Environment Protection Authority v Du Pont (Australia) Ltd
[2013] NSWLEC 98
•01 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Du Pont (Australia) Ltd [2013] NSWLEC 98 Hearing dates: 25, 27 June and 1 July 2013 Decision date: 01 July 2013 Jurisdiction: Class 5 Before: Pepper J Decision: See decision at [111].
Catchwords: ENVIRONMENTAL OFFENCES: land pollution - whether defendant liable for land pollution occasioned by deposit of herbicide in the form of dust on trees and other plants - no direct evidence of how herbicide came to be deposited.
STATUTORY CONSTRUCTION: meaning of "land pollution" in Protection of the Environment Operations Act 1997 - meaning of "placing" - meaning of "or otherwise introducing into or onto" - whether "introducing" requires direct and/or controlled act - relevance of other statutory offences - use of extrinsic historical materials - whether Act a penal statute to be construed in favour of defendant or construed as a beneficial statute.Legislation Cited: Clean Waters Act 1970, s 16(2)(a)
Clean Waters (Amendment) Act 1987, Sch 1 cl 2
Environmental Offences and Penalties Act 1989, s 5
Protection of the Environment Operations Act 1997, ss 3, 4, 64, 115, 120, 124, 125, 142A, 142C, 167
Protection of the Environment Operations Amendment Bill 2005, Sch 1 [66]
Interpretation Act 1987, s 33Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242
Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22
Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439; (2004) 137 LGERA 289
Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1
Jemena Asset Management (3) Pty Ltd v Coinvest Limited [2011] HCA 33; (2011) 244 CLR 508
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114
McCallum v Sandercock [2011] NSWLEC 175; (2011) 183 LGERA 399
National Rivers Authority v Yorkshire Water Services Ltd [1995] 1 AC 444
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Price v Cromack [1975] 1 WLR 988
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Adams [1935] HCA 62; (1935) 53 CLR 563
Reysson v Roads and Traffic Authority [2011] NSWLEC 153
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
X7 v Australian Crime Commission [2013] HCA 29
Union v Department of Education and Children's Services [2012] HCA 3
Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12
Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156
Westpac Banking Corporation v Australian Securities and Investments Commission [2009] FCA 1506; (2009) 181 FCR 379
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68
Wychavon District Council v National Rivers Authority [1993] 1 WLR 125Texts Cited: Macquarie Dictionary, online edition
Oxford English Dictionary, online editionCategory: Principal judgment Parties: Environment Protection Authority (Prosecutor)
Du Pont (Australia) Ltd (Defendant)Representation: Mr S Rushton SC with Ms M England (Prosecutor)
Mr T G R Parker SC with Mr D T Miller SC (Defendant)
Office of Environment and Heritage (Prosecutor)
Allens Linklaters (Defendant)
File Number(s): 50328 of 2012
Ex Tempore Judgment
The Parties Seek the Proper Construction of s 142A of the Protection of the Environment Operations Act 1997 as a Preliminary Question
On the first day of a four week criminal hearing, it became apparent that a statutory construction question of central importance was required to be resolved by the Court, in effect, as a preliminary issue. The parties agreed to this course being followed.
The question concerns the proper construction of s 142A of the Protection of the Environment Operations Act 1997 ("the POEOA"). Resolution of the issue will affect the admissibility of much of the prosecutor's, the Environment Protection Authority ("the EPA"), evidence. Indeed, the question is so critical that the EPA candidly admitted that if the issue were resolved against it, the prosecution would be brought to an end. On any view the matter raised by the parties is appropriate for determination as a separate question (Reysson v Roads and Traffic Authority [2011] NSWLEC 153 at [14]; 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8 at [10] and Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [95]).
It is perhaps an understatement to say that it is regrettable that the issue was not brought to the attention of the Court much earlier, so that it could have been resolved prior to significant legal costs and finite court resources being potentially wasted. Furthermore, because the prosecution is otherwise ready to proceed, with witnesses ready to be called and a site visit organised, the late identification of this preliminary issue has resulted in this judgment having to be delivered urgently in circumstances where the proper construction of s 142A of the POEOA had not fallen for determination thus far by this or any other court.
The Defendant is Charged With the Offence of Land Pollution
Although the preliminary question is framed as a question of law, it is nevertheless necessary to outline the factual context within which the issue falls to be determined. This background is recited only for the purpose of determining the preliminary question. That is to say, the recitation of the basal events giving rise to the laying of the charge by the EPA are not to be taken as constituting findings of fact governing the remaining proceedings. Having said this, most of the facts recited are not, however, controversial, emanating as they do from an agreed statement of facts, albeit not yet admitted into evidence, and the EPA's written outline of opening.
In brief, the defendant, Du Pont (Australia) Ltd ("Du Pont"), is charged with land pollution under s 142A of the POEOA, in that between 4 April and 18 May 2011, a pollutant emanated from the premises of Du Pont with the consequence that Du Pont introduced, or caused the introduction of, the pollutant onto the land. The pollutant was a herbicide, containing the active ingredient metsulfuron methyl ("MSM"), or a substance containing MSM, released in the form of a dust.
MSM operates upon plants by inhibiting acetolactate synthase ("ALS") which is an enzyme that catalyses the biosynthesis of a number of amino acids which are essential for plant growth. The herbicide is absorbed through foliage and the root system. Inhibition of ALS leads to a rapid cessation of plant cell division and growth. Injury symptoms include stunting or slowing of plant growth and plant death. Visual symptoms depend on plant species, dose and environmental conditions, but may include yellowing of the foliage (chlorosis), an increase in red/brown pigments (anthocyanins) on foliage, a loss of normal response to onset of darkness, shedding of leaves, vein discoloration, terminal bud death and death of plant tissue (necrosis). It is very toxic to susceptible plants.
Du Pont holds environmental protection licence no 6696 ("the EPL") under the POEOA for the "chemical production" of, among other things, herbicides, including those containing MSM, at a factory located at 179 Magowar Rd, Girraween (Lots 597 and 598 DP 8746), New South Wales ("the factory"). Production runs for herbicides produced at the factory are described by Du Pont as "campaigns". Du Pont has been manufacturing herbicides at the factory since 1969.
Within the factory there are two bulk plants: the dry flow plant ("DF plant"); and the formulation and granulation plant ("the F&G plant").
The formulation and manufacturing process within the DF plant during the charge period was as follows:
(a) once raw materials arrived at the factory, they were checked for cross contamination;
(b) the materials were then weighed, blended, milled and reblended in the formulation loop;
(c) the resulting powder was processed in the granulation or extrusion section, dried and turned into granules or extruded noodles;
(d) the granules and noodles were then broken down to the required size, separated and packaged into 350 to 400kg bulk bags;
(e) the bags were stretch-wrapped and security sealed; and
(f) the DF plant operates under negative atmospheric pressure.
No product containing MSM was processed at the DF plant during the charge period.
Product containing MSM was processed in the F&G plant during the charge period. The formulation and manufacturing process within that plant during the charge period is not dissimilar to that occurring in the DF plant and was as follows:
(a) raw materials required for a batch were weighed, blended, milled and reblended;
(b) after reblending, the material was conveyed into the granulation loop in which the product was sprayed with a fine water mist;
(c) the resulting paste was extruded into granules and dried;
(d) the material was then conveyed by vibration into a sifter which broke down the granules, before being conveyed to another sizer and separated for packaging;
(e) the product was packaged, depending on the bulk density into 450 to 500kg bulk bags. The bags were cable-tied and security-sealed and the pallets were stretch wrapped; and
(f) similar to the DF plant, the F&G plant operates under negative atmospheric pressure.
MSM is a selective and systemic herbicide. It constitutes the active ingredient in several commercial herbicide formulations, including Du Pont's Ally®.
During the charge period Du Pont manufactured a number of batches of herbicide containing different concentrations of MSM in the F&G plant. The LI60XP campaign contained a concentration of MSM of 60% and the LI75XP campaign contained a concentration of MSM of 75%. The brand names for LI60XP and LI75XP were "Ally 60" and "Ally 75" respectively. The product from each campaign was packaged in bulk bags which were then security-sealed.
Other herbicides were produced from the factory before, during and after the charge period.
As alluded to above, the factory contains a number of controls to prevent the escape into the atmosphere of dust generated by the manufacturing process. In particular, the F&G plant and the DF plant both operate under negative pressure. That is, air from outside the plant flows into the building but the air inside the building cannot exit except through one of four separate outlets. These outlets are the building vacuum system outlet, two separate building ventilation systems with outlets, and the process stack, which vents to the atmosphere from the roof of the factory.
At the process stack, air from the plant passes first through a dust collector known as a Donaldson filter (a bag filter), which collects dust and gas directly from the plant and filters it. The Donaldson filter is the primary filtration system and its efficiency rating is 99.4%.
The filtered air from the plant then passes through a HEPA filtration system, which is intended to filter any remaining particles from the air. The HEPA filtration system is the secondary filtration system. It is designed to remove 99.99% of particles above 0.3 microns from the air. Larger particles cannot pass through the filter membrane. Smaller particles adhere to the membrane by surface tension. The HEPA filter thus allows emission of only 0.01% of the 0.3 micron particulate material.
A Magnehelic gauge is fitted to each HEPA filter. The purpose of the gauge is to measure the differential air pressure on each side of the filter in order to identify any blockage or failure within the filter.
Records of readings from the Magnehelic gauges did not record differential pressure readings indicative of any failure of the HEPA filter during the charge period.
Pursuant to complaints from residents who noticed dust on trees, other plants, cars and other objects predominantly in the area to the north and north-east of the area surrounding the factory and who subsequently observed the browning and yellowing of vegetation in the area, from 14 July 2011 onwards, EPA officers conducted sampling of trees, plants, other surfaces and soil in the Girraween area. The samples were taken from locations around the Girraween industrial estate where the Du Pont factory is located. The samples were not tested for all herbicides produced at the factory before, during and after the charge period. The samples were not tested for acid residues.
On 2 August 2011, EPA officers examined part of the inside of the F&G plant process stack. The officers found white dust on the inside of the stack, downstream, that is to say, on the environment side of the HEPA filter. The F&G outlet stack is approximately 10m in height above the ground.
During the period 4 April to 16 May 2011 in the Girraween area, the wind predominantly blew from the south-west.
Legislative Framework
Section 142A of the POEOA is contained in Pt 5.6 "Land pollution and waste" of Ch 5 "Environment protection offences". It is a tier 2 offence. The provision creates an offence as follows:
142A Pollution of land
(1) A person who pollutes land is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation-$1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual-$250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
(2) In this section:
pollute land includes cause or permit any land to be polluted.
The terms "land pollution" or "pollution of land" which are picked up by s 142A (see s 4 of the Act) are defined in the Dictionary to the POEOA to mean:
land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous:
(a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or
(b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,
but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations.
The offence is one of strict liability. It is therefore not necessary for the EPA to demonstrate any mens rea on the part of Du Pont in order to establish a contravention of the provision.
The offence of land pollution may be meaningfully compared and contrasted with the offences of air and water pollution.
Part 5.3 of the POEOA deals with water pollution. Section 120 is not in dissimilar terms to that of s 142A. It provides that:
120 Prohibition of pollution of waters
(1) A person who pollutes any waters is guilty of an offence.
(2) In this section:
pollute waters includes cause or permit any waters to be polluted.
The definition of "water pollution" in the Dictionary is, however, considerably more expansive than the definition of "land pollution". It states (emphasis added):
water pollution or pollution of waters means:
(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or
(b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or
(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,
and, without affecting the generality of the foregoing, includes:
(d) placing any matter (whether solid, liquid or gaseous) in a position where:
(i) it falls, descends, is washed, is blown or percolates, or
(ii) it is likely to fall, descend, be washed, be blown or percolate,
into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or
(e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted,
if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.
The significance of the presence of paragraph (d) in the definition of "water pollution", or conversely the absence of an equivalent paragraph in the definition of "land pollution", is discussed below.
Air pollution, by contrast, is dealt with in Pt 5.4 of the POEOA in a series of general offences in Div 1, directed to the occupiers of premises operating plant; in Div 2, directed to the burning of fires and pollution from incinerators; and in Div 3, directed to domestic air pollution caused by chimneys and residential premises.
Relevantly, ss 124 and 125 of the POEOA provide:
124 Operation of plant (other than domestic plant)
The occupier of any premises who operates any plant in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier's failure:
(a) to maintain the plant in an efficient condition, or
(b) to operate the plant in a proper and efficient manner.
125 Maintenance work on plant (other than domestic plant)
The occupier of any premises who carries out maintenance work on any plant in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier's failure to carry out that work in a proper and efficient manner.
The term "air pollution" is defined in the Dictionary to mean "the emission into the air of any air impurity" and "air impurity" is defined to include "smoke, dust (including flying ash), cinders, solid particles of any kind, gases, fumes, mists, odours and radioactive substances".
Du Pont has not been charged with an air pollution offence. Nor has it been charged with an offence under s 64 of the Act (operating in breach of its EPL) or under s 167 (failing to maintain any "control equipment" installed in the premises in an efficient manner).
In fact, the definition of "control equipment" in the POEOA makes it plain that such equipment need not, in any event, be designed to entirely remove all particulates from a facility that, as is the case with the present EPL that Du Pont holds, is licensed on the presumption that there will be some emission from the production processes:
control equipment means any apparatus or device used or designed:
(a) to prevent, limit or regulate pollution (including any emission of noise), or
(b) to monitor or to give warning of pollution (including any emission of noise), or
(c) to give warning of any emission, leak, spill or other escape of substances causing pollution,
and includes any apparatus or device that, though not so used, is or would, if properly maintained and operated, be capable (without modification) of being so used, but does not include any apparatus or device prescribed as excluded from this definition. An apparatus or device can be control equipment whether or not it is used for additional purposes or designed for other or additional purposes.
Finally, the objects of the POEOA are set out in s 3 of the Act as follows:
3 Objects of Act
The objects of this Act are as follows:
(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
(b) to provide increased opportunities for public involvement and participation in environment protection,
(c) to ensure that the community has access to relevant and meaningful information about pollution,
(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:
(i) pollution prevention and cleaner production,
(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,
(iia) the elimination of harmful wastes,
(iii) the reduction in the use of materials and the re-use, recovery or recycling of materials,
(iv) the making of progressive environmental improvements, including the reduction of pollution at source,
(v) the monitoring and reporting of environmental quality on a regular basis,
(e) to rationalise, simplify and strengthen the regulatory framework for environment protection,
(f) to improve the efficiency of administration of the environment protection legislation,
(g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.
Alleged Manner of Breach of s 142A of the POEOA
For the purpose of this judgment it is assumed that, on the EPA's case as outlined by it in its written outline of opening, during the charge period MSM laden dust was emitted or escaped from the Du Pont factory and was disbursed throughout parts of the surrounding area, particularly to the north and north-east of the factory, as wind borne dust. The dust settled on soil, vegetation, buildings and other objects. It is not known how the MSM dust left the factory. Until absorbed by the soil and any vegetation, the dust was likely to have been recirculated throughout the surrounding area in Girraween from time to time.
The EPA readily concedes that the case against Du Pont is circumstantial. All that is known, the EPA submits, is that dust likely to contain MSM and other chemicals is generated by Du Pont in its production process and in the course of moving and packaging herbicides in the factory, and that during the charge period there were two campaigns of herbicide production containing MSM in the F&G plant.
In light of the above factual matrix, it was agreed by the parties that the determination of the preliminary question was to be informed by two slightly different possible factual scenarios. The first is that the dust was emitted into the atmosphere from plant at the factory that constitutes "control equipment", namely, the F&G plant stack, as a result of a licensed activity carried out by Du Pont pursuant to the EPL. The second is that the dust escaped from the factory by some other means and entered the atmosphere as airborne particulates.
Having regard to these two scenarios, as stated by it in written submissions prepared for the purpose of determining this preliminary question, the EPA's case is that Du Pont is liable for the land pollution offence because through its acts or omissions, from the factory Du Pont introduced or caused to be introduced MSM laden dust into or onto the land, and that this caused or was likely to cause degradation of the land resulting in harm or potential harm to the environment. The land is identified as land in and around Girraween, predominantly to the north and north-east of Du Pont's factory.
In addition to direct harm, the EPA asks the Court to infer that the deposit of MSM laden dust on one component of the land had the potential to cause harm to another component. Accordingly, the deposit of dust on the soil had the potential, through uptake, to harm another component of the land, namely, vegetation; the deposit of dust on buildings or fixtures such as air-conditioners had the potential to become airborne again and to harm a component of the land, viz, vegetation; and the deposit of dust on foliage might have been washed off by precipitation and absorbed into the soil and, again, caused harm to vegetation.
Du Pont, however, submits that the facts outlined above in either scenario do not, when properly construed, fit within the scope of s 142A of the POEOA.
For the reasons that follow, in my opinion, Du Pont's submission must be rejected.
Construction Issue for Determination
Against the factual background outlined above the preliminary question gives rise to the following issue of statutory construction, namely, what is the meaning of "or otherwise introducing into or onto the land" within the definition of "pollution of land" in the Dictionary to the POEOA.
The argument advanced by Du Pont was that the act of "otherwise introducing" the MSM laden dust to the land required direct action by it to the land and not to the atmosphere. The ordinary and natural, or commonsense, meaning of the word "introducing" is to engage in some physical act to move the matter onto the land. In short, "it bespeaks directness", especially when read with the words "placing" and "or otherwise", which denote some form of positive action.
By contrast, the EPA submits that the term "introducing" encompasses conduct that has as its consequence not just the direct introduction of matter, in this instance MSM laden dust, into or onto the land, but also the indirect movement of dust from the factory into the atmosphere and eventually into or onto the land.
Principles of Statutory Construction
It is convenient at this juncture to outline some basic principles of statutory construction.
First, the fundamental object of statutory construction is to ascertain the objective legislative intention by reference to the language of the statute read as a whole. The modern approach to statutory construction emphasises the centrality of the text as the starting point (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 at [14]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]; Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 at [23], [40], [68] and [88] and X7 v Australian Crime Commission [2013] HCA 29 at [25]). In other words, "the process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose" (Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217 at [26]).
Second, the meaning of the text may require consideration of its context, which includes the general policy and purpose of a provision, and in particular, the mischief it is seeking to remedy (Alcan at [47] and Cross at [23]). The context and purpose of a provision are important because (Cross at [24] per French CJ and Hayne J, footnotes omitted):
...as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".
It is in this sense that the "modern approach to statutory interpretation" (CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 quoted in Baini at [42] per Gageler J) must now be understood (footnotes omitted):
"(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy".
Third, determination of the purpose of a statute or of a particular provision in a statute may be based upon an express statement of purpose in the statute itself, may be inferred from its text and structure, and where appropriate, may be assisted by reference to extrinsic materials (Cross at [25]).
Fourth, historical considerations and extrinsic materials cannot, however, be relied upon to displace the meaning of the text (Consolidated Media Holdings at [39]; Jemena Asset Management (3) Pty Ltd v Coinvest Limited [2011] HCA 33; (2011) 244 CLR 508 at [50] and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [31]). As Kiefel J cautioned in Cross (at [89]):
89 It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit.
This is because, as the plurality in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [78], footnotes omitted) stated:
... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (56) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation (57), Mr Francis Bennion points out:
"The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with."
The Proper Construction of s 142A of the POEOA and the Term "Land Pollution"
"Placing"
It is worth initially observing that based on either of the factual scenarios posited above, it is tolerably clear that the emission or escape into the atmosphere of MSM laden dust from the factory cannot constitute Du Pont "placing in or on...the land" the pollutant the subject of the charge. The Macquarie Dictionary (online ed) defines the transitive verb "place" as "to put in a particular place; set". The Oxford English Dictionary (online ed) gives a similar definition ("to put or set (in a particular place, spot, or position); to station, position"). The verb to "put" is described in the Macquarie Dictionary as "to move or place (anything) so as to get it into or out of some place or position". In this instance, that place or position would be "the land". The Oxford English Dictionary defines the verb as "to thrust, poke or push at (with or without a resulting change of position); to shove; to strike").
Having regard to its ordinary and natural meaning, the action of "placing" in the definition of "land pollution" therefore requires a deliberate, but not necessarily intentional, direct act or omission to have occurred that results in the matter being put or moved in or on the land. The dust, having been put or placed into the air, cannot be said to have been put or placed in or on the land.
"Introducing"
But the same conclusion cannot be reached in respect of the composite phrase "or otherwise introducing" a matter into or onto the land. In my opinion the concept of "introducing" is much wider in scope and accommodates both direct and indirect acts that may, if the other elements of the definition of "land pollution" are satisfied, give rise to the commission of an offence.
This conclusion is supported by textual considerations, purposive considerations and historical or extrinsic considerations.
Turning first to the textual indicators, the ordinary meaning of the word "introducing", in my view, incorporates indirect activity. The Macquarie Dictionary (online ed) defines the transitive verb "introduce" as "to lead, bring or put into a place, position, surroundings, relations etc". The Oxford English Dictionary (online ed) defines the verb to mean "a. To lead or bring into a place, or into the inside or midst of something; to bring in, conduct inwards. b. To put or place in from without, to insert. c. To usher or bring (a person) into a society or body; also into a state or condition". To "bring" includes "to cause" or "to allow" (see both the Macquarie Dictionary and the Oxford English Dictionary, online eds). It will therefore be sufficient if a defendant brings, in the sense of causes or allows, a matter into or onto the land in order to introduce it into or onto the land.
This would include the emission of MSM particulates into the atmosphere that ultimately fall onto, or into by means of absorption), the land. This is because it is the emission of the MSM dust into the air that causes or allows the dust to be brought onto the land. The act is the emission or escape of the dust into the air, whether it be through a stack or some other means, whether it be deliberate or accidental. And the air, in combination with the action of gravity, is the medium through which the dust is allowed or caused to be introduced onto the land from the factory, in the same way that a third person acquaints two strangers, or the blasting, crushing and screening of pyritic rock at a quarry facilitates acid sulphates leaching into a creek located in close proximity to that quarry thereby causing water pollution (McCallum v Sandercock [2011] NSWLEC 175; (2011) 183 LGERA 399 at [102]).
I do not accept that, the words "or otherwise introducing", contrary to the submissions of Du Pont, in some way connotes directness or are cognate with the concept of "placing". As stated above, definitions of "introduce" import a notion of a medium or intermediary through which acts occur. This is intrinsically inherent in the concepts of inserting, ushering, conducting, or bringing that comprise the verb "introducing". Hence A is not directly put onto B, as is required by the act of "placing", rather, A arrives at B through, by, or with the assistance of, C. C thus introduces A onto B. In this instance, the dust is introduced onto the land from the factory through the air by the combined action of the wind and gravity.
To reiterate, while this would not, on the analysis above, constitute the "placing" of dust in or on the land, it does, in my view, nevertheless constitute "introducing" the dust into or onto the land. The emission or escape of the MSM particulates into the atmosphere through the stack, or by some other mechanism, otherwise introduces the dust onto the land.
Du Pont argued that if 'introduced' is to be interpreted to include conduct that has as its consequence the indirect introduction of matter into or onto land, Parliament would have plainly said so and it has not.
In my opinion it has. It has done so by inclusion of the separate but not necessarily subordinate clause "or otherwise introducing into or onto". The presence of this clause is specifically designed to give rise to an alternative mode of land pollution. The words "or otherwise" are words of wide import. They are words of expansion, not limitation. They evince a clear objective legislative intention to amplify and extend the manner in which the offence may be committed and not to put it on an equivalent footing with that of "placing". The logical corollary of Du Pont's construction of the words "or otherwise introducing" is that although not rendered entirely otiose, they would have very little work to do.
Du Pont also submits that the words "or otherwise introducing" do not permit liability for uncontrolled activity, such as the dispersal of airborne MSM particulates by wind once they are emitted from the stack at the factory, or otherwise fugitive from the factory.
But in my view there is no warrant for reading into the definition of "land pollution" any concept of 'control' in the manner suggested by Du Pont. First, such a construction, especially in combination with a requirement for a direct act, would have the tendency of undermining the strict liability character of the offence. Second, even if control were a necessary integer of the expanded liability for land pollution by "otherwise introducing into or onto the land any matter", there is no rational reason for any requirement that a defendant must control the pollutant, as Du Pont must assert, at the point of contact into or onto the land.
At its highest, a defendant would only need to have control over the anterior act or omission occasioning the initial release of the polluting matter. In the present case, it is sufficient for Du Pont to control, as it appears to do, the emission of particulates from the stack or the production of the herbicide at the factory. It is not necessary for Du Pont to control the dust once it leaves the factory. Leaving aside any issue of causation for present purposes, that a supervening force determines where the land pollution physically occurs is, in my view, irrelevant to the operation of s 142A of the POEOA. It would be somewhat perverse if a defendant were able to escape liability under the Act for land pollution by reason of the intervention of a random climatic event such as wind or rain. The better view is that once a pollutant is released in circumstances when it should not be, there is no reason to assume that the legislature intended to exclude the further movement of the pollutant due to environmental forces resulting in degradation of the land from the scope of the offence.
Far from resulting in an operation that gives rise to capricious or arbitrary outcomes in relation to the imposition of criminal liability as was submitted by Du Pont, this interpretation provides consistency and certainty. The actus reus of the offence will commence with the act or omission resulting in the release of the polluting matter and will crystallise at the point when that matter makes contact with the land.
Two examples demonstrate the illusory nature of the distinction that Du Pont seeks to draw. First, a person endeavouring to pump out a below ground septic tank that is about to overflow onto an adjoining vacant lot over a fence using a hose on a windy day that has the consequence of spraying effluent onto neighbouring properties. And second, a person engaged in exactly the same activity but there is no wind and the sewage is deposited only on the vacant lot, that is to say, only where the hose is directed.
Du Pont accepts that the latter example would fall within the extended sphere of liability created in s 142A of the Act by the words "or otherwise introducing". This is because, according to Du Pont, it is gravity that introduces the directed sewage onto the land in the vacant lot; a known constant that the person was aware of when the activity commenced.
What difference, therefore, does the presence of the wind make in the second example where Du Pont eschews any liability? In my view, none. Applying Du Pont's logic, gravity is present in both scenarios to introduce the sewage to the land. The unknown variable of the wind cannot negate the introduction of the pollutant onto the land, it merely changes the location of the introduction and hence "the land", from the vacant lot to the vacant lot and neighbouring properties, or just the neighbouring properties depending on the wind strength and direction. It would, as I have noted above, be somewhat anomalous if fortuitously the putative polluter was able to escape liability if no sewage landed on the vacant lot but instead, due to the wind, landed unexpectedly on the vegetable garden of the neighbouring property. If a person seeks to pollute the land at A but instead pollutes the land at B, by accident, design or otherwise, what does it matter? In my opinion, it does not.
If, in the alternative, it is the wind that is the medium that introduces the contaminants to the land, rather than gravity or the combined forces of wind and gravity, then its absence in the first example and its presence in the second example leads inexorably to the same result, namely, s 142A is engaged. The fact that sewage is deposited in random locations in the second example, again, does not matter.
According to Du Pont, the critical distinction is the control over the direction of the matter at the point of release. But while this may be relevant to the "placing" of polluting matter in or on the land, it has no part to play in introducing polluting matter into or onto land. In each illustration given above there is, ultimately, the same degree of control over the direction of the matter at the point of release. That in the second example there was an intention to release the matter in a particular direction is irrelevant given that the offence does not require a mental element. And in any event, in each case the substance was directed into the air at the point of release.
The emission of MSM laden dust from a stack at a factory that by reason of gravity settles on land outside the factory at random locations assisted by the wind, or the escape of MSM laden dust from a factory that is dispersed in the same manner, is, in my opinion, not materially different from the factual circumstances of the second example, and for which, Du Pont may be liable.
Another strong textual indicator that Du Pont's construction of "land pollution" ought not be accepted is the fact that the offence covers both acts and omissions. Again these are words of wide import. They constitute an act or omission or a series of acts or omissions comprising all of the facts constituting the offence. An omission is a failure to do a particular thing. The inclusion of omissions or a series of omissions in the actus reus of the offence does not sit comfortably with the purported need for a controlled act directed at the land to engage the provision. On any view, a failure to control an emission from a stack is an omission.
Although Du Pont submitted that the words "whether through an act or omission" do not qualify the requirement for a directed application of the matter onto the land, but only make it plain that the step of directed placement or introduction may result from both an act or omission, is not to the point. Other than the element of causation (insofar as the act or omission must have in subparagraph (a) of the definition of "land pollution" caused the land to be degraded), the definition of "land pollution" is not limited by the consequence of any act or omission, or by any notion that a defendant will not offend s 142A if the defendant does not control or intend the consequences of what the defendant has done or failed to do.
If the dust was emitted from the factory by either manner described above, then it left the premises as a consequence of Du Pont's acts or omissions. It was through these acts or omissions that the dust was therefore introduced into or onto the land and the offence is not limited to some direct and controlled action taken by Du Pont in respect of land. This is because it may also be committed through omission, which is neither direct nor controlled.
"Cause or permit"
That the broad construction above is correct is reinforced by a contextual reading of the term "land pollution" within s 142A of the POEOA having regard to the further extended meaning of "pollute land" in s 142A(2), that includes causing or permitting land to be polluted. Contravention will accordingly occur if, as is also alleged in the present case, a defendant causes a pollutant matter to be introduced into or onto the land through its acts or omissions. Again a clear and consistent legislative intention is evinced to expand the scope of criminal liability for land pollution.
For completeness I note that it is not, as I understand it, any part of the EPA's case that Du Pont permitted the land to be polluted. Rather, the EPA claims that Du Pont caused the introduction of MSM laden dust into or onto the land.
Du Pont asserts that the extended liability contained in s 142A(2) provides no comfort to the EPA because "cause" in that provision only expands the reach of criminal sanction in "a common sense way to the ordinary (ie, inevitable) consequence of what a defendant may have done or omitted to do." Whereas this includes liability for the ordinary consequences of the defendant's conduct, it precludes liability for any extraordinary consequences or other contributing causes (citing Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 at [262] per Lloyd J). Du Pont submitted that in the present case the extraordinary consequence or contributing cause was the intervening wind. There was, moreover, as a consequence, no inevitability of deposition on any land the subject of the charge and still less any inevitability of deposition in quantities sufficient to degrade that land.
This Court recently summarised the meaning of "cause" in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68 (at [234]-[237]). Although that case concerned civil enforcement proceedings, the parties agreed that the summary was nevertheless applicable in these proceedings:
234. The meaning of "cause" has been considered in a number of cases (Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 at [238]- [262]; Olmwood at [351]-[355]; Walker (No 2) 2010 at [272] and [274]; Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12 at [80]- [87]; and Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [108]).
235. In Walker the Court of Criminal Appeal set out the relevant principles in determining the interpretation of the word "cause" (at [80]):
80 The appellant accepted that appropriate guidance in the resolution of these issues could be found in Environmental Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 at [238]- [260]. The respondent did not contend otherwise. The relevant principles were accepted to be that:
(a) "causing" should be given its common sense meaning: Alphacell Ltd v Woodward [1972] UKHL 4; [1972] AC 824 at 834, 847;
(b) a person causes a result where he or she deliberately and intentionally does an act which naturally produces a certain outcome: Alphacell at 839;
(c) the defendant must engage in a positive act to "cause" something to occur and this act need not be an immediate cause: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 at 27-28;
(d) the active involvement of a third party may, but does not necessarily, break the causal connection: Empress Car Co at 33, 36-37; and
(e) in determining whether the involvement of a third party excludes the defendant as a causative factor, the court should consider whether the actions of the third party were an ordinary occurrence or something extraordinary. This is a question of fact: Empress Car Co at 36.
236. Although the statutory context was different in Walker (s 44 of the Native Vegetation Act 2003 ("the NVA") provided a defence to a landholder who did not "cause or permit" another person to carry out the clearing), the language of s 44 of the NVA and s 143 of the POEOA is relevantly similar so that the principles articulated above are presently applicable.
237. In summary, for a person to cause another person to carry out a breach of s 143 of the POEOA, there must be a positive act on the part of the first person. The causal nexus may exist by some active operation or chain of operations that leads to the other person carrying out the act of transportation (Walker (No 2) 2011 at [108]). And the positive act does not have to be the only cause - the fact that someone or something else could be said to have caused the other person to carry out the transportation is not inconsistent with a person, by his or her positive act, having caused that other person to carry out the transportation (Walker (No 2) 2011 at [108]).
While Du Pont accepted that the test of causation may be satisfied by an act or omission which was not the immediate or sole cause of the land being polluted, it nevertheless stressed that this did not mean that the test was satisfied by the application of 'but for' logic insofar as there is an event without which the ultimate outcome would not have occurred.
Rather, it posited the contention that the word "cause" in the present statutory context was limited to the inevitable consequence of a positive act by it. In other words, a defendant must engage in a positive act to cause land pollution, not a positive act that has the result of land pollution.
Du Pont drew support for this proposition from Multiplex (at [260]-[262]) and Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd ([1998] UKHL 5; [1999] 2 AC 22, cited in Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12 at [80]) and a series of water pollution cases discussed in that decision (Price v Cromack [1975] 1 WLR 988; Wychavon District Council v National Rivers Authority [1993] 1 WLR 125 and National Rivers Authority v Yorkshire Water Services Ltd [1995] 1 AC 444). The common thread of these decisions, Du Pont submitted, was that in each case a substance was held under the control of the defendant and in each case the defendant did something or omitted to do something allowing the substance to escape with the inevitable or natural consequence that it flowed into the water and polluted that water.
When regard was therefore had to the extended liability provided for in s 142A(2) of the POEOA, these cases reinforced the need for a direct act in order to enliven liability premised on any introduction of matter into or onto the land in order to satisfy the definition of "land pollution".
In Empress Car Company a tank was surrounded by a bund to contain spillage, but the company had overridden this protection by fixing an extension pipe to the outlet of the tank so as to connect it to a drum standing outside the bund. It was more convenient to draw oil from the drum than directly from the tank. The outlet from the tank was governed by a tap that had no lock. The tap was opened by an unknown person and the entire contents of the tank ran into the drum, overflowed into the yard and passed down the drain into the river. The company argued that because the tap had been opened by a stranger, it should have been acquitted because the escape of the pollutant was caused by the stranger and not the company.
The question for the House of Lords was framed in the following way (at 27B):
whether a person can be convicted of an offence...of causing polluting matter to enter controlled waters if it is proved that (a) he held the polluting matter and contained it in a way as it would not escape but for a positive act by himself or another; and (b) he failed to take reasonable precautions to prevent such an escape occurring as a result of an action by a third party; and it is not proved that he took any other actions which resulted in the pollution.
The appeal was dismissed. Lord Hoffman gave the principal speech. He distilled the relevant principles as (at 35G-36C):
(1) Justices dealing with prosecutions for "causing" pollution under section 85(1) should first require the prosecution to identify what it says the defendant did to cause the pollution. If the defendant cannot be said to have done anything at all, the prosecution must fail: the defendant may have "knowingly permitted" pollution but cannot have caused it.
(2) The prosecution need not prove that the defendant did something which was the immediate cause of the pollution: maintaining tanks, lagoons or sewage systems full of noxious liquid is doing something, even if the immediate cause of the pollution was lack of maintenance, a natural event or the act of a third party.
(3) When the prosecution has identified something which the defendant did, the justices must decide whether it caused the pollution. They should not be diverted by questions like "What was the cause of the pollution?" or "Did something else cause the pollution?" because to say that something else caused the pollution (like brambles clogging the pumps or vandalism by third parties) is not inconsistent with the defendant having caused it as well.
(4) If the defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant's acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, it will be open to the justices to hold that the defendant did not cause the pollution.
(5) The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in the area.
Given Du Pont's reliance on Empress Car Company several observations should be made about the applicability of the principles articulated in that decision to the present factual scenarios before the Court:
(a) first, the question required to be answered by the House of Lords was very different to the question to be determined here, informed there, as it was, by considerations of reasonable foreseeability;
(b) second, their Lordships emphasised, as Du Pont accepts, that although a defendant must have done something to cause the pollution, this 'something' need not have been the immediate cause of the pollution. There is no reason why, therefore, the emission of MSM dust into the atmosphere, is not 'doing something' by Du Pont, even if the immediate cause of the pollution is 'a natural event', such as a wind or gravity event; and
(c) third, whether a necessary condition of the actual escape of, in this case, the dust, was the act of a natural event, in the sense of a normal fact of life, or whether the event was something extraordinary and not causative of the pollution, will be a matter of fact and degree. On the facts presently known to the Court, the wind event responsible for distributing the dust and the action of gravity are all normal facets of life.
Other than the proposition for which it stands and was cited in Walker and Wollondilly, the case does not appear to assist Du Pont. Applying Empress Car Company in the present context:
(a) acts and omission of a third party, (for example, independent contractors) or the occurrence of an external event, such as wind, are sufficient to "cause", in this instance, land pollution (Multiplex at [238]-[262] and Walker at [80]);
(b) whether the event or the involvement of the third party excludes the conduct of a defendant as a causative factor depends on whether the event or involvement was an ordinary occurrence or something extraordinary (Walker at [80]);
(c) ordinary weather, such as wind, and gravity, are not extraordinary events. Accordingly, in either of the two scenarios put before the Court for the purpose of this preliminary question, the emission or escape of the dust from the factory, on the facts presently assumed and known, could readily constitute a positive act or omission, with the inevitable and natural consequence that once into the atmosphere, the wind would carry the MSM dust elsewhere. In other words, a natural consequence of the dust leaving the factory was that, albeit with the assistance of an external event, namely, the wind, it would eventually, by reason of gravity, be introduced into or onto the land; and
(d) it is not the wind or gravity that causes the land pollution. On the facts presently known and assumed for the purpose of this preliminary question, it is, as the EPA correctly characterises, the failure of Du Pont to contain its dust within the factory.
Relevance of Other Pollution Offences
Du Pont relied on the fact that the POEOA created other pollution offences, namely, air and water pollution, that were both materially different and materially similar to the offence created in s 142A, in support of its contention that "land pollution" ought to be narrowly construed.
"Air pollution" was said by it to be relevantly defined in the POEOA for the purpose of the offences created in ss 124 and 125 of the Act in a way that obviates any notion of directed application to the land on which the pollutant concerned may settle because it is concerned with the release of the air impurity into the atmosphere a consequence of a failure to maintain and operate plant and equipment in an efficient manner. This is indicative, therefore, of a legislative intention that there be a need for directed application to the land of pollutants in the case of "land pollution".
Du Pont emphasised that it had not been charged with air pollution, a more apposite offence that was not pursued by the EPA presumably because, it submitted, the EPA could not demonstrate any failure by it to maintain and operate the factory in a proper and efficient manner. The Court should therefore be loathe to extend potential criminal liability to a set of factual circumstances that do not sit comfortably with the offence of land pollution created by s 142A.
But the fact that the conduct of Du Pont may or may not have been capable of giving rise to one or more offences is, in my opinion, irrelevant. A single series of events can give rise to several different criminal offences to which different penalties attach (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [11]).
Du Pont further argued that because the POEOA sought to distinguish between the different modes by which the environment may be polluted - air, water and land - it was plain that Parliament had deliberately sought to enact three different actus reus for three distinct offences. This having been identified, the different language of each offence given effect to. The logical corollary of the expansive interpretation given to "land pollution" above, including both direct and indirect uncontrolled acts and omissions, would be to subvert the intention of the legislature to keep distinct these offences because, construed broadly, the actus reus of the three categories of pollution offences would be made redundant. There would, for example, be no need for the additional elements of s 124 of the POEOA concerning the want of care in operation and maintenance if land pollution included the actus reus of air pollution.
I do not agree. There is no absolute division between air, water and land pollution. Leaving aside any issue of double jeopardy, there is no reason why conduct amounting to air pollution could not also result in land and/or water pollution, provided the elements of those offences are met. There is nothing express in the language, or by implication in the structure, of Ch 5 that supports the contention put forward by Du Pont. The historical extrinsic material provided to the Court, discussed further below, is not, moreover, consistent with this position.
Du Pont further argued that the structure of the licensing regime under the POEOA, and the defences based upon this regime, reinforced the correctness of its position. To allow the EPA to prosecute "land pollution" occurring as an indirect consequence of a licensed scheduled activity meant that Du Pont, who was at all times carrying out a scheduled activity under its EPL at the time the dust was emitted or escaped, meant that it could not take the benefit of any defence of authority conferred by the licence (see, for example, s 142C). This would, it submitted, "subvert the defence the legislature otherwise provided in s 124" of the Act. This is because in order for pollution to be regulated by a licence it must be the direct subject of the licence rather than an incidental consequence of the licensed activities (Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439; (2004) 137 LGERA 289 at [46]).
In my view this submission is misconceived. If the EPL held by Du Pont does not expressly regulate pollution, either in the form of air, water or land pollution, as it plainly does not (the Scheduled Activity the subject of the EPL is for "chemical production"), then Du Pont must, consistent with its obligations under the EPL and the POEOA, ensure that no pollution occurs in the course of carrying out the activity the subject of the licence. It cannot be said, therefore, that it has lost the benefit of a defence that neither the legislation nor the EPL intended to confer.
Nor do I believe that there has been any subversion of any defence provided by the legislature under s 124 of the POEOA. This submission impermissibly conflates the two offences of air pollution and land pollution. They are entirely distinct. If the EPA elects to charge Du Pont with one and not the other that is a matter of prosecutorial discretion. Of course the EPA must prove the elements of any pollution offence beyond reasonable doubt and in circumstances where it has elected not to level air pollution charges against Du Pont for emissions of MSM laden dust through the factory stack or by some means, this may foreshadow the magnitude of the challenge of proving to the requisite standard the land pollution offence with which Du Pont has been charged, but it does not dictate a narrow reading of the definition of "land pollution" in order to promote harmony between the offences of air, water and land pollution. The three categories of pollution offences in Ch 5 of the POEOA are complimentary, overlapping but nevertheless separate.
On the contrary, when regard is had to the objects of the Act contained in s 3 and the history of the promulgation of the POEOA, the more easily drawn inference is that the Parliament intended to cast the legislative net widely to cover almost all forms of conduct that had the potential to harm the environment. I return to this below.
It is true that the genesis of the offence of land pollution in s 142A of the POEOA may be traced to earlier iterations of the waste offences (see s 5 of the Environmental Offences and Penalties Act 1989 and s 115 and Pt 5.6 of the Protection of the Environment Operations Act 1997). It is also true that some time ago the offence of polluting waters was expanded to include the act of placing a pollutant in a position where it could fall, descend, be washed, be blown or percolate into water (s 16(2)(a) of the Clean Waters Act 1970), an expansion that persisted even after the actus reus of that offence was amplified to include "on, or otherwise introduce into or onto, the waters (whether through an act or omission)" (Sch 1 cl 2 of the Clean Waters (Amendment) Act 1987).
Du Pont relied upon the expanded definition of "water pollution" maintained in the current version of the POEOA to contend that this manifests an intention to define the offence of "land pollution" narrowly so as not to capture pollutants that fall, descend or are blown onto the land, as in the present case. In my view this argument cannot be maintained. The legislative history of the offences of water pollution and land pollution does not permit Du Pont to rely on the extended definition of "water pollution" in paragraph (d) in the Dictionary of the POEOA to argue that the scope of the definition of "land pollution" must be narrower in compass than that of "water pollution", which is, it must be acknowledged, otherwise relevantly similar in language and structure, because Parliament deliberately elected not to enact an equivalent paragraph in the definition of "land pollution". Although superficially compelling, this variant of the expressio unius est exclusio alterius rule of construction does not withstand historical scrutiny.
The initial insertion of paragraph (d) (then, s 16(2)(a)) into the Clean Waters Act) was plainly designed to enlarge the scope of the water pollution offence to capture pollutants placed on the land that indirectly made their way into the water. There being no equivalent or similar land pollution offence enacted at that time, its insertion was plainly not designed to derogate from the scope of any such offence. When the scope of the water pollution offence was expanded again in 1987 to include the concept of 'introducing' a pollutant into water, again there was no identical or relevantly cognate land pollution offence to that contained in the present version of the POEOA. This continued with the promulgation in 1997 of the POEOA, where the statutory focus remained on the handling of waste. Thus the definition of "land pollution" in the original version of the Act meant "the degradation of land because of the disposal of waste on the land".
It was not until the promulgation of the Protection of the Environment Operations Amendment Bill 2005 that s 142A and the definition of "land pollution" in its current form were enacted. At this stage the definition of "water pollution", including paragraph (d), had been in existence for a considerable period of time. As the Explanatory Notes and the Second Reading Speech to the Protection of the Environment Operations Amendment Bill state, the object of the Bill was to create a wholly separate and new strict liability offence of land pollution premised on a concept of "land pollution" that was "broadly defined".
Given this evolution, it cannot be said with any confidence that Parliament deliberately eschewed liability as broad as that of "water pollution" by reason of a deliberate omission of the equivalent of paragraph (d) in the definition of "land pollution". The better view is that Parliament did not need to enact the equivalent of paragraph (d) in the definition "land pollution" because, properly construed, it was not necessary to do so. This is consistent with the words in the introductory chapeau to paragraph (d) in the definition of "water pollution", namely, "without affecting the generality of the foregoing, includes".
The definitions of each form of pollution must be viewed in their present and historical context. The expanded definition of "water pollution" in the POEOA today is the product of its separate promulgation in the absence of any equivalent land pollution offence. The expanded definition, although arguably unnecessary given the definition of "water pollution" contained in paragraphs (a) to (c), has remained in the same form for the reason that legislation tends always to expand and never to contract. Had the two offences been created at the same time under the same enactment, Du Pont's argument in this regard would resonate more loudly. But they were not. The two provisions cannot, in my view, be meaningfully compared and contrasted in the way that Du Pont seeks to do. In enacting s 142A of the POEOA there was no attempt to align the definition of "land pollution" with the definition of "water pollution" in the manner posited by Du Pont, so that the presence of paragraph (d) in the latter manifests an intention by the legislature to confine the scope of the former.
Objects and Purpose of the POEOA
I do not accept the submission by Du Pont that an expansive interpretation afforded to the definition of "land pollution" is antithetical to the objects of the POEOA. When regard is had to the objects of the POEOA contained in s 3 of the Act (as mandated by s 33 of the Interpretation Act 1987), it becomes readily apparent that a construction afforded to the definition of "land pollution" that includes both indirect and unintended or unforeseen modalities of pollution is consonant with the purpose of the Act (see s 3(a), (d), (e) and (f)). While economic development is not ignored (s 3(a)), the emphasis of this object is on ecologically sustainable development in the context of, among other things, protecting the quality of the environment in New South Wales. It is this latter purpose that is paramount.
A purposive approach to the definition of "land pollution" therefore supports a more inclusive definition to "land pollution" than that advanced by Du Pont. This is because it simultaneously seeks to encourage the elimination of pollution at its source, while acknowledging and capturing a wider range of forms and routes of pollution thereby maximising environmental outcomes.
Penal Statutes to be Construed Narrowly Where Ambiguous
Finally, Du Pont invoked the canon of construction concerning penal statutes, namely, that any ambiguity contained in the definition of "land pollution" is to be read narrowly in Du Pont's favour by refusing to extend the category of criminal offence contained in s 142A of the POEOA (R v Adams [1935] HCA 62; (1935) 53 CLR 563 at 567-568; Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164 and Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 at [24]-[25]).
Although the rule has been described as "perhaps one of last resort" (Beckwith at 576, endorsed in Waugh v Kippen at 164), it continues to have application (Westpac Banking Corporation v Australian Securities and Investments Commission [2009] FCA 1506; (2009) 181 FCR 379 at 390; Walker at [34] and Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 at [111]). In essence it is no more or less than an aspect of the principle of legality (the most recent articulation of which is contained in X7 v Australian Crime Commission at [34], [87] and [158]).
But properly construed there is no need for recourse to the rule because there is no ambiguity contained in the definition of "land pollution" for the purpose of s 142A of the POEOA . That the factual circumstances in the charge may be viewed as unorthodox or novel does not of itself give rise to ambiguity attracting the operation of this canon of construction.
Furthermore, the canon of construction relied upon by Du Pont is not the only relevant rule. Given the beneficial nature of the POEOA, a conflict arises. It is more than arguable that the dominant purpose of the legislation is, as its title expressly states, to protect the environment. The pollution offences created within the POEOA are a mechanism (one of many enshrined in the Act) by which this remedial object is achieved. If so, the beneficial operation of the Act should be promoted by an expansive interpretation of the definition of "land pollution". In these circumstances the cautionary note sounded in Beckwith must be listened to carefully (Waugh v Kippen at 164-165 and Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 109-110).
Conclusion
In conformity with the reasons given above, it follows that on either of the two factual scenarios put before the Court, the preliminary question must be answered adversely to Du Pont and in favour of the EPA. In other words, either of the two sets of factual circumstances are capable of attracting criminal liability for the purpose of s 142A of the POEOA.
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Decision last updated: 05 July 2013
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