Prosecution v Accused

1 The Hazelwood mine is situated in close proximity to the township of Morwell in Gippsland ('the mine').

2 A fire or fires ignited in the mine on 9 February 2014 ('the mine fire'). The Fire Services Commissioner declared the fire activity within the mine 'safe' on 25 March 2014.

3 Hazelwood Pacific Pty Ltd, Australian Power Partners B.V., Hazelwood Churchill Pty Ltd and National Power Australia Investments Ltd (together, 'the accused'), were each registered proprietors of the land on which the mine is situated, and operated the mine in partnership as Hazelwood Power Partnership ('HPP').

4 Each accused faces charges under ss 41(1)(a), (b) and (e) of the Environment Protection Act 1970 (Vic) ('EP Act') that it polluted the atmosphere. The pollution to which the charges relate is smoke and ash emanating from the mine fire. The prosecution allege the accused caused the pollution by failing to have in place adequate fire prevention and mitigation measures.

5 The following issues have been raised by the parties for preliminary determination:

(a) Should identified paragraphs of the Amended Defence Response to Summary of Prosecution Opening ('the defence response') be struck out? The accused submitted the impugned paragraphs directly respond to the way the case has been put against them, and should stand.

(b) Does s 41 of the EP Act create an offence of strict or absolute liability? The accused submitted that Allen v United Carpet Mills Pty Ltd ('Allen')[1] was wrongly decided, and that subsequent amendments to the EP Act should lead to the conclusion the offence is one of strict liability.

(c) Is s 62C engaged in the circumstances of this case? If yes, what is the operation of that provision? The accused submitted s 62C is not engaged in circumstances where there was no uncertainty as to the cause of the pollution, or the identity of the occupiers of the mine who the prosecution allege caused the pollution.

(d) Should the accused be required to respond further as to:

(i) if the outcome of (b) is strict liability, how honest and reasonable mistake of fact is raised;

(ii) how issue is taken with the allegation that they were occupiers of the mine; and

(iii) how it is said the emission was unrelated to the commercial or industrial undertaking conducted at the mine.

6 The accused are each charged with the following three offences under the EP Act:

(1) A person shall not pollute the atmosphere so that the condition of the atmosphere is so changed as to make or be reasonably expected to make the atmosphere -

1. noxious or poisonous or offensive to the senses of human beings;

2. harmful or potentially harmful to the health, welfare, safety or property of human beings;

3. ...

4. ...

5. detrimental to any beneficial use made of the atmosphere.

By operation of s 62C the accused may be deemed to have polluted:

S 62C Presumption that occupier caused discharge etc.

Where any segment or element of the environment is polluted as a result of a discharge, emission or deposit of any substance from or on any premises on which there is conducted any commercial or industrial undertaking, the occupier of the premises is deemed to have polluted that segment or element of the environment unless the occupier proves that the discharge, emission or deposit was unrelated to the commercial or industrial undertaking.

"pollute" includes causing or permitting pollution;

"polluted" means the condition of the environment described and referred to in section 39(1), 41(1) or 45(1) as the case may be;

...

"occupier" in relation to any premises includes a person who is in occupation or control of the premises whether or not that person is the owner of the premises and in relation to premises different parts of which are occupied by different persons means the respective persons in control or occupation of each part.

7 The charges are based on the allegation that the accused caused the pollution. The authorities direct that 'causing' must be given a common sense meaning.[2] In Royall v The Queen ('Royall'),[3] Mason CJ said:

The issue of causation was left to the jury to decide as one of fact. In this respect I agree with the statement made by Burt CJ in Campbell v The Queen,[4] that it is "enough if juries are told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter ...[5]

8 Difficulty can arise when the supervening act of a third party or a natural event is a necessary condition of the occurrence which the accused is charged with causing. In this case both may be relevant to the jury's consideration.

9 Applying their common sense, the jury must determine whether, in the context of natural events and acts of third parties, the accused caused the pollution. The starting point is for the prosecution to identify what the accused did to cause the pollution.[6] It is not necessary that the acts of the accused were the sole, main, direct or immediate cause.[7] It is not inconsistent with a finding against the accused that some other person or thing also caused the pollution.[8] It may be relevant for the jury to consider whether they regard the natural events and third party acts as ordinary occurrences, or something extraordinary;[9] whether the pollution is a natural consequence of acts of the accused;[10] and whether the causal contribution of their acts is sufficiently substantial that responsibility for the outcome should be attributed to them.[11] Whilst the concept of foreseeability may be introduced by questions as to the likelihood of the outcome and the causal contribution of acts of third parties or natural events, it is usually preferable, in order to avoid confusion, not to refer to foreseeability in jury directions as to causation.[12] The jury should have in mind that the purpose of the inquiry is to consider whether responsibility for the pollution should be attributed to the accused under the EP Act.[13]

10 The parties are at odds as to whether causing is limited to positive acts,[14] or can be established by both acts and omissions.[15] However, there appears to be no dispute that the failings alleged in particular (h) of the indictment are positive acts. Therefore it is unnecessary to resolve whether omissions may be relied on to prove causation.

Should parts of the defence response be struck out?

11 The indictment filed 21 December 2017, in the parts relevant to this question, reads:

CHARGE 1: The Director of Public Prosecutions charges that HAZELWOOD PACIFIC PTY LTD (ACN 074 351 376), AUSTRALIAN POWER PARTNERS B.V. (ARBN 75 477 208), HAZELWOOD CHURCHILL PTY LTD (ACN 164 079 403) and NATIONAL POWER AUSTRALIA INVESTMENTS LTD (ARBN 75 257 537) at Morwell in Victoria between the 9th day of February 2014 and the 25th day of March 2014 polluted the atmosphere over, and nearby to, the township of Morwell in the State of Victoria so that the condition of the atmosphere was so changed as to make, or be reasonably expected to make, the atmosphere noxious or poisonous or offensive to the senses of human beings.

Particulars:

...

1. Hazelwood Pacific Pty Ltd, Australian Power Partners B.V., Hazelwood Churchill Pty Ltd and National Power Australia Investments caused the pollution, namely by:
   1. Failing to have adequate water reticulation systems in the worked out areas of the Hazelwood Mine.
   2. Failing to adequately control vegetation in the worked out areas of the mine.
   3. Failing to maintain adequate staff resourcing to prepare for and respond to the fires.
   4. Failing to have an adequate back-up power supply for the water reticulation system.
   5. Failing to employ adequate mine emergency management arrangements to prepare for and respond to the fire.

12 The Summary of Prosecution Opening ('the prosecution opening') expands on the allegation that the accused caused the pollution as follows:

1. The accused companies, who were a partnership of companies which operated the Mine, had a legal obligation to take steps to prevent such a pollution from occurring. The prevention and mitigation measures which they adopted for fires in the worked out areas of the Mine were seriously inadequate.

1. The Mine had clear knowledge of the risks associated with and the likelihood of fires taking hold in the worked out areas of the Mine, but failed to adhere to its own documented procedures or to take notice of warnings regarding the weather conditions and risk from the nearby bushfires. This resulted in the worked out areas being left exposed to ember attack and causing the pollution event to occur.

1. The Prosecution will prove that the pollution was caused by the failure of the Accused companies to put in place adequate fire prevention and mitigation measures in the worked out areas of the Mine. The risk of fire attack from embers from nearby bushfires was an obvious risk, given the huge areas of exposed brown coal in the worked out areas of the Mine, the proximity of the Mine to bushland and the risk of bushfire. It was a risk that the Accused companies knew well and had identified in its various fire prevention policies and procedures.

1. The failures in the worked out areas allowed the fires to take hold and spread. This was critical because, once the fire took hold in the coal and spread, because of the depth of the coal and the nature of the terrain, it was always going to be difficult to extinguish it.

13 Other references to knowledge and risk in the prosecution opening include:

(a) the extreme risk of fire on 9 February 2014 was common knowledge;

(b) there have been previous fires in the mine;

(c) the accused knew of the risk bushfires posed to the mine; and

(d) there was a substantial risk of fire igniting and running out of control in the batters in the worked out area of the mine.

14 In relation to steps allegedly taken by the accused since the mine fire, the prosecution opening states:

1. ... These are steps that could and should have been taken prior to the fire taking hold in February 2014 and would have reduced the risk of the pollution event occurring.

1. The improvements made after the pollution event should have been in place prior to the event. Their effectiveness in suppressing the spot fires in the operating areas of the Mine shows why these same measures should have been in place to deal with the fire risks in the balance of the Mine. Their absence allowed the fires to take hold, spread and pollute the Morwell area over the following 45 days.

15 In relation to the issue of whether the accused caused the smoke and ash that emanated from the mine fire, the defence response includes the following:

1. One of the major issues for the jury to consider for all charges is whether the accused caused the smoke and ash that emanated from the fires, notwithstanding that the Hazelwood Mine Fire was not lit by the accused companies, and nor was it lit by the mining activities within the Hazelwood Mine.
2. For each charge, in considering that question, it is in issue whether anything done or not done by the accused amounted to causing the smoke and ash to emanate, including in light of:
   • (a) whether the prosecution has proved that the likelihood of the pollution occurring was apparent before 9 February 2014;
   • (b) whether the prosecution has proved that the possibility of that degree of pollution occurring was apparent before 9 February 2014;
   • (c) whether the prosecution has proved the availability and suitability of the measures they say should have been taken;
   • (d) whether the availability and suitability of the relevant measures was or ought to have been apparent before 9 February 2014; and
   • (e) whether the prosecution has proved that the cost of the measures was justified in light of the facts known before 9 February 2014.

1. Evidence will be given by witnesses as to what they say, with hindsight, a risk assessment in this case should have looked like. In assessing the prosecution's proposals, it is in issue what measures that might seem reasonable in hindsight (with the full knowledge of the Hazelwood Mine Fire and surrounding circumstances that occurred) were not reasonably apparent or required at or before 9 February 2014.

Water supply to the Northern Batters

...

1. The second issue is whether the degree of pipe and water coverage sought by the prosecution was reasonably practicable, taking into account:
   • (a) the size and depth of the Hazelwood Mine;
   • (b) the cost of providing and maintaining that infrastructure relative to the likelihood of the hazard or risk concerned eventuating, and the degree of harm that would result if the hazard or risk eventuated;
   • (c) the volume of water required to provide that level of coverage;
   • (d) standard approaches within the Latrobe Valley mining industry to fire protection; and
   • (e) whether the necessity for that degree of coverage was foreseeable at the time of the February 2014 Hazelwood Mine Fire.

Vegetation coverage

...

46. It is in issue whether the prosecution can prove that:

(a) the necessity of further vegetation clearance on worked-out batters from the perspective of the control of fire was foreseeable at the time of the Hazelwood Mine Fire; and

(b) further reasonably practicable steps in relation to vegetation would have reduced the risk of fire taking hold in the coal in the Northern Batters.

...

Power infrastructure

...

1. Further, the accused take issue as to whether the measures proposed were reasonably practicable given:
   • (a) the existing redundancies in both the electrical and fire water systems;
   • (b) the cost of these measures relative to the likelihood of the hazard or risk concerned eventuating, and the degree of harm that would result if the hazard or risk eventuated;
   • (c) the practicality of implementing measures such as underground power lines in a coal mine environment; and
   • (d) Hazelwood's lack of control over SP Ausnet's assets.

1. In any event, the resourcing on the day was reasonable in the light of the known risks, preparedness arrangements which were in place, and the available equipment and water resources.

The prosecution submitted each of the above paragraphs, save for paragraph 33, should be struck out.

16 The defence response states the mine fire was not a single fire but a complex of fires caused by spotting from two external bushfires which were deliberately lit, one possibly with the intention that it burn into the mine, and that the mine fire was unprecedented in the following further ways:

1. It was the first time that external bushfires caused a fire within the Hazelwood Mine, in its more than 60 years of operations.
2. It was the first time that there were multiple, simultaneous fires at different locations within the Hazelwood Mine.
3. It was the first time that smoke and ash from a fire within the Hazelwood Mine affected areas outside Hazelwood's broad, 3,290 hectare landholding (the Land). Even earlier significant fires within the Hazelwood Mine which had lasted for several hours or some days did not result in external smoke or ash impacts. None of the reports from those fires identifies possible impacts on outside communities as a foreseeable risk warranting specific or additional management measures.
4. It was the first time that the duplicated 66kV power lines simultaneously failed.
5. It was the first time that there was a delay of more than 8 hours in the provision of meaningful firefighting assistance by the Country Fire Authority (CFA).

In that context, the accused deny they caused the pollution.

17 The prosecution submitted that concepts of negligence and reasonable practicability are irrelevant to the issue of whether the accused caused the pollution. Paragraph 34 of the defence response borrows heavily from matters relevant to determination of reasonable practicability listed in s 20(2) of the Occupational Health and Safety Act 2004 (Vic), and asserts these are matters the prosecution must prove. Paragraph 40 proceeds on the wrong assumption that it is relevant to consider the reasonable foreseeability of measures a risk assessment conducted before the mine fire may have identified. Paragraphs 42, 46, 50 and 52 each raise questions of reasonable practicability and reasonableness as being relevant to the question of whether the identified acts of the accused caused the pollution. It was submitted the paragraphs of the defence response should be struck out.

18 The accused submitted the impugned paragraphs of the response go directly to the central issue of whether they caused the pollution, and are responsive to the way in which the allegation is put against them. Because it is alleged that the accused failed to 'adequately' do things to respond to a known risk, it is necessary to measure their response to the identified risks by reference to the 'sensible objective standard' of reasonable practicability. Throughout the prosecution opening, submissions are made as to foreseeability of risks, actions the prosecution alleges might reduce foreseeable risk, and the availability of measures to avert the risk of fire. Further, the prosecution opening outlines factors directed to operation of the mine indicating there was a substantial risk of fire igniting in the mine, which was an 'obvious risk'.

19 Where it is not alleged that actions of the accused lit the mine fire, but instead that the accused caused the pollution by failing to do certain things adequately, the foreseeability of the harm will be of significant relevance.

20 It was submitted that, in an unobjectionable way, the defence response puts in issue matters raised against the accused.

21 Concepts of reasonableness or reasonable practicability are not introduced by the words of s 41 of the EP Act, the definition of 'pollute' or by the allegation that the accused caused the pollution. An act judged reasonable in the circumstances may still cause a particular outcome.

22 I do not agree that reasonable practicability is introduced as the measure of whether the accused failed to have in place adequate prevention and mitigation measures. The question of whether a measure was inadequate is simply whether the measure, such as it was, caused the pollution.

23 References in the prosecution opening to certain risks being substantial and common knowledge, obvious or known to the accused are intended by the prosecution to meet an argument that the events leading to the mine fire were extraordinary, and negative the causal connection between the accused's acts and the pollution. Whether an act, event or outcome was foreseeable may be, in that sense, relevant to the determination of causation. However, references in the prosecution opening to knowledge and risk do not introduce the concept of reasonableness.

24 I conclude the following references in the defence response are irrelevant and misleading:

(a) paragraph 40, referring to 'reasonable in hindsight' and 'reasonably apparent or required'; and

(b) paragraphs 42, 46, 50 and 52, referring to 'reasonably practicable', 'reasonable in the light of known risks', and 'foreseeable' in that context.

25 Whether the cost of mitigation measures were justified is plainly irrelevant, as is the question whether the availability and suitability of the measures were or ought to have been apparent, that is clearly perceived or understood. The remaining parts of paragraph 34, whilst they may not in the final analysis be centrally relevant to the jury's determination of causation, are responsive to the prosecution opening.

26 The prosecution did not identify the source of the power to strike out parts of the defence response. The accused submitted there was no such power, but accepted I could give directions to them in relation to the matters in dispute. I will proceed in that fashion.

27 The final sentence of paragraph 70 of the prosecution opening, set out at [14] above, is also misleading, because it speaks of reducing the risk of the pollution, rather than causing it.

28 In oral submissions counsel for the accused said they read the sub-paragraph (h) particulars as cumulative, and submitted the indictment as framed required the prosecution to prove each of (h)1-5 beyond reasonable doubt to prove the offence. The prosecution disagreed, and submitted the usual direction in relation to such a pleading was that the jury must be satisfied as to at least one of the five to find the charge proven. The prosecution is correct. The question for the jury is whether, by one or more of the acts particularised, the accused caused the pollution.

Is the offence created by s 41 of the EP Act one of strict or absolute liability?

29 The accused submitted that the conclusion of Nathan J in Allen that the offence created by s 39 of the EP Act (the equivalent provision to s 41 in respect of pollution of water) was an offence of absolute liability was clearly wrong and should not be followed.[16]

30 Whether the offence is to be regarded as an offence of strict liability lies in the construction of the statute creating the offence, the subject matter of the statute and consideration of whether enforcement of the offence will be assisted by its strict liability status.[17] The following matters point to the offence being one of strict liability. First, the EP Act was amended in 2000 to make contravention of s 41 an indictable offence, indicating Parliament considered it to be a serious offence to be determined by a judge and jury. Because it is indictable it should be considered a 'truly criminal' offence, attaching stigma to conviction. The seriousness of the offence is reinforced by the size of the penalty, which has increased from a maximum of $10,000 at the time Allen was decided, to $346,000.

31 Second, the legislative subject matter, being the social and environmental detriment to society occasioned by pollution, is not a sufficient basis for concluding that no defence ought to be available to the accused. Third, because there would be no deterrent to a person from engaging in conduct which caused the pollution if the accused were unable to choose whether to engage in the conduct or not, and had no ability to take reasonable measures to avoid the pollution, categorising the offence as one of absolute liability would not result in any incentive to promote the observance of the statute.[18] It was submitted such an approach would be contrary to the purposes of the EP Act, and contrary to the underlying principles of the criminal justice system, which include just punishment and deterrence.

32 Fourth, in Allen, Nathan J quoted the second-reading speech for the Environment Protection (Review) Bill 1984 (Vic), which inserted ss 39 and 41 into the EP Act:

The Bill is an essential element in the Government's programme to establish effective and enforceable controls for the purpose of protecting and enhancing the quality of the environment.[19]

Contrary to his Honour's conclusion, characterising an offence as one of strict, rather than absolute, liability does not undermine the objective of the insertion of the provisions to 'establish effective and enforceable controls for the purpose of protecting and enhancing the quality of the environment'. Further, the purpose of the EP Act was amended in 2001 to provide that regard should be given to the principles of environment protection. It was submitted the principles in ss 1F(2) and 1K(c) favour a categorisation of the offence which allows the opportunity to defend the charge on the basis the pollution was not generated by the conduct of an accused who acted with all reasonable and proper care and diligence.

33 Fifth, in other jurisdictions, comparable offences of causing pollution of various elements of the environment have been held to be strict liability offences.[20] In Palos Verdes Estates Pty Ltd v Carbon ('Palos Verdes'),[21] a decision of the Full Court of the Supreme Court of Western Australia, Malcolm CJ concluded that if the comparable Western Australian provision were given a literal interpretation, the legislation would be ambiguous and uncertain and have an absurd and capricious operation by creating such a wide class of offenders who would be guilty of an absolute liability offence.

34 Sixth, the decision in Allen has been criticised on the basis that categorisation of the offence as absolute was an 'error of law',[22] because Nathan J failed to consider authorities in New South Wales establishing the comparable offence to be one of strict liability, and considered authorities which were not comparable and imposed less onerous penalties.[23]

35 The prosecution submitted, first, that the test for causation is a very high standard requiring the accused to take all possible steps to guard against events or actions of others which could be anticipated. Second, this Court should not depart from the authority of Allen, which has stood since 1988 and has been cited with approval by this Court,[24] unless the decision is manifestly wrong, and there has been consideration of factors, including whether the decision rests on a principle carefully worked out in a significant succession of cases, has achieved no useful result but has led to considerable inconvenience, or had not been acted on in a manner which mitigated against reconsideration.[25] Third, amendments to the EP Act in 2000 to change the offence from summary to indictable and to increase the penalty were enacted 12 years after the decision in Allen. The Parliament must be taken to have known what the law in relation to the offence was at the time it was introducing legislative changes. The fact that Parliament saw fit not to introduce an amendment to make the offence one of strict liability strongly indicates an intention not to change the nature of liability under the EP Act. Fourth, the words of the statute, and the statutory context, are consistent with the offence being one of absolute liability. Section 41 must be seen in the context of the defences provided by ss 62C and 66B, and the separate offence in s 59E of intentionally, recklessly or negligently polluting the environment. The EP Act creates a hierarchy of offences, s 59E requiring proof of intention, recklessness or negligence, and providing for far harsher penalties, and s 41 requiring only proof of causing or permitting pollution. The s 62C defence is narrower than the defence of honest and reasonable mistake of fact, and imposes the burden of proof on the accused. This tells against any implied defence of honest and reasonable mistake of fact. Section 66B of the EP Act deals with pollution offences committed by corporations, and provides a defence of due diligence for a director or manager of such a corporation, which tells against such a defence being available to a corporation charged under s 41. Further, the absence of reference to concepts of reasonable practicability, either by way of fault element or defence, tells against any form of negligence liability attaching to s 41. Fifth, the subject matter of the legislation, and the identified purpose of protection of the environment weigh in favour of the offence being one of absolute liability.

36 Sixth, careful comparison of decisions in interstate jurisdictions show that there are often material differences in the legislation being construed which explain why a different conclusion is reached. There may be fine distinctions in relation to construction of various legislative provisions. While in New South Wales authorities have haltingly come down on the side of construing comparable provisions as creating strict liability offences, this does not mean the decision of Nathan J in Allen is plainly wrong. Section 16(1) of the Clean Water Act 1970 (NSW) did not have an equivalent provision to s 62C, and the New South Wales authorities were not dealing with an offence which had its own statutory defence. Further, the strict liability line of authority existed in New South Wales before amendment of the EP Act in 2000. Parliament should be taken to have been aware of that line of authority when it amended the Act in 2000, and to have intended that offences created by the EP Act remain as absolute liability. In Palos Verdes, the legislative provision under consideration was worded so broadly as to result in any change to the environment considered pollution. Malcolm CJ specifically contrasted that very wide provision to the more limited provisions under the EP Act, which require that pollution be noxious, harmful, poisonous or detrimental. The need for there to be some sensible limitation on the Western Australian provision led the Court to conclude that the offence created was one of strict rather than absolute liability.

37 Seventh, offences created by the Act are regulatory offences, which are for the general protection of the public, rather than being 'truly criminal', and a much stricter view is taken as to the basis of liability. Offences which allow rational decision makers to decide which way to act in order to comply with their statutory duty are far more likely to attract absolute liability. Many regulatory offences, especially those involving corporate conduct and large enterprises, impose large pecuniary penalties in the knowledge that commercial actors will calculate the cost of compliance against profits. That approach reflects commercial reality. Effective regulation requires penalties which respond to that reality.

38 The classification of offences by the High Court in He Kaw Teh v The Queen ('He Kaw Teh')[26] was articulated by Street CJ in R v Wampfler ('Wampfler'):[27]

(1) Those in which there is an original obligation on the prosecution to prove mens rea.

(2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt.

(3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence.

It must be kept in mind that honest and reasonable mistake of fact is not a defence, but an issue, once raised by evidence, on which the prosecution bears the burden. Further, strict liability does not call for consideration of issues such as due diligence, reasonable practicability or negligence.

However, the provision has to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v De Rutzen,[29] as follows:

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."

The presumption referred to in Sherras v De Rutzen[30] applies equally to consideration of whether an offence is to be classified as one of strict or absolute liability. In He Kaw Teh, Gibbs CJ said:

There has developed a principle that an honest and reasonable mistake of fact will be a ground of exculpation in cases in which actual knowledge is not required as an element of an offence ... These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent.[31]

In this country it is well established by authority that whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation.[32]

40 In Wampfler, discussing the strength of the presumption, Street CJ said:

There is a discernible trend in modern authorities away from construing statutes as creating absolute liability and towards recognising statutory offences as falling within the middle or second category - that is to say the category in which the prosecution must negative the honest and reasonable belief in innocence if there is sufficient basis advanced to be capable of raising a reasonable doubt of such belief.[33]

41 The Court in He Kaw Teh considered the following matters relevant to whether the presumption had been displaced:

(a) the words of the statute creating the offence;

(b) the subject matter of the statute: where the offence is created for the purpose of public safety, the presumption may be displaced more easily, particularly if the penalty for the offence is monetary and moderate; and

(c) whether putting the defendant under absolute liability will promote observance of the statute.

These considerations may not all point in the same direction.

42 It is not expressly stated in the EP Act that the s 41 offence is one of absolute liability. In Allen, Nathan J observed:

This Act recites "any person shall not cause" pollution. It would be difficult to frame language in more absolute and embracive terms.[34]

However, statutory provisions which prohibit conduct are often expressed in similarly absolute terms. The words 'shall not pollute' do not, without more, strongly indicate an intention that liability is absolute rather than strict. The definition of 'pollute' includes causing or permitting. Permitting has a mental element, involving not only the power to prevent a particular outcome, but knowledge that it is likely to occur, and indifference, acquiescence or consent.[35] It would be inconsistent for the state of mind of the accused to be relevant to one aspect of the definition of pollute, that is permitting, yet irrelevant to the other. The definition of pollute would be more cohesive if honest and reasonable mistake were a basis of exculpation to a charge of causing pollution. In Allen, Nathan J said:

The legislature has deliberately used the word "cause" and has avoided using language such as "knowingly cause" or "negligently cause" (pollution) which would have been expected, if the intention had been to create an offence of merely strict and not absolute liability. This is a strong indication that absolute liability was intended.[36]

Where some such word as "knowingly" or "wilfully" is used in the description of an offence, there is no difficulty in concluding that guilty intent is required. However, the absence of words such as these, even if the words appear in the description of offences created elsewhere in the enactment, does not mean that an offence is intended to be absolute: see Sherras v De Rutzen.[37]

Absence of words such as 'knowingly', does not lead to the conclusion that the presumption in favour of the s 41 offence being strict liability has been displaced, particularly when regard is had to the definition of 'pollute'.

43 The prosecution relied on statutory context provided by s 62C. To simplify proof that an accused polluted the atmosphere, s 62C creates a presumption which applies in defined circumstances. Proof by the accused that the pollution was unrelated to the commercial or industrial undertaking is not a defence to s 41, but a means by which the accused can negative the presumption created by s 62C. Further, s 62C applies to a restricted class of alleged polluters, being occupiers of any premises, on which there is conducted a commercial or industrial undertaking, from or on which there is a polluting emission. Because it does not apply to all persons who are alleged to have polluted in contravention of s 41, s 62C can have no bearing on whether the offence created by s 41 is one of strict or absolute liability.

44 I reject the prosecution's submission that context provided by ss 59E and 66B supports the conclusion the s 41 offence is absolute liability. It is unsurprising that the s 59E offence of aggravated pollution, which carries a maximum penalty of up to seven years' gaol and a fine of 2,500 penalty units for an individual, or 10,000 penalty units for a body corporate, should prescribe a specific mental element. Section 66B provides for defences typically afforded to directors and managers of a corporation guilty of a regulatory offence.

45 The EP Act is aimed at protection of the environment in Victoria. In 2000 the EP Act was amended by the Environment Protection (Enforcement and Penalties) Act 2000 (Vic) ('2000 Act'), which substantially increased the penalty for a pollution offence, and made an offence under s 41 indictable. The purpose of the 2000 Act was to amend the EP Act:

To increase the penalties that apply to offences under that Act and to make a number of offences in that Act indictable offences.[38]

In the second-reading speech introducing the 2000 Act, the Minister for Environment and Conservation said:

The primary aim of the bill is to strengthen the Environment Protection Act by substantially increasing the enforcement capabilities of the [Environment Protection Authority].

...

But increased enforcement resources on their own are not enough. The Environment Protection Act must contain adequate deterrents to potential environmental offenders.

Accordingly, this bill will raise the financial penalties for general environmental offences in Victoria by an order of magnitude. This bill will bring environmental penalties in Victoria in line with community values.

In implementing our environmental policy commitments, the Bracks government is taking a number of actions to support and encourage the majority of Victorian businesses which do the right thing. We are strongly committed to encouraging businesses which are striving to develop innovative and efficient ways of acting in an environmentally sustainable manner.

However, we also recognise that a small proportion will still, unfortunately, try to make short-term profits by taking environmental shortcuts. These people will fail to live up to the community's expectations for responsible environmental behaviour unless there is effective enforcement of environmental laws.[39]

The second-reading speech contrasts businesses which do the right thing, with those that try to make short-term profits by taking environmental shortcuts, with appropriately tough penalties directed to the latter, to provide effective deterrence. It is not consistent with the purpose of enforcement and deterrence outlined in the Minister's second-reading speech, that a business which attempted to do the right thing, but was operating under honest and reasonable mistake of fact, would be nonetheless subject to criminal penalty.

46 The EP Act was further amended in 2001 by the Environment Protection (Liveable Neighbourhoods) Act 2001 (Vic) ('2001 Act') to insert the purpose and principles of environment protection:

(1) The purpose of this Act is to create a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection.

(2) The principles of environment protection are set out in sections 1B to 1L.

(3) It is the intention of Parliament that in the administration of this Act regard should be given to the principles of environment protection.

The principles of environment protection inserted by the 2001 Act include:

1K Principle of enforcement

Enforcement of environmental requirements should be undertaken for the purpose of -

(a) better protecting the environment and its economic and social uses;

(b) ensuring that no commercial advantage is obtained by any person who fails to comply with environmental requirements;

(c) influencing the attitude and behaviour of persons whose actions may have adverse environmental impacts or who develop, invest in, purchase or use goods and services which may have adverse environmental impacts.

By focusing on the attitude and behaviour of persons whose actions may result in pollution, the principle of enforcement reinforces that the purpose of the EP Act enforcement provision is not to penalise those persons whose actions caused pollution, but who were acting under honest and reasonable mistake.

47 The 2000 Act did significantly increase the penalty for a s 41 offence in the two ways identified by the accused. The magnitude of the penalty should be considered in the context of the purpose of the Act and the potential consequences to the community and the environment of a breach of the provision. Having regard to the potential consequences of pollution events the penalty is moderate. I do not accept the accused's submission that the increase in penalties, without more, strongly indicates an intention that the offence is one of strict liability. However, the second-reading speech to the 2000 Act, the increased penalties, and the principle of enforcement introduced by the 2001 Act, in combination indicate an intention that honest and reasonable mistake will remain a ground of exculpation for polluting offences.

48 The prosecution rely on a presumption that the Parliament, when it enacted the 2000 Act, should be taken to have known of the decision in Allen, and to have intended that the offence remain one of absolute liability. In Re Alcan Australia Limited & Ors; ex parte Federation of Industrial, Manufacturing and Engineering Employees ('Re Alcan'),[40] the High Court gave as a reason for construction of a form of words used in a statute:[41]

The second is that Parliament re-enacted, in s 4(1) of the Act, words which are almost identical with those considered in Reg. v Portus. There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already "judicially attributed to [them]",[42] although the validity of that proposition has been questioned.[43] But the presumption is considerably strengthened in the present case by the legislative history of the Act. The Committee of Review into the Australian Industrial Relations Law and Systems, whose report preceded the enactment of the Act, recommended that the jurisdiction of the tribunal be extended to the limits of the constitutional power under s 51(xxxv).[44] Yet Parliament adopted, in almost identical terms, the language of the former Act into the Act, and the Minister acknowledged in his Second Reading Speech that the jurisdiction was to be limited by "the requirement that disputes relate to matters concerning employers and employees".[45] These considerations reinforce the presumption that Parliament did not intend to overturn Reg. v Portus.

The form of s 39 considered in Allen was 'A person shall not cause or permit any waters to be polluted ...'. Sections 39 and 41 were amended before the decision in Allen by the Environment Protection (Amendment) Act 1988 (Vic) ('1988 Act') to the current form of the offence, 'A person shall not pollute ...', and the definition of 'pollute' was introduced. Neither the 2000 Act nor the 2001 Act involved the re-enactment or repetition by the Parliament of the words judicially considered by Nathan J in Allen. Because there has not been a re-enactment or repetition of the words judicially considered by Nathan J since the decision in Allen, the circumstances for the presumption of statutory construction referred to by the High Court in Re Alcan have not arisen and the presumption upon which the prosecution relies does not apply. The prosecution was unable to refer to authority supporting its submission that the presumption applies despite the fact there has been no re-enactment or repetition of the words by the Parliament. Further, the circumstances which applied in Re Alcan, and which strengthened the presumption, do not apply here. The decision in Allen is at trial, not appellate level, and has not subsequently been applied.[46] There is nothing to indicate the Parliament was aware of and turned its mind to the decision in Allen at the time of any subsequent amendment of the EP Act.[47] The prosecution relied on the decision of the High Court in Electrolux Home Products v Australian Worker's Union ('Electrolux')[48] in relation to the strength and operation of the presumption in what it submitted were analogous circumstances. In Electrolux, McHugh J emphasised the specialised and politically sensitive field of industrial relations, which had a designated Minister and Department of State, with which the legislation under consideration was concerned, and said:

It is no fiction to attribute to the Minister and his or her Department and, through them, the Parliament, knowledge of court decisions - or at all events decisions of this Court - dealing with that portfolio. Indeed, it would be astonishing if the Department, its officers and those advising on the drafting of the Act would have been unaware of Re Alcan.[49]

The decision in Electrolux followed a long legislative history involving repetition by the Parliament of a form of words which had been the subject of repeated and consistent judicial consideration by the High Court, in circumstances where extraneous material made it clear the Parliament was aware of settled construction of those words by the High Court. The legislation which repeated that form of words was enacted two years after the decision in Re Alcan. By contrast, in this case the form of words under consideration has not been repeated by the Parliament after judicial consideration, and there has not been a repeated, settled construction of those words by the High Court or the Court of Appeal. Nor is the field with which the legislation is concerned as politically sensitive as industrial relations. The decision in Electrolux does not advance the prosecution case. If the presumption referred to in Re Alcan did apply, it would, in the circumstances, be weak and of little significance.[50]

49 As the present case demonstrates, pollution events will often result from a complex set of circumstances playing out over a period of time. Consideration of what acts will cause or prevent pollution may be equally complex. By contrast, absolute liability offences usually involve circumstances in which the acts necessary to ensure compliance with the provision in order to avoid conviction are more obvious and straightforward.[51] Whilst the EP Act is directed to public health and protection of the environment, enforcement is aimed at influencing the attitude and behaviour of persons whose actions may cause pollution. Compliance with the EP Act would not be improved by penalising those persons whose acts have caused pollution, but who were operating under an honest and reasonable mistake of fact.

50 Both parties referred to decisions in other states in respect of similar legislation. The most useful comparison is to New South Wales. In Cooper v ICI Australia Operations Pty Ltd ('Cooper'),[52] Hemmings J in the Land and Environment Court of New South Wales, was required to determine whether a charge under s 16(1) of the Clean Waters Act 1970 (NSW) that the defendant had caused pollution had been made out. The provision provided:

(1) A person shall not pollute any waters or cause or permit any waters to be polluted.

Hemmings J considered the question whether the offence of causing pollution was strict or absolute liability, and referred to a decision in Smyth v Caralis and Others[53] in which Cripps CJ of the same court, after referring to the judgment of Dawson J in He Kaw Teh, said:

When determining whether any, and if so what, mental ingredient is relevant in respect of a statutory offence, it is important to remember that in Australia there is a presumption that, in respect of statutory offences that do not require proof beyond reasonable doubt of mens rea, honest and reasonable mistake is a ground of exculpation. In respect of certain statutory offences, the presumption may be displaced and the offence may be one of absolute liability admitting of no ground of exculpation other than that the prosecution has failed to prove beyond reasonable doubt that the defendant did the prohibited act. But the presumption is not displaced unless a fair reading of the statute creating the offence requires it.[54]

I consider that it is now settled that a defence of honest and reasonable mistake is available with respect to an offence under s 16 of the Clean Waters Act 1970.[55]

51 The line of authority to which Hemmings J referred has been approved at appellate level. In Tiger Nominees Pty Ltd v State Pollution Control Commission ('Tiger Nominees'),[56] the New South Wales Court of Criminal Appeal was required to consider an amended s 16 of the Clean Waters Act 1970 (NSW), which provided:

(1) A person shall not pollute any waters.

(2) ...

(3) A person shall not cause any waters to be polluted, whether intentionally or not.

(4) A person shall not permit any waters to be polluted.

Considering the issue of classification of offences under the amended provision, Gleeson CJ said:

The offence created by s 16(1) has been described as an offence of strict liability: Cooper v ICI Australia Operations Pty Ltd (1987) A Crim R 267; 64 LGRA 58 per Hemmings J, Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659. The amendments to s 16(1) introduced in 1987 raise the issue whether, having regard to the express language of s 16(3) ("a person shall not cause any waters to be polluted, whether intentionally or not"), s 16(1) should continue to be construed as an offence of strict liability.[57]

...

I am not persuaded that the amendments introduced into the Act in 1987 were intended to bring about the result that the only part of the former s 16(1) that was to be construed as a strict liability offence was the offence of "causing". Rather, s 16(3) as it presently reads is to be contrasted with s 16(4), particularly when regard is had to the authorities since Alphacell.[58]

The New South Wales authorities, which deal with very similar legislative provisions, are persuasive. In Allen Nathan J did not refer to the New South Wales line of authority.

52 For reasons I have already given, s 62C does not provide a defence to s 41, and does not assist in displacing the presumption in favour of the offence being one of strict liability. Nor does s 62C create an issue which allows the New South Wales authorities to be distinguished.

53 Relying on what was said by Heydon J in Green v The Queen,[59] the prosecution submitted the Court should not depart from the construction by Nathan J in Allen of the pollution offence provisions in the EP Act. Because in that case Heydon J was considering whether an appellate court should depart from its own previous decisions, different considerations and emphasis applied. In Shaw v Yarranova Pty Ltd[60] Bell J, considering whether he was bound to follow the decision of another judge of the Supreme Court of Victoria construing a statutory provision, said:[61]

In the absence of a binding decision of the Court of Appeal or the High Court, it is the duty of a trial judge personally to determine the case before him or her. Where the case involves a question of statutory construction, the "fundamental responsibility of a court... is to give effect to the legislative intention as it is expressed in the statute".[62] This responsibility is not performed where the judge fails to determine the matter personally, preferring instead simply to follow an earlier decision on point of another member of the court.

On the other hand, where there is such a decision on point, the judge does not start writing on a blank page. Proper regard must be given to the previous judgment. Considerations of comity require the previous decision to be followed unless the judge attains a higher than usual standard of conviction that his or her contrary conclusion is correct. The interests of justice are not served where different judges come to different conclusions on the same question according to reasoning that appears to be entirely subjective.

54 Bell J referred with approval to the following passage from the judgment of Burchett J in La Macchia v Minister for Primary Industries and Energy:[63]

The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court and exercising original jurisdiction, while 'deserving of the closest and respectful consideration', does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that 'a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong': Halsbury, 4th ed, vol 26, para 580. The word 'usually' indicates that the approach required is a flexible one, and the authorities indicate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle. (For example, it has been suggested that decisions upon the effect of sections of the Income Tax Assessment Act 1936 (Cth) present a special need for consistency: Rabinov v FCT 82 ATC 4517 at 4523. Understood as expressing a usual or general rule, the following statement of Rogers J in Hamilton Island Enterprises Pty Ltd v FCT [1982] 1 NSWLR 113 at 119 is consistent with the proposition I have quoted from Halsbury:

In my view it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising federal jurisdiction should strive for uniformity in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of coordinate authority was clearly wrong I would follow his decision.

55 For the above reasons I conclude the offence in s 41 of the EP Act is one of strict liability. I conclude, with respect, that Nathan J was clearly wrong when he categorised the offence under s 39 as absolute liability. I am fortified by the New South Wales authorities to the effect that pollution offences under the similarly worded provision of the Clean Waters Act 1970 (NSW) are strict liability.

Is s 62C engaged in this case, and if so, what is its operation?

56 The indictment includes the following particular to each charge:

(i) Further and in the alternative, Hazelwood Pacific Pty Ltd, Australian Power Partners B.V, Hazelwood Churchill Pty Ltd and National Power Australia Investments were occupiers of the Hazelwood mine, and are deemed to have polluted the environment as a result of the discharge or emission of the smoke (including PM 2.5 matter) from those premises.

57 In submissions the prosecution explained the use sought to be made of s 62C as follows:

1. In this case, the prosecution puts its case on the basis that the accused caused the pollution. However, in the alternative, if the jury is not satisfied beyond reasonable doubt that the accused caused the pollution, the jury would then be able to consider the alternative approach offered by s.62C: namely that the accused should be presumed to have polluted the environment unless they can prove that the emission was unrelated to their commercial or industrial undertaking. That is, after hearing all the evidence, the jury may be invited to go directly to s62C and if satisfied that the preconditions are met, apply the deeming provision and consider whether the accused have proved that the emissions were unrelated to their undertaking.

58 The accused submitted, in the circumstances of this prosecution:

(a) section 62C is an evidentiary presumption (which is rebuttable) to assist in prosecutorial proofs only in specific circumstances;

(b) the specific circumstances where the evidentiary presumption may be relied upon by the prosecution against a person who is an occupier are relevantly where any segment or element of the environment is polluted as a result of a discharge, emission or deposit of any substance from or on any premises on which there is conducted any commercial or industrial undertaking, but where the prosecution is not in a position to prove that the person who is an occupier of the premises caused the relevant discharge;

(c) section 62C does not replace s 41(1), which is the relevant offence provision, or the requirement that there must be 'a person who pollutes' within the meaning of s 41(1); and

(d) in the circumstances of this prosecution, s 62C is not engaged and has no role to play, as there is no evidentiary uncertainty or difficulty of the kind referred to in (b) above. The alleged occupiers, and the persons alleged to have caused pollution, are the same, and the cause of the relevant discharge is not in dispute.

It was submitted that this construction of s 62C is supported by legislative history and the purpose for which the deeming provision was enacted, and because giving the provisions work to do in these circumstances would lead to absurd results, which cannot have been the intention of the Parliament.

59 Unlike predecessor provisions in the EP Act, s 62C does not operate to create a separate offence. It is apparent from the Explanatory Memorandum to the Environment Protection (Review) Act 1984 (Vic) ('1984 Act') which introduced the current form of s 62C, and the second-reading speeches to that Act, that the difficulty which was sought to be addressed by the amendment was where it was able to be established that a particular discharge from premises caused pollution, but it was not possible to establish the precise cause of the discharge or that the occupier caused or permitted the polluting discharge. Significantly, the amendment was not concerned with the situation where it is possible to prove the precise cause of the relevant discharge and that the occupier caused it, or with the situation where it is sought to be proved that the occupier caused pollution, but the occupier is found (on the evidence, as a matter of fact) not to have done so. It is significant that, when it was introduced by the 1988 Act, s 62C was prefaced by the heading 'Presumption that occupier caused discharge etc.', in contrast to the previous section, which was described as a 'deeming provision'. It is also of significance that s 62C is in Division 5 of the EP Act, which deals with additional legal matters. It follows that the proper operation and effect of s 62C is as set out in paragraph [58] above. Section 62C is an evidentiary (and rebuttable) presumption only which can be relied upon in certain specific circumstances, none of which apply to the present case.

60 In the present case, there is no uncertainty as to the cause of the relevant discharge, or the identity of the person who is alleged to have caused it. Nor is there any impediment, if the evidence is sufficient, to the prosecution in establishing a contravention of s 41(1)(a), (b) and (e) against the accused. The persons that are alleged to have caused the atmosphere to be polluted are the same persons as the alleged occupiers, and there are no evidentiary difficulties in establishing the precise cause of the relevant pollution incident. This is a case centred on causation.

61 Giving s 62C a broader operation than that outlined above would potentially give rise to absurd results. A jury, having found the emission of pollution was a result of an extraordinary intervening act, and not caused by the accused, would then be required to put aside that conclusion and assume something else. The obvious difficulty of charging a jury, in the context of a shifting onus and different standards of proof, demonstrates the absurdity. Because the prosecution case alleges the accused caused the pollution it is limited to s 41, and s 62C cannot be engaged in the alternative.

62 As to the necessity for temporal connection, the accused submitted the words of s 62C, which provide that if any element of the environment is polluted, the occupier is deemed to have polluted, tie the emitting pollution to occupation so that both must occur at the same time. By contrast, in s 41, the acts which cause or permit may be antecedent, but lead to the pollution.

63 The prosecution submitted the words of s 62C, the relevant context in which those words are used (including the legislative history), and the intended purpose of the provision, all support the application of the occupier deeming provision in the present case. There is no basis for reading down the provision in the manner contended by the accused. While the section imposes a reverse onus of proof, such provisions are not unusual in regulatory offences, including, for example, the reverse onus in the New South Wales legislation dealt with by the High Court in Kirk v Industrial Court (NSW).[64]

64 The Parliament's intention in enacting s 62C was evidently to ensure that the person with the greatest knowledge and control of such commercial or industrial undertakings should be held accountable for pollution (unless they could discharge the onus of proving that it was unrelated to that undertaking). That is because such persons:

(a) have the best understanding of the complexity and scale of the undertaking;

(b) oversee and manage the different causal factors which may result in pollution, either directly through their employees or indirectly through their contractors;

(c) keep records relating to their operations which may afford crucial evidence of the facts and circumstances relevant to the occurrence of pollution;

(d) exert the greatest influence, through their cooperation or otherwise, on the ability of investigating authorities to identify and prosecute any criminal offences or recover the costs of cleaning up such pollution; and

(e) are able to identify the true culprit in the event that the polluting emissions were unrelated to their undertaking.

65 Occupation does not have a temporal lock on it. The occupier will be deemed to have polluted if the pollution was the result of an emission from the premises, as long as the circumstances which resulted in the pollution came about as a result of actions or emissions by the occupier, which could be well prior to the date or time of the actual emissions.

66 Whilst deeming provisions are to be construed strictly,[65] the words of s 62C are clear and unambiguous. If the conditions required for operation of s 62C are proved by the prosecution beyond reasonable doubt, an occupier is deemed to have polluted the atmosphere unless they prove, on the balance of probabilities, that the polluting emission is unrelated to the commercial or industrial undertaking conducted on the premises. There is nothing in the text of ss 62C and 41, or elsewhere in the EP Act, which supports the restricted operation of the provision for which the accused contend.

67 I do not accept the accused's submission that the legislative history supports the construction of ss 41 and 62C for which they contend. The current form of s 62C was first enacted by amendment of s 63(2) by the 1984 Act, the second-reading speech to which includes:

Clause 26 amends section 63(2) and deals with prosecutorial proofs where a polluting discharge occurs from trade premises. The section is amended to provide that where it can be established that pollution has been caused by a discharge from any commercial or industrial premises, then the occupier of those premises is deemed to have caused the pollution to occur unless he can establish that the discharge was unrelated to any commercial or industrial undertaking. This represents a significant change, as perhaps the most serious difficulty confronting the authority in enforcing the Act is to prove that the defendant caused the polluting discharge which emanated from his premises. In most cases the discharge has ceased by the time an inspector has arrived. If the occupier of the premises does not co-operate and provide the authority with sufficient admissible evidence then it is often impossible to establish the precise cause of the discharge. The amendment of section 63(2) reverses the onus of proof in cases where it cannot be proved that the occupier of the premises caused or permitted the polluting discharge to occur.[66]

The Explanatory Memorandum to the 1984 Act reads:

Clause 26 amends section 63(2) to provide that where any part of the environment is polluted as a result of discharge from commercial or industrial premises then the occupier of those premises is deemed to have caused the discharge unless he can establish that the discharge was unrelated to the commercial or industrial undertaking. The circumstances where the Authority can prove that a particular polluting discharge emanated from certain premises, but is not in a position to prove that the occupier of the premises caused or permitted the polluting discharge to occur.[67]

Both documents confirm that the purpose of the provision is consistent with the ordinary meaning of the words used. The inclusion of the heading by the 1988 Act does not change the meaning of the text of the provision. Reference in the heading to presumption is consistent with the operation of the provision, which deems the fact that the occupier polluted presumptively, subject to the occupier proving the pollution was unrelated to the undertaking.

68 The purpose and effect of s 62C is to make the occupier of a premises on which an industrial or commercial undertaking is conducted responsible for an emission of pollution on or from the premises. Other provisions of the EP Act support this conclusion. Pursuant to s 62(2) an occupier of premises on which pollution has been or is being discharged, or is likely to arise, may be made responsible for the necessary clean-up costs. Pursuant to s 62A(1)(a) the occupier of premises upon or from which pollution has occurred or been permitted to occur may be directed to take specified clean-up and ongoing management measures. Consistent with s 62C, these provisions apply to place responsibility on the occupier whether or not they caused or permitted the pollution.[68] In the second-reading speech which amended both provisions, the Minister said:

The first purpose is to enshrine into the Environment Protection Act the "polluter pays" principle. That principle is that persons who conduct operations or occupy premises from which there is a potential for environmental damage are responsible for such damage rather than the public. The principle is part of the government's policy. It places the responsibility for environmental clean-ups arising from an operation on the person who may profit from the operation, rather than the public who might indirectly profit from the operation but are directly affected by any environmental damage.[69]

69 The accused's submission proceeded on the basis that ss 41 and 62C in effect require the jury to consider the same question from the point of two different onuses and two different standards of proof. The question posed by s 41 is 'did the accused cause the pollution?'. If the conditions for the operation of s 62C are proved by the prosecution, it poses the question, 'is the pollution unrelated to the commercial or industrial undertaking conducted on the premises?'. The words 'cause' and 'related' are not synonyms. This case demonstrates the differences in the task the jury will face. Under s 41 the prosecution will be required to prove that one or more of the five acts of the accused caused the pollution, in other words, that their actions produced or resulted in the pollution. If the conditions for operation of s 62C are proved by the prosecution, the accused must prove the pollution is unrelated, that is, not connected or associated, to the commercial or industrial undertaking conducted at the mine. It is not difficult to see how a jury might sensibly conclude causation has not been proved, yet find the accused have failed to prove the pollution was unrelated to the undertaking. That possibility is contemplated by the provisions, and is not absurd.

70 The accused relied on the decision in Telstra Corporation v Phone Directories Company Pty Ltd ('Telstra'),[70] which concerned the question of whether copyright subsisted in a particular literary work, where the statutory presumption under consideration was '... unless the contrary is established, copyright shall be presumed to subsist ...'.[71] In Telstra, the party seeking to prove copyright adduced evidence on the question of whether it subsisted, and sought to rely, in the alternative, on the statutory presumption. Keane CJ concluded:

The evidence which was adduced at trial did not leave the trial judge in the state of agnosticism ... rather, her Honour was persuaded to the conclusion that, on the facts as proved, copyright did not subsist. That being so, there was no scope for the operation of s 128 of the Act.[72]

By contrast, in this case, to avoid operation of the deeming provision the accused must prove, not that they did not cause the pollution, but that the pollution is unrelated to the undertaking. Given the difference in text between s 62C of the EP Act and s 128 of the Copyright Act 1968 (Cth), the decision in Telstra does not assist the accused.

71 The remaining question is what temporal connection s 62C requires between occupation and emission of pollution. The question arises because the accused contend the prosecution will fail to prove occupation after about 10pm on 9 February 2014 because of the role the CFA played at the mine in relation to the fire from that time. The position for which the accused contend might lead to the absurd result that the operation of s 62C is avoided because a body with statutory obligations or duties takes control of a premises after a chain of events leading to a polluting emission is set in motion, but before there has been an emission from or on the premises. That is not the purpose or effect of the provision. Section 62C is not directed to any premises, but only to premises on which there is conducted a commercial or industrial undertaking. A polluting emission might occur after occupation of a premises has ceased, yet still be related to the undertaking conducted on the premises during the period of occupation. Whether or not that is so is a question for the jury. I conclude s 62C does not require occupation to be simultaneous with the polluting emission.

72 I conclude there is nothing to prevent the prosecution from relying on s 62C as an alternative to proof, in accordance with s 41, that the accused caused the pollution emitted from the mine by the mine fire.

Should the accused be required to file and serve a further amended defence response?

73 The defence response is governed by s 183(2) of the Criminal Procedure Act 2009 (Vic):

The response of the accused to the summary of the prosecution opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.

74 The accused accept they must now file an amended defence response raising acts, facts, matters or circumstances on which they rely in relation to:

(a) honest and reasonable mistake;

(b) occupation of the mine after 10pm on 9 February 2014, in particular the relevance of the role and acts of the CFA, and how it is put they no longer occupied the mine; and

(c) the basis on which the emission of smoke from the mine fire is said to be unrelated to any commercial or industrial undertaking conducted at the mine.

75 I will order that the accused file and serve a further amended defence response to the prosecution opening in accordance with these reasons. I will hear from the parties as to any further consequential orders.

[1] [1989] VicRp 27; [1989] VR 323 ('Allen').

[2] Alphacell Ltd v Woodward [1972] UKHL 4; [1972] AC 824, 834 ('Alphacell'); Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 ('Royall').

[3] [1991] HCA 27; (1991) 172 CLR 378.

[4] [1981] WAR 286, 290.

[6] Environment Agency v Empress Car Co Ltd [1998] UKHL 5; [1999] 2 AC 22, 35 (Lord Hoffman) ('Empress').

[7] Empress 28 (Lord Hoffman); Royall 441 (McHugh J).

[10] Royall 389 (Mason CJ), 412-13 (Deane and Dawson JJ).

[11] Ibid 411 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ). See also Brennan J at 398: 'contribute significantly' and McHugh J at 440: 'significantly cogent'.

[12] Ibid 390 (Mason CJ), 412 (Deane and Dawson JJ), 425 (Toohey and Gaudron JJ).

[13] Royall 421 (Mason CJ); Empress 29 (Lord Hoffman).

[14] Window v The Phosphate Co-Operative Co of Australia Ltd [1983] VicRp 88; [1983] 2 VR 287; Alphacell; Empress.

[16] La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, 204; Shaw v Yarranova Pty Ltd [2006] VSC 45 [66]-[69].

[17] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 528-529 (Gibbs CJ, Mason J agreeing), 565-567 (Brennan J) ('He Kaw Teh'); Leichardt Municipal Council v Hunter [2013] NSWCCA 87.

[18] DPP v Stanojlovic [2017] VSC 540 [113] (12 September 2017).

[20] Majury v Sunbeam [1974] 1 NSWLR 659; Gray v Hoescht Australia (1977) ACLD 349; Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; Cooper v ICI Australia Operations Pty Ltd (1987) 64 LGRA 58 ('Cooper'); Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414 ('Palos Verdes'); Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198; (2010) 79 NSWLR 236.

[21] (1991) 72 LGRA 414.

[22] Jane Hall, 'Review of the Victorian EPA - What may change?' (2016) 31 Australian Environment Review, 138, 140; Law Institute of Victoria, Independent Inquiry into the EPA: LIV Submission (Submission, 6 November 2015) 7.

[23] See Nick Brunton, 'Water Pollution Law in New South Wales and Victoria: Current status and future trends' (1984) 11 Environmental and Planning Law Journal 39, 55.

[24] Selectrix Pty Ltd v Humphrys [2001] VSC 45 [29], [32].

[25] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [83]-[85] (Heydon J).

[26] [1985] HCA 43; (1985) 157 CLR 523.

[27] (1987) 11 NSWLR 541, 546 ('Wampfler').

[28] He Kaw Teh 528 (Mason J agreeing), 549 (Wilson J).

[29] [1895] 1 QB 918, 921.

[32] Ibid 591 (see also 528-9, 533 (Gibbs CJ), 582 (Brennan J)).

[35] R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329 [32]-[34].

[37] He Kaw Teh 594 (citations omitted).

[38] Environment Protection (Enforcement and Penalties) Act 2000 (Vic) s 1(a)(i) ('2000 Act').

[39] Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000_,_ 1015 (Sherryl Garbutt, Minister for Planning and Conservation).

[40] [1994] HCA 34; (1994) 181 CLR 96 ('Re Alcan').

[42] Barras v Aberdeen Steam Trawling and Fishing Co. [1933] UKHL 3; [1933] AC 402, 446 (Lord Macmillan). See also D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, 110; Pillar v Arthur [1912] HCA 51; (1912) 15 CLR 18, 22, 25, 29-30; Platz v Osborne [1943] HCA 39; (1943) 68 CLR 133, 141, 146-7.

[43] Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully [1952] HCA 4; (1952) 85 CLR 159, 174, 182; Reg v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, 388; Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574, 594.

[44] Report of the Committee of Review, Australian Industrial Relations Law and Systems, April 1985, vol 2, par 7.10.

[45] Commonwealth House of Representatives, Parliamentary Debates, Hansard, 28 April 1988, p 2336.

[46] The decision of Hedigan J in Selectrix Pty Ltd v Humphrys [2001] VSC 45, upon which the prosecution rely, relates to an offence created by s 13(1) of the Ozone Protection Act 1989 (Vic), and his Honour's observations as to categorisation of the offence were obiter anyway.

[47] Fish v Solution 6 Holdings Limited [2006] HCA 22; (2006) 225 CLR 180 [125] (Kirby J).

[48] [2004] HCA 40; (2004) 221 CLR 309 ('Electrolux').

[50] As to the weakness of the presumption on which the prosecution relies, see Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159; Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574; Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180.

[51] DPP v Stanojlovic [2017] VSC 540 [96]; He Kaw Teh; Welsh v Donnelly [1983] VR 173; Wilson v Gahan [1999] VSC 72; Franklin v Stacey (1981) 27 SASR 490; Kearon v Grant [1991] VicRp 25; [1991] 1 VR 321; Pilkington v Elliot (Supreme Court of Victoria, Coldrey J, 27 September 1991); Skase v Holmes (Supreme Court of Victoria, Vincent J, 11 October 1995); Tsolacis v McKinnon [2012] VSC 627; (2012) 38 VR 260; Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572.

[52] (1987) 64 LGRA 58 ('Cooper').

[53] (New South Wales Land and Environment Court, Cripps J, 31 August 1987).

[56] (1992) 25 NSWLR 715 ('Tiger Nominees').

[58] Ibid 719-720 (citing Alphacell [1972] UKHL 4; [1972] AC 824) (see also Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497, 507 (Abadee J)).

[59] [2011] HCA 49; (2011) 244 CLR 462.

[60] [2006] VSC 45.

[62] Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 [13] (Mason J).

[63] [1904] ArgusLawRp 68; (1992) 10 ALR 201, 204.

[64] [2010] HCA 1; (2010) 239 CLR 531.

[65] Muller v Dalgety and Company Ltd [1909] HCA 67; (1909) 9 CLR 693, 696 (Griffith CJ).

[66] Victoria, Parliamentary Debates, Legislative Council, 4 April 1984_,_ 2216 (E.H. Walker, Minister for Planning and Environment).

[67] Explanatory Memorandum, Environment Protection (Review) Bill 1984 (Vic).

[68] Premier Building & Consulting Pty Ltd v Spotless Group Limited (No. 12) [2007] VSC 377 [451]; Sale Elderly Citizens Village Inc v EPA [2018] VSC 266 [30]-[35].

[69] Victoria, Parliamentary Debates, Legislative Council, 21 April 1988_,_ 937-938 (E.H. Walker, Minister for Agriculture and Rural Affairs).

[70] [2010] FCAFC 149 ('Telstra').

[71] Copyright Act 1968 (Cth) s 128.