Environment Protection Authority v Ravensworth Operations Pty Ltd

Land and Environment Court (NSW)|2012-11-14|Before: Sheahan J

A: Introduction to this appeal judgment 1This is an appeal in class 6 of this court's jurisdiction, against the dismissal - by the Local Court in Singleton, after hearing a preliminary question of law - of the prosecutor's summons. 2The prosecutor had charged the defendant under the provisions of s 128 of the Protection of the Environment Operations Act 1997 ('POEO Act'). 3Apart from challenging the appeal on its merits, the defendant argues, as a threshold question, that an appeal is not available to the prosecutor.

The POEO Act section 4Section 128 provides as follows: Standards of air impurities not to be exceeded (1) The occupier of any premises must not carry on any activity, or operate any plant, in or on the premises in such a manner as to cause or permit the emission at any point specified in or determined in accordance with the regulations of air impurities in excess of: (a) the standard of concentration and the rate, or (b) the standard of concentration or the rate, prescribed by the regulations in respect of any such activity or any such plant. (2) Where neither such a standard nor rate has been so prescribed, the occupier of any premises must carry on any activity, or operate any plant, in or on the premises by such practicable means as may be necessary to prevent or minimise air pollution. (3) A person who contravenes this section is guilty of an offence. 5The dictionary to the POEO Act includes the following definitions: activity means an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal). plant means any plant, equipment, apparatus, device, machine or mechanism, and includes any vessel, dredge, unit of rolling stock or crane, but does not include a motor vehicle. 6The defendant's activities of "mining for coal" and "coal works" are listed in Schedule 1 of the POEO Act as "scheduled activities".

The charge is brought 7The prosecutor's charge, as set out in its Court Attendance Notice ('CAN') dated 19 August 2011, alleged that the defendant had contravened sub-section (2) of s 128 on 25 August 2010, at the Ravensworth/Narama Mine, "at or near Ravensworth, NSW", by: being the occupier of premises and failing to carry on an activity, in or on the premises by such practicable means as may have been necessary to prevent or minimise air pollution, where no emission standard or rate has been prescribed for that air impurity. 8It is common ground that the mine is "scheduled premises", is occupied by the defendant, and emits "solid particles of dust" (T15.6.12, p6, LL13-18). 9The "activity" was particularised, in the CAN, as "dragline operations", the "air impurity" as "dust", and the "practicable means" as: including but not limited to: a failure to employ wetting devices, a failure to implement [the] Dust Suppression Standard appropriately, [and] failure to operate dragline in accordance with weather conditions. 10The prosecutor explained to the Local Court that it had decided to proceed in that jurisdiction because (1) there had not been any public complaints about the dust, (2) its impact was purely local, and (3) the penalty imposed was likely to be in the Local Court range, where the jurisdictional maximum would be a fine of $110,000 (T15.6.12, p2, LL11-20).

B: The proceedings below 11The CAN was returnable at Singleton Local Court, on 13 October 2011, when Mr Holland filed his appearance for the defendant and entered a plea of not guilty. 12The parties agreed to pose to the Local Court a preliminary legal question, in the following terms: Is there a standard of concentration and/or rate prescribed by the Regulations for dragline operations carried out at the Ravensworth/Narama mine, Ravensworth in relation to the emission of dust? 13The parties agreed also that, if the answer to that question were in the affirmative, it would be determinative of the proceedings between them. 14Directions were agreed and given on 19 January 2012, requiring both sides to file evidence and submissions. 15On 8 February 2012, the prosecutor filed a witness statement by one of its officers, Kelsey Bawden, who agreed to be bound by the usual Expert Witness Code of Conduct, and claimed expertise in the use of Test Methods mandated by the document "Approved Methods for the Sampling and Analysis of Air Pollutants in New South Wales" (Appellant's appeal bundle, tab 3). Clause 3 of the relevant Regulation under the POEO Act (see [18] below) defines that document in these terms: Approved Methods (Sampling and Analysis) Publication means the document entitled Approved Methods for the Sampling and Analysis of Air Pollutants in New South Wales prepared by the EPA and published in the Gazette, as in force from time to time. 16The defendant filed its submissions on the preliminary question on 23 March 2012, and the prosecutor responded on 5 April 2012. The preliminary question was argued on 15 June 2012. (I will return to the lower court hearing in some detail - at [51] below). 17The learned Magistrate dismissed the charge on the basis that he accepted the defendant's submission that sub-section (2) did not apply, because of the provisions of the Protection of the Environment Operations (Clean Air) Regulation 2002 ('the 2002 Regulation'), which was repealed and replaced by the Protection of the Environment Operations (Clean Air) Regulation 2010 ('the 2010 Regulation'), but which, it was submitted, prescribed a standard of concentration in relation to both the activity and the pollutant concerned as at the date in the charge (25 August 2010). 18The 2002 Regulation relevantly provides/d as follows (some emphasis added): 27 Prescribed standards of concentration for air impurities (1) For the purposes of section 128 (1) of the Act, the prescribed standards of concentration for emissions of air impurities are: (a) in relation to any plant referred to in Schedule 2, the standards of concentration specified in that Schedule in relation to that plant, and (b) in relation to any activity or plant specified in Schedule 3 in respect of a particular purpose, the standards of concentration specified in Schedule 3 in relation to that activity or plant and that purpose, and (c) in relation to any activity or plant specified in Schedule 4 (other than those covered by Schedule 2 or 3), the standards of concentration specified in Schedule 4 in relation to that activity or plant. (2) For the purposes of this clause, a requirement in Schedule 2, 3 or 4 that a standard of concentration for volatile organic compounds or carbon monoxide be met is satisfied if either of those standards is met. 28 Procedures for determining whether prescribed standards of concentration have been exceeded (1) For the purpose of determining whether or not a standard of concentration prescribed by Schedule 2, 3 or 4 for an air impurity has been exceeded, the following procedures are to be applied: (a) a sampling or monitoring position is to be selected in accordance with: (i) TM-1, if the concentration is to be determined in accordance with the relevant test method, or (ii) CEM-1 (if measuring opacity) or CEM-2 (in any other case), if the concentration is to be determined in accordance with the relevant monitoring method, (b) the concentration of the air impurity is to be determined in accordance with the relevant test method, or relevant monitoring method, for the air impurity, using the relevant averaging period, (c) the concentration determined under paragraph (b) (otherwise than for smoke) is to be expressed by reference to the relevant reference conditions for the standard of concentration after determining the following: (i) the moisture content of the sample, determined in accordance with TM-22, (ii) the temperature and pressure at the sampling position, determined in accordance with TM-2, (iii) if a relevant reference condition is a specified percentage of carbon dioxide-the concentration of carbon dioxide emitted, determined in accordance with TM-24 or CEM-3, (iv) if a relevant reference condition is a specified percentage of oxygen-the concentration of oxygen emitted, determined in accordance with TM-25 or CEM-3, (d) the concentration determined under paragraph (b) for smoke (if determined as opacity) is to be expressed by reference to the relevant reference conditions for the standard of concentration. (2) For the purposes of this clause: (a) a reference to the relevant test method or relevant monitoring method, in relation to an air impurity, is a reference to the test method or monitoring method specified in Part 1 of Schedule 5 in relation to that air impurity, and (b) a reference to the relevant averaging period, in relation to an air impurity, is a reference to: (i) the averaging period specified in Part 2 of Schedule 5 in relation to that air impurity, or (ii) such other averaging period as may be specified in the conditions of the relevant licence, and (c) a reference to the relevant reference conditions, in relation to any air impurity emitted from an activity or plant, is a reference to: (i) the reference conditions specified in Part 3 of Schedule 5 in relation to that air impurity and that activity or plant, or (ii) such other reference conditions as may be specified in the conditions of the relevant licence. 42 Emission points (1) For the purposes of section 128 (1) of the Act, the point at which the standard of concentration, or rate of emission, of air impurities resulting from the carrying on of any activity, or the operation of any plant, on any premises is not to be exceeded is a point between: (a) the point of origin of the air impurities, that is: (i) the point where the air impurities originate, or (ii) if the air impurities subsequently pass through any control equipment-the point where the air impurities emerge from that equipment, and (b) the point of release of the air impurities, that is: (i) the point where the air impurities pass into the atmosphere, or (ii) if air, gas or vapour is added to the air impurities before that point after passing through any control equipment, the point immediately before the point where the air, gas or vapour is added. (2) In any case where there is more than one point of release applying in relation to any activity or plant, a reference in subclause (1) to the point of release is a reference to all of the points of release applying in relation to the activity or plant. 19The particular sampling/analysis method of concern and interest in this case is known as " Test Method 15". It is not defined in the POEO Act, or the 2002 Regulation, but in the "Approved Methods" document, which calls up relevant Australian and United States Standards. Deviations may be approved by the prosecutor. Appended to Bawden's Statement is a report/document entitled "Layman's Guide to Test Method 15", which Bawden had prepared.

C: An appeal is brought to this court 20The prosecutor appealed to this court, by summons dated 4 September 2012, on only one ground, namely that the learned Magistrate erred in deciding that: "there is a standard of concentration and/or rate prescribed by the Regulations for dragline operations carried out at the Ravensworth/Narama Mine, Ravensworth in relation to the emission of dust".

D: A "threshold" question of jurisdiction arises 21The appeal from the Magistrate's decision is brought to this court, pursuant to the relevant provisions of s 42 of the Crimes (Appeal and Review) Act 2001, namely (emphasis added): Appeals as of right ... (2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against: ... (b) an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence, ... but only on a ground that involves a question of law alone. (3) An appeal must be made within 28 days... ... 22The threshold question now before this court on the present appeal is the correct construction of the term "question of law alone" in s 42(2B)(b). 23The appeal was heard on 14 November 2012, and I reserved my judgment. 24On 22 November 2012, Pain J delivered her judgment in Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 ("Steve Nolan"). Her Honour dealt with the concept "question of law alone", and I considered it appropriate to allow both counsel in the present appeal to make further written submissions in the light of that decision. 25Both counsel filed their supplementary submissions on 14 December 2012. 26It is well established that an appeal on a "question of law alone" is narrower than an appeal on a "question of law" (see R v XHR [2012] NSWCCA 247 at [21]; R v JS [2007] NSWCCA 272 ('R v JS'); 175 A Crim R 108 at [74]). Words such as 'alone' are used as words of limitation (R v Vaughan (No 2) (2009) 105 SASR 532 at [21]), to the exclusion of other matters such as facts. 27A provision similar in terms to s 42(2B)(b) was considered by the High Court, in Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 1 ('Williams'), namely s 401(2)(b) of the Criminal Code 1924 (Tas). Gibbs J opined that, if a question depends in part on the facts of a case, it cannot be said to raise a question of law alone. 28The recent NSW case of Krishna v Director of Public Prosecutions [2007] NSWCCA 318 ('Krishna') referred to and relied upon the decision in Williams (at [45]). See also Director of Public Prosecutions v Linnett [2006] NSWSC 1086; 68 NSWLR 85, where Buddin J collected the relevant cases. 29Spigelman CJ noted in R v JS (at [74]), that it is necessary, at least in terms of particularisation, for an appeal ground to identify the question of law alone. His Honour noted that it is not a rigid requirement but in that case "...it was at all times tolerably clear what...the relevant question of law must be". His Honour also said (at [75]) that the specific "question of law alone" said to arise "should be identified with reasonable precision". 30The Chief Justice reformulated two of the appeal grounds before the court in that case so that they commenced with the words "whether the words of s 39" and "whether on a proper construction". The first question the court considered related to the proper construction of a statutory offence, whilst the second related to the determination of the offence upon that construction. The question of proper construction was determined by his Honour to be a question of law alone, whilst the second question was a mixed question of fact and law (at [82]). 31Spigelman CJ also observed (at [81]) that the reasoning in Williams was "by no means clear", due to the difference between the wording of the provisions in the Tasmanian and NSW statutes - the NSW provision was wider because it referred to "involvement" of a "question of law alone", in a "ground", whereas the Tasmanian provision required the appeal to be "on a question of law alone". 32In Federal Commissioner of Taxation v Cooper (1991) 99 ALR 703 ('FCT v Cooper'), Hill J observed (at [6]-[10]) that, where one conclusion is open on the facts, and a decision maker arrives at a different conclusion, and the facts are not in issue, the decision maker must have applied a wrong principle of law. It was common ground before me that FCT v Cooper is not determinative of the question before me, as it dealt with whether a question of law was involved at all (Tp40, LL16-46). The court respectfully agrees. 33The High Court said in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 ('Collector of Customs'), at 394-5 (emphasis mine): ...In Hayes v Federal Commissioner of Taxation, Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour said: "Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." In Collector of Customs v Pozzolanic Enterprises Pty Ltd [[1993] FCA 322] ("Pozzolanic") the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon "value judgement[s] about the range of [an] Act" which, the Court said, necessarily raised questions of law. Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions: "1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. (at 394-5)

Respondent's Submissions 34Unless the question raised in an appeal ground can be detached from the facts, a "question of law alone" has not been raised. 35The appellant in this matter clearly raises a ground involving facts - a mixed question of fact and law (Tp19, LL19-20), namely whether there is a prescribed standard and/or rate of concentration for the emission of dust at the Ravensworth/Narama mine (written subs, par 24). 36The respondent submits that the appeal ground is "expressly engaged with the facts" (written subs, par 28): ...On any reasoned view, it calls up for consideration the nature of the dragline operation carried out at the Ravensworth/Narama Mine on the date of the alleged offence because the essential factual question is whether that operation meets the description of one of the classes of "activity or plant" described in the Schedule 4 Table. Indeed, the assertion put by the appellant that cl 42 of the Regulation cannot sensibly apply is evidently dependent on particular asserted physical aspects of the operation of the dragline... 37In his oral submissions, Mr Howard, counsel for the respondent, drew attention to the written submissions of the appellant (Tp24, L50-Tp25, L14), particularly the reference to cl 42 (appellant's submissions, pars 14-15), where the appellant expressly refers to the nature of the emissions from dragline operations: 14. ...Acceptance of the defendant's construction would mean that the carrying on of activities and operation of plant which do not entail emissions from point sources cannot be prosecuted successfully under s 128(1) (because there is no prescribed point) and yet cannot be prosecuted under s 128(2). 15. The activity the subject of the charge in the present case illustrates the point. The formulation of the offence in s 128(1) by reference to a point of exceedance, and the terms in which that point is prescribed in reg 42, does not accommodate the carrying on of an activity such as dragline operations where the air impurity emitted is dust. Dust from dragline operations does not originate at one point and pass into the atmosphere at another point, such that the emission can be measured between those points and any exceedance of the prescribed standard or rate can be identified. Rather, the point at which the dust originates and is released into the atmosphere is one and the same.

Appellant's Submissions 38Ms Mitchelmore, counsel for the appellant, submits that the construction the Magistrate adopted in the Local Court proceedings did not require an engagement with the facts of the case. (Tp4, LL43-44). 39She notes that a "question of law alone" does not require the formulation of the question in a way completely detached of facts, as was the case in R v JS (Tp37, LL39-43). 40Williams involved a question of mixed fact and law, as the High Court considered the exercise of discretion to exclude evidence. Unlike Williams, the present case involves a "question of law alone", namely a question of construction "as to whether the operations, as to which there is no dispute fall within the scope of the Act and Regulations properly construed" (Tp6, LL18-20). 41The question of construction contained in the appeal ground is not dependent upon the facts of the defendant's operations, but on the nature of the emissions (Tp5, LL35-36).

Supplementary Submissions following the Steve Nolan decision 42Steve Nolan involved appeals by a prosecutor against the dismissal of charges involving water pollution and the carrying out of work in breach of the Environmental Planning and Assessment Act 1979 ('EPA Act'). The appeals before Pain J were required to raise a "question of law alone" (at [5]). 43In their supplementary submissions in the present case (referred to at [24]-[25] above), both counsel submitted that the principles espoused in Steve Nolan did not add to the principles the parties had already put before the court in their written submissions, and during the hearing. The respondent did, however, seek to differentiate (par 3) one point in Steve Nolan as it involved a failure to have regard to one of four paragraphs of a determinative statutory definition, whereas in the present case the "question articulated by the appellant..., on its terms, cannot be disengaged from factual matters regarding the operation of the dragline".

Conclusion on the threshold question 44The construction of a provision of statute by a judicial officer involves a question of law alone, because it does not involve the application of facts to the law, as does a mixed question of fact and law. 45The appeal ground in this matter expressly refers to the operations at the Ravensworth/Narama Mine. The core of the question is dependent upon the nature of the activities carried on at the mine, that is, whether the fugitive emission of dust from the dragline operations can be classified as falling within categories of standards and/or rates prescribed. 46It is not in dispute that the emissions from dragline operations are fugitive, nor that they cannot be measured at a point. The fugitive nature of the dust is particularly relevant as it is not capable of being measured by TM-15, the prescribed Test Measure. In terms of Pozzolanic principles ([33] above), the facts can be understood to be "fully found". 47The appeal ground could avoid express reference to factual matters such as activities specific to the Ravensworth/Narama mine, Ravensworth, and remain, in substance, the same. 48It might say: That the Learned Magistrate erred in deciding that 'there is a standard of concentration and/or rate prescribed by the regulations for the fugitive emission of solid particles. 49As the question at the heart of the appeal can be posed without any engagement with the facts, the appeal ground can be said to raise a question of law alone. For this reason the appeal must be allowed to proceed. 50I turn now to examine the Magistrate's conduct of the hearing on the preliminary legal question.

E: The Local Court hearing of the preliminary question 51The prosecutor contended in the Local Court that the "Approved Methods" document was "plainly given legislative force by virtue of Clause 3 of the Regulation irrespective of whether the document itself is included in the Regulation", but it was common ground that, if the defendant established that the answer to the question posed was "yes", it could not be guilty of the breach at s 128(2), because a standard of concentration had indeed been prescribed by the Regulation. 52The only evidence before the Magistrate was Bawden's statement, but the prosecutor, Mr P Barley, submitted that the court did not "need to go that far", and Mr Holland said that he was "quite happy almost to do without it" (T15.6.12, p1, LL44-49). 53However, the legal representatives approached the question quite differently. 54As Mr Barley put it, orally, the prosecutor started with s 128, and moved to the "scheme" in the Regulation, which takes you to documents including the "Methods" document (and the relevant Australian Standard). On the other hand, he submitted (T15.6.12, p4, LL35-49), that Mr Holland started at Test Method 15 and worked "back", and that, if that were correct, it would create an "unusual result", even "an absurd result", in that it would mean that the emission of dust "from any operation" would be exempt from the provision of s 128, because Mr Holland's standards cannot be measured: "it could never have been the intention of Parliament to produce such a result". 55Both sides relied heavily on the written submissions they had filed well in advance of the hearing. As the Magistrate said that he had closely examined them, the oral arguments in support of the competing positions were quite short. 56The defence made the point that, contrary to the particulars in the CAN, the relevant "activity" was "mining", and that the "dragline" was, actually, "plant", rather than a structure or place ([7]-[9] above). 57The defence contended (Tp5) that s 128 takes you to cl 27 (especially cl 27(1)(c) of the Regulation, which takes you to the schedules - [18] above). 58In its written submissions on the preliminary question of law, the defendant said (par 8): Pursuant to section 128(2) of the POEO Act, the Prosecutor must prove, beyond reasonable doubt, the elements of the offence as follows: (a) the Defendant is the occupier of the premises; (b) the Defendant was carrying on an activity in or on the premises; (c) that the operation of the dragline was emitting air impurities; (d) that there is no standard of concentration and/or rate prescribed by the regulations for the premises or the activity; and (e) if there are no standard of concentration and/or rate the Defendant has failed to use such practicable means as may be necessary to prevent or minimise air pollution. 59The defendant argued (par 65) that it has both development consents, and an Environment Protection Licence (No 2652), issued by the prosecutor, which permit it to emit air impurities. 60The defendant anticipated (par 41ff) likely submissions to be made by the prosecutor - that no standard or rate is prescribed by the Regulation for dragline (i.e. non-stationary) operations, that the s 128(1) regime should be read down to apply to only stationary sources, and that s 128(2) applies - and submitted, in response, that the POEO Act and the Regulation were clear and unambiguous - where a standard is prescribed pursuant to s 128(1), s 128(2) cannot apply and the standard should not be worked to alter the otherwise ordinary meaning of the words in the POEO Act. 61"It is impermissible to call in aid, in the construction of an Act, delegated legislation made under that Act" (per the Court of Appeal in Mines Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137 ('Wambo Coal'), at [41]). "The Test Methods are not legislative instruments and should not be used to interpret the POEO Act" (defendant's written submissions to the court below, par 58: Parliament clearly did not intend that standards should be prescribed pursuant to s 128(1), for only stationary sources - both that sub-section, and the Regulation, apply to "any activity" or "plant", provided it is on scheduled premises). 62Those written submissions by the defendant concluded (par 63) with this: The combined effect of s128(1) of the POEO Act and Clause 27 of the Clean Air Regulation is that a standard of concentration does apply to the dragline operations which is an activity and which was taking place on scheduled premises at the time of the alleged offence. 63In its written submissions in reply, on the preliminary question of law, the prosecutor submitted (par 5) that s 128 should be read as a whole and that, so read, there is no ambiguity, and the prosecution under s 128(2) is appropriate. The defendant's interpretation would lead to an absurd result which would "grant the Defendant an unexplained and unfair exemption from the law", which Parliament would not have intended. The Approved Methods document is "plainly given legislative force by virtue of clause 3 of the Regulation", even though not included in the Regulation. 64The prosecutor submitted that, in interpreting s 128, the defendant failed to have reference to the objects of the POEO Act; they "form the cornerstone of any interpretation of" it (par 11 - see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ("Project Blue Sky"), at [70] and [78]). The prosecutor quotes (par 12) the following two objects of that Act as relevant: a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, ... d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, ... 65The prosecutor denies any ambiguity in the POEO Act, but, if there were, any ambiguity should be read to favour those objectives (Interpretation Act 1987, s 33 - subs par 13); the defendant's interpretation does not serve the objectives, and "would create an almost absurd anomaly in the Act" (par 14). It offends Project Blue Sky by producing a result "disharmonious" with the legislation. Section 128 is intended to cover all activities capable of creating air emissions, whether there is a measurable standard prescribed for that or not (par 15), but the defendant would create a "hybrid category where there is an applicable standard but it cannot be measured" (par 16). For dragline operations, the measurement must be taken at the point of operation (par 20). The Approved Methods are not relied on by the prosecutor to interpret the legislation. They give effect to the legislation: "Where an approved standard or concentration cannot be measured it is simply not an applicable standard. This is not interpreting the legislation but merely understanding how the scheme works" (par 26). 66When the hearing commenced before the Magistrate, Mr Holland presented him (T15.6.12, p2, LL45ff) with a one-page summary of the competing submissions and invited his Honour to answer the question in light of it. That document relevantly said: Section 128(1) of the Protection of the Environment Operations Act 1997 (NSW) Requires that there be a standard concentration and/or rate of air impurity emission in the regulations. Clause 27 of the Protection of the Environment Operations (Clean Air) Regulation 2002 Refers back to s128(1) of the Act, and states that for any activity or plant specified in Schedule 4, the standard of concentration in Schedule 4 applies. Schedule 4 of the Protection of the Environment Operations (Clean Air) Regulation 2002 For 'Solid particles' (which the parties agree covers dust), a series of standards of concentration are provided for any activity or plant.

The above is sufficient to answer the preliminary question. Anything below is outside the scope of the present hearing. Clause 28 of the Protection of the Environment Operations (Clean Air) Regulation 2002 States that the method of testing if the prescribed standard and/or rate has been exceeded is to be determined in accordance with Schedule 5. Schedule 5 of the Protection of the Environment Operations (Clean Air) Regulation 2002 Refers 'Solid particles' to TM - 15 in the EPA's Approved Methods (Sampling and Analysis) document. The Approved Methods for the Sampling and Analysis of Air Pollutants in New South Wales document States that TM - 15 is either AS 4323.2-1995 or US EPA Method 5 under certain circumstances AS 4323.2-1995 Is an Australian Standard testing method that applies only to stationary sources such as stacks or chimneys.

67Mr Holland submitted (Tp6, LL31-34) that the prosecutor had "taken it upon itself to rely on that test method to limit [s 128] to stationary sources ... but nowhere ... does it say that the standard which is set for any plant or any activity is limited to stationary sources", and that the prosecutor's reliance on statutory objects was too selective ((a) and (d) only) when there was "no hierarchy" among them. Mr Holland mentioned (e) and (f), as follows: (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, 68Mr Barley said (Tp8, LL33-38) that the defendant's contentions were in conflict with the interpretation of the "legislation in its entirety", and with its "very title", as the "environment is not protected if Mr Holland's submissions are accepted". The correct interpretation "avoids absurdity", is "purposive", complies with s 33 of the Interpretation Act, and makes "common sense" (Tp8, LL45-50). The Approved Methods document "simply prescribes various methods by which the standards can be tested. ... It's a point source test, in other words if there's smoke going out of a chimney we can put a machine there which will test what is coming out. If you've got a drag line that's moving around it can't be done" (Tp9, LL8-21). 69The Magistrate then took a short adjournment (Tp10). When he returned he indicated that he proposed to answer the preliminary question in the affirmative, but would not give lengthy reasons. The oral submissions had fortified his view that he should adopt Mr Holland's written submissions as the correct view. 70The Local Court hearing ended with Mr Barley foreshadowing that there would likely be an appeal, and Mr Holland foreshadowing an application for costs.

Appellant's Submissions 71The appellant submits (in line with the prosecutor's submissions in the Local Court - see [54]) that the respondent's construction, adopted by the Magistrate, of the relevant provisions, leads to significant regulatory gaps (Tp11, L17, and subs par 26). The court must consider the objects of the Act, and the respondent's construction of the relevant provisions leads to an absurd result, which fails to serve those objects. 72The appellant suggests that the appropriate construction is found by moving systematically through the following provisions:

S 128 (extracted at [4] above)
Regulation 42 (extracted at [18] above - see subs par 13)
Regulation 27 (extracted at [18] above - subs par 20)
Regulation 28 (see also [18] above - subs par 22) 73Section 128, it is submitted, applies to all activities capable of emission. Section 128(1) applies to emissions for which there is a measurable standard, and s 128(2) applies to emissions for which there is no measurable standard (subs par 18). If an emission is prescribed a standard, which cannot be measured, it falls to s 128(2) (Tp10, LL14-17). 74The applicant submits (par 11) that there are four elements in the contravention s 128(1). The defendant must (my emphasis): a. carry on an activity (defined in the Dictionary to the POEO Act to mean "an industrial, agricultural or commercial activity or activity of any other nature (including the keeping of a substance or animal)"), or b. operate plant (defined to mean "any plant, equipment, apparatus, device, machine or mechanism, and includes any vessel, dredge unit of rolling stock or crane, but does not include a motor vehicle"); c. in such a manner as to cause or permit an emission of air impurities, at any point specified in, or determined in accordance with, the regulations; and d. the air impurities emitted at the point so specified or determined exceed the standard of concentration and/or the rate prescribed by the regulations in respect of any such activity or any such plant. 75The Magistrate focussed on the fourth of those elements, namely whether a standard or rate had been prescribed, rather than focusing on the third element, namely the point at which emissions from the activity or plant must not exceed the limit. 76Unless the emission from the activity or plant can be measured at the point prescribed under Reg 42 ([18] above), an offence under s 128(1) will not be made out (Tp7, 36-38). Regulation 27 provides the standards of concentration for emissions, and Regulation 28 governs the procedures for determining the method of measuring the emissions. 77The relevant prescribed measure for emissions, namely TM-15, applies only to emissions from stationary sources (Tp9, LL38-9). Acceptance of the respondent's position would mean carrying out of activities/operation of plant which produce emissions from fugitive sources that cannot be measured at a point, cannot be successfully prosecuted under s 128(1) or s 128(2), creating a regulatory gap (Tp7, LL40-45), not supported by the objects of the POEO (see [64] above). 78As Ms Mitchelmore conceded, TM-15 is an administrative process which is not determinative on the question of construction (Tp39, LL4-9). She did, however, argue that the court ought "read down" the word "any" to those activities, or that plant, for which a point of emission can be identified, and the emission measured (subs, par 19). In respect of "scheduled" activities, the gap could be filled by development or licence conditions, but the scope of s 128 extends beyond premises on which scheduled activities are carried out, and regulates emissions from non-scheduled premises (Tp12, LL1-5). 79If the Magistrate's construction of s 128 were found correct, emissions from non-scheduled premises would not be covered, and a licence condition on those premises could not be imposed (Tp12, LL10-12). Such an outcome would not be in line with the general thrust of s 128's regulation of air pollutants.

Respondent's Submissions 80Mr Howard contends (cf [72] above) that (a) the "systematic construction" takes you from s 128, then to Regulation 27, and then to Schedule 4, and that (b) there is a standard prescribed in respect of all activities, and for all plant. 81The word "any" should not be "read down" to apply the regime only to an activity or plant capable of having (i) a point defined, and having (ii) the emission measured at that point (Tp16, LL40-43). 82He summarised the respondent's case in support of the correctness of the Magistrate's decision (Tp17, LL3-5, and p28, LL37-8): "... the question is, is there a standard of concentration prescribed for dust particles from the operation of a dragline. If a dragline comprises any activity, on the fact of this sch 4 table, a concentration is undoubtedly prescribed for it. ... ... so there's a lot of notional amendment that would be required in order to bring align the construction contended for by the appellant with the language of [the longstanding statutory regime]" 83He argues that nothing in, or concerning, s 128(1) dictates a legislative intention that it apply only to stationary point sources of emission. If the court considers that the Magistrate erred in his construction of s 128(1), s 128(2) must also be read down in the same way (subs, par 45) 84"Any activity" and "any plant" are phrases of 'very broad description', used throughout the regulatory provisions (Tp14, LL46-49). Under the table of General Standards of Concentration in Schedule 4 of the 2002 Regulation, the first category under 'activity or plant' is "any activity or plant (except as listed below)", a remainder category which picks up the emission of dust from dragline operations, schedule 4 then goes on the prescribe the relevant standards (Tp16, LL 1-4). 85To construe the Act as submitted by the appellant, it is necessary to import or imply words into the statute, yet the current regulatory scheme has been in place since the 1960s, and "hasn't fundamentally changed" (Tp14, LL17-18), as no "mischief", or drafting "inadvertence", has been identified, requiring additional words (in precise terms), "there's a perfectly sensible construction" available (Tp33, LL27-48). 86The appellant's submission is that when "any activity or plant" is read down, it should be read as being limited to any activity or plant for which a single "point" can be identified, and the emission measured (Tp26, LL31-32). 87It is articulated without a sufficient degree of precision, and would require multiple notional amendments to the schedule and Regulation. No extrinsic material (such as the customary second reading speech) has been produced to establish that some purpose of the scheme would be achieved by reading down the words to include 'only from point sources' (Tp30, LL45-46): R v Young [1999] NSWCCA 166 44 NSWLR 681 ('R v Young'). It is not the responsibility of the Court to fill gaps disclosed in legislation (subs, par 39). 88The EPA's choice of TM-15 is an administrative process, which means nothing for the correct construction of the legislation (Tp18, LL1-11). 89Mr Howard submitted, on the respondent's behalf (subs par 38), that s124 of the POEO Act could be called upon to fill any legislative lacuna, such as that for which the appellant contends: 124 Operation of plant (other than domestic plant) The occupier of any premises who operates any plant in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier's failure: (a) to maintain the plant in an efficient condition, or (b) to operate the plant in a proper and efficient manner. 90In response to this s 124 contention, Ms Mitchelmore noted that the emission of dust at a mine is not necessarily due to the operation of plant, but can occur, for example, through waste emplacements, long after plant has finished operating, making it difficult to argue that an emission is due to not operating plant in a proper or efficient manner (Tp39, LL39-48).

Consideration 91As mandated by McHugh, Kirby, Gummow and Hayne JJ in Project Blue Sky, this court must construe the POEO Act in line with all of its provisions and its purpose. 92The objects of the POEO Act are to "protect, restore and enhance the quality of the environment of New South Wales", but also to "rationalise, simplify and strengthen the regulatory framework" and "improve the efficiency of administration" (see s 3(a), (e) and (f)). 93Regulations are to be construed in accordance with the ordinary principles of construction (Collector of Customs). Regulations should be construed consistently with the context of the enabling Act (See Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101). 94The appellant submitted that a regulatory gap occurs if the construction of the Magistrate is accepted because there is no way to measure the fugitive source. As Mr Howard correctly submitted, the administrative process of selecting a test method, which measures only stationary/point sources, cannot be used to confine the ambit of the relevant sections of the POEO Act, and the Clean Air Regulation. For the appellant to succeed, the court must read additional words into the relevant provisions, something not to be done lightly, particularly in the absence of proven necessity. 95I have concluded that there is no "lacuna" in the regulatory regime, no "necessity" to address it, and no need to "read down" any of the provisions. 96Had I concluded that there was a lacuna, I would have applied the analysis adopted by Spigelman CJ in R v Young, especially at [5]-[12], viz: 5 The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say ... 6 In order to construe the words actually used by Parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood. 7 The most frequently cited formulations are: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". (Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey) and "...we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself". (Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445 per Lord Loreburn LC) To similar effect is the following formulation: "Additional words ought not to be read into a statute unless they are required in order to make the provision intelligible". (Wills v Bowley [1983] 1 AC 57 at 78B) 8 The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the Court, must remain capable of characterisation as a process of construction of the words actually used. 9 The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-107: "My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts." 10 The passage has been adopted and applied in this Court ... 11 The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute. 12 As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the Parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.

Conclusion 97I prefer the submissions of Mr Howard (for the defendant/respondent) over those of Ms Mitchelmore (for the prosecutor/appellant). Like Mr Howard, I find no fault in the case Mr Holland argued before the Magistrate (save for the fact that it predated the High Court's decision in Jemena Gas Networks (NSW) Ltd v Mine Subsistence Board [2011] HCA 19; 243 CLR 558 overruling Wambo Coal, on which Mr Holland partly relied (see Tp36, L47-Tp 37, L11) 98The Magistrate did not err in answering the preliminary question in the affirmative. 99For the above reasons, this appeal by the prosecutor, and its originating summons in the matter, must be dismissed, with the prosecutor ordered to pay the defendant's costs on this appeal.

Formal Orders 100The formal orders of the court will, therefore, be: (1)The prosecutor's appeal against dismissal of its summons is competent, but is dismissed. (2)The prosecutor is to pay the respondent's costs of this appeal. (3)The appeal books are returned.

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: 25 June 2013

Environment Operations Act 1997(NSW)

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Judgment (19 paragraphs)

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Cases Cited (16)

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