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Court of Criminal Appeal 16 October 2000

EPA v Alkem Drums

[2000] NSWCCA 416

Also reported as (2000) 121 A Crim R 152
Public order & justice offences
BREACH OF CLEAN WATER REGULATIONS FAILURE TO COMPLY WITH NOTICE VALID CREATION OF OFFENCE BY CL 21 NOT A CONTINUING OFFENCE

Citation: EPA v Alkem Drums [2000] NSWCCA 416
Court: Court of Criminal Appeal, New South Wales
Date: 16 October 2000
Judge(s): Foster AJA, Dunford J, Smart AJ

Background

The Environment Protection Authority (the appellant) issued a notice under clause 21(1) of the Clean Waters Regulations 1972 requiring the respondent, a company, to remove drums containing residual chemicals from its premises by 30 April 1997. The respondent failed to comply with that deadline.

The EPA charged the respondent with an ongoing offence of non-compliance, framing the charge as a continuing offence persisting beyond the 30 April deadline. The respondent entered a plea of guilty in the Land and Environment Court before Talbot J, who stated a case for the Court of Criminal Appeal raising a series of questions about whether the charge was validly framed.

The central dispute was whether failing to comply with a time-limited notice created a once-and-for-all offence (complete at the moment the deadline passed) or a continuing offence (committed afresh each day the drums remained on the premises).

  • Whether clause 21 of the Clean Waters Regulations 1972 validly created an offence of failing to comply with an EPA notice
  • Whether the penalty provisions in clause 21(3), specifically the provision for a daily penalty, were validly made
  • Whether the offence was capable of being, and in fact was, a continuing offence
  • Whether, if the daily penalty provision was invalid, it was severable from the remainder of the penalty provisions
  • Whether the Land and Environment Court would err in law by rejecting the respondent's plea of guilty on the basis that the charge was not validly framed

Decision

The Court confirmed that clause 21 validly created an offence of failing to comply with an EPA notice. This answered the first question in the affirmative across each relevant instance.

On the question of whether the offence was a continuing one, the Court answered no. Drawing on established authority, including the Full Court decisions in Sloggett v Adams (1953) and Ex parte Schaefer; Re Field (1943), the Court applied the test of whether the offence's "gravamen" lies in something the offender can at will discontinue. Where a notice requires action by a fixed deadline, the offence is complete at the moment that deadline passes. It cannot be remedied afterwards, and so it exists only in the past from that point. The obligation to remove the drums by 30 April 1997 did not continue after that date.

Regarding the penalty provisions, the Court found that the daily penalty component in clause 21(3) was not validly made. However, applying section 32(2) of the Interpretation Act 1987, that invalid portion was severable from the remaining maximum penalty provisions, which stood on their own. The daily penalty served a distinct purpose from the maximum penalty and its removal did not undermine the rest of the provision.

Because both the "continuing offence" question and the "valid penalty" question were answered in the negative, the Court concluded the Land and Environment Court would not err in law by rejecting the respondent's plea of guilty as framed. The matter was remitted to the Land and Environment Court, with the Court of Criminal Appeal noting that court might, having regard to the history of the proceedings, consider dismissing the summons altogether.

Orders Made

  • Questions in the stated case answered as follows: Q1 Yes (in each instance); Q2 Yes; Q3 No; Q4 No; Q5 Yes; Q6 No
  • Case remitted to the Land and Environment Court with the Court of Criminal Appeal's expression of opinion

Key Takeaways

  • A failure to comply with a time-limited regulatory notice is a once-and-for-all offence: the offence is complete at the moment the deadline passes and does not continue thereafter.
  • The test for whether an offence is continuing is whether its "gravamen" consists of something the offender can, at will, discontinue. Where a fixed deadline has expired, that test is not satisfied.
  • Under clause 21(3) of the Clean Waters Regulations 1972, the provision for a daily penalty was found to exceed the regulation-making power and was therefore invalid.
  • Section 32(2) of the Interpretation Act 1987 operated to sever the invalid daily penalty provision from the valid maximum penalty provisions, leaving the latter intact.
  • In dismissing the continuing offence characterisation, the Court of Criminal Appeal confirmed that a charge must accurately reflect the nature of the offence as created by the relevant legislation; a plea of guilty to an incorrectly framed charge may properly be rejected.

Legislation and Cases Referenced

Legislation:
- Clean Waters Act 1970 (NSW)
- Clean Waters Regulations 1972 (NSW), cl 21
- Environmental Offences and Penalties Act 1989 (NSW)
- Interpretation Act 1987 (NSW), s 32(2)
- Protection of the Environment Operations Act 1997 (NSW)

Cases:
- Re Dingjan; Ex parte Wagner (1995) 183 CLR 323
- Grech v Bird (1936) 56 CLR 228
- Leydon v Forrest (1980) 23 SASR 364
- Ex parte Schaefer; Re Field (1943) 60 WN (NSW) 99
- Sloggett v Adams (1953) 70 WN (NSW) 206
- Penton Park Homes Ltd v Chertsey Urban District Council (1973) 72 Knight's LG Rep 115
- Tandridge District Council v Powers (1982) 80 Knight's LG Rep 453
- Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449
- Robins and Sons Ltd v Mahoney (No 2) (1935) IR 155
- R v Industrial Appeals Court; Ex parte Barelli's Bakeries (1965) VR 615
- Cook v Cook (1923) 33 CLR 369