Particulars
1. Premises
Lots 5 and 9, Bent Street, St Marys
2. Particulars of Notice
Notice dated 25 February 1997
3. Particulars of Requirement
Remove all drums which contain chemicals from the premises
20 What is charged is a continuing offence. The judge held that no such offence was validly created.
21 The facts as found by the judge were that Alkem as the occupier of the premises used them for drum or container re-conditioning works from which pollutants were being or were likely to be discharged into waters. An inspection of the premises on 22 February 1994 revealed that ground contamination and pollution of waters may occur as a result of leakages from drums stored on the premises in unbunded or unroofed areas. Notices under cl 21 of the Clean Water Regulations were served by the EPA on Alkem as to the premises on 16 March 1994 and 5 September 1995. The notices required Alkem to construct a bund around the area in which the drums were kept. No bund was constructed. On or before 2 May 1996 a surfactant had leaked from a container and had washed into the storm water system.
22 On 31 January 1997 no bund had been constructed and drums in a poor or leaking condition were in an unbunded area of the premises and where the contents of the drums could be washed into waters by rainwater run off.
23 Clauses 23 to 27 of the Stated Case read:
"23 "By notice dated 25 February 1997, the Prosecutor required the Defendant to do the following -
'a) by 30 April 1997:
i) remove all drums which contain any residual chemicals from the premises; and
ii) refrain from causing, permitting or allowing any drums containing chemicals to be brought onto the premises; or
b) (i) by 30 April 1997, erect a bund wall at the premises such that:
(a) the walls of the bund are at least 100mm in height; and
(b) the walls of the bund are impervious;
(ii) by 15 May 1997, construct a roof impervious to rain over the area delineated by the bund wall ("the bunded area") such that no rain falling on the roof will enter the bunded area;
(iii) cause all drums at the premises containing any residual chemicals to be stored at all times within the bunded areas unless such drums are at that time:
(a) being processed at the premises by way of cleaning or refurbishing; or
(b) in the process of being loaded or unloaded onto a vehicle or transported by a vehicle to, from or around the premises."
24 The Defendant failed to comply with both the requirements in the notice lettered "a)" and the requirements lettered "b)" although the evidence as to failure to comply with requirement "a)(ii)" does not allow me to find on which or over how many days the Defendant has failed to comply with this requirement. I was not satisfied beyond reasonable doubt that the Defendant either caused, permitted or allowed any drums containing chemicals to be brought onto the premises at a particular date.
25 The Defendant failed to comply with requirement "a)(i)" of the notice inasmuch as it failed on 1 May 1997 to comply with the requirement to remove by 30 April 1997 all drums which contain any residual chemicals from the premises. I was satisfied beyond reasonable doubt that the Defendant failed to remove all drums which contain any residual chemicals from the premises by 30 April 1997.
26 Further, the Defendant did not remove the drums on any of the days after 30 April 1997 up to and including 8 September 1997.
27 I was satisfied beyond reasonable doubt that the bund wall referred to in paragraph "b)(i)" of the notice was not erected by 30 April 1997 and further that the roof specified by paragraph "b)(ii)" was not constructed by 15 May 1997. I was also satisfied beyond reasonable doubt that drums at the premises containing any residual chemicals were not stored in the manner required by paragraph "b)(iii)" ".
24 The judge has recorded that on 24 August 1998 Alkem appeared by counsel and pleaded guilty to the charge as originally framed. It was in the same terms as the amended charge except that the original charge read "it did not comply with a requirement pursuant to clause 21(1)" whereas the amended charge read, "it did not comply with a requirement of a notice given under clause 21(1)" (change emphasised). The particulars supplied with the original summons specified the same premises but then continued:
"2. Requirement
Notice issued pursuant to clause 21(1) of the Clean Waters Regulations by the EPA to the defendant dated 25 February 1997."
25 The judge held that notwithstanding the plea of guilty it was incumbent upon the court to identify the offence and to make an express finding as to how it occurred in order to determine the penalty.
26 During the hearing the judge raised the question whether the offence charged could correctly be regarded as a continuing offence thereby exposing Alkem to a further penalty sought by the EPA of $1000 for each day the offence continued as provided by reg 21(3)(b) subject to the maximum of $20,000 prescribed in s 8B(3)(b) of the Environmental Offences & Penalties Act 1989 (EOP Act).
27 As a result, the EPA sought the advice of counsel who prepared written submissions on the issue whether the offence was a continuing offence and raised serious questions of duplicity, variance and election.
28 The regulatory and statutory provisions are as follows. Clause 21(1) and (3) of the Clean Waters Regulations relevantly provide.
"(1) Where pollutants are being or are likely to be discharged into waters from any premises, the Commission may, by notice in writing, require the occupier of those premises to do any one or more of the following, namely:
…
(c) erect, alter or remove any walls in, on or from those premises or erect, alter or remove any dams, embankments, trenches or other works used in connection with those premises for the storage, treatment or disposal of those pollutants,
…
(g) undertake such measures as will, in the opinion of the Commission, control or prevent the discharge or likely discharge of those pollutants
within such time and in such manner as may be specified in the notice.
(3) An occupier of premises who does not comply with a requirement of a notice referred to in clause (1) … is guilty of an offence and is liable
(a) if a corporation - to a penalty not exceeding $4000 and, in the case of a continuing offence, to a further penalty not exceeding $1000 for each day the offence continues…"
29 It is to be noted that the offence is failure to comply with the requirements of a notice dealing with one of the matters specified in the sub-clauses and paragraphs within the time and manner specified in the notice.
30 Regulation 21(1) was made pursuant to s 36(1)(f1) of the Clean Waters Act 1970 which empowers the Governor to make regulations not inconsistent with that Act for or with respect to "requiring, or empowering the Authority to require, that measures be undertaken … so as to prevent or reduce, or be likely to prevent or reduce, the discharge or likely discharge of pollutants into waters from any premises." Amongst matters included are the provision, installation and operation of embankments and areas for the treatment, dispersal or disposal of any matter.
31 Clause 21(1) is within the regulation making power in s 36(1)(f1) of the Clean Waters Act 1970.
32 Section 36(3) of the Clean Waters Act provides that any person who contravenes a provision of a regulation is guilty of an offence against the EOP Act and is liable to the penalty imposed by the regulation in respect of the offence in accordance with the EOP Act.
33 Section 8B of the EOP Act provides:
"(1) Any person who (by virtue of any provisions of the Clean Waters Act 1970) is guilty of an offence against this Act is liable
(a) in the case of a corporation - to a penalty not exceeding $125,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues, or
(b) in the case of an individual - to a penalty not exceeding $60,000 and, in the case of a continuing offence, to a further penalty not exceeding $30,000 for each day the offence continues.
…
(3) A regulation under the Clean Waters Act 1970 may impose a penalty not exceeding
(a) $10,000 in the case of an individual, or
(b) $20,000 in the case of a corporation in respect of a contravention of the regulation.
34 This brief review of the statutory and regulatory provisions makes it apparent that in so far as clause 21(3) of the Clean Waters Regulations purports to impose a further penalty not exceeding $1000 for each day the offence continues that part of clause 21(3) is ultra vires and ineffective. The contrast between the language of s 8B(1) and (3) is sharp and unmistakable. Section 8B(3) does not authorise the imposition of a daily penalty in respect of a continuing offence. Section 36(3) of the Clean Waters Act 1970 envisages that for a breach of the Clean Waters Regulations the penalty will be in accordance with the EOP Act.
35 This conclusion is supported by the history of the legislation. Sub clause 21(3) was made as part of the original regulation in 1972 (The penalties have since been increased). In 1972 s 36(3) of the Clean Waters Act 1970 relevantly provided:
"The regulations may impose, in respect of an offence against the regulations committed:
(a) by a corporation - a penalty not exceeding $20,000 and, in the case of a continuing offence, a further penalty not exceeding $10,000 for each day the offence continues."
36 When s 36(3) was amended in 1990 (effective from 1 January 1991) at the same time as s 8B(3) was inserted in the EOP Act, the authority for a further daily penalty was removed from the Clean Waters Act 1970 and not inserted in s 8B(3).
37 An elaborate argument was outlined by the EPA based on s 32(1) of the Interpretation Act to the effect that s 31(1) was authority to read the provision for a daily penalty down so that it authorised the court to impose a first instance penalty and a daily penalty which in combination do not exceed (in the case of a corporation) $20,000. The EPA conceded that the argument faced many difficulties. It accepted that the daily penalty has been provided in a "single and indivisible" enactment (cl 21(3)). Neither the clause nor the Regulations gives any clue as to what standard or test is to be applied in reading down the provisions of clause 21: See per McHugh J in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 372.
38 The EPA also conceded that the court was called upon to apply the impugned provision in the light of the statute-saving power (s 15A) in the Interpretation Act 1987 and that legislation would be required to read the sub -clause as providing:
" … is guilty of an offence and is liable:
(a) if a corporation - to a penalty not exceeding $4000 and, in the case of a continuing offence, to a further penalty not exceeding $1000 for each day the offence continues, but in no case shall the combined total of the penalties imposed exceed $20,000 (emphasis added by EPA)."
39 The EPA accepted that one problem for the validity of the provision in this case of a daily penalty is that the test needed to be applied to limit its operation is to be found outside the Regulations. There is the further difficulty of Parliament repealing the power authorising the making of a regulation providing for a daily penalty.
40 The EPA accepted that a conclusion that s 32(1) of the Interpretation Act can apply to save cl 21(3) would be untenable. I agree.
41 As counsel for the EPA pointed out, there is also the line of authority which denies the validity of delegated legislation which purports to impose a penalty or to empower the doing of something which is in addition to the powers on the subject conferred by the legislature. It is necessary to refer only to Grech v Bird (1936) 56 CLR 228 per Dixon J at 239-240:
"The ambit of the present power [to make regulations] … is subject to a necessary limitation. It does not enable the Governor in Council to make a regulation which varies or departs from a positive provision made by the Act itself. In my opinion the regulation fails for this reason. It attempts to place a poultry farmer who furnishes untruthful information under a liability to a heavier and different punishment than that which the Act expressly authorises … [T]he penal consequences [of the offence created by the regulation] may not go beyond the punishment which the Act specifies."
42 The EPA and the amicus correctly agreed that cl 21(1) of the Clean Waters Regulations was a valid exercise of the regulation making power and that the provision in s 21(3) for a daily penalty not exceeding $1000 for each day the offence continued was not.
43 Is it a continuing offence?
44 The appellant submitted that the requirement of the statutory notice lettered (a)(i) with which there was a failure to comply should be construed as continuing to call for compliance notwithstanding the expiration of the deadline for compliance fixed by the notice. In the circumstances the offence created by cl 21(3) should be construed as a continuing offence.
45 As a matter of general principle it can be accepted that the absence of a valid provision for a daily penalty does not mean that the offence is not a continuing one. Nor does it prevent a court reflecting in the penalty imposed that the offending was continuous.
46 The authorities seem agreed that the question whether non-compliance with a legal duty which must be performed within a prescribed time is a continuing offence or a once and for all offence must be answered by reference to the language of the section or regulation creating the offence and the context in which it is found. (See Leydon v Forrest (1980) 23 SASR 364 at 375 per King CJ). The difficulty lies not in the statement of the principle but in its application.
47 The EPA submitted that by specifically but invalidly providing for a daily penalty the regulations intended that the offence be a continuing one and that repeal of the power to provide for a daily penalty did not alter that.
48 The EPA asked this Court not to follow the decision of Herron J in Ex parte Schaefer; Re Field (1943) 60 WN (NSW) 99 and that of the Full Court (Street CJ, Owen & Clancy JJ) in Sloggett v Adams (1953) 70 WN (NSW) 206 which held that where the notice sets a time for the doing of the act which is required to be done the offence is committed once and for all if that act is not done within the time set. Those decisions emphasised that the offence was not merely failure to do the act required but failure to do it within the specified time. Once the time stipulated had elapsed the offence was complete and thereafter it existed only in the past. If the offence were a continuing one it could be remedied after the stipulated date. If the contrary argument were correct a defendant could be prosecuted at any time, even years later.
49 The judge applied these two decisions. He distinguished between an obligation which depended upon the issue of a notice requiring an act or acts to be done within a stipulated time or by a stipulated date and obligations imposed directly by the statute itself. He noted that in the latter cases the statute or regulation specifically identified the requirement or the obligation without any necessity for the issue of a notice whereas, pursuant to clause 21 that is a matter left to the EPA. The EPA challenged the validity of the distinction in determining whether a continuing offence had been created.
50 After all, even in the case of a notice there has to be a statutory or regulatory warrant for its issue. While the EPA has a discretion whether to serve a notice, the notice is directed to the avoidance of pollutants being or being likely to be discharged into waters from any premises. To this end a notice may require execution of works, the removal of works, repairs, alterations, replacements and the installation of monitoring equipment and undertaking such measures as will, in the opinion of the Commission, control or prevent the discharge or likely discharge of those pollutants. The notice procedure allows the EPA to nominate specific steps. Section 16 of the Clean Waters Act 1970 prohibits the pollution of waters and makes it an offence to do so. It is an odd concept that where the notice is not complied with and the pollution or risk of pollution continues the offence does not continue.
51 Counsel for the EPA undertook an extensive review of the authorities in England and in Australia, many of which were more recent than the two New South Wales cases. It is unnecessary to refer to them all. In Penton Park Homes Ltd v Chertsey Urban District Council (1973) 72 Knight's LG Rep 115, the Divisional Court held that a failure to comply with a condition attached to a caravan site licence, namely, to carry out certain works within 12 months of the grant of licence was a continuing offence.
52 At 120 Bridge J (as he then was) said:
"As a matter of language the failure continues (after expiry of the deadline) … If one were forced by the language of the Act to the contrary conclusion, it would be a very startling conclusion which would show … that the machinery for the enforcement of a condition, of this kind was conspicuously defective."
53 Those observations are compelling. In the present case, as a matter of language, the failure continued after 30 April 1997 and the risk of pollution continued.
54 In Tandridge District Council v Powers (1982) 80 Knight's LG Rep 453 the Divisional Court held that the offence of failing to do everything within power to secure compliance with a planning control enforcement notice as soon as practicable after conviction for an offence of failing to take the steps required to be taken by the notice within the period allowed for compliance with the notice is a continuing offence. The provision creating the offence provided that there was to be a fine for each day following the conviction. Woolf J (as he then was) pointed out that if the offence was not a continuing one a planning authority would, once proceedings had been concluded, have to go through the process of serving a fresh notice. That would be undesirable from the point of view of the enforcement of planning law. Parliament was most unlikely to have intended such a result. The approach of Woolf J is convincing. However, in New South Wales the force of this point is reduced somewhat because under s 14 of the EOP Act a court may order the person convicted to take specified steps to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence or to prevent the continuance or recurrence of the offence.
55 A number of Australian cases relate to the failure to pay wages within the prescribed time. That has been held to be a continuing offence, the substance of the offence being the failure to pay wages which are due. It would be an extraordinary result if this were not an offence which continued until payment.
56 In Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449, s 375 (1) of the Companies (NSW) Code required the directors and secretary to submit a statement of affairs to the liquidator not later than 14 days after the making of a winding up order against the company. This court held that there was a continuing obligation. Section 571 provided that the obligation continued notwithstanding that the time for compliance had passed and there had been non-compliance.
57 Hunt J, with whom the other judges agreed, held that even without reference to s 571 the offence created by s 375(9) should be construed as a continuing one. The purpose of the statutory obligation created by s 375(1) was to provide the liquidator with information which it was unlikely he could obtain elsewhere. The liquidator needed the information even though the time limit had passed.
58 The EPA submitted that the Court should adopt a purposive rather than a literal construction as the latter would not promote the purposes of the legislation: see s 33 Interpretation Act 1987. The statutory context is the prevention of pollution of waters. That is the effect of clause 21. The object of the notice was to avoid the discharge of pollutants or reduce the risk of such a discharge. The purpose of clause 21 is better achieved if the requirements of a clause 21(1) notice are ultimately complied with.
59 Amicus submitted that there were two kinds of continuing offences. He relied on this passage from the judgment of Cantor J in Robins & Sons Ltd v Maloney (No 2) (1935) IR 155:
"Continuing offences, for the purposes of the present case, may be divided into two classes -
(1) those in respect of which a separate penalty may be inflicted for each day the offence continues, as if for a separate offence, and
(2) those where the duty of obedience, failure to perform which is the offence, continues until the duty is performed, eg, failure to obey an obligation to do something enjoined by law."
60 A passage to the same effect is to be found in the judgment of O'Bryan & Gillard JJ in R v Industrial Appeals Court; ex parte Barelli's Bakeries (1965) VR 615. In the second class there is a single offence which in the words of Knox CJ and Starke J in Cook v Cook (1923) 33 CLR 369 at 375 "is a continuing act giving a cause of complaint de die in diem" (from day to day).
61 Amicus submitted that the offence as charged fell within the first category and that this argument was re-inforced by the demand for a daily penalty. However, in view of the invalidity of the daily penalty the offence charged had to fall within the second category. The charge is framed in such a way that it accommodates a charge within each category. Contrary to the submissions of Amicus I do not think it matters in the present case into which category the charge falls. The case which has to be met is clear from the charge and the particulars. The question of classification or categorisation is not at the heart of the present case.
62 Amicus contended that the effect of the EOP Act amendments was to delete the words "and in the case of a continuing offence to a further penalty not exceeding $1000 for each day the offence continues" from cl 21(3)(a) and the corresponding words in sub-para (b). That submission is correct. Amicus further submitted that the remaining parts of cl 21(3) contain no reference to a continuing offence. That is so. The EPA has to rely upon the nature of the offences and the purpose of the Act and Regulations.
63 Amicus further submitted that it was unlikely that the remainder of clause 21 after the severance necessitated by the EOP Act was intended to retain the quality of a continuing offence because:
(a) this would necessitate reading into the remains of cl 21(3) more than is there.
(b) there is a natural link between the provision for a daily penalty and the first class of continuing offence. As the presence of a daily penalty is the ordinary way to indicate that an offence is a continuing offence of this type, so the removal of the daily penalty is suggestive of a removal of the continuing offence.
(c) there is no good reason why Parliament would remove the provision for daily penalty but retain the continuing nature of the offence thereby bringing about the result that the maximum penalty of $4000 previously the maximum penalty for the first day of a continuing offence became the penalty for the first and subsequent days while the failure continues.
64 It was submitted that the more likely alternative was that the legislature in removing the daily penalty provisions changed the nature of clause 21(3) so that it no longer gave rise to continuing offences. It relied upon the small amount of the penalty as being disproportionate to a continuing offence.
65 Amicus put submissions on the alternative basis that no heed was paid to the distinction between the two classes of continuing offence. It was submitted that the principles emerging from Ex parte Schaefer, Re: Field and Sloggett v Adams were correct and rightly applied by the judge. They were directly in point as the EPA accepted. It was submitted that the judge correctly distinguished Leydon v Forrest supra, Ganke v Corporate Affairs Commission supra and the cases there cited on the basis that:
"they dealt with an obligation created by the statute. The legislation in those cases specifically identified what the requirement was without any necessity for the issue of a notice, whereas, pursuant to cl 21(1) that is a matter left to the notice issuing authority - in this case the Prosecutor."
66 Amicus also relied on this passage from the judgment of King CJ in Leydon v Forrest supra at 375 where after referring to three cases of non-compliance with a notice he said: