Environmental Protection Act 1986, s 6

National Measurement Act 1960 (Cth), s 3, s 7A, s 7B and s 10

Respondent (Defendant) : Mr M J McCusker QC & Mr A J Power

Dempster v National Companies and Securities Commission (1993) 9 WAR 215

Radalj v Taylor (1997) 98 A Crim R 170

Rumsley v Taylor (1997) 142 FLR 312

1 PIDGEON J: The appellant was a complainant in the Court of Petty Sessions at Kalgoorlie. He was seeking to prove the concentrations of sulphur dioxide in smoke being emitted from the respondent's smoke stack. A witness used what was described as a "sulphur dioxide monitor" to record this level. The complainant sought to lead evidence as to the accuracy and reliability of the instrument and as to the instrument's reading. The learned Magistrate upheld an objection on behalf of the defendant that before any reading could be admitted from the instrument, the instrument was required to be certified "in some way" by s 10 of the National Measurements Act 1960 (Cth). This section is set out in the reasons of Steytler J. The complainant is appealing on the basis that his Worship erred in refusing to admit the readings of the instrument and in refusing to admit evidence of how the instrument worked. It is submitted that s 10 has no application to the present situation.

2 At common law the court will take judicial notice of the standards of weight and measure (see Phipson on Evidence, 13th ed, p 36, par 2-21). There is also at common law a presumption as to the accuracy of scientific instruments. This was recently set out by Owen J in Breedon v Kongras (1996) 16 WAR 66 at 72. His Honour said:

"At common law the readings of notoriously accurate scientific or technical instruments are prima facie evidence of the facts which they purport to register. This presumption applies to instruments that are part of the

'class of instruments of a scientific or technical character which by general experience [are] known to be trustworthy, and are so notorious that the court requires no evidence to the effect that they do fall into such a class before allowing the presumption in question to operate with regard to the readings made thereon'

per Herring CJ in Porter v Kolodzeij [1962] VicRp 11; [1962] VR 75 at 78. It is a rebuttable presumption." (My italics)

3 Sir Edmund Herring then said that where the instrument in question does not fall within the notorious class then evidence must be given to establish that it is a scientific or technical instrument of such a kind as may be expected to be trustworthy before the presumption can be relied upon. It was accepted, in the present case, that the sulphur dioxide monitor was not in the notorious class and it was sought to lead evidence as to its accuracy.

4 The question is whether s 10 alters this common law position. The objects of the Act are set out in s 4 and these are to establish a national system of units and standards of measurement of physical quantities and to provide for the uniform use of the units and standards of measurement. In addition, the objects include the bringing about the use of the metric system of measurement and a sole system of measurement of physical quantities.

5 Section 10 does not, in its terms, purport to set out a method of determining whether an Australian legal unit has been measured correctly in a particular instance. This would be easy to specify in clear words and I would see it of significance that this was not done. The section is worded to determine whether a particular measurement has, in fact, been made in terms of an Australian legal unit of measurement when there is in existence such a unit. This more limited interpretation was referred to by his Honour Judge Shadbolt in a case reported in the New South Wales Law Reports namely Re Appeal of White (1987) 9 NSWLR 427 at 430. His Honour said that section only operates when necessary to ascertain whether or not a measurement of a physical quantity has been made in the terms of Australian legal units of measurement, then and only then need it be ascertained by reference to comparison with or deviation from the appropriate standard.

6 It is sufficient for this appeal to say that there is nothing in the section to prevent the use of a scientific instrument to make a measurement or to alter the common law presumption in respect of instruments known to be trustworthy. If an instrument is not in that category then it will become necessary to prove its accuracy. It would be open to use scientific instruments of a trustworthy character and coming within the common law presumption to establish the accuracy of prime measurements being used by the instrument whose accuracy is being proved. Section 10, when it does apply, provides for a number of alternate ways of ascertaining whether a measurement has been made in terms of an Australian legal unit. Only some of these ways require a certificate. A similar view was arrived at by Newton J in Victoria in reasons which were quoted by the Victorian Full Court in Mitchell v W S Kimpton & Sons Pty Ltd [1971] VicRp 70; [1971] VR 583 at 586. His Honour considered a tape measure can, in appropriate circumstances, achieve the comparison contemplated by subpar (a) of s 10.

7 In the present case the complainant was seeking to prove the concentration of sulphur dioxide in micrograms per cubic metre of dry air at 0°C and at 1 atmosphere pressure specified as being 101.325 kilopascals (ìg/m3). There is no Australian legal unit of measurement measuring the answer to that calculation. This means that s 10 would not apply to the quantity derived from that calculation. The section applies only where there are Australian legal units of measurement. Reference was made to s 7 which provides that the Australian legal units of measurement of a physical quantity are the sole legal units of measurements of that quantity. It is submitted that this section prevents the evidence being received where there are no Australian units. I consider that there are two answers to this proposition. Firstly, it is intended that the section is to apply only when Australian units have been specified for the quantity being measured. This is consistent with a reading of the Act as a whole. Secondly units are intended, normally, for measurements of prime quantities in general as appear in ordinary tables of weights and measures. It is not intended to exclude a calculation of a quantity under specified conditions of temperature and pressure. Some more common of such quantites under specified conditions do appear in tables. Every possible combination could not appear in tables and would have to be calculated from prime units.

8 There is no Australian unit for concentrations of the type the subject of this appeal. However, in order to make the calculation to ascertain the concentration of sulphur dioxide, measurements are required to be made of other quantities specified in the formula. There are Australian legal units of measurement for some, if not all these other quantities. The section does not prevent the use of instruments within the presumption to prove those quantities. In particular, the section does not say that an instrument which is not known to be trustworthy must be certified. It does not prevent the accuracy of an instrument being proved in other ways.

9 While I consider that Owen J has correctly set out the common law position in Breedon v Kongras I have, with respect, reached a different conclusion in respect of the application of s 10. In my view it would have been sufficient for an instrument whose accuracy is being proved to be measured against an instrument which in turn was measured against or compared with one of the specified standards in s 10.

10 If in seeking to prove the accuracy of the instrument in question recourse is had to other instruments known to be trustworthy, then the presumption would apply and there would be an onus on the defendant to introduce some evidence to show the instrument was not accurate. The law in this area was referred to by Walters J in Willing v Ewens (1973) 7 SASR 231 at 235. In those circumstances it may well be open for a defendant to use a certificate to show units sought to be proved are not Australian legal units of measurement.

11 For these reasons I have reached the view that his Worship wrongly rejected the evidence. There is no requirement under s 10 for the sulphur dioxide monitor to be certified and it is open to prove its accuracy in other ways. I would set aside the dismissal of the charge and order that the matter be remitted to the Court of Petty Sessions at Kalgoorlie to be heard according to law.

12 ANDERSON J: In my opinion, the measurement of the concentration of sulphur dioxide in micrograms per cubic metre of dry air at 0 degrees Celsius and 1 atmosphere pressure is not a measurement for which there are Australian legal units of measurement as defined in s 3(1) of the National Measurement Act 1960 (Cth). Section 10 of the Act does not apply to that measurement. I have had the advantage of reading the judgments of Pidgeon and Steytler JJ in draft, and I agree with their Honours' reasons for coming to the same conclusion. There is nothing I can usefully add to their reasons. The order of dismissal should be set aside and the matter should be remitted to the Court of Petty Sessions in Kalgoorlie to be dealt with according to law.

13 STEYTLER J: This is an appeal against the decision of a Magistrate in the Court of Petty Sessions at Kalgoorlie.

14 The appellant had brought a complaint against the respondent to the effect that on 12 June 1996, at Kalgoorlie, it breached a condition with which it was required by the Environmental Protection Act 1986 to comply, in that it failed, while licensee of the Kalgoorlie nickel smelter ("the smelter"), to conduct its operations so as not to cause, or contribute to causing, the concentration of sulphur dioxide in the relevant portion of the environment to exceed 1300 ìg/m³ when averaged over any period of three hours. The complaint alleged that the condition in question was one contained in cl 6(1) of the Environmental Protection (Kalgoorlie Nickel Smelter) (Sulphur Dioxide Limits) Exemption Order 1994 ("the Exemption Order") and that, in failing to comply with it, the respondent breached s 6(7) of the Environmental Protection Act read together with s 6(2) thereof.

15 The learned Magistrate dismissed the complaint. The appellant alleges that, in doing so, he erred in law because he had refused to admit evidence which, if admitted, might have led to a different result.

16 The respondent had been granted, in respect of its operation of the smelter, an exemption under s 6 of the Environmental Protection Act from certain offence-creating provisions of that Act. However, the exemption was subject to the condition referred to in the complaint. As will be apparent from the terms of the complaint, the respondent alleged that the condition had been breached in that the maximum permitted concentration of 1300 ìg/m³ of sulphur dioxide was exceeded when averaged over the specified period.

17 The formula "ìg/m³" is defined in s6(2) of the Exemption Order as having the same meaning as it has in cl 6(2) of the Environmental Protection (Goldfields Residential Areas) (Sulphur Dioxide) Policy 1992, which defines that expression as meaning "concentration of sulphur dioxide in micrograms per cubic metre of dry air at 0 degrees Celsius and 1 atmosphere pressure (101.325 kilopascals)".

18 The "relevant portion of the environment" for the purposes of the complaint was said to be the residential area of the City of Kalgoorlie-Boulder.

19 On the first day of the trial, evidence was led which showed that a plume of gas containing sulphur dioxide was blown from the main stack of the smelter into the western part of the residential area of the City of Kalgoorlie-Boulder.

20 On the second day of the trial the complainant called a witness with a view to adducing evidence of sulphur dioxide levels which had been recorded by a sulphur dioxide monitor ("the monitor") at the West Kalgoorlie Westrail Freight Yard. The monitor recorded levels of sulphur dioxide emitted from the smelter's main stack which were significantly more than was allowed by the terms of the exemption. However, before any substantive evidence was given by the witness concerned, objection was taken by the respondent to the admissibility of the recordings made by the monitor upon the basis that there was no evidence that the monitor complied with s 10 of the National Measurement Act 1960 (Cth) ("the Act"). That section reads as follows:

"10. When, for any legal purpose, it is necessary to ascertain whether a measurement of a physical quantity for which there are Australian legal units of measurement has been made or is being made in terms of those units, that fact shall be ascertained by means of, by reference to, by comparison with or by derivation from:

(a) an appropriate Australian primary standard of measurement;

(b) an appropriate Australian secondary standard of measurement;

(c) an appropriate State primary standard of measurement;

(d) an appropriate recognized-value standard of measurement;

(e) an appropriate reference standard of measurement;

(f) 2 or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e);

(i) one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e) and a certified reference material;

(j) one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e) and a certified measuring instrument; or

(k) one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e), a certified reference material and a certified measuring instrument;

21 The learned Magistrate ruled that, before it could be used, the monitor had to be certified "in some way" under s 10 of the Act. He went on to say:

"The instruments used, in my view, must be instruments approved under the National Measurements [sic] Act or a State body derived from that Act or approved by that Act. It is not for the Environmental Protection Authority - or indeed any other authority - to utilise instruments which are not approved or in some way calibrated under the Act or under a body approved in the State ...

There is not any evidence before me that any of the instruments have been approved by the State in any particular fashion which would comply with the requirements of the National Measurements [sic] Act. I have therefore formed the view that, unless that evidence can be adduced and shown to me by the prosecution, I would not allow the evidence or the purported evidence adduced by the West Kalgoorlie monitor to be allowed into evidence."

22 The learned Magistrate thereafter refused to receive any evidence as to the manner in which the monitor worked or as to what it measured. He also refused to receive evidence of readings of concentrations of sulphur dioxide taken from the monitor in parts per hundred million. Other expert opinion evidence was rejected on the basis that, without evidence of the concentration of sulphur dioxide measured by the monitor, it lacked an adequate factual foundation.

23 The appellant consequently conceded that there was no case to answer and the learned Magistrate dismissed the complaint.

24 The grounds of appeal essentially give rise to two alternative propositions. The first is that the learned Magistrate erred in law in ruling that ìg/m³ or the "concentration of sulphur dioxide in micrograms per cubic metre of dry air at 0 degrees Celsius and 1 atmosphere pressure (101.325 kilopascals)" is an Australian legal unit of measurement for the physical quantity of the concentration of sulphur dioxide in air. The second, and alternative, proposition is that, without evidence as to how the monitor worked and what it measured, it could not be concluded that s 10 of the Act applied to the measurements taken by it.

25 As to the first of those propositions, the expression "Australian legal unit of measurement" is defined, in s 3(1) of the Act, as follows:

"In this Act, unless the contrary intention appears: ...

(a) a unit of measurement prescribed for the purposes of sub-section 7A (1); or

(b) a combination made in accordance with guidelines issued by the Commission of such prescribed units of measurement; or

(c) a combination made in accordance with guidelines issued by the Commission of a prefix prescribed for the purposes of subsection 7A (3) and a unit of measurement referred to in paragraph (a); or

(d) a combination made in accordance with guidelines issued by the Commission of a prefix prescribed for the purposes of subsection 7A (3) and a combination of units of measurement referred to in paragraph (b);"

26 Section 7A and s 7B of that Act read as follows:

"7A. (1) The regulations may prescribe the Australian legal units of measurement of any physical quantity.

(2) The regulations may prescribe units of measurement of any physical quantity to be additional legal units of measurement for use for a particular purpose or for the purpose of a particular contract, dealing or other transaction or class of contracts, dealings or other transactions.

(3) The regulations may prescribe prefixes specifying numerical value.

7B. (1) The Commission may issue written guidelines governing:

(a) the way in which units of measurement prescribed for the purposes of subsection 7A (1) may be combined to produce an Australian legal unit of measurement; and

(i) a unit of measurement referred to in paragraph (a) of the definition of "Australian legal unit of measurement "; or

(ii) a combination of units of measurement referred to in paragraph (b) of that definition;

may be combined with a prefix prescribed for the purposes of subsection 7A (3) to produce an Australian legal unit of measurement.

(2) A set of guidelines issued by the Commission under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."

27 It was common cause on the hearing of the appeal that no guidelines have been issued by the National Standards Commission under s 7B of the Act. Consequently the only relevant definition is that contained within s 3(1) of the Act, being a unit of measurement prescribed for the purposes of subs 7A(1) thereof. Counsel for the appellant contended in this respect that neither concentration of sulphur dioxide in air, nor concentration generally, are physical quantities for which Australian legal units of measurement are prescribed. He also submitted that ìg/m³ is not prescribed as a unit of measurement in respect of any physical quantity.

28 It is apparent from the regulations made under the Act that a wide spectrum of Australian legal units of measurement has been prescribed. While s 7A of the Act speaks of units of measurement of "any physical quantity", the prescribed units encompass a disparate range, including such matters as density, angle, time intervals, frequency, velocity, power, pressure, illuminance, activity, exposure and sound intensity. There are 35 divisions of units of measurement in Part II of the regulations.

29 Found within those divisions are each of micrograms (Division 3, Schedule 3, dealing with units of measurement of mass), cubic metres (Division 4, Schedule 4, dealing with units of measurement of volume), degrees Celsius (Division 23, Schedule 23, dealing with units of temperature) and kilopascals (Division 14, Schedule 14, dealing with units of measurement of pressure). That being so, counsel for the respondent contends, every element of the formula ìg/m³ specified in the complaint comprises an Australian legal unit of measurement and, by virtue of s 10 of the Act, in order to prove that each of those units was measured by the monitor (that being necessary to make out the complaint), the appellant was, as the learned Magistrate found, obliged to do so by reference to, comparison with or derivation from one or more of the items specified in subparagraphs (a)-(k) of s 10. It having failed to do so, he submits, the learned Magistrate correctly dismissed the complaint.

30 However, it seems to me that it is not enough, in order to attract the operation of s 10 of the Act, that each of micrograms, cubic metres, degrees Celsius and kilopascals appear somewhere in the regulations. I have mentioned that s 7A(1) of the Act provides that the regulations may prescribe the Australian legal units of measurement of "any physical quantity". There is, in the Act, no definition of "physical quantity" but it is, I think, apparent that in this context physical quantity means physical size, amount, magnitude or dimensions (see the Shorter Oxford Dictionary definition of "quantity"). While it is true that each of micrograms, cubic metres, degrees Celsius and kilopascals is a measurement of physical quantity in this sense, and that each is prescribed in the regulations, it is also true that each is there prescribed only for a specified purpose. As will be apparent from what I have said a microgram is prescribed only as a unit of measurement of mass, a cubic metre only as a measurement of volume, degrees Celsius only as a measurement of temperature and kilopascals only as a measurement of pressure. It is of course the case that the formula ìg/m³ requires the measurement of each of mass, volume, temperature and pressure. However it appears from the scheme of the regulations that the units there referred to are, when used in combination, only to be regarded as having been prescribed for the purposes of the Act if the actual combination is itself prescribed for the purpose of measuring one or more of the matters dealt with in the 35 divisions of Part II.

31 So, by way of example, a kilogram is a prescribed unit of measurement of mass (in Schedule 3) and a cubic metre is, as I have said, a prescribed unit of measurement of volume. However, "kilograms per cubic metre" is a prescribed unit of measurement of density. Also, while a "metre" is a prescribed unit of measurement of length and a "second" is a prescribed unit of measurement of time intervals, "metres per second" is a prescribed unit of measurement of velocity and speed. There are other such examples of prescribed combinations for particular purposes to be found in Schedule 5, dealing with units of measurement of density, Schedule 9, dealing with units of measurement of velocity and speed, Schedule 10, dealing with units of measurement of acceleration, Schedule 15, dealing with units of measurement of viscosity and kinematic viscosity, Schedule 27, dealing with units of measurement of luminance, Schedule 29, dealing with units of measurement of exposure and Schedule 30C, dealing with units of measurement of sound intensity. Had it been the intention of the person drafting the regulations that, if any element of a formula was prescribed for some purpose, then that element, even if used in combination with other elements for a purpose not specified anywhere in the regulations, was to be taken as having been prescribed under s 7A and thus within the ambit of s 10 then it would have been unnecessary to prescribe the combinations to which I have referred for use in measuring the subject matter of their respective headings.

32 The approach which has, on my reading of the regulations, been adopted in drafting them is, in my opinion, one which is expressly contemplated by the Act. If it was intended that any combination of prescribed units, for whatever purpose, was itself to be an Australian legal unit of measurement, even if not separately prescribed as such, there would be no need for the guidelines, contemplated by s 7B(a), governing the way in which units of measurement prescribed for the purposes of subs 7A(1) "may be combined to produce an Australian legal unit of measurement". That being so it seems to me that the intention of the legislature, as it appears from the provisions of the Act to which I have referred, is that the regulations, when prescribing a unit of measurement or a combination of units of measurement, should, in each case, do so for a specified purpose as for example the measurement of weight, area, density, velocity or the like in precisely the manner in which that has been done. There being no prescription in the regulations for the measurement of concentration, it seem to me that there is no Australian legal unit of measurement for that purpose and consequently, so far as the workings of the monitor were concerned, nothing to attract the operation of s 10 of the Act.

33 I should mention that the provisions of s 7A and s 7B of the Act were introduced by Part III of the Industry, Technology and Commerce Legislation Amendment Act 1991 and that each of the parties referred to the second reading speech made by the Minister for Administrative Services in respect thereof. However I am not persuaded that anything there said aids, in any sufficient way, in the construction of the provisions to which I have referred.

34 It follows, in my opinion, that the appeal should succeed on the strength of the first of the propositions raised on behalf of the appellant. It is consequently unnecessary for me to consider the alternative proposition advanced on behalf of the appellant.