Maximum penalty:
• in the case of a corporation - $250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
• in the case of an individual - $120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues."
22 One of the defences which has been identified is that which arises pursuant to s 91(5), the defendants intending to submit that for various reasons they did not comply with the notice, having a reasonable excuse. The present motion has been brought before the defendants have gone into evidence and, accordingly, I need say no more about that aspect of the matter at this stage.
23 The issue raised by the present motion is whether or not the council can sustain this prosecution in circumstances where it is submitted that before the s 91 notice could be issued, the council was required to give the defendants procedural fairness and that obligation, not having been fulfilled, the notice is accordingly of no effect. Being of no effect it is submitted that the prosecution must fail and the various summonses should be dismissed.
24 Section 91 falls within chapter 4 of the Act. Within that chapter provision is made in part 4.3 for prevention notices and in part 4.4 for prohibition notices. With respect to a prevention notice, a right of appeal is provided by s 289(1) of the Act which provides a right of appeal within 21 days of the service of the notice. Consistent with that right, s 99 provides that the prevention notice does not operate until the time for any appeal has expired.
25 In contrast to part 4.3, part 4.2, and in particular s 91, is not complemented by any right of appeal. Accordingly, the Act affords a person, who might be affected by such a notice, no express right to appeal that notice, nor any express right to be consulted before the notice issues. However, it is clear that the issue of a notice has a capacity to impose significant burdens on the person who receives it. Those burdens may, as in the present case, involve the expenditure of considerable sums of money. It is possible to imagine an infinite variety of circumstances in which such a notice might be issued with significant practical consequences for the recipient. A failure to comply with the notice renders a person liable to prosecution and, if found guilty, that person may suffer the possibility of significant monetary penalties. In these circumstances the defendants submit that, before the notice could be lawfully issued, they were entitled to be heard.
26 The relevant principles have been discussed on many occasions. Although referred to in earlier decisions, the modern law is sourced from the decision of the High Court in Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106. In that case the appellant had received a notice pursuant to s 317B of the Local Government Act 1919 requiring the demolition of his house. The Act, which has since been repealed, provided that a recipient of such a notice has a right of appeal to the District Court against the making of an order. That right of appeal provided a hearing de novo.
27 Mr Twist did not exercise his right of appeal and did not demolish the house. The council, when Mr Twist was apparently absent overseas, exercised its statutory power and demolished his house. He submitted that the council's act was illegal and the order requiring demolition upon which it was based had been issued without Mr Twist having an opportunity to be heard in relation to it.
28 In his judgment Barwick CJ identified the common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power. His Honour said that this rule was "both fundamental and universal" p 109 see Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 [143 ER 414]; and R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171. The Chief Justice went on to observe at 109:
"...the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise."
29 Again expressed in clear language, his Honour said at 110:
"However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice."
30 In the result in Twist the High Court decided that because a right of appeal which provided that a hearing de novo was available to the District Court, the recipient of a demolition order did not have to be afforded natural justice before the order issued. It has been suggested (see Aronson, Dyer & Groves, "Judicial Review of Administrative Action", third edition) that the presence of a statutory right of appeal does not logically displace an obligation to afford natural justice (see page 449). However, it is unnecessary to consider that debate further in the present case because, as I have indicated in relation to s 91, no right of appeal was provided.
31 Accordingly, the question of whether or not procedural fairness had to be afforded to the present defendants falls to be considered without any right in them to appeal the notice once issued. Counsel for the council submits that the legislature has made plain an intention to displace the rules of procedural fairness notwithstanding the lack of any right of appeal in s 91 by providing that the council may revoke or vary a notice once issued. The relevant power is provided in s 110 of the Act.
32 It is submitted, and for present purposes the submission may be accepted, that without s 110 once a notice has issued, the council has exhausted its power in relation to that notice and it could not be revoked or varied. It is submitted that because the statute provides this power in the council, and in the ordinary course the recipient of a notice may write to the council and ask that the notice once issued be revoked or varied, the legislature has made plain that there is no obligation to give notice to a prospective recipient before the primary notice is issued.
33 In the alternative, counsel for the council submits that the obligation, if there is an obligation to provide procedural fairness, is confined to the question of whether or not the regulatory authority should harbour a reasonable suspicion that the pollution incident has occurred or that a particular person is causing or has caused a pollution incident. It is submitted that, once that opinion has been formed, the section will operate without any obligation to inform the person who might be the recipient of the notice of an intention to issue it and provide that person with an opportunity to make representations as to whether or not a notice should issue and, as may be more important in particular cases, make representations as to the terms of that notice including the period of time in which it is provided for the clean-up to occur. This submission is founded upon the fact that, if a notice is issued to a person who it is later determined did not cause the pollution incident, then the recipient of the notice, having complied with it, may recover the cost of compliance from the person who caused the pollution pursuant to s 91(4) of the Act.
34 I do not accept either limb of the council's submission. It is plain that the issue of a clean-up notice has a capacity to significantly affect the rights of an individual or corporation and impose significant financial and other obligations.
35 Accordingly, unless the legislation in clear and unambiguous language displaces the common law obligation to provide procedural fairness, then in circumstances appropriate to the facts of the particular case, that obligation must be met.
36 To my mind, that obligation extends not only to the question of identifying the person who might reasonably be suspected but also to providing an opportunity to that person to make representations as to why a notice should not issue or as to the terms of that notice.
37 The fact that the council is provided by s 110 with a capacity to revoke or vary the notice does not, in my opinion, alter the primary obligation of the council. It may have been different if the power in s 110 was provided together with a statutory right to make representations or seek a review of the decision. But such a right has not been afforded by the legislature, and even if a recipient of a notice were to make representations asking that it be revoked or varied, there is no obligation on the council to consider those representations. In these circumstances, it seems to me that it could not be said that the legislature has made plain that the common law obligation has been displaced.
38 The council has submitted that Twist was decided some years ago and might properly be described as of venerable antiquity but less relevance. However, in cases too numerous to mention, the fundamental principles in that decision have been embraced and repeated in successive decisions in the High Court.
39 The only other question which requires consideration is whether or not a challenge to the effectiveness of the notice may be brought in these proceedings. That problem has been addressed on a number of occasions and is infected by the discussion, both in the authorities and in academic writings, of the concepts of "void" and "voidable" and the utility of the expressions "a nullity" or "valid and operative until challenged" and similar expressions, including the expression "void ab initio".
40 Such matters were recently addressed by the High Court in the Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, where Gaudron and Gummow JJ identified the conceptual difficulties which have been discussed. After referring to the decision in Calvin v Carr [1980] AC 574, their Honours said:
"In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as 'void', 'voidable', 'invalid', 'vitiated' or, even, as 'nullities'. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in the decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made."
41 There are now a number of decisions in which it has been determined that an administrative decision which has no effect may be challenged in collateral proceedings, particularly proceedings in which the recipient of a notice or order is being prosecuted for a failure to comply with it: see Ousley v R (1997) 192 CLR 69 at 79-80 and 86-87, McHugh J at 100 and Kirby J at 146; Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83 at 108 and 131; see also the discussion in Cox & Hazell Pty Ltd v Gidney (1981) 1 NSWLR 468, in particular the judgments of Hope and Mahoney JJ.
42 It is plain that in circumstances in which an administrative decision has been made by a person, which is infected with jurisdictional error, which would include a failure to afford procedural fairness, that decision has no effect and is regarded in law as no decision at all: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
43 In those circumstances and given that the statute provides no right of appeal, it is, to my mind, inconceivable that if proceedings are brought in which it is alleged that a criminal offence has occurred by reason of a failure to comply with a notice, a defendant could not plead in its defence that the notice had no effect, there being no valid decision to issue it.
44 Accordingly, I am satisfied that in the present case, the council was required to provide the defendants with an opportunity to be heard with respect to whether or not the relevant notices should be issued. The defendants are entitled to defend these proceedings on the basis that because the duty of procedural fairness was not discharged, the summons should be dismissed.
45 I have previously related the conversation which occurred between the defendants and Mr McLaggan on 19 September. It is submitted by the council that that conversation includes material which would discharge the more confined obligation for procedural fairness, which, if the submission that there was no obligation at all is rejected, the council submits was the extent of the obligation. That submission, as I have indicated, is that the council was obliged to receive submissions as to whether or not a reasonable suspicion could be entertained.
46 It is correct that during the course of that conversation, consideration was given to the persons who were responsible for bringing the material to the site and spreading it, and in one sense the question of a reasonable suspicion was the subject of the conversation. As part of that conversation, the opportunity for the present defendants to deny any involvement and thus displace any suspicion was available. They did not do so, for the apparent reason that they accepted, to a limited extent, that each of them had a part in the process.
47 However, the conversations which occurred were confined to Messrs Cauchi and Farrugia. Their wives were not present, and accordingly it could not be said that any obligation to consult them in relation to the question of a reasonable suspicion was afforded.
48 However, leaving aside the question of who was present, it is apparent that the conversation did not take place in the context of the service of a notice upon the present defendants, the understanding of the participants being that the obligation fell upon Mr Galea to comply with the existing notices. There was no suggestion in the conversation that a notice might be issued which imposed any of those obligations upon any of the present defendants.
49 In any event, to my mind, the council's submission, as I have already indicated, must be rejected. Although the content of the duty to afford procedural fairness to individuals will vary depending upon the circumstances of the particular case, in relation to the present matter, to my mind, that duty required the council to inform the defendants that the question of whether a notice should be issued to them was under consideration and an opportunity should have been afforded to them to make submissions as to why that notice should not have issued.
50 Although I am satisfied that the duty in the present case required the defendants to be informed of the possibility of the issue of a notice and an opportunity to make representations in relation to whether that notice should issue and possibly its terms, I accept that there will be an infinite variety of circumstances in which a council or other authorised body may have to give consideration to the issue of a notice under s 91.
51 There will be cases where a pollution incident has occurred which requires urgent attention or where it is continuing to occur and immediate response may be required. In those circumstances, there may be only confined obligations which have to be fulfilled before an effective notice can be given. Each case will depend upon its own facts.
52 In the present case, the pollution incident was the bringing onto the land of a very considerable volume of fill which was allegedly contaminated with asbestos. Although that activity was, in the volume in which the material was deposited and because of its potential inclusion of asbestos, a very serious pollution incident undoubtedly requiring remedial action, it did not require an urgent response or at least did not require the issue of a notice without a reasonable opportunity for the defendants to make representations in relation to whether or not it should be issued.
53 Accordingly, although I have come to the conclusion that in the present case, notice was required to be given to the defendants and a reasonable opportunity afforded to them to make submissions, I should not be understood as providing any statement of general application.
54 For those reasons, the order I make is that each of the summons be dismissed.
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