Environment Protection Authority v Alkem Drums

[2000] NSWCCA 416

Reported Decision: 113 LGERA 130
121 A Crim R 152

New South Wales

Court of Criminal Appeal

CITATION:	EPA v Alkem Drums [2000] NSWCCA 416
FILE NUMBER(S):	CCA 60284/1999
HEARING DATE(S):	1 August 2000
JUDGMENT DATE:	16 October 2000
PARTIES :	Environment Protection Authority v Alkem Drums Pty Ltd
JUDGMENT OF:	Foster AJA at 1; Dunford J at 17; Smart AJ at 18

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	50028/1998
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL :	DA Buchanan SC (Appellant) Nil (Respondent) T Howard (Amicus curiae)
SOLICITORS:	S Garrett (Appellant) Nil (Respondent)
CATCHWORDS:	Breach of Clean Water Regulations - failure to comply with notice - valid creation of offence by cl 21 - invalidity of part of penalty provisions of cl 21(3) severability - not a continuing offence
LEGISLATION CITED:	Clean Waters Act 1970 Clean Waters Regulations 1972 Environmental Offences & Penalties Act 1989 Interpretation Act 1987 Protection of the Environment Operations Act 1997
CASES CITED:	Re Dingjan; Exp Wagner (1995) 183 CLR 323 Grech v Bird (1936) 56 CLR 228 Leydon v Forrest (1980) 23 SASR 364 Exp 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 & Sons Ltd v Mahoney (No 2) (1935) IR 155 R v Industrial Appeals Court; exp Barelli's Bakeries (1965) VR 615 Cook v Cook (1923) 33 CLR 369
DECISION:	Questions in case stated answered thus; Q1 Yes in each instance; Q2 Yes; Q3 No; Q4 No; Q5 Yes; Q6 No; Case remitted to Land and Environment Court with this expression of opinion

IN THE COURT OF

CRIMINAL APPEAL

CCA 60284/1999

FOSTER AJA
DUNFORD J
SMART AJ

Monday, 16 October 2000

ENVIRONMENT PROTECTION AUTHORITY (EPA) v ALKEM DRUMS PTY LTD (ALKEM)
JUDGMENT

1   FOSTER AJA: I have had the advantage of reading in draft the judgment of Smart AJ in this appeal. I am in agreement with the answers that his Honour proposes to the questions in the stated case. I differ, however, with respect, from his Honour in relation to his reasons for answering question 4 in the negative. In these circumstances I shall state my own reasons for arriving at the same response, as briefly as possible. 2 His Honour has found it unnecessary to answer question 4 as it was reformulated during argument in the appeal. He has found that the notice issued by the Environment Protection Authority (EPA) under Clause 21(1) of the Clean Waters Regulations, because of its basically ambiguous nature, simply did not admit of the offence, occasioned by failure to comply with it, being categorised as a continuing offence. I agree that the form of the notice presents significant difficulties in this regard. In the circumstances, I do not find it necessary to seek to resolve them. I am able to approach question 4 on the basis that its only relevant provision is the requirement that the respondent -

(a) by 30 April 1997:

(i) remove all drums which contained any residual chemicals from

the premises; ….

3   Taking this course requires me to consider the reformulated question 4. It reads as follows:-

4(a) Is the offence created by clause 21(3) of the Clean Waters Regulation 1972 capable of being a continuing offence?
4(b) Is the obligation imposed by paragraph (a)(i) of the Environment Protection Authority's Notice to Alkem Drums Pty Ltd in this case one which continued after expiry of the deadline of 30 April 1997 imposed by paragraph (a) of that Notice?
4(c) Is the offence charged against the Respondent a continuing offence?

4 Smart AJ has set out in his judgment the relevant statutory provisions and regulations, together with the history of their amendments. I respectfully agree with what his Honour has written and will not set out these matters afresh. I agree that, as a result of the amendments, all reference in Clause 21(3)(a) of the Clean Waters Regulations to the relevant offence of non-compliance with the notice being a "continuing" offence must be taken as deleted. Submissions were made by Amicus, based upon this assumed deletion. The submissions are set out in the judgment of Smart AJ. I find them attractive but, as I am satisfied that sub-questions (b) and (c) must be answered "no", I consider it preferable to leave sub-question (a) unanswered. 5 In my opinion the answers to sub-questions (b) and (c) depend simply upon the proper construction of the requirement imposed by paragraph (a) (i) of the EPA's notice of 25 February 1997. It is contended by the EPA that the paragraph, when construed against the background of Clause 21 of the Clean Waters Regulations, imposed upon the respondent a continuing obligation to remove the relevant drums once the deadline date of 30 April 1997 had passed. This continuing obligation resulted in the failure to remove the drums after that date constituting a continuing offence, which, in turn, supported the charge as framed. As against this, the respondent's contention was that the offence was committed once and for all when failure to remove by 30 April 1997 had occurred, in which circumstances, the charge that it had committed an ongoing offence after 30 April could not be sustained. 6 The relevant provisions of Clause 21 are as follows:-

"(1) Where pollutants are being or are likely to be discharged into waters from any premises, the Commission may, by notice in writing, require the occupier of those premises to do any one or more of the following, namely:….
(g) undertake such measures as will, in the opinion of the Commission, control or prevent the discharge or likely discharge of those pollutants within such time and in such manner as my be specified in the notice…..
(3) An occupier of premises who does not comply with a requirement of a notice referred to in clause (1)…is guilty of an offence…."

7   It is contended on behalf of the EPA that these provisions when read with the notice require a finding that failure to comply with the terms of the notice produces a continuing offence. It is put that the clear purpose of the regulation, namely to prevent discharge of pollutants into waters, requires such a construction. 8   In my opinion, two decisions of this Court stand in the way of this submission. They are Ex parte Schaefer; Re Field& Anor (1943) 60 WN (NSW) 99 and Sloggett v Adams (1953) 70 WN (NSW) 206. I shall refer only to the second decision, which is that of the Full Court (Street CJ, Owen and Clancy JJ). The respondent had been served with a notice under s. 473(2) of the Local Government Act 1919 requiring him within 28 days thereafter to eradicate on his land certain noxious plants. He failed to comply with the notice. On 30 April 1952 an information was laid against him charging him with this non-compliance. It was held that the information had not been laid within six months after the commission of the alleged offence as required by s. 56 of the Justices Act 1902. In these circumstances it was held that the Magistrate, before whom the information was laid, had no jurisdiction to hear the matter. 9 Street CJ said (at page 208):

"The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis (1), by Sir Francis Jeune, who said: "The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue." Applying that test to the section now under consideration, the legislature has made it clear that the offence is the failure to comply with the requirements of the notice. It is true that the notice deals with the eradication of noxious plants from the land, and one thing which must be done in order to comply with the notice is to eradicate. But the offence here was not a mere failure to eradicate generally, such as would be included under s. 472 of the Act; it was a failure to eradicate within the prescribed time, that is, within the twenty-eight days which expired on 2nd July, 1951. At that moment the offence was complete and concluded, and thereafter it existed only in the past. If the offence were a continuing one, it would be one which could be remedied after 2nd July, 1951, but, on the language of the Act, once 2nd July, 1951, had passed the offence was complete, and that offence could never be remedied in the future. If the appellant's argument were right, the defendant could be prosecuted at any time, years afterwards, for this offence, and a successor in title would also be liable to the same risk. I do not think that that was the intention of the legislature. Section 472 places the continuous burden upon occupiers of land. Section 473 places a specific burden upon a specific owner or occupier of land to comply with a specific notice which constitutes the offence. In my view, it was not a continuing offence. It was an offence which was committed, finally and conclusively, when 2nd July, 1951, arrived, and the proceedings not having been instituted until April, 1952, they were not competent and the magistrate was not entitled to adjudicate upon that information."

10   Owen J (at 208) said:

"Section 473 of the Local Government Act 1919-1951, imposes on the landholder the obligation to comply with the terms of a notice given to him under that section, and sub-s. (5) makes it an offence not to comply with it.
Where, as here, the notice sets a time for the doing of the act which is required to be done, the offence is, in my opinion, committed once and for all if that act is not done within the time set. Where the notice does not expressly specify a time, a reasonable time would be implied, and in such case the offence would be committed once and for all if, at the expiration of a reasonable time, the work had not been done. There can only be one breach of covenant to put premises in repair, as opposed to a covenant to keep them in that state: (see Larking v Great Western (Nepean) Gravel Ltd. ((2), and I see no distinction in principle between such a case and the present one. Here the obligation to do the work is imposed by statute, and not by covenant, but that does not seem to me to be a relevant distinction. I would only add that if the present case is one of a continuing offence, then the offence is one which the landholder could never stop committing. Nothing he could do after the twenty-eight days had expired could ever be a compliance with the notice."

Clancy J's reasons were to like effect.

11   These decisions have never been departed from. In my respectful view they are sound both in policy and logic. We were invited to adopt a "purposive" construction of the Regulations and Notice in the present case which, it was said, would overcome the effect of these authorities. Section 33 of the Interpretation Act 1987 was referred to. That section appears to deal only with provisions of an Act or with Statutory Rules. It would appear to have no bearing on the construction of the notice in the present case. 12   Cases such as Cook v Cook(1923) 30 CLR 369; Leydon v Forrest (1980) 23 SASR 364 and Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 were cited to us in support of the submission that non-compliance with the present notice involved the commission of a continuing offence. They are not directly in point, depending upon their own facts and the nature of the legislative provisions involved. They do not dissuade me from following Sloggett. 13 The Clean Waters Regulations did not require the EPA to draft its notice in any particular way. Basically, it was a matter for it whether it gave a notice to the respondent, non-compliance with which could lead to a continuing offence, or one which could lead to a once and for all offence. It could have indicated, clearly, that it was imposing, by its notice, a continuing obligation to remove the relevant drums, with an indication that removal of the drums by 30 April would constitute sufficient compliance. It did not choose to take this course. It chose rather to impose a requirement which, in my view, if not complied with, produced a once and for all offence pursuant to Regulation 21 (3). 14 It was submitted that this approach would have unfortunate results, in that it would be necessary for the EPA, in the event of non-compliance with the first notice, to issue further notices in order to give effect to the legislative purpose of preventing pollution of waters. I am satisfied that this consequence would not be involved. Section 14 of the Environmental Offences and Penalties Act 1989 would appear to cover the situation and prevent that type of mischief occurring. By s. 14(1) the Court has power to order a person convicted of an offence "to take such steps as are specified in the order…to prevent control abate or mitigate any harm to the environment caused by the commission of the offence or to prevent the continuance or occurrence of the offence." 15   When account is taken that this section is part of the legislative scheme, I can see no reason why the notice in the present case should be construed otherwise than in complete conformity with the principles stated in Sloggett. 16   As already indicated, I agree with the answers and orders proposed by Smart AJ. 17   DUNFORD J: I have had the opportunity of reading in draft form the judgments of Foster AJA and Smart AJ, and I agree with the answers Smart AJ proposes to the questions in the stated case. I also agree with his Honour’s reasons, except in respect of question 4, in relation to which I agree with the reasons of Foster AJA. 18   SMART AJ: The EPA appeals by way of case stated from a series of rulings by Talbot J in the Land and Environment Court in a prosecution brought in the Class 5 jurisdiction of that Court. The legislation which we have to consider has been repealed. The proceedings have been encumbered with much technicality and too many court appearances. Unfortunately, the EPA has had difficulty in formulating a sustainable charge. The defendant, Alkem, ceased taking part in the proceedings at least from 23 February 1999. The costs would have been prohibitive. This court was assisted by Mr T Howard of counsel acting as amicus curiae. I acknowledge his research and his detailed submissions and those of Mr Buchanan SC for the EPA. Mr Buchanan pointed out matters contrary to his submissions. 19   The amended charge reads:

“That on or about 1 May 1997 and continuing until 8 September 1997 at St Marys … [the defendant] committed an offence against the Environmental Offences and Penalties Act 1989 (NSW) in that being the occupier of premises, it did not comply with a requirement of a notice given under clause 21(1) of the Clean Waters Regulations 1972 contrary to clause 21(3) of the said Regulations.”

Particulars
1. Premises
Lots 5 and 9, Bent Street, St Marys
2. Particulars of Notice
Notice dated 25 February 1997
3. Particulars of Requirement
Remove all drums which contain chemicals from the premises

20 What is charged is a continuing offence. The judge held that no such offence was validly created. 21 The facts as found by the judge were that Alkem as the occupier of the premises used them for drum or container re-conditioning works from which pollutants were being or were likely to be discharged into waters. An inspection of the premises on 22 February 1994 revealed that ground contamination and pollution of waters may occur as a result of leakages from drums stored on the premises in unbunded or unroofed areas. Notices under cl 21 of the Clean Water Regulations were served by the EPA on Alkem as to the premises on 16 March 1994 and 5 September 1995. The notices required Alkem to construct a bund around the area in which the drums were kept. No bund was constructed. On or before 2 May 1996 a surfactant had leaked from a container and had washed into the storm water system. 22   On 31 January 1997 no bund had been constructed and drums in a poor or leaking condition were in an unbunded area of the premises and where the contents of the drums could be washed into waters by rainwater run off. 23   Clauses 23 to 27 of the Stated Case read:

“23 “By notice dated 25 February 1997, the Prosecutor required the Defendant to do the following -
‘a) by 30 April 1997:
i) remove all drums which contain any residual chemicals from the premises; and
ii) refrain from causing, permitting or allowing any drums containing chemicals to be brought onto the premises; or
b) (i) by 30 April 1997, erect a bund wall at the premises such that:
(a) the walls of the bund are at least 100mm in height; and
(b) the walls of the bund are impervious;

(ii) by 15 May 1997, construct a roof impervious to rain over the area delineated by the bund wall (“the bunded area”) such that no rain falling on the roof will enter the bunded area;
(iii) cause all drums at the premises containing any residual chemicals to be stored at all times within the bunded areas unless such drums are at that time:
(a) being processed at the premises by way of cleaning or refurbishing; or
(b) in the process of being loaded or unloaded onto a vehicle or transported by a vehicle to, from or around the premises.”
24 The Defendant failed to comply with both the requirements in the notice lettered “a)” and the requirements lettered “b)” although the evidence as to failure to comply with requirement “a)(ii)” does not allow me to find on which or over how many days the Defendant has failed to comply with this requirement. I was not satisfied beyond reasonable doubt that the Defendant either caused, permitted or allowed any drums containing chemicals to be brought onto the premises at a particular date.
25 The Defendant failed to comply with requirement “a)(i)” of the notice inasmuch as it failed on 1 May 1997 to comply with the requirement to remove by 30 April 1997 all drums which contain any residual chemicals from the premises. I was satisfied beyond reasonable doubt that the Defendant failed to remove all drums which contain any residual chemicals from the premises by 30 April 1997.
26 Further, the Defendant did not remove the drums on any of the days after 30 April 1997 up to and including 8 September 1997.
27 I was satisfied beyond reasonable doubt that the bund wall referred to in paragraph “b)(i)” of the notice was not erected by 30 April 1997 and further that the roof specified by paragraph “b)(ii)” was not constructed by 15 May 1997. I was also satisfied beyond reasonable doubt that drums at the premises containing any residual chemicals were not stored in the manner required by paragraph “b)(iii)” ”.

24 The judge has recorded that on 24 August 1998 Alkem appeared by counsel and pleaded guilty to the charge as originally framed. It was in the same terms as the amended charge except that the original charge read “it did not comply with a requirement pursuant to clause 21(1)” whereas the amended charge read, “it did not comply with a requirement of a notice given under clause 21(1)” (change emphasised). The particulars supplied with the original summons specified the same premises but then continued:

“2. Requirement
Notice issued pursuant to clause 21(1) of the Clean Waters Regulations by the EPA to the defendant dated 25 February 1997.”

25   The judge held that notwithstanding the plea of guilty it was incumbent upon the court to identify the offence and to make an express finding as to how it occurred in order to determine the penalty. 26   During the hearing the judge raised the question whether the offence charged could correctly be regarded as a continuing offence thereby exposing Alkem to a further penalty sought by the EPA of $1000 for each day the offence continued as provided by reg 21(3)(b) subject to the maximum of $20,000 prescribed in s 8B(3)(b) of the Environmental Offences & Penalties Act 1989 (EOP Act). 27 As a result, the EPA sought the advice of counsel who prepared written submissions on the issue whether the offence was a continuing offence and raised serious questions of duplicity, variance and election. 28 The regulatory and statutory provisions are as follows. Clause 21(1) and (3) of the Clean Waters Regulations relevantly provide.

“(1) Where pollutants are being or are likely to be discharged into waters from any premises, the Commission may, by notice in writing, require the occupier of those premises to do any one or more of the following, namely:
…
(c) erect, alter or remove any walls in, on or from those premises or erect, alter or remove any dams, embankments, trenches or other works used in connection with those premises for the storage, treatment or disposal of those pollutants,
…
(g) undertake such measures as will, in the opinion of the Commission, control or prevent the discharge or likely discharge of those pollutants
within such time and in such manner as may be specified in the notice.
(3) An occupier of premises who does not comply with a requirement of a notice referred to in clause (1) … is guilty of an offence and is liable
(a) if a corporation - to a penalty not exceeding $4000 and, in the case of a continuing offence, to a further penalty not exceeding $1000 for each day the offence continues…”

29 It is to be noted that the offence is failure to comply with the requirements of a notice dealing with one of the matters specified in the sub-clauses and paragraphs within the time and manner specified in the notice. 30 Regulation 21(1) was made pursuant to s 36(1)(f1) of the Clean Waters Act 1970 which empowers the Governor to make regulations not inconsistent with that Act for or with respect to “requiring, or empowering the Authority to require, that measures be undertaken … so as to prevent or reduce, or be likely to prevent or reduce, the discharge or likely discharge of pollutants into waters from any premises.” Amongst matters included are the provision, installation and operation of embankments and areas for the treatment, dispersal or disposal of any matter. 31 Clause 21(1) is within the regulation making power in s 36(1)(f1) of the Clean Waters Act 1970. 32 Section 36(3) of the Clean Waters Act provides that any person who contravenes a provision of a regulation is guilty of an offence against the EOP Act and is liable to the penalty imposed by the regulation in respect of the offence in accordance with the EOP Act. 33   Section 8B of the EOP Act provides:

“(1) Any person who (by virtue of any provisions of the Clean Waters Act 1970) is guilty of an offence against this Act is liable
(a) in the case of a corporation - to a penalty not exceeding $125,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues, or
(b) in the case of an individual - to a penalty not exceeding $60,000 and, in the case of a continuing offence, to a further penalty not exceeding $30,000 for each day the offence continues.
…
(3) A regulation under the Clean Waters Act 1970 may impose a penalty not exceeding
(a) $10,000 in the case of an individual, or
(b) $20,000 in the case of a corporation in respect of a contravention of the regulation.

34 This brief review of the statutory and regulatory provisions makes it apparent that in so far as clause 21(3) of the Clean Waters Regulations purports to impose a further penalty not exceeding $1000 for each day the offence continues that part of clause 21(3) is ultra vires and ineffective. The contrast between the language of s 8B(1) and (3) is sharp and unmistakable. Section 8B(3) does not authorise the imposition of a daily penalty in respect of a continuing offence. Section 36(3) of the Clean Waters Act 1970 envisages that for a breach of the Clean Waters Regulations the penalty will be in accordance with the EOP Act. 35 This conclusion is supported by the history of the legislation. Sub clause 21(3) was made as part of the original regulation in 1972 (The penalties have since been increased). In 1972 s 36(3) of the Clean Waters Act 1970 relevantly provided:

“The regulations may impose, in respect of an offence against the regulations committed:
(a) by a corporation - a penalty not exceeding $20,000 and, in the case of a continuing offence, a further penalty not exceeding $10,000 for each day the offence continues.”

36 When s 36(3) was amended in 1990 (effective from 1 January 1991) at the same time as s 8B(3) was inserted in the EOP Act, the authority for a further daily penalty was removed from the Clean Waters Act 1970 and not inserted in s 8B(3). 37 An elaborate argument was outlined by the EPA based on s 32(1) of the Interpretation Act to the effect that s 31(1) was authority to read the provision for a daily penalty down so that it authorised the court to impose a first instance penalty and a daily penalty which in combination do not exceed (in the case of a corporation) $20,000. The EPA conceded that the argument faced many difficulties. It accepted that the daily penalty has been provided in a “single and indivisible” enactment (cl 21(3)). Neither the clause nor the Regulations gives any clue as to what standard or test is to be applied in reading down the provisions of clause 21: See per McHugh J in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 372. 38 The EPA also conceded that the court was called upon to apply the impugned provision in the light of the statute-saving power (s 15A) in the Interpretation Act 1987 and that legislation would be required to read the sub -clause as providing:

“ … is guilty of an offence and is liable:
(a) if a corporation - to a penalty not exceeding $4000 and, in the case of a continuing offence, to a further penalty not exceeding $1000 for each day the offence continues, but in no case shall the combined total of the penalties imposed exceed $20,000 (emphasis added by EPA).”

39 The EPA accepted that one problem for the validity of the provision in this case of a daily penalty is that the test needed to be applied to limit its operation is to be found outside the Regulations. There is the further difficulty of Parliament repealing the power authorising the making of a regulation providing for a daily penalty. 40 The EPA accepted that a conclusion that s 32(1) of the Interpretation Act can apply to save cl 21(3) would be untenable. I agree. 41 As counsel for the EPA pointed out, there is also the line of authority which denies the validity of delegated legislation which purports to impose a penalty or to empower the doing of something which is in addition to the powers on the subject conferred by the legislature. It is necessary to refer only to Grech v Bird (1936) 56 CLR 228 per Dixon J at 239-240:

“The ambit of the present power [to make regulations] … is subject to a necessary limitation. It does not enable the Governor in Council to make a regulation which varies or departs from a positive provision made by the Act itself. In my opinion the regulation fails for this reason. It attempts to place a poultry farmer who furnishes untruthful information under a liability to a heavier and different punishment than that which the Act expressly authorises … [T]he penal consequences [of the offence created by the regulation] may not go beyond the punishment which the Act specifies.”

42 The EPA and the amicus correctly agreed that cl 21(1) of the Clean Waters Regulations was a valid exercise of the regulation making power and that the provision in s 21(3) for a daily penalty not exceeding $1000 for each day the offence continued was not. 43   Is it a continuing offence? 44 The appellant submitted that the requirement of the statutory notice lettered (a)(i) with which there was a failure to comply should be construed as continuing to call for compliance notwithstanding the expiration of the deadline for compliance fixed by the notice. In the circumstances the offence created by cl 21(3) should be construed as a continuing offence. 45 As a matter of general principle it can be accepted that the absence of a valid provision for a daily penalty does not mean that the offence is not a continuing one. Nor does it prevent a court reflecting in the penalty imposed that the offending was continuous. 46 The authorities seem agreed that the question whether non-compliance with a legal duty which must be performed within a prescribed time is a continuing offence or a once and for all offence must be answered by reference to the language of the section or regulation creating the offence and the context in which it is found. (See Leydon v Forrest (1980) 23 SASR 364 at 375 per King CJ). The difficulty lies not in the statement of the principle but in its application. 47 The EPA submitted that by specifically but invalidly providing for a daily penalty the regulations intended that the offence be a continuing one and that repeal of the power to provide for a daily penalty did not alter that. 48 The EPA asked this Court not to follow the decision of Herron J in Ex parte Schaefer; Re Field (1943) 60 WN (NSW) 99 and that of the Full Court (Street CJ, Owen & Clancy JJ) in Sloggett v Adams (1953) 70 WN (NSW) 206 which held that where the notice sets a time for the doing of the act which is required to be done the offence is committed once and for all if that act is not done within the time set. Those decisions emphasised that the offence was not merely failure to do the act required but failure to do it within the specified time. Once the time stipulated had elapsed the offence was complete and thereafter it existed only in the past. If the offence were a continuing one it could be remedied after the stipulated date. If the contrary argument were correct a defendant could be prosecuted at any time, even years later. 49 The judge applied these two decisions. He distinguished between an obligation which depended upon the issue of a notice requiring an act or acts to be done within a stipulated time or by a stipulated date and obligations imposed directly by the statute itself. He noted that in the latter cases the statute or regulation specifically identified the requirement or the obligation without any necessity for the issue of a notice whereas, pursuant to clause 21 that is a matter left to the EPA. The EPA challenged the validity of the distinction in determining whether a continuing offence had been created. 50 After all, even in the case of a notice there has to be a statutory or regulatory warrant for its issue. While the EPA has a discretion whether to serve a notice, the notice is directed to the avoidance of pollutants being or being likely to be discharged into waters from any premises. To this end a notice may require execution of works, the removal of works, repairs, alterations, replacements and the installation of monitoring equipment and undertaking such measures as will, in the opinion of the Commission, control or prevent the discharge or likely discharge of those pollutants. The notice procedure allows the EPA to nominate specific steps. Section 16 of the Clean Waters Act 1970 prohibits the pollution of waters and makes it an offence to do so. It is an odd concept that where the notice is not complied with and the pollution or risk of pollution continues the offence does not continue. 51 Counsel for the EPA undertook an extensive review of the authorities in England and in Australia, many of which were more recent than the two New South Wales cases. It is unnecessary to refer to them all. In Penton Park Homes Ltd v Chertsey Urban District Council (1973) 72 Knight’s LG Rep 115, the Divisional Court held that a failure to comply with a condition attached to a caravan site licence, namely, to carry out certain works within 12 months of the grant of licence was a continuing offence. 52   At 120 Bridge J (as he then was) said:

“As a matter of language the failure continues (after expiry of the deadline) … If one were forced by the language of the Act to the contrary conclusion, it would be a very startling conclusion which would show … that the machinery for the enforcement of a condition, of this kind was conspicuously defective.”

53   Those observations are compelling. In the present case, as a matter of language, the failure continued after 30 April 1997 and the risk of pollution continued. 54   In Tandridge District Council v Powers (1982) 80 Knight’s LG Rep 453 the Divisional Court held that the offence of failing to do everything within power to secure compliance with a planning control enforcement notice as soon as practicable after conviction for an offence of failing to take the steps required to be taken by the notice within the period allowed for compliance with the notice is a continuing offence. The provision creating the offence provided that there was to be a fine for each day following the conviction. Woolf J (as he then was) pointed out that if the offence was not a continuing one a planning authority would, once proceedings had been concluded, have to go through the process of serving a fresh notice. That would be undesirable from the point of view of the enforcement of planning law. Parliament was most unlikely to have intended such a result. The approach of Woolf J is convincing. However, in New South Wales the force of this point is reduced somewhat because under s 14 of the EOP Act a court may order the person convicted to take specified steps to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence or to prevent the continuance or recurrence of the offence. 55   A number of Australian cases relate to the failure to pay wages within the prescribed time. That has been held to be a continuing offence, the substance of the offence being the failure to pay wages which are due. It would be an extraordinary result if this were not an offence which continued until payment. 56   In Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449, s 375 (1) of the Companies (NSW) Code required the directors and secretary to submit a statement of affairs to the liquidator not later than 14 days after the making of a winding up order against the company. This court held that there was a continuing obligation. Section 571 provided that the obligation continued notwithstanding that the time for compliance had passed and there had been non-compliance. 57 Hunt J, with whom the other judges agreed, held that even without reference to s 571 the offence created by s 375(9) should be construed as a continuing one. The purpose of the statutory obligation created by s 375(1) was to provide the liquidator with information which it was unlikely he could obtain elsewhere. The liquidator needed the information even though the time limit had passed. 58 The EPA submitted that the Court should adopt a purposive rather than a literal construction as the latter would not promote the purposes of the legislation: see s 33 Interpretation Act 1987. The statutory context is the prevention of pollution of waters. That is the effect of clause 21. The object of the notice was to avoid the discharge of pollutants or reduce the risk of such a discharge. The purpose of clause 21 is better achieved if the requirements of a clause 21(1) notice are ultimately complied with. 59 Amicus submitted that there were two kinds of continuing offences. He relied on this passage from the judgment of Cantor J in Robins & Sons Ltd v Maloney (No 2) (1935) IR 155:

“Continuing offences, for the purposes of the present case, may be divided into two classes -
(1) those in respect of which a separate penalty may be inflicted for each day the offence continues, as if for a separate offence, and
(2) those where the duty of obedience, failure to perform which is the offence, continues until the duty is performed, eg, failure to obey an obligation to do something enjoined by law.”

60   A passage to the same effect is to be found in the judgment of O’Bryan & Gillard JJ in R v Industrial Appeals Court; ex parte Barelli’s Bakeries (1965) VR 615. In the second class there is a single offence which in the words of Knox CJ and Starke J in Cook v Cook (1923) 33 CLR 369 at 375 “is a continuing act giving a cause of complaint de die in diem” (from day to day). 61 Amicus submitted that the offence as charged fell within the first category and that this argument was re-inforced by the demand for a daily penalty. However, in view of the invalidity of the daily penalty the offence charged had to fall within the second category. The charge is framed in such a way that it accommodates a charge within each category. Contrary to the submissions of Amicus I do not think it matters in the present case into which category the charge falls. The case which has to be met is clear from the charge and the particulars. The question of classification or categorisation is not at the heart of the present case. 62 Amicus contended that the effect of the EOP Act amendments was to delete the words “and in the case of a continuing offence to a further penalty not exceeding $1000 for each day the offence continues” from cl 21(3)(a) and the corresponding words in sub-para (b). That submission is correct. Amicus further submitted that the remaining parts of cl 21(3) contain no reference to a continuing offence. That is so. The EPA has to rely upon the nature of the offences and the purpose of the Act and Regulations. 63 Amicus further submitted that it was unlikely that the remainder of clause 21 after the severance necessitated by the EOP Act was intended to retain the quality of a continuing offence because:

(a) this would necessitate reading into the remains of cl 21(3) more than is there.
(b) there is a natural link between the provision for a daily penalty and the first class of continuing offence. As the presence of a daily penalty is the ordinary way to indicate that an offence is a continuing offence of this type, so the removal of the daily penalty is suggestive of a removal of the continuing offence.
(c) there is no good reason why Parliament would remove the provision for daily penalty but retain the continuing nature of the offence thereby bringing about the result that the maximum penalty of $4000 previously the maximum penalty for the first day of a continuing offence became the penalty for the first and subsequent days while the failure continues.

64 It was submitted that the more likely alternative was that the legislature in removing the daily penalty provisions changed the nature of clause 21(3) so that it no longer gave rise to continuing offences. It relied upon the small amount of the penalty as being disproportionate to a continuing offence. 65 Amicus put submissions on the alternative basis that no heed was paid to the distinction between the two classes of continuing offence. It was submitted that the principles emerging from Ex parte Schaefer, Re: Field and Sloggett v Adams were correct and rightly applied by the judge. They were directly in point as the EPA accepted. It was submitted that the judge correctly distinguished Leydon v Forrest supra, Ganke v Corporate Affairs Commission supra and the cases there cited on the basis that:

“they dealt with an obligation created by the statute. The legislation in those cases specifically identified what the requirement was without any necessity for the issue of a notice, whereas, pursuant to cl 21(1) that is a matter left to the notice issuing authority - in this case the Prosecutor.”

66   Amicus also relied on this passage from the judgment of King CJ in Leydon v Forrest supra at 375 where after referring to three cases of non-compliance with a notice he said:

“In each case, the offence created by the statute was non compliance with a notice. In none of them was the absence of an excuse an element of the offence … I think that the decisions are distinguishable from the present case. The offence was failure to comply with the notice. The notice did not seek to impose a continuing obligation, but directed that required action be taken within the specified time. The prohibited omission therefore occurred immediately the time expired and the notice could not be complied with thereafter.”

67   That passage does not adequately deal with the situation in the present case. While the notice required the drums to be removed by 30 April 1997 the pollution of waters or the risk of pollution continued after that day until they were. They requirement for removal persisted until that occurred. 68   While I accept the distinction between cases where there has been non-compliance with a notice and those where there has been non compliance with a provision of a statute or regulation I do not, for the reasons earlier given, accept that non compliance with a notice within the time specified results in the offence not being a continuing one. Much, if not all, depends on the terms of the statute and the regulation but the terms of the notice may also be important in a particular case. 69   Amicus urged this Court to follow the notice cases, firstly, because they were correctly decided and secondly because they had stood for many years in this State and had not been overruled, either expressly or impliedly. King CJ had shown how the notice cases could be reconciled with the other authorities. 70   Amicus further submitted that the decision in the present case would have very limited operation. A finding that the obligation in this case was not a continuing obligation would be restricted to the class of facts considered to date in the notice cases, namely, where the obligation in a notice is to do something by a certain date and the offence is expressed to be a failure to comply with the notice. Attention was drawn to the Protection of theEnvironment Operations Act 1997 and s 97 which has effectively replaced cl 21(3) of the Clean Water Regulations. Section 97 provides that a person who does not comply with a prevention notice given to him is liable, if a corporation, to a maximum penalty of $250,000 and in the case of a continuing offence a further penalty of $120,000 for each day the offence continues. 71 The correct position in notice cases will probably be relevant for years to come and in a number of fields although it is probably not possible to lay down a hard and fast rule nor desirable to do so. 72 This case is difficult of resolution. I doubt if there has ever been a case where the legislative and regulatory history has been such as revealed in this case. Clause 21(3) in imposing a daily penalty was valid for many years. This ceased with the EOP Act amendments effective from 1 January 1991. For 18 years failing to comply with a notice under cl 21 by a stipulated date and thereafter rendered a person liable to a daily penalty. As originally enacted and for 18 years the offence was a continuing offence. Then the position changed both as to the daily penalty and the nature of the continuing offence, if any. It fell into the second category. Further the notice cases have stood for many years. 73 On the other hand I have found the reasoning underlying the notice cases unconvincing. Generally, and subject to the notice according with the statute or regulations and being unambiguous the distinction between failure to comply within a notice within the stipulated time and failure to comply with the statute should not lead to a different result in terms of a continuing offence where, as here, the purpose of giving the notice is to avoid pollution or the risk of pollution of waters. I have found the approach of Bridge J compelling in the light of the purpose of cl 21. It is practical and prudent for the notice to have set a time in which the work and other steps have to be taken. Removal of the drums containing chemicals was required. The law would be seriously deficient if after the time specified for their removal the offence did not continue until the drums were removed. The position becomes serious if the drums leak or are likely to leak. 74 These views have proceeded upon rather general considerations. My general approach differs from that of the judge but it is necessary to return to the terms of the notice served upon Alkem. That notice requires Alkem to take the course specified in paragraph (a) or (b). The difficulty is that if Alkem carried out the works mentioned in paragraph (b) it would not have to remove all drums which contain any residual chemicals from the premises as required in paragraph (a)(i). There is a further problem. The works required in paragraph (b)(ii) do not have to be completed until 15 May 1997, some 15 days after the time by which the drums have to be removed. This probably means that it would be necessary to wait until 15 May 1997 to see whether the works referred to in paragraph (b) have been executed. A more acute problem arises as to paragraph (b)(iii) which requires Alkem to cause all drums at the premises containing any residual chemicals to be stored at all times within the bunded area subject to 2 exceptions. What is the position if six or twelve months after 15 May 1997 the appellant fails to cause all drums to be stored within the bunded area? Does the obligation in para (a)(i) revive? Can a breach of para (a)(i) be relied upon? These questions may be regarded as theoretical where the bund walls required in para (b)(i) were not erected by 30 April 1997 so that para (b) could never apply. 75 The judge has stated:

“I considered that the fact that the notice comprises alternative requirements does not readily lead to only one ultimate conclusion or the achievement of a single objective. If the offence charged is a continuing one then erection of a bund and completion of a roof at any time could displace the alleged outstanding requirement to remove the drums. On the other hand, the removal of the drums would obviate the requirement for a bund or the roof. The imposition of time for completion of one or more of these requirements means that the defendant is not in a position where it could, at will, cease to offend ( Sloggett v Adams ). It first needs to know how the EPA expects it to act. After the passing of the nominated dates, the Defendant cannot know from the notice itself which requirement it is expected to fulfil.”

76   Notwithstanding my preferred general approach, it is, in my view, not possible having regard to the terms of the notice given in the present case to regard the offence alleged and the failure alleged as constituting a continuing offence? If the course specified in para (b) were taken belatedly would that result in the failure to comply with para (a)(i) ceasing to be an offence and, if so, from what date? Does the requirement in para (b)(iii) with its use of the words “at all times” mean that it is practically difficult ever to establish compliance with that sub-paragraph? The notice does not tell Alkem that if it fails to take either of the courses specified by the dates specified it will be guilty of a continuing offence until it takes one of the courses mentioned. 77   In paragraph 34 the judge stated:

“Further, s.8B(1) Environmental Offences and Penalties Act expressly refers to a penalty for a continuing offence whereas s.8B(3) does not in terms contemplate that a penalty may be imposed for a continuing offence in respect of a contravention of the regulation pursuant to s.36(3) Clean Waters Act . This contrast is logical if there is no legislative intention to create a continuing offence in regard to a breach of a regulation.”

78   I would not accept the proposition that an offence against a regulation cannot be a continuing offence. Much depends on the terms of the particular regulation and the notice given pursuant to it. 79   For the reasons earlier given the EPA cannot rely on the offence being a continuing one. 80   Status of Charge 81   The judge stated:

“Section 36(3) Clean Waters Act creates an offence when any person contravenes a provision of a regulation. The summons specifies the contravention as being a failure to comply with a requirement of a notice given under cl.21(1) of the Regulations as distinct from a breach of the regulation itself.
There is no specific provision in cl.21 which requires any person to comply with its terms. Clause 21(3) of the Regulations refers to the offence by an occupier who does not comply with a requirement of a notice. It does not deal directly with a contravention of the provisions of cl.21 itself. Accordingly, I held that the charge referred to in the summons fails to disclose an offence known to the law.”

82 The EPA submitted that the judge had approached the matter incorrectly and Amicus agreed. 83 Any statute which creates an offence, by necessary implication, imposes a duty on the person covered by its terms not to commit an offence (or a breach of the statute) by engaging in conduct which amounts to an offence. As the EPA submitted, the effect of the offence creating provisions of cl 21(3) of the Clean Waters Regulations is that cl 21 imposed upon a person upon whom a notice under cl 21(1) was served a duty to comply with the requirements of the notice. 84 In any event it suffices that Parliament has provided in s36(3) of the Clean Waters Act 1970 that any person who contravenes a provision of a regulation is guilty of an offence against the EOP Act 1989 and that there has been a failure to comply with a notice issued under cl 21 of the Clean Waters Regulations 1972, such non compliance being an offence under cl 21(3). On this basis it is immaterial to enquire whether there is a duty. 85 I turn to the questions in the stated case. 86   Question 1 87   Does either the Clean Waters Act 1970 or the Clean Waters Regulations 1972 impose a duty to comply with a requirement of a notice made pursuant to cl 21(1)? 88 From the remarks just made this question must be answered “Yes in each instance.” 89   Question 2 90 Having regard to the provisions of s 36(3) of the Clean Waters Act, does cl 21(3) of the Clean Waters Regulations validly create an offence? 91 Clause 21 falls within the regulations making power in s 36(1) of the Act. Section 36(3) provides that any person who contravenes a provision of a regulation is guilty of an offence and enables the regulation to impose a penalty in respect of the offence in accordance with the EOP Act 1989. Section 8B(3) of that Act provides that a regulation under the Clean Waters Act 1970 may impose a penalty in respect of a contravention of the regulation. Clause 21(3) implements those provisions and is the outcome of them. 92 There is an alternative approach. For the notice to achieve the prevention of the discharge or likely discharge of pollutants the measures validly required pursuant to cl 21(1)(g) have to be enforceable. Sanctions are required. There is thus a substantial connection between the regulation power and cl 21(3). That suffices. 93 It must be remembered that the summons alleges non compliance with the requirement of a notice given under cl 21(1) of the Clean Waters Regulations 1972 contrary to cl 21(3) of the said Regulations. Thus it alleged non compliance with the requirements of the notice and a breach of the Regulations. 94 Amicus felt unable to argue that cl 21(3) did not validly create an offence. 95 I conclude that cl 21(3) validly creates an offence. Question 2 must be answered “Yes”. 96   Question 3 97 Does cl 21(3) of Clean Water Regulations 1972 validly provide for a daily penalty? 98   I refer to the reasons given earlier. This question must be answered “No”. 99   The EPA and Amicus did not argue to the contrary. 100   Question 4 101   Is the offence charged against the respondent a continuing offence? 102   I have dealt with the issue earlier. The question must be answered “No.” 103   During the hearing there was discussion concerning the reformulation of question 4 and counsel produced a draft reformulation. In the way in which I have dealt with the matter earlier it is not necessary to proceed with the reformulation and the original question can be left to stand and answered “No” as indicated. 104   Question 5 105 If the answer to Question 3 is “No” is the provision in cl 21(3) Clean Waters Regulations 1972 for a daily penalty severable from the provisions for maximum penalties of $4000 and $1000 as the case may be? 106 Section 32(2) of the Interpretation Act 1987 provides:

“(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made -
(a) it shall be a valid provision to the extent to which it is not in excess of that power; and
(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.”

107   The effect of this sub-section is that the provision for a daily penalty is severable from the provision for a maximum penalty for individuals and for corporations. The daily penalty served a different purpose from that served by the maximum penalty. The daily penalty was impermissibly additional and separate from the maximum penalty. 108   The EPA submitted that this question should be answered “Yes”. Amicus agreed. 109   In my opinion the question must be answered “Yes”. 110   Question 6 111   If the answer to question 3 or 4 is “No” would I err in law if I rejected the respondent’s plea of guilty on that basis? 112   The EPA accepted that if the court answered both questions 3 and 4 “No” then the answer to this question should be “No”. The court has answered question 3 and question 4 in the negative. Question 6 should be answered “no”. 113   The case should be remitted to the Land and Environment Court with this expression of opinion. It will be a matter for that court whether it allows any further amendment. It may take the view that having regard to the history of the matter, the summons should be dismissed.

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