The Phosphate Co-Operative Company of Australia Limited and Environment Protection Authority [1977] HCA 65

The Phosphate Co-Operative Company of Australia Limited and Environment Protection Authority [1977] HCA 65 - HCA 1977 case summary — Zoe

[10]

Part I of the Act is introductory; Pt II, to which further reference will later be made, is concerned with the entities which the Act creates, collectively styled "environment protection bodies". It is in Pt III that substantive measures first appear. Part III is entitled "Environment Protection" and consists of two groups of sections, ss. 16 to 19, concerned with the "Declaration of Policy", and ss. 20 to 31, concerned with the "Control of Wastes". The first of these two groups provides, in ss. 16, 17 and 19, for the making of orders on the Authority's recommendation declaring State environment protection policies, for the securing of their observance and for prior notification and ultimate adoption of such policies. Section 18 describes these orders as being to "establish the basis for maintaining environmental quality sufficient to protect existing and anticipated beneficial uses". This group of sections thus gives effect to one of the duties and functions of the Authority, that of recommending State environment protection policy for the protection of the environment with respect to uses and values to be protected, quality to be maintained and the like (s. 13 (1) (c)). It is conceivable, despite their title, that such policies might require that, in particular localities, the needs of industry should be catered for. They might also be so framed as to involve the making of discretionary judgments as to those needs and as to their reconciliation with measures designed exclusively for the enhancement of the quality of the local environment. If so, this might affect the considerations relevant to the granting of licences - see s. 20 (8), referred to below. What is said in this judgment is to be understood subject to this possibility. However this possible qualification is inapplicable to the present case; no environment protection policy has been formulated which applies to the Company's operations; indeed as yet very little would appear to have been done by way of the issue of such policies.

[38]

The Act provides for three environment protection bodies, namely the Authority, the Environment Protection Council and the Board. We are here concerned only with the Authority and the Board. In s. 13 the powers, duties and functions of the Authority are set out. Paragraph (a) provides that it is "to administer this Act and any regulations and Orders made thereunder". Paragraph (b) provides that it is "to be responsible for and to co-ordinate all activities relating to the discharge of wastes into the environment and for preventing or controlling pollution and protecting and improving the quality of the environment". By par. (c) it is to recommend to the Governor in Council State environment protection policy and classifications for the protection of any portion or portions of the environment with respect to the uses and values to be protected, the quality to be maintained and the extent to which the discharge of wastes may be permitted without detriment to the quality of the environment and other factors relating to the protection of the environment. Paragraph (d) provides that it is "by the issue of licences to control the volume, types, constituents and effects of waste discharges, emissions, deposits, or other sources of pollutants and of substances which are of danger or a potential danger to the quality of the environment or any segment of the environment". By par. (g) it is to "specify standards and criteria for the protection of beneficial uses and the maintenance of the quality of the environment having regard to the ability of the environment to absorb waste without detriment to its quality and other characteristics". By par. (m) it is to establish and maintain liaison and co-operation with other States and the Commonwealth with respect to environment protection, pollution control, and waste management. By other paragraphs it is given miscellaneous powers with respect to planning and coordination in environment management, waste management and pollution control. By s. 16 the Governor in Council may on the recommendation of the Authority declare "the environment protection policy to be observed with respect to the environment generally or in any portion or portions of Victoria or with respect to any element or elements or segment or segments of the environment." We were informed that no relevant environment protection policy had been declared which affected the position of the appellant or the area in which it conducted its operations and indeed it appears that no general policy has been declared and that there have been very few specific polices declared in respect of portions of Victoria, or of any elements or segments of the environment. This presents a substantial problem in the operation of the Act because many of its provisions are related directly to observance of "State environment protection policy" as declared by the Governor in Council.

[54]

Each part, however, contains a section creating certain offences. Thus s. 39 in Pt V provides in sub-s. (1) "no person shall pollute any waters or cause or permit any waters to be polluted so that the physical, chemical, or biological condition of the waters is so changed as to make or be reasonably expected to make those waters or any part of those waters unclean, noxious, poisonous or impure, detrimental to the health, welfare, safety, or property of human beings, poisonous or harmful to animals, birds, wildlife, fish or other aquatic life, or to plants or detrimental to any beneficial use made of those waters." It will be observed that this introduces additional factors to those involved in the definition of "pollution". Sub-section (2) however provides that "without in any way limiting the generality of sub-s. (1) a person contravenes that subsection if (b) he places any waste, whether solid, liquid, or gaseous, in a position where it falls, descends, drains, evaporates, is washed, is blown, or percolates, or is likely to fall, descend, drain, evaporate, be washed, be blown, or percolate into any waters or onto the bed of any river, stream, or other waterway, when dry, or knowingly, or through his negligence, whether directly or indirectly, causes or permits any such matter to be placed in such a position; (c) he places waste on the bed, when dry, of any river, stream, or other waterway, or knowingly or through his negligence causes or permits any waste to be placed on such a bed; ". It will be observed that this sub-section deals with "waste" and not with pollution and there is no reason to suppose that the term "waste" is used otherwise than in its defined sense of "matter discharged, emitted, or deposited in the environment" so as to cause any alteration of the environment. There is a penalty prescribed for breaches of s. 39. Presumably sub-s. (2) must be read as subject to the grant of a licence by the Authority, though it does not say so. Notwithstanding that, it makes the mere deposit of waste an offence against sub-s. (1) which deals with pollution.

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Judgment (61 paragraphs)