strict construction rule cannot prevent the words of the section from being given their fair meaning," citing Waugh v Kippen.
In R v Lavender (2005) 222 CLR 67; [2005] HCA 37 at 96-7, Kirby J, writing separately but concurring with the majority on the outcome, summarised the position with respect to the rule of strict construction thus: In recent times the rule of strict interpretation has "lost much of its importance", and is now generally regarded as a rule of "last resort". It comes into operation when the normal principles of interpretation have "run out", if "all other indicia [have] failed" to provide guidance. It applies "if [there is] genuine doubt as to the intention of the legislature and if there are no considerations indicating the desirability of a wide interpretation of the statute" (citations omitted).
Most recently, the rule was considered by the NSW Court of Criminal Appeal in Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 where, at [55], Leeming JA, with whom Johnson and Adamson JJ agreed, noted that: Although it was at the forefront of his written submissions, the principle invoked by Mr Grajewski [that is, the rule of strict construction] does not exclude the ordinary rules of construction. Indeed, Gibbs J's qualified observation in Beckwith v R (1976) 135 CLR 569 at 576 that the "rule is perhaps one of last resort" has much more recently been reiterated in unequivocal terms: by Nettle and Gordon JJ in Re Day (No 2) [2017] HCA 14 at [276] and in the joint judgment in Aubrey v R [2017] HCA 18 at [39]. I do not for a moment understand the High Court, by referring to "rules" and "last resort", to be implying that the task of ascertaining the legal meaning of a statute is mechanistic, to be determined by the application of rules, amongst which the penal character of the statute is the last to be invoked. The process is considerably more nuanced, reflecting as it does the constitutional relationship between the various arms of government… [A] statute's penal character is to be regarded as a very minor consideration to be taken into account in ascertaining its legal meaning in light of its text, context and purpose (some citations omitted).
The difficulty which arises in this case is that, as in Waugh v Kippen and Newcastle v GIO, the rule of strict construction comes into conflict with the purpose of the instrument, which is, inter alia, the protection of the environment and threatened species. In such circumstances, its status as a rule of last resort should be remembered.
Nevertheless, in view of my finding that Forestry Corporation's interpretation is the less strained of the two, and appreciating that the purpose of the instrument is to balance competing concerns involving the protection of the environment with the legitimate foresting practices for which Forestry Corporation holds a licence, there are no grounds to strain the construction so that the rocky formation would be included in the definition of "cliff".

Epilogue

In the light of my finding, the prosecutor requested I refrain from entering formal orders in order that it may exercise its right to submit any question of law arising in the proceedings for determination by the Court of Criminal Appeal. It makes this application pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (NSW).
Accordingly, the only formal order that I propose to make is that the proceedings be stood over for a period of 28 days to enable the prosecutor to make any such application as it may be advised to make.

Addendum

On 16 March 2018 the prosecutor informed the Court that it did not intend to submit a question of law for determination by the Court of Criminal Appeal pursuant to the Criminal Appeal Act 1912 (NSW). In the circumstances, I make the following orders:

Orders

The orders of the Court are: 1. The defendant is acquitted of the offence under s 133(4) of the National Parks and Wildlife Act 1974 (NSW) as charged. 2. The Summons is dismissed.

Annexure A - [2018] NSWLEC 10 (1.04 MB, pdf)

Amendments 16 March 2018 - Addendum added at par [58]. Final orders made at par [59]. Annexure A added. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2018

Forestry and National Park Estate Act 1998(NSW)s 69U, s

Threatened Species Conservation Act 1995(NSW)

At a glance

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