John Nominees Pty Ltd v Dixon

[2003] WASCA 51

JOHN NOMINEES PTY LTD -v- DIXON [2003] WASCA 51

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 51
Case No:	SJA:1052/2002	Heard:	5 AUGUST 2002
Coram:	PARKER J	Delivered:	21/03/03
No of pages:	49	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	JOHN NOMINEES PTY LTD JAMES DIXON
Catchwords:	Environmental law Appeal against conviction Land clearing Failure to give notice of intention to clear land Soil and Land Conservation Regulations 1972 (WA) reg 4(1) Whether reg 4(1) authorised by Act Whether 'land' under reg 4(1) refers only to a whole parcel of land Whether complaint void for failure to allege material elements of offence Meaning of 'change in the use of the land' Agreement with Commissioner to reserve part of the land in perpetuity does not displace requirement to give notice under reg 4(1) Admissibility of aerial photographs and satellite images of the land as public documents Penalty Whether excessive Whether irrelevant or unsubstantiated matters taken into consideration when imposing penalty
Legislation:	Soil and Land Conservation Act 1945 (WA) Soil and Land Conservation Regulations 1992 (WA), reg 4
Case References:	Albrighton v Royal Prince Alfred Hospital & Ors [1980] 2 NSWLR 542 Alwer v McLean (2000) 116 A Crim R 364 Byrne v Baker [1964] VR 443 De Romanis v Sibraa (1977) 2 NSWLR 264 Ex parte Bayview Pty Ltd; Re Johnson & Ors (1950) 50 SR (NSW) 67 Ex parte Graham; Re Dowling & Anor (1968) 88 WN (Pt 1) (NSW) 270 Ex parte Prover; Re Wilkinson (1952) 69 WN (NSW) 242 Foletta v Merri Creek Quarry Pty Ltd [1951] VLR 149 Ioannou v Demetriou [1952] AC 84 James v Twiss [1929] SASR 110 John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Linehan v Australian Public Service Association (1982) 66 FLR 90 O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 R v Halpin [1975] 1 QB 907 Re Reference Under Section 11 of Ombudsman Act (1979) 2 ALD 86 Smith v Moody [1903] 1 KB 56 Stanton v Abernathy (1990) 19 NSWLR 656 Sturla v Freccia (1880) 5 App Cas 623 The Batlow Packing House & Cool Stores Rural Co-Operative Society Ltd v Commonwealth & Dominion Line Ltd (1937) 37 SR (NSW) 314 The Irish Society v The Bishop of Derry (1846) 12 CL and F 641 Trade Practices Commission v TNT Management Pty Ltd & Ors (1984) 56 ALR 647 Walsh v Tattersall (1996) 188 CLR 77 Younger v Burswood Nominees Pty Ltd [2002] WASCA 36 Agbaba v Witter (1977) 51 ALJR 503 Anchorage Butchers Ltd v Law (1939) 42 WALR 40 Anderson v The Queen (1993) 177 CLR 520 Arbuckle Smith & Co Ltd v Greenock Corporation [1960] AC 813 Beaton v McDivitt (1985) 13 NSWLR 134 Bogdal v Hall [1987] Crim LR 500 British Motor Syndicate Ltd v Taylor & Son [1900] 1 Ch 577 Cann's Pty Ltd v The Commonwealth (1946) 71 CLR 210 Cassell v The Queen (2000) 201 CLR 189 Dillon v The Queen [1982] AC 484 Esther Investment Pty Ltd v Dawson (1985) 62 LGRA 53 G v H (1994) 181 CLR 387 Gurnett v MacQuarie Stevedoring Co Pty Ltd (1955) 55 SR (NSW) 243 H (1981) 3 A Crim R 53 Hare v Clarey (1951) 53 WALR 78 Higgon v O'Dea [1962] WAR 140 Hindson v Ashby [1896] 2 Ch 1 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 Inkson v The Queen (1996) 6 Tas R 1 Kajala v Noble (1982) 75 Cr App R 149 Kalgoorlie Regional Traffic Council v Fostinelli [1974] WAR 3 King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 Langridge v The Queen (1996) 17 WAR 346 MacQuarie University v Ryde Municipal Council [1977] 1 NSWLR 304 Marshall v Nottingham Corporation [1960] 1 WLR 707 Meiklejohn v Central Norseman Gold Corporation (1996) 89 A Crim R 311 Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 Mitchell v Myers (1955) 57 WALR 49 Newcastle City Council v Royal Newcastle Hospital [1959] AC 248 Parkes v Secretary of State for the Environment [1978] 1 WLR 1308 Police v Dorizzi [2002] SASC 82 R v Ames [1964-5] NSWR 1489 R v Creemer v Cormier [1968] 1 CCC 14 R v Dodson [1984] 1 WLR 971 R v Harbach (1973) 6 SASR 427 R v Howe [1958] SASR 95 R v Lam (2001) 121 A Crim R 272 R v Maloney (no 2) (1976) 29 CCC (2d) 431 R v Maqsud Ali [1965] 3 WLR 229 R v O'Leary [1946] SASR 175 R v O'Sullivan & Mackie (1975) 13 SASR 68 R v Robinson (1969) 53 Cr App Rep 314 R v Sargeant (1974) 60 Cr App Rep 74 R v Storey [1998] 1 VR 359 R v Travers [1957] 58 SR (NSW) 85 Rumpf v R [1988] VR 466 S v The Queen (1989) 168 CLR 266 Sapporo Maru (Owners) v Statue of Liberty [1968] 1 WLR 739 Schmidt v Schmidt [1969] QWN 3 Shire of Perth v O'Keefe (1964) 110 CLR 529 Sitek v R [1988] 2 Qd R 284 Smith v Auckland City Council [1996] 1 NZLR 634 Smith v R (2001) 181 ALR 354 South Australia v Tanner (1989) 166 CLR 161 Starling v Ostrowski (2001) 24 WAR 61 State of New South Wales v MacQuarie Bank Ltd (1992) 30 NSWLR 307 Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322 Taylor v EPA (2000) 50 NSWLR 48 The State of South Australia v Tanner (1988-89) 166 CLR 161 Thrasyvoulos v Papa Christoforos Demetriou [1952] AC 84 Tresize v Stephenson [1968] SASR 174 United States Shipping Board v The Ship St Albans [1931] AC 632 University of Western Australia v City of Subiaco (1980) 52 LGRA 360 Van Pelz (1942) 29 Cr App R 10 W Thomas & Co Ltd v Martin [1967] WAR 68 Willis (1872) 12 Cox CC 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : JOHN NOMINEES PTY LTD -v- DIXON [2003] WASCA 51 CORAM : PARKER J HEARD : 5 AUGUST 2002 DELIVERED : 21 MARCH 2003 FILE NO/S : SJA 1052 of 2002 BETWEEN : JOHN NOMINEES PTY LTD

Appellant

AND

JAMES DIXON
Respondent

Catchwords:

Environmental law - Appeal against conviction - Land clearing - Failure to give notice of intention to clear land - Soil and Land Conservation Regulations 1972 (WA) reg 4(1) - Whether reg 4(1) authorised by Act - Whether 'land' under reg 4(1) refers only to a whole parcel of land - Whether complaint void for failure to allege material elements of offence - Meaning of 'change in the use of the land' - Agreement with Commissioner to reserve part of the land in perpetuity does not displace requirement to give notice under reg 4(1) - Admissibility of aerial photographs and satellite images of the land as public documents - Penalty - Whether excessive - Whether irrelevant or unsubstantiated matters taken into consideration when imposing penalty

Legislation:

Soil and Land Conservation Act 1945 (WA)

Soil and Land Conservation Regulations 1992 (WA), reg 4

(Page 2)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr A J Goldfinch
Respondent : Mr N C Monahan

Solicitors:

Appellant : Goldfinch & Co
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Albrighton v Royal Prince Alfred Hospital & Ors [1980] 2 NSWLR 542
Alwer v McLean (2000) 116 A Crim R 364
Byrne v Baker [1964] VR 443
De Romanis v Sibraa (1977) 2 NSWLR 264
Ex parte Bayview Pty Ltd; Re Johnson & Ors (1950) 50 SR (NSW) 67
Ex parte Graham; Re Dowling & Anor (1968) 88 WN (Pt 1) (NSW) 270
Ex parte Provera; Re Wilkinson (1952) 69 WN (NSW) 242
Foletta v Merri Creek Quarry Pty Ltd [1951] VLR 149
Ioannou v Demetriou [1952] AC 84
James v Twiss [1929] SASR 110
John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
Linehan v Australian Public Service Association (1982) 66 FLR 90
O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1
R v Halpin [1975] 1 QB 907
Re Reference Under Section 11 of Ombudsman Act (1979) 2 ALD 86
Smith v Moody [1903] 1 KB 56
Stanton v Abernathy (1990) 19 NSWLR 656
Sturla v Freccia (1880) 5 App Cas 623


(Page 3)

The Batlow Packing House & Cool Stores Rural Co-Operative Society Ltd v Commonwealth & Dominion Line Ltd (1937) 37 SR (NSW) 314
The Irish Society v The Bishop of Derry (1846) 12 CL and F 641
Trade Practices Commission v TNT Management Pty Ltd & Ors (1984) 56 ALR 647
Walsh v Tattersall (1996) 188 CLR 77
Younger v Burswood Nominees Pty Ltd [2002] WASCA 36

Case(s) also cited:

Agbaba v Witter (1977) 51 ALJR 503
Anchorage Butchers Ltd v Law (1939) 42 WALR 40
Anderson v The Queen (1993) 177 CLR 520
Arbuckle Smith & Co Ltd v Greenock Corporation [1960] AC 813
Beaton v McDivitt (1985) 13 NSWLR 134
Bogdal v Hall [1987] Crim LR 500
British Motor Syndicate Ltd v Taylor & Son [1900] 1 Ch 577
Cann's Pty Ltd v The Commonwealth (1946) 71 CLR 210
Cassell v The Queen (2000) 201 CLR 189
Dillon v The Queen [1982] AC 484
Esther Investment Pty Ltd v Dawson (1985) 62 LGRA 53
G v H (1994) 181 CLR 387
Gurnett v MacQuarie Stevedoring Co Pty Ltd (1955) 55 SR (NSW) 243
H (1981) 3 A Crim R 53
Hare v Clarey (1951) 53 WALR 78
Higgon v O'Dea [1962] WAR 140
Hindson v Ashby [1896] 2 Ch 1
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Inkson v The Queen (1996) 6 Tas R 1
Kajala v Noble (1982) 75 Cr App R 149
Kalgoorlie Regional Traffic Council v Fostinelli [1974] WAR 3
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184
Langridge v The Queen (1996) 17 WAR 346
MacQuarie University v Ryde Municipal Council [1977] 1 NSWLR 304
Marshall v Nottingham Corporation [1960] 1 WLR 707
Meiklejohn v Central Norseman Gold Corporation (1996) 89 A Crim R 311
Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565
Mitchell v Myers (1955) 57 WALR 49
Newcastle City Council v Royal Newcastle Hospital [1959] AC 248


(Page 4)

Parkes v Secretary of State for the Environment [1978] 1 WLR 1308
Police v Dorizzi [2002] SASC 82
R v Ames [1964-5] NSWR 1489
R v Creemer v Cormier [1968] 1 CCC 14
R v Dodson [1984] 1 WLR 971
R v Harbach (1973) 6 SASR 427
R v Howe [1958] SASR 95
R v Lam (2001) 121 A Crim R 272
R v Maloney (no 2) (1976) 29 CCC (2d) 431
R v Maqsud Ali [1965] 3 WLR 229
R v O'Leary [1946] SASR 175
R v O'Sullivan & Mackie (1975) 13 SASR 68
R v Robinson (1969) 53 Cr App Rep 314
R v Sargeant (1974) 60 Cr App Rep 74
R v Storey [1998] 1 VR 359
R v Travers [1957] 58 SR (NSW) 85
Rumpf v R [1988] VR 466
S v The Queen (1989) 168 CLR 266
Sapporo Maru (Owners) v Statue of Liberty [1968] 1 WLR 739
Schmidt v Schmidt [1969] QWN 3
Shire of Perth v O'Keefe (1964) 110 CLR 529
Sitek v R [1988] 2 Qd R 284
Smith v Auckland City Council [1996] 1 NZLR 634
Smith v R (2001) 181 ALR 354
South Australia v Tanner (1989) 166 CLR 161
Starling v Ostrowski (2001) 24 WAR 61
State of New South Wales v MacQuarie Bank Ltd (1992) 30 NSWLR 307
Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322
Taylor v EPA (2000) 50 NSWLR 48
The State of South Australia v Tanner (1988-89) 166 CLR 161
Thrasyvoulos v Papa Christoforos Demetriou [1952] AC 84
Tresize v Stephenson [1968] SASR 174
United States Shipping Board v The Ship St Albans [1931] AC 632
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Van Pelz (1942) 29 Cr App R 10
W Thomas & Co Ltd v Martin [1967] WAR 68
Willis (1872) 12 Cox CC 164

(Page 5)

1 PARKER J: This is an appeal by leave from the decision of Mr C D Roberts SM sitting in the Court of Petty Sessions at Midland on 21 March 2002 whereby the appellant was convicted, after a defended hearing, of an offence of failing, before commencing clearing, to give notice of its intention to clear land of which it was the owner, when the clearing would result in a change in the use of the land. This offence is constituted by reg 4(1) of the Soil and Land Conservation Regulations 1992. These regulations are made under the Soil and Land Conservation Act 1945 (WA) ("the Act"). The land in question is a rural property at Badgingarra, being Melbourne Location 3737 the subject of Certificate of Title Volume 1907 Folio 350 ("Loc 3737").

2 Having been convicted, the appellant was fined $6,000 and ordered to pay the respondent's (complainant's) costs of $627.70.

3 The respondent was an officer duly authorised by the Commissioner of Soil and Land Conservation pursuant to s 45 of the Act to make the complaint.

4 The appellant advanced eleven grounds of appeal against its conviction and a further four grounds of appeal in respect of the penalty imposed. Rather than set these out exhaustively the nature of each ground of appeal will be indicated sufficiently as it is considered in the course of these reasons.

Background facts

5 In March 1997 the appellant became the registered proprietor of an estate in fee simple of Loc 3737 which comprises some 1,624 hectares and on its eastern side fronts the Brand Highway at Badgingarra. The southern boundary of the land is formed by Cadda Road and the northern boundary follows Cowalla Road.

6 The learned Magistrate found that, primarily between February and June 2000, just over 500 hectares of Loc 3737 were cleared by the appellant, which utilised the services of a contractor of which a Mr Panizza was a partner to effect the clearing. Mr Panizza acted upon the express instructions of a director of the appellant, a Mr Stefanelli. In the learned Magistrate's finding, no notice had been given to the Commissioner of the proposed clearing as required by reg 4(1), the nature of the clearing undertaken being such as to require such notice to the Commissioner.

(Page 6)

7 The condition of the land before this clearing is the subject of some dispute in this appeal. However, the effect of the evidence and the findings of the learned Magistrate is that, before the clearing, the land had been generally in a natural bush state or subject to natural bush regrowth, having been roughly cleared a number of years earlier. The clearing involved chaining, burning and on more than one occasion-ploughing to ready the cleared land to be sown to pasture or crop. The evidence relating to this will be considered in some detail later in these reasons.

The statutory framework

8 The long title of the Act indicates that its general objectives are the conservation of soil and land resources and the mitigation of the effects of erosion, salinity and flooding. The Act provides in Part II for there to be an officer known as The Commissioner of Soil Land Conservation ("the Commissioner") and for the appointment of officers and employees necessary for the due administration of the Act.

9 By Part III, cf s 13, the general functions of the Commissioner include the prevention and mitigation of land degradation, the promotion of soil conservation, the encouragement of land holders to utilise land in such a manner as will tend towards the prevention and mitigation of land degradation and the promotion of soil conservation. The notions of land degradation and soil conservation, which are central to the scheme of the Act, are defined by s 4 as follows:

"'Land degradation' includes –

(a) soil erosion, salinity, eutrophication and flooding; and

(b) the removal or deterioration of natural or introduced vegetation,

that may be detrimental to the present or future use of land."

"'Soil conservation' means the application to land of cultural, vegetational and land management measures, either singly or in combination, to attain and maintain an appropriate level of land use and stability of that land in perpetuity and includes the use of measures to prevent or mitigate the effects of land degradation."

"'Eutrophication' means the deterioration of water quality resulting from the accumulation of nutrients in the water."

(Page 7)

10 By Part V, where the Commissioner is of the opinion that land degradation is occurring, or is likely to occur, by s 32 the Commissioner may direct the owner and each occupier of the land to adopt or refrain from adopting an agricultural or pastoral method, refrain from clearing specified land, refrain from destroying, cutting down or injuring any tree, shrub, grass or other plant on any land, and take specified action for preventing the erosion, drift or movement of sand, soil, dust or water on or from any land.

11 Section 48 authorises regulations which are necessary or expedient to carry the objects and purposes of the Act into effect, and in particular, by s 48(2) regulations may be made inter alia in relation to:

"(d) the measures to be taken for preventing and mitigating land degradation", and

"(q) requiring the owner or occupier of land to give prior notification to the Commissioner of his intention to cut down, clear, destroy or otherwise damage trees, shrubs, grass or other plants on any land."

12 Relevantly, the Soil and Land Conservation Regulations 1992 provide as follows:

"2. In these regulations, unless the contrary intention appears

…

'to clear' in relation to any land means to cut down, destroy or otherwise damage trees, shrubs, grass or other plants on that land but does not include the cutting of trees for firewood, posts or timber.


3. …

4.(1) Subject to subregulation (3), the owner or occupier of any land in the State which it is proposed to clear shall, where that clearing will result in a change in the use of that land, at least 90 days before the commencement of the clearing, give notice to the Commissioner of his intention in that behalf. Penalty: $2,000.

(2) The notice referred to in subregulations (1) and (4) shall be in writing in the manner set forth in form 1 in schedule 2 and shall be accompanied by a map with a north point,

(Page 8)

identifying the land to be cleared, detailing the location numbers of that land and any adjacent land, and showing any public roads adjacent to that land.

(3) Subregulation (1) does not apply to the proposed clearing of land –

(a) which has an area of 1 hectare or less; or

(b) …


(4) An owner or occupier who gives notice to the Commissioner in accordance with subregulation (1) but fails to commence clearing within the period of two years from the date of the notice, is required, at least 90 days before he or she proposes to clear the land, to give notice in accordance with subregulation (2) to the Commissioner for reassessment."

Ground 2

13 By this ground it is contended that reg 4(1) itself is invalid and thereby that the complaint discloses no offence. It is contended that the regulation is beyond power, vague, ambiguous, indiscriminate, indefinite and uncertain. Because of the nature of this ground it is desirable that it should be considered first.

14 With respect to the question of power to make the regulation the appellant argues that reg 4(1) purports to extend the scope and operation of the Act. In this regard, the appellant calls in aid the definition of "to clear" in reg 2 and by way of argument it illustrates its contention by submitting that the regulation purports to apply, inter alia, to an owner who proposes to "damage" grass on any land greater than 1 hectare in area. Such an operation, it is submitted, is not necessary or expedient in order to carry into effect the objects and purposes of the Act, nor is it authorised or permitted to be prescribed by the Act.

15 Section 48(2)(q) of the Act has been set out earlier in these reasons. It will be apparent that the definition of "to clear" in reg 1, which applies to reg 4(1), replicates the relevant words in s 48(2)(q) of the Act. Both as a matter of general legislative intention, and by force of s 44(1) of the Interpretation Act 1984 (WA), the words or phrases "cut down", "clear", "destroy" and "otherwise damage", "trees", "shrubs", "grass" and "other plants", have the same meanings respectively, and in their overall effect in

(Page 9)

combination, in the Act as in the regulations. Those meanings are to be determined as a matter of interpretation of the Act, ie having regard to their context in the Act and its scope and objects. It is unnecessary for present purposes to determine the meaning intended by the legislature of each of these words or phrases, or their intended overall effect. Although it is not the view I take of s 48(2)(q), or of reg 4(1) and reg 1, should, on their true interpretation, they produce a result, or have an operation which some might regard as unnecessary, unreasonable, indiscriminate, or affected by vagueness or uncertainty in some respect, to take up language of the appellant's submissions, necessarily, in this context, those are consequences expressly contemplated and intended by the legislature. That is so because of the express authority conferred by s 48(2)(q) of the Act to make regulations in these terms. Any such consequences cannot be productive of invalidity in the regulation in these circumstances as they have been expressly authorised by the legislature.

16 For the reasons indicated, attempts by the appellant in argument to construe the words in the regulation in the abstract, and uncontrolled by their meaning in the Act, so as to produce either or both inconsistency between the Act and the regulations, or consequences that were said to be unreasonable, absurd, uncertain or the like, cannot be sustained.

17 Because the same words with the same meaning are used in the Act and the regulations, the regulations do not extend the scope or operation beyond those expressly authorised by s 48(2)(q) of the Act. Indeed, in a number of ways, the regulations limit or restrict what s 48(2)(q) would authorise. In particular, clearing of land of 1 hectare or less in area is excluded from the operation of reg 4(1) by reg 4(3)(a), as is the clearing of certain "controlled land" as provided by reg 4(3)(b). Further, by reg 2, the cutting of trees for firewood, posts or timber is excluded from the notion of clearing. I would note that that exemption is contemplated and authorised by s 48(4)(b) of the Act.

18 The appellant further sought to contend that s 48(2)(q) itself purported to authorise regulations which were beyond those authorised or permitted to be prescribed as, it was contended, they were neither necessary nor expedient in order to carry the objects and purposes of the Act into effect. The consequence, as I understood the argument, was that s 48(2)(q) itself was ineffective insofar as its express terms purported to authorise regulations beyond the general regulation making power conferred by s 48(1) of the Act.

(Page 10)

19 In this respect reliance was placed on Ex parte Provera; Re Wilkinson (1952) 69 WN (NSW) 242 and in particular the view expressed at 245 by Street CJ. There his Honour indicated that words equivalent to those which introduce s 48(2) in the present Act ought to be read, at least in the particular context of the marketing of Primary Products Act, 1927 – 1940 (NSW) there being considered, as not intended to extend or widen the general regulation making power. Heron J concurred with Street CJ, whereas Owen J appears from his reasons at 246 necessarily not to have agreed with this view. I would respectfully reserve my view as to the application of the reasoning of Street CJ in Ex parte Provera to s 48 of the present Act. The particular context would appear to be material. In the context of the present Act it appears that the introductory words in s 48(2) may well have been intended to ensure that its extensive and express enumeration of particular purposes did not impliedly derogate from the width of the general powers conferred by s 48(1), rather than to confine the scope of the powers enumerated in s 48(2) to within the scope of the general power conferred by s 48(1). That, of course, is a matter which, since 1984 in this State, has also been ensured by s 43(3) of the Interpretation Act.

20 For the purposes of the present decision, however, that issue need not be finally resolved. For the reasons given earlier, the words and phrases in s 48(2)(q), both separately and in their combined effect, being relevantly the words and phrases used to define "to clear" for the purpose of reg 4(1), must be construed in their context in the statute. Whether those words and phrases are limited in some way by s 48(1), a view to which I am not presently persuaded, or are to be construed in the context of the Act as a whole, they have the same meaning and effect in the regulations as in s 48(2)(q), and reg 4(1) operates accordingly.

21 What effect that may prove to have on the application of reg 4(1) in some factual situations that may arise in other cases need not be determined for present purposes. If s 48(1) were to limit the construction of s 48(2)(q) to matters necessary or expedient to carry the objects and purposes of the Act into effect, as is contended by the appellant, or in some other way, it is clear even on that basis that the circumstances of the present case would come within the scope of s 48(1), and therefore of reg 4(1). As will be examined more closely later in these reasons, we are concerned in this case with the operation of the regulations in circumstances involving the total clearing of over 500 hectares of bushland (whether or not that bushland was subject to regrowth after earlier rough clearing or was in its perennial condition). That growth was totally cleared by chaining, burning, and ploughing to produce bare earth

(Page 11)

ready for sowing to pasture or crop. The general and particular concern of the Act for the conservation of soil and land resources, and against land degradation and the effects of erosion, salinity and flooding, commands the view that such clearing is within the scope of the general regulation making power of s 48(1), however the precise words in s 48(2)(q) might properly be construed. This conclusion is further reinforced having regard to s 3 of the Act by which the Act is to be read in conjunction with sixteen other scheduled Acts, and in some circumstances given paramountcy over the provisions of the sixteen scheduled Acts. The subject matters of those scheduled Acts reinforces and extends the concern of the present Act for the conservation of soil and land resources against land degradation and the effects of matters such as erosion, salinity and flooding.

22 Elsewhere in these reasons I will consider some particular arguments that the appellant also appeared to call in aid in support of its contention that reg 4(1) was invalid on the basis of uncertainty or unreasonableness. I will not deal with these specifically at this point.

23 In my view, ground 2 is not made out.

Ground 1

24 The essence of ground 1 is that the complaint is void because it discloses no offence known to the law. The foundation for the argument is that material elements of the offence constituted by reg 4(1) have been omitted.

25 Relevantly, the complaint alleged that the appellant:

"Being the owner of land in the State of Western Australia, namely Melbourne Location 3737 in Certificate of Title Volume 1907 Folio 350, which land was not exempted by reg 4(3) of the Soil and Land Conservation Regulations 1992 made under the Soil and Land Conservation Act 1945, failed to give notice of its intention to clear that land at least 90 days before the commencement of clearing when the clearing would result in a change in the use of that land; contrary to regulation 4(1) of the Regulations."

26 It is submitted that the complaint omits entirely any reference to any proposal to clear on the part of the appellant, or to a change in use of the land (other than a repetition of the relevant words in the regulation), and does not identify what change in use has occurred or will occur. Further it

(Page 12)

is submitted that the complaint alleges nothing about the appellant's "intention in that behalf", referring to the concluding words of reg 4(1).

27 In some respects the contentions of the appellant appear to be founded in a misunderstanding of the force and effect of reg 4(1), or of parts of that regulation. Nevertheless, it is convenient first to consider the legal foundation advanced by the appellant for the ground.

28 Under the Justices Act 1902 (WA) a complaint is the process by which proceedings are commenced in courts of petty sessions. If it be material, a complaint is more in the nature of an information laid before Justices under earlier procedures in the UK. As such, less formality may be required of a complaint than of an indictment; see the discussion in the reasons of Mahoney JA in De Romanis v Sibraa (1977) 2 NSWLR 264 at 289 – 293, and the observations of Gleeson CJ, as he then was, in Stanton v Abernathy (1990) 19 NSWLR 656 at 666. I do not apprehend, however, that distinction to be material to the outcome of this appeal.

29 By s 45 of the Justices Act the description of any offence "in the words of the regulation creating the offence, or in similar words, is sufficient in law". Provisions equivalent to s 45 have been considered in many decided cases. Although the true effect of the words used in s 45 may still be open to further consideration, see the observations of Mason CJ, Deane and Dawson JJ in John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 519, I propose for present purposes to proceed on the basis that s 45, despite the words "sufficient in law", does not go so far as to abrogate the common law requirement that an information (or a complaint) must identify the essential ingredients of the actual offence alleged to have been committed: see also Smith v Moody [1903] 1 KB 56; Johnson v Miller (1937) 59 CLR 467; Ex parte Graham; Re Dowling & Anor (1968) 88 WN (Pt 1) (NSW) 270. As was observed of these decisions by Gleeson CJ in Stanton v Abernathy (supra) at 666 –

"The difficulty is that the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law rule has been infringed to such an extent that [the equivalent in that case of s 45], operating alone, would be insufficient to save the information."

30 In De Romanis v Sibraa (supra) at 291 – 292 Mahoney JA said:

"In Johnson v Miller Dixon J saw the decision in Smith v Moody as requiring the information to specify 'the time, place and

(Page 13)

manner of the defendant's acts or omissions'; MacTiernan J referred to 'fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence …

These cases establish that it may not be sufficient for an information to state the offence charged; it may be required to condescend to particulars. But … they do not indicate that the information must go beyond the statement of the offence and the proper particularisation of it."

31 Those words were noted with approval by Mason CJ, Deane and Dawson JJ in John L Pty Ltd v Attorney General (NSW) (supra) at 520. In John L Pty Ltd the information failed fundamentally to satisfy the common law requirement because it failed to identify an essential factual ingredient of the actual offence, namely the "material particular" in which the alleged statement was false or misleading. The information alleged that in an advertisement a false or misleading statement was made. It recited the statement. The difficulty arose because the alleged statement in fact comprised a number of statements, not one, and the information failed to identify which of them was alleged to be false or misleading. Further, the general effect of what was published was the expression of a present intention to engage in future conduct. This also required particularisation, ie whether the statement was alleged to be false or misleading because at the relevant time the defendant lacked the intention to carry out its promise, or for some other reason. Thus, there was also a failure to specify how the defendant was alleged to have committed the offence, or in the words of Dixon CJ "the manner of the defendant's acts or omissions".

32 Johnson v Miller (1937) 59 CLR 467 concerned what was identified to be a latent ambiguity. The licensing provision on which the offence alleged was founded referred to "any licensee … out of whose licensed premises any person is seen coming during any Sunday". The prosecution proposed to prove that some 30 men were seen at different times on a Sunday coming in or out of the licensed premises in question. The prosecutor refused to identify which of these was the person relied on. Hence, as Dixon CJ observed at 491 –

"If … the actual application of the complaint to the known or the alleged circumstances is so equivocal as to make it

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impossible to identify the occasion, transaction or occurrence to which it refers and distinguish it from other like occasions, transactions or occurrences indifferently answering the description contained in the complaint, then I think there is a defect in the complaint …. Although on its face the complaint may have appeared sufficient, yet when applied to the facts it is found to contain a latent ambiguity, and this, in my opinion, is a defect in particularity."

As his Honour had pointed out at 490, the defect in that case could have been remedied in any one of three ways, but the prosecutor refused to take any of those courses so that the complaint was rightly dismissed by the Magistrate because of its latent ambiguity.

33 Byrne v Baker [1964] VR 443 gave rise to somewhat similar issues. This was a case in which the offence alleged was a failure by a director to use reasonable diligence. Some 60 items of particulars were alleged, of which a case to answer was found in respect of 25 items. These were held to be, in truth, 25 separate offences on the true interpretation of the statute. The complaint failed to identify which one of them was relied on to found the prosecution.

34 Ex parte Graham; re Dowling (supra) was a case of negligent driving. Particulars of the place and conduct were sought, but the Magistrate only ordered particulars of place. The particulars provided identified a stretch of highway extending over three-quarters of a mile. The evidence led disclosed more than one act of negligent driving as the defendant drove along that three-quarters of a mile. While the complaint was held to be not bad for duplicity, the resulting conviction was bad for duplicity.

35 Linehan v Australian Public Service Association (1982) 66 FLR 90 was also relied on by the appellant, although this concerned the validity of summonses issued pursuant to 19 informations, rather than the validity of the informations themselves. The informations each alleged that the defendant union had imposed a penalty on a member who had failed to join in industrial action, whereas the summonses each described the offence alleged as imposing a penalty or forfeiture. The defendant sought dismissal of each charge because of the words or forfeiture in the summonses, but the Court held the summonses were not nullities and ordered the striking out of the words or forfeiture and refused to dismiss the charges.

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36 In Alwer v McLean (2000) 116 A Crim R 364, Smith J of the Supreme Court of Victoria dealt, on appeal, with a conviction on a charge which had failed to allege an offence because it did not describe the offence in the words of the regulation. The consequence of this was that it omitted words of the regulation that spelt out an essential element, namely that the alleged offence occurred on a highway in a built up area. While the charge referred to a highway it did not allege that the offence occurred in a built up area. Because of this it was not possible to discern the applicable speed limit. It was also submitted that the charge could have been sustained under another paragraph of the subregulation but, in his Honour's view, the paragraphs created distinct offences and the case had not been conducted on that basis. Further, to do so, would require the implication in the complaint of words that would have been included had that been the original intention. Not surprisingly, the convictions were quashed.

37 Walsh v Tattersall (1996) 188 CLR 77 was another case of duplicity. An employee was charged with one offence of obtaining payments of benefits under workers compensation legislation by dishonest means. Some 30 payments had been obtained between October 1992 and October 1993. The prosecution's case was that the appellant's course of conduct amounted to one compendious false pretence of incapacity for work. The majority of the High Court, Gaudron, Gummow and Kirby JJ, took the view that the legislative provision under which the charge was laid created a separate offence for each payment and, hence, each payment obtained constituted a discreet offence and should have been separately charged.

38 The point of many of the cases relied on in support of ground 1 by the appellant was duplicity. That is not an issue in this appeal. It had been raised originally by ground 11, but this ground was abandoned by the appellant. Hence, a number of the cases relied on in support of ground 1 are not of direct relevance. As argued, ground 1 turned on alleged failures of the complaint to allege words in the regulation namely, "which it is proposed to clear" and the appellant's "intention in that behalf", as well as an alleged failure adequately to allege the changed use of the land relied on by the prosecution.

39 In the absence of duplicity or latent ambiguity in the complaint, the essential issue is whether the complaint disclosed an offence against reg 4(1), and did so in a manner which adequately informed the appellant of the essential factual ingredients of the offence on which the prosecution relied. The words of the regulation "which it is proposed to clear" and "his intention in that behalf" are not reproduced literally in the complaint.

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However, the complaint does expressly allege that it was the appellant's "intention to clear" the land. In my view, when regard is had to the grammatical tense used in the regulation, and the order in which matters are dealt with in it, it is clear that what is contemplated is a proposed clearing of land by the owner or occupier, which clearing will result in a change in the use of that land. The phrase in the regulation "give notice to the commissioner of his intention in that behalf" appears to be intended to refer back to the proposed clearing (albeit by the intermediary further reference to "the clearing" which immediately precedes the phrase). It was the appellant's contrary submission that "his intention in that behalf" referred back to the phrase "where the clearing will result in a change in the use of that land", but I am unable to read the regulation in this way, whether as a matter of grammar or of sense. Once the construction of the regulation is correctly understood, it follows, in my view, that the relevant words of the complaint are adequate to allege the relevant elements of the offence. The complaint is cast differently in tense, and in order, from the regulation, but in my view there is no material deficiency in its relevant allegation that the appellant "failed to give notice of its intention to clear that land … when the clearing would result in a change in the use of the land".

40 The further objection of the appellant is that there is no specification of the change in use upon which the prosecution relied. The regulation requires that a change in the use of the land will result. No particular type of change of use is prescribed. The complaint reflected the relevant words of the regulation so that it clearly and specifically alleged that a change in the use of the land would result from the intended clearing. Insofar as a change in the use of the land is an element, or is part of an element, of the offence constituted by reg 4(1) the complaint is adequate in law to allege that element. There are, however, two further and related issues. First, what constitutes a change of use within the meaning of the regulation and, secondly, what was alleged as a matter of fact to be the change in use in this case.

41 As to the second of these, the change of use alleged was not particularised in the complaint. There can be no doubt that the appellant was entitled, in the circumstances of this case, to have particulars of the change of use relied on. In this case that issue was taken further by pre-trial correspondence between the solicitors for the appellant and the respondent. By letter dated 13 December 2001 the appellant's solicitors sought further particulars on a number of matters. Interestingly the change of use alleged was not one of these. The particulars that had been sought were provided by a reply dated 7 January 2002. This reply went

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further than the request, however, and included particulars that the effect of the clearing was that longstanding perennial vegetation had been chained, burnt and ploughed. The respondent's solicitors then took the unusual course of providing the appellant's solicitors with full disclosure of the evidence to be led from its lay and expert witnesses, and of the exhibits which it was proposed to tender at the hearing. This was done by letter dated 7 February 2002. While that correspondence is not before me, it is not suggested that there was any material difference between the evidence actually given at the hearing and the notice of it given in that form on 7 February 2002. Relevantly, the notice given in this way was clear and only to one relevant effect, namely, that the land in question, comprising some 500 hectares, was cleared from a state of natural bush vegetation of a low scrub heath type to bare, ploughed soil readied variously for pasture or crop, and that this was done as part of the development of this broad-acres rural property.

42 Further, at the commencement of the hearing before the Magistrate on 21 March 2002, counsel for the respondent not only expressly adopted and relied on the notice so given of the respondent's case, but expressly further identified the change of use alleged to be a change from natural bushland or perennial vegetation to cleared land.

43 In the context of the particular circumstances of this case, in my view, the nature of the change of use alleged was identified sufficiently to inform the appellant of the case it was to be called on to answer, and the learned Magistrate was entitled, as he did, to hold this to be so.

44 As to the former of the two issues identified earlier, namely, what constitutes a change of use for the purpose of the regulation, that is a question of law. The answer to that question cannot affect the validity of the complaint as the complaint, in alleging a change of use, was reflecting the meaning in the regulation, whatever that might be.

45 It is appropriate, nevertheless, to consider submissions of the appellant about the meaning of a change of use of the land in reg 4(1). Literally, "use", in this context would suggest the manner or mode of employing or utilising the land. It may be accepted that this has no narrow or precise meaning. Nevertheless, as a factual concept, it is one which can be readily understood, albeit with the potential to give rise to difficult and borderline issues in some situations. The circumstance that, in some situations, there may be difficulty of application, does not make the concept of a change of use one which is uncertain or unable to be applied. Borderline cases are somewhat of a common-place in the law.

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46 The appellant sought to demonstrate its concern by illustration. It submitted that it may be said of a parcel of rural land, which is only partly cleared and used, that the whole of the parcel of land is "used as a farm". That description of use may be given, it is submitted, whether the land is cleared as to one-fifth only, or one-half; in each case the whole of the land remains a farm. The validity of such every day social usage in the present context is to be questioned. It is true that a property might very loosely be said to be a farm, even though only a small part of it is actually cleared and applied to grazing or crops. Nevertheless, it could not accurately be said in such a case that the whole of the land was used for farming or as a farm.

47 For the purposes of this regulation, the issue is how land which is to be cleared is used before the clearing, and how is it to be used after the clearing; more precisely whether a change in use of that land will result if it is cleared. Obviously, the circumstances which have a potential relevance to that question will vary widely. In some cases the issue will be complicated because of a change of plan, or a frustration of the intention of the owner or occupier of the land. These are not issues raised by the evidence in this case. Nevertheless, it appears to me that the issue posed by the regulation, viz, whether clearing will result in a change in the use of the land to be cleared, is one which may readily be understood and applied in the contemplated context. The regulation postulates an owner or occupier of land, that land being land which the owner or occupier plans to clear. The owner or occupier will have a reason for clearing the land. That reason, together with the nature of the clearing to be effected, and the condition of the land to be cleared, are among the matters which are likely to inform the answer to the question whether the clearing will result in a change to the use of the land. While the subjective plans of the owner or occupier may often be determinative of that issue, I note that the regulation poses the issue objectively. In some future case it may become necessary to explore that distinction further. For present purposes it is enough to observe that the objective circumstances may in themselves demonstrate that the proposed clearing will result in a change in the use of the land, even though it is not known precisely what is planned by the owner or occupier as to the future use to which the land will be put.

48 Also in this context the appellant argues that the land in question, for the purposes of the regulation, must be the whole of any parcel of land owned or occupied. There is no definition of land for the purpose of the Act or regulations. Having regard to the particular context of reg 4, where the precise reference is to "any land", and the references to "land" in a variety of contexts throughout the Act and regulations, I am not persuaded

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there is reason to so limit the meaning of "land". In my view there is no reason why part of a parcel of land is not "any land" within the meaning of reg 4(1), if it is intended to clear that part of the parcel of land. It has to be borne in mind that the Act is intended to apply to land throughout the State. It is a matter of common knowledge that a single land holding, whether freehold or Crown leasehold, may comprise an extremely large area of land. There is nothing suggested by the objects and purposes of the Act or of the regulations, or their language, to commend the view that reg 4(1) was only intended to apply to a situation where the whole of any particular parcel or holding of land is proposed to be cleared. On the contrary, it appears to me that the scope and purposes of the Act would only be satisfactorily served if the regulation is read, as indeed its words suggest, as applicable to any of area of land which the owner or occupier proposes to clear, whether that area of land be the whole or part of the one parcel or holding of land, or indeed comprises the whole or part of two or more parcels of land. This being so, the use of that land is an issue posed by reg 4(1) in respect of the land which it is proposed to clear, rather than the use to which the whole parcel or holding, of which the land to be cleared may only be part, is to be put.

49 Of course, by reg 4(3)(a), reg 4(1) does not apply to the proposed clearing of land which has an area of 1 hectare or less. That is not relevant in this case.

50 The appellant next drew attention to the concluding words of reg 4(1). These require notice to be given "of his intention in that behalf". A number of submissions are made in respect of this phrase. It is contended that "in that behalf" has no clear meaning, especially as there is no preceding reference to an intention. Alternatively, it is contended that the phrase contemplates the intended use of the land after it is cleared. These submissions appear to me to be creating difficulties that do not in truth exist on a fair reading of the regulation. The regulation makes an introductory reference to the owner or occupier of land. It then postulates that "it is proposed to clear" the land. In my view, it is not a distortion of language to accept in the context of this regulation that what is "proposed" by the owner or occupier in respect of clearing may also fairly be described as what relevantly is "intended" by the owner or occupier. So understood, the phrase at the end of the subregulation, "of his intention in that behalf", appears naturally and readily to refer back to what is proposed by the owner or occupier, ie the intention to clear. In my view, that is the most natural and clear meaning. The other requirement of reg 4(1) that the required notice be given at least 90 days before the

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commencement of the clearing, sits coherently with such a view, as do subregulations (2) and (4).

51 Thus, in my view, as a matter of statutory interpretation, the regulation has a meaning which is clear and coherent and to which practical effect may sensibly be given. Not surprisingly, there may be cases where the owner or occupier may consider the proposed clearing of land will not result in a change of use, whereas another view may commend itself to others. Should such a case arise the operation of reg 4(1) in that precise circumstance, will need to be considered and resolved. For reasons which will become apparent in this decision, the present is not such a case. That possibility does not in itself provide a basis for a conclusion that the regulation is invalid.

52 As the issue posed by this aspect of the appellant's contentions concerns the interpretation of the reg 4(1), it may also be of value to consider Form 1 in Schedule 2 of the regulations which provides the form of written notice which is to be used to satisfy the requirement of reg 4(1) – see reg 4(2). Form 1 is headed "Notice of intention to clear land". It is a form to be completed by the owner, or the occupier, or the owner and occupier. It requires that there be specified in hectares the land which it is intended to clear, that land to be shown on a map attached to the application, and that land "being the whole/part of" a district and location number to be given. A date is to be given when it is intended to commence the clearing, and the form requires the proposed use of the cleared land to be stated. While a form of this nature would not normally control or override the words of the regulation to which it relates, it affords some confirmation of the correctness of the interpretation suggested by the words of the regulation themselves, to find, as is the case here, that the form provided by the regulations clearly applies the interpretation which I have suggested is indicated by the words of the regulation itself, and does so at each disputed point.

53 Once the true interpretation of reg 4(1) is understood, I am not persuaded that the complaint misstates the offence or fails to allege material elements so as to render it void. As has been indicated this is not a case in which any issue of duplicity or latent ambiguity arises. The complaint, insofar as it is alleged that the clearing would result in a change in the use of the land, was in the words of the regulation or in similar words within the meaning of s 45 of the Justices Act. While the complaint itself did not adequately particularise the nature of the change of use alleged, that infringement of the common law rule was not, in the circumstances of this case, one which, to adapt the words of Gleeson CJ

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cited earlier from Stanton v Abernathy, was of such a nature that s 45 was insufficient to save the information. The steps taken by the respondent's solicitors before trial and the respondent's counsel at the commencement of the hearing were adequate, in the circumstances of this case, to inform the appellant of the case it had to meet in respect of change of use. The failure to identify the change of use alleged was a deficiency, in my view, which was remediable by the provision of particulars. That was the course followed in this case, and adequately so. That was the view the Magistrate took of the issue and it has not been shown that he was in error in this respect or that there has been any unfairness or injustice to the appellant from the course followed.

54 One consequence of the view I have expressed that the reference to land in reg 4(1) is to any area of land which the owner or occupier proposes to clear, is that the complaint in this case had the potential to mislead. Having first alleged that the appellant was the owner of Loc 3737, it thereafter referred to "that land", thereby suggesting that the whole of Loc 3737 was to be cleared. However, the particulars of complaint, which were sought and provided before trial, expressly made it clear that the respondent's case concerned part only of Loc 3737. Further, at the hearing the respondent's case was opened, and defended, on the basis that the allegation was that some 502 hectares only of Loc 3737 was cleared. No doubt, it would have been preferable for the complaint to have been formally amended, perhaps so that the first reference to "that land" was to "part of that land" and the second reference was to "the land to be cleared". But this was not done and it is apparent that the appellant was not misled or embarrassed in the conduct of its defence in this respect. It is not suggested that the complaint should now be amended even though each of subsections 199(1)(a), (c) and (g) and s 199(4) of the Justices Act would enable this. I therefore leave the matter as it stands.

55 Ground 1 is not made out.

Grounds 5 and 7

56 By ground 5 the appellant contends that the respondent failed to prove the use of the land prior to, and after, the clearing and neither proved, nor led any evidence of, any change of use. By ground 7 it is contended that as a consequence the Magistrate erred in law and in fact in "not holding that there was no change of use in any event because the land had previously been cleared".

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57 Implicit in these grounds are matters which have been considered and rejected earlier in these reasons, in particular that the regulation is referring to the use of the whole parcel or holding of land and that the use to which Loc 3737 was put before the clearing was as a farm, even though only part of it had been cleared and was in use for farming purposes.

58 Further, the factual foundation for these grounds appears to overlook aspects of the evidence. In particular, the evidence of Mr Panizza. It is true that answers given by Mr Panizza when interviewed by an investigating officer were the subject of objection. Mr Panizza was not an officer or director of the appellant. He, or perhaps more accurately a partnership of which he was a member, was a lessee of the appellant and a contractor for the appellant. While the appellant's director, Mr Stefanelli, referred the investigator to Mr Panizza "to handle the issue of the land clearing", the objection was taken that this was insufficient for Mr Panizza's answers to the investigating officer to be admissions on behalf of the appellant and admissible against the appellant. In the end the Magistrate accepted this and did not receive into evidence, or rely on, the answers of Mr Panizza to the investigating officer.

59 Quite separately from this, however, Mr Panizza was called as a witness for the prosecution and gave direct evidence inter alia of the instructions given to him by Mr Stefanelli and of the clearing he undertook pursuant to those instructions. In my view, the learned Magistrate was correct to regard this as evidence admissible against the appellant. Further, Mr Panizza gave evidence relating to the use of the property. This, too, was direct admissible evidence. The evidence of Mr Panizza in these various respects was uncontradicted. Indeed, much of it was led in cross-examination. It was clearly open to the learned Magistrate to accept Mr Panizza's evidence and to act on it, as he did, in reaching his decision.

60 It was the evidence of Mr Panizza that his partnership was the lessor from the appellant of the grazing rights to the whole of Loc 3737. The partnership grazed sheep. The property was not wholly fenced, however, and sheep could only be grazed within the fenced area. Much of the fenced land had been developed. Beyond the fenced area, however, was land the subject of the complaint. In part, at least, this had been roughly cleared some four to five years earlier by a previous owner – Mr Westbrook. This rough clearing had been a poor job in the first place, on the evidence of Mr Panizza, and further Mr Westbrook had run out of time and money to complete the task of clearing and developing this roughly cleared land to pasture. Mr Westbrook had taken up work in the

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north and the next year Mr and Mrs Gaunt had purchased Loc 3737. However the areas Mr Westbrook had roughly cleared had simply been left, so that the natural vegetation regrew. Mr Panizza's evidence indicated however that there were some patches where regrowth had not occurred. As he said in cross-examination:

"And in patches it was seen to be developed, but it was of no use as far as farming land goes, because it didn't have a fence around it and it was in too small a patches."

While the regrowth had occurred over four to five years and varied in its quality much of it was quite substantial. The clear effect of his evidence was that the clearing of this regrowth was necessary if this land was to be sown to pasture or crop; in the words of his instructions from the appellant's director Mr Stefanelli, if the land was to be "redeveloped".

61 The answers of Mr Panizza in cross-examination made it clear that the work he in fact undertook pursuant to Mr Stefanelli's instructions to redevelop the 500 or so hectares, involved chaining, burning to remove the material from the surface of the land, and finally ploughing "the area up so it's suitable for cultivation and planting down to pasture or crop". It was his evidence that, generally, ploughing twice was necessary for the land to be completely clean. In some parts of the 500 or so hectares to be cleared he was still completing the second ploughing as late as August 2000 when the Commissioner's officer first visited the property to investigate the clearing.

62 It was substantially on the basis of this evidence that the Magistrate accepted that what he described as a "wholesale clearing of a very large area of land on the defendant's property" had been undertaken by Mr Panizza "primarily from February 2000 to June 2000", although as indicated it appears that in some parts work was still in progress in August 2000 to complete a second ploughing. The Magistrate also found that "the subject land had around five years ago been chained by a previous owner …. According to Mr Panizza it was a poor job and it would appear it had regrown substantially since that time". His Worship also held in another passage from his reasons "I accept, based on Mr Panizza's evidence, that there was an earlier poor chaining job … undertaken on the land. However, it had substantially regrown in the intervening four or five year period".

63 His Worship then went on to hold inter alia:

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" … Irrespective of earlier work undertaken by others … irrespective of whether the subject land had been partially cleared, … there had been such a substantial regrowth that notice was required to be given to the Commissioner by the defendants."

64 In my view, there was evidence that while a developed part of Loc 3737 had been used by Mr Panizza's partnership under lease for pasturing sheep, that was not the case in respect of the land the subject of the complaint. Although the 500 or so hectares, the subject of the complaint, had previously been roughly cleared, or much of it, generally it had been subject to substantial regrowth of the natural perennial heath scrub natural bush over the intervening four to five years. Even where, in small patches, there had not been regrowth, the land was described by Mr Panizza as being of no use for farming purposes. The clear effect of the evidence of Mr Panizza is that the 500 or so hectares the subject of the complaint was not the subject of any farming use in 2000 at the time his own partnership undertook the clearing of that area of Loc 3737.

65 Mr Panizza's evidence also clearly disclosed that the clearing of the 500 or so hectares in 2000 was seen by the appellant's director, Mr Stefanelli as the development or redevelopment of that part of the Loc 3737, and was undertaken on Mr Stefanelli's instructions for this purpose. The nature of this development was apparent from the fact that the clearing process involved taking the land back to bare earth, and its ploughing with a view to it being set to pasture or crop.

66 In my view, on any view of the notion of a change of use of land for the purposes of the regulation, it was open to the learned Magistrate to hold that the clearing of the 500 or so hectares in the circumstances disclosed by the evidence of Mr Panizza involved a change of use within the meaning of reg 4(1).

67 The evidence of Mr Panizza was clear and uncontradicted. His evidence was accepted by the Magistrate. In my view, that evidence was sufficient to establish that there was a change of use, of the nature alleged, in respect of the 500 or so hectares, the subject of the complaint. As indicated earlier, the change in use relevant for the purposes of reg 4(1) is the use to which the land to be cleared is to be put.

68 For the reasons indicated grounds 5 and 7 are not made out.

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Ground 3

69 The definition of "to clear" in reg 2 excepts the cutting of trees for firewood, posts or timber. The complaint was not drawn so as to negative that exception, hence the respondent could not claim the advantage of the reversal of the onus of proof for which s 72 of the Justices Act 1902 (WA) provides.

70 It was for the respondent, therefore, before the learned Magistrate to prove that the clearing in fact involved more than, or something other than, the cutting of trees for firewood, posts or timber.

71 The proposition for the appellant is short and clear. It is contended that the respondent did not lead evidence to deal with this issue.

72 In my view, the answer to this contention is equally short and clear. There was evidence, and adequate evidence, to negative this exception.

73 There was oral evidence from more than one witness of the nature of the growth that was cleared from the land in question. Generally, it was perennial bushland described as native bush or low heath scrub. In the Magistrate's finding a "heath type of scrub". While heath is essentially low shrubs and plants the finding that it was a heath type of scrub indicates the likelihood of there also being some stunted tree growth. This is consistent with the photographic evidence and supports the further finding of the Magistrate that the clearing undertaken by Mr Panizza was to destroy or otherwise damage trees and shrubs.

74 The finding of the Magistrate as to the nature of the growth cleared, well supported as it is by the evidence, does not provide a factual basis for concluding that the growth cleared comprised trees of any substance or value, such as would provide a source of posts or timber of any value or utility. At the very best, it is possible that some of the stunted scrub could provide a source of poor firewood.

75 The evidence, however, discloses clearly that the clearing was not undertaken to provide firewood, or for that matter posts or timber. Mr Panizza's undisputed evidence is that the method of clearing adopted was to clear a fire break around the area to be cleared, then to chain-fell all the growth on the land to be cleared, then to burn so as to clear the surface of the land to be cleared to enable ploughing. On any view that denies the possibility that trees, or only trees, were felled to provide firewood or indeed posts or timber.

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76 The evidence indicates that what was cleared was burnt, and that all growth – not just any trees – were cleared by chaining and burning.

77 Ground 3 is not made out.

78 I would note that in the course of his cross-examination, Mr Panizza's description of the process of clearing which was followed does not refer to the chaining but merely to the clearing of firebreaks, burning the growth to be cleared and then ploughing the ground, usually twice so as to ready it to be sown to pasture or crop. However, in his evidence-in-chief and again in re-examination, Mr Panizza referred directly to chaining. It would appear that the omission of chaining in cross-examination was unintended. It was not a matter critical to the point of the cross-examination. Of course, whether or not there was an initial chaining, the remainder of the process is sufficient to demonstrate that there was no factual foundation for the proposition being advanced by the appellant.

Ground 8

79 By ground 8 it is contended that the learned Magistrate erred in law and fact in "not holding that no offence had been committed by the applicant because the previous owner of the relevant land had permission to clear the land".

80 It became clear in argument that what was relied on to constitute this "permission" to the previous owner was an agreement entered into by the Commissioner and the immediately previous owners, Mr and Mrs Gaunt, in October 1996. This agreement was of the type contemplated by s 30 of the Act. A copy is exhibit 15. The agreement did not grant permission to Mr and Mrs Gaunt, or anyone, to clear the land or any part of it. As contemplated by the Act, that agreement was in fact a commitment by Mr and Mrs Gaunt to retain identified areas of Loc 3737, which totalled 322.3 hectares, in perpetuity as reserved land under s 30 of the Act. The reserved land was to be fenced to exclude all livestock by 31 December 2006 and to be managed in such a way as to retain and promote the growth of native vegetation. As the legend to exhibit 15 indicated, a consequence of this agreement was that areas of Loc 3737 totalling 164 hectares were "able to be cleared". As is clear from the legend, this represented an identified area of Loc 3737 which, in October 1996, had not been cleared and which was not part of the 322.3 hectares reserved in perpetuity by the agreement. Given the terms of the agreement and of s 30, the identification in the legend to exhibit 15 of an area of Loc 3737

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as "able to be cleared" was in no sense a displacement of the requirement of reg 4(1) to give notice of an intention or proposal to actually clear land, whether the 164 hectares or any other part of Loc 3737.

81 While this agreement is memorialised on the Certificate of Title and so may be said to "run with the land" and to be binding on the appellant as a subsequent owner, no basis in law has been demonstrated on which it can be said that the operation of reg 4(1) is affected by this agreement. I would also note that it is not even advanced or established by evidence that the appellant misunderstood the legal effect of the agreement in some way. The appellant gave no evidence in defence. Of course, had there been some such mistake it would not have been relevant as s 24 of the Criminal Code applies only to errors of fact.

82 The appellant also sought to rely on exhibit 15 insofar as its legend indicates that there were some 1,051 hectares of Loc 3737 "cleared" at the time of the 1996 agreement. It is clear from that exhibit and the other evidence, however, that the 1,051 hectares included the land which had then recently been roughly cleared by Mr Westbrook the owner who had preceded Mr and Mrs Gaunt. This rough clearing was the subject of the evidence of Mr Panizza to which reference has already been made, and the area roughly cleared in this way was later allowed to return to its natural state by the regrowth of natural vegetation so that by the time of the clearing the subject of the complaint, it was no longer the case that 1,051 hectares was cleared. One relevance of this, as I understood the appellant's argument, was that if 1,051 hectares of a property comprising 1,624 hectares had been developed by clearing, then it should be held that the "use" of the whole of Loc 3737 was as a farm. It would follow from that, in the submission, that there had been no "change of use" within the meaning of reg 4(1). What has been said earlier sufficiently identifies my reasons for rejecting this line of reasoning.

83 The evidence established that the applicant cleared far more of Loc 3737 than 164 hectares; all told over 500 hectares was cleared in 2000. Further, the evidence in fact discloses that the applicant cleared part of the 322 hectares which, by the agreement, were to be retained in perpetuity as native vegetation.

84 The matters raised in support of ground 8 do not assist the appellant in this appeal. That ground fails.

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Ground 9

85 By ground 9 it is contended the learned Magistrate erred in law by allowing into evidence aerial and satellite photographs, and wrongly overruled objections to their tender without giving adequate reasons. Further, it is contended the photographs ought not to have been admitted because the witness who tended them was not qualified as an expert. As a consequence of these matters it is the appellant's contention that there was a miscarriage of justice because the photographs "underpinned the evidence of a majority of the respondent's witnesses".

86 It should be observed at the outset that while a number of the respondent's witnesses referred, or were referred, to photographs for purposes which differed as between the witnesses, it is rather too sweeping and too ambitious to suggest the photographs underpinned the evidence of a majority of the respondent's witnesses.

87 In particular, quite independently of the photographic evidence, the evidence of direct inspection and conduct given by several of the respondent's officers and by Mr Panizza was enough to establish the clearing by the appellant of very extensive areas of Loc 3737 as alleged by the complaint. It is true that reference was made to the photographs to more precisely identify areas so cleared, and as part of the process of calculating the total area cleared, but without that reference to the photographs the evidence was adequate to establish the clearing of very large areas of Loc 3737 in 2000 by Mr Panizza for the appellant. The evidence, including the plan exhibit 9 and the plan included in the 1996 agreement exhibit 15, without the photographs and the use made of them, would have been sufficient to establish that there had been extensive clearing so far as that was relevant to the offence charged.

88 The evidence as to the aerial photographs was given primarily by a Mr Bodeker, a technical officer of the Department of Agriculture, whose particular area of work was in the Mapping and Geographical Information Services of the Department.

89 He identified two photographs of Loc 3737 and its surrounds. These became exhibits P6A and P7A, each being a "contract print" produced by the Department of Land Administration and being part of a set of aerial photographs taken by that Department. The evidence indicates that the complete set covers the whole agricultural region of the State and shows the cadastral details, the property boundaries, and roads, as well as showing the main surface of the land depicted in each photograph. It was the evidence of Mr Bodeker that these sets of aerial photographs are

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produced by DOLA every five years, exhibit P6A being a print of a photograph taken on 19 October 1996 and exhibit P7A, a print of a photograph taken on 25 September 2000. It was the evidence that these photographs are available to the general public as well as for official purposes. They are available to the public either as "contract prints" or in digital form on a compact disc which covers the whole of the State.

90 At the hearing below objection was raised to the admission of these two photographs, it appears on the same basis as that now advanced, although without reference to authority. As counsel for the appellant then submitted –

" … That's a photograph. There's no statement on that."

91 In the absence of a statutory provision facilitating the admissibility of these photographs the issue of admissibility is to be determined according to the common law with respect to public documents. This was indeed the basis on which the admission of the photographs was supported by the prosecution and accepted by the learned Magistrate. No doubt reliance was placed on the common law as to documents of a public nature, rather than any ordinary principles of relevance, because what was tendered were certified prints or copy photographs, not the originals. To enable this, counsel for the respondent also called in aid s 65 of the Evidence Act 1906 (WA); this applies only to certified copies of documents of such a public nature as to be admissible on production from proper custody. As a matter of statutory interpretation I note that "document" is a term defined by s 5 of the Interpretation Act, that definition in turn incorporating the defined term "publication" which specifically includes "photographs". Thus an issue arises in this case as to the adequacy of the certification for the purposes of s 65. The issue is whether the original photographs are "public documents" within the purview of s 65(1).

92 The appellant referred to authorities concerned with the circumstances in which statements contained in public documents can be admitted as proof of the truth of what is stated in the documents, notwithstanding the character of the statements as hearsay. In the case primarily relied on by the appellant, Ioannou v Demetriou [1952] AC 84 the Court was concerned with the claim of the inhabitants of the village of Petra in Cyprus to have, by virtue of ancient user, sole use of the full natural flow of a river. The claim was disputed by the inhabitants of another village on the river. In 1901 a surveyor of the Land Registry Office of Cyprus reported to his superiors as to the practice then existing for the taking of water by the inhabitants of the two villages and others.

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The document supported the claim of the Petrans. It was received into evidence and the claim succeeded at first instance. The admissibility of the surveyor's report was considered by the Privy Council on ultimate appeal, inter alia under the "English Common Law Rules of Evidence" as a "public document", the common law in this respect having been made applicable to Cyprus by The Evidence Act 1946 of Cyprus, s 3; see 89. As their Lordships stated in their judgment at 92:

"Public documents in this connexion may be classified under different heads, but the class with which the Board is now concerned is that class which comprises documents which are brought into existence as a result of a survey, enquiry or inquisition carried out or held under lawful authority, and it is to this class of document that the observations which follow are confined."

The Privy Council made extensive reference to authority, including the influential decision in Sturla v Freccia (1880) 5 App Cas 623, where the issue arose as to the place and date of birth of a former Genoese Consul in London. A committee of the Genoese Government had inquired into the fitness of the Consul for appointment as a diplomatic agent, and in its report to the Genoese Government had described him as "a native of Quarto of about forty-five years of age." It was held by the House of Lords that the report of the Genoese Committee was not admissible for the purpose of evidence as to the Consul's place and date of birth because the report was not a "public document"; it was described by Lord Blackburn at 647 as " … this private and confidential report … meant for private information, to guide the discretion of the (Genoese) Government." In reaching his decision, Lord Blackburn considered inter alia the judgment of Parke B in TheIrish Society v The Bishop of Derry (1846) 12 CL and F 641 which held admissible secondary evidence of the return made by the bishop to writs issued out of the Exchequer to ascertain the value of the first fruits of his diocese, the value of one rectory in the diocese being in issue in the proceedings. Of that decision, Lord Blackburn observed at 643 - 644:

" … the principle upon which it goes is, that it should be a public inquiry, a public document and made by a public officer. I do not think that 'public' there is to be taken in the sense of meaning the whole world. I think an entry in the books of a manor is public in the sense that it concerns all the people interested in the manor. And an entry probably in a corporation book concerning a corporate matter, or something in which all

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the corporation is concerned, would be 'public' within that sense. But it must be a public document, and it must be made by a public officer. I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it. It is meant to be where there is a judicial, or quasi-judicial, duty to inquire, as might be said to be the case with the bishop acting under the writs issued by the Crown … He is acting for the public when that is done, but I think the very object of it must be that it should be made for the purpose of being kept public, so that the persons concerned in it may have access to it afterwards.

In many cases, entries in the parish register, of births, marriages, and deaths, and other entries of that kind, before there were any statutes relating to them, were admissible, and they were 'public' then, because the Common Law of England made it an express duty to keep the register, made it a public document in that sense kept by a public officer for the purpose of a register, and so made it admissible."

93 Lord Blackburn's observations in Sturla v Freccia were expressly applied by the Judicial Committee in Ioannou v Demetriou at 94 - 95, where it was held:

" … it was not shown … (1) that a judicial or semi-judicial inquiry was ever held by (the surveyor) as to the rights (to water of the competing villagers); (2) that the inquiry in fact held by (the surveyor) was held with the object that his report thereon should be made public; or (3) that the report was in fact at all times open to public inspection … Furthermore, … the statements in a document tendered in evidence as a public document should be statements with regard to matters which it was the duty of the public officer holding the inquiry to inquire into and report on."

Their Lordships decided on this basis that the 1901 report of the surveyor had been wrongly admitted as proof of the statements made in it. That error had been material to the outcome of the case, because the report had played a large part in the determination of the questions of fact; see 91.

94 It may be observed, however, that the photographs in this case are not of that class of document. They were not produced in the context of any public inquiry to determine factual issues the subject of controversy or uncertainty. Further, as a review of Lord Blackburn's speech in Sturla

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v Freccia, and other authorities, indicates some difference of rule applied to the admission of different types of public document at common law; eg, the parish registers to which his Lordship referred. It is also to be borne in mind that both Ioannou v Demetriou and Sturla v Freccia were particularly concerned with the admission of documents, so that hearsay statements in them could afford evidence of the truth of what was so stated.

95 The appellant also referred to Trade Practices Commission v TNT Management Pty Ltd & Ors (1984) 56 ALR 647, where Franki J considered the admissibility of certain documents of a corporation. At 666 - 668, after considering a number of authorities, including Ioannou v Demetriou and R v Halpin [1975] 1 QB 907, where, as his Honour observed at 667, the Court of Appeal held that " … statements made in a return filed by a company in pursuance of a statutory duty to make accurate returns which are filed and can be inspected by the public are 'admissible as prima facie proof of the truth of their contents'". Franki J concluded at 667 and 669 that so much of an annual return of a corporation which was lodged pursuant to a duty cast by the Companies Act should be admitted, but not the balance of the return. Although the return was not prepared by a public officer, or following any public inquiry, emphasis was given to the public duty imposed on the corporation by statute to make accurate returns.

96 In the present case, however, we are concerned with documents, being photographs, filmed by a government department, both for its purposes and to be made available to other government departments and agencies and to any member of the public who wished to have access to them. The photographs were not produced in connection with any disputed factual issue or controversy. They record photographically, at intervals of years, the surface land area of the State, or at least that part of the State which is subject to cultivation. While no express public duty to produce this aerial photographic record of the land area of the State is pointed to, the relevance and value of such an ongoing record for the many purposes of the Department of Land Administration and of other public departments and agencies is self-evident and a matter of some notoriety, as is the potential value of such a photographic record for a variety of private purposes of individual members of the public who may have an interest generally, or in a particular location or parcel of land or locality.

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122 The appellant contends that a duty or function is conferred on the Commissioner by reg 4(1) by virtue of its requirement that notice be given by a landowner to the Commissioner. Clearly, the regulation contemplates that, in the course of the administration of the Act and regulations, notices of that type will be "given" to the Commissioner. Such notice could be given by delivering it to the Commissioner personally, or by post, or by leaving it for the Commissioner at his place of business; Interpretation Act1984, s 76. Nevertheless, neither the words of the regulation, nor the subject or context of the regulation, contemplate that a notice must be received personally by the Commissioner to satisfy the regulation, and it is not the effect or intention to be gleaned from the regulation that the Commissioner has the duty or function, which he must perform personally, of receiving a notice if "given". In truth, the regulation imposes no requirement as to how a notice which is given, is to be received or dealt with in the course of the administration of the Act.

123 It is also significant to notice that the regulation is not a provision conferring or requiring the exercise of a particular power by the Commissioner, or imposing a duty to exercise a particular discretion, or to make a specific type of decision. The focus of the regulation is on the landowner or occupier. The obligation it imposes is on the landowner or occupier to give the required notice. It is not the subject or purpose of the regulation to provide how, or by whom, such a notice is to be received in the course of the due administration of the Act.

124 For these reasons, and, in particular having regard to the nature and scope of the functions, duties and powers of the Commissioner under the Act, in my view, it is not the effect of reg 4(1) that the Commissioner must personally receive a notice given by a landowner pursuant to that regulation.

125 Further, while under s 7(4) of the Act the Commissioner may, by writing, delegate to a person "any of his powers or duties" under the Act, it is not apparent, in my view, that reg 4(1) creates a power or duty of the Commissioner within the meaning of s 7(4). Whether that last observation be the position, or not, the reception of notices given by landowners or occupiers pursuant to reg 4(1), and, indeed, the consideration and decision as to what, if anything, should be done under the Act in respect of such a notice, are matters which may properly be dealt with by appropriate officers and employees engaged in the administration of the Act. That is so whether, or not, in respect of some particular powers or duties the Commissioner might also delegate that

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power or duty. However, on the true construction of the Act, a particular provision may be found to require the personal decision or action of the Commissioner (or of a formal delegate of the Commissioner under s 7(4)). For the reasons indicated, that is not the case in respect of reg 4(1). In this respect, see, in particular, Re Reference Under Section 11 of Ombudsman Act (1979) 2 ALD 86 at 93 - 95 per Brennan J, and O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 11 - 13 per Gibbs CJ, and at 30 - 33 per Wilson J.

126 For the reasons indicated, I do not understand the questions posed by these three grounds of appeal to arise in the same legislative context as the appellant put them in its submissions. The appellant proceeded from the premise that it was the statutory function or duty of the Commissioner, exercisable solely by the Commissioner, to receive a notice under reg 4(1), and that this was not a function or duty which could be delegated. In the appellant's submission, it followed that only the Commissioner could give the evidence necessary to establish that notice had not been given to the Commissioner by the appellant in the present case. As the Commissioner was not called to give this evidence, it followed, in the submission of the appellant, that this element of the offence had not been proved. On a similar basis, the appellant submitted that s 79F of the Evidence Act1906 (WA) could not assist the proof of this element and that the system evidence led from an officer of the Department of Agriculture had no relevance and could not satisfy the evidentiary onus on the respondent. As has been indicated, that line of submission appears to me to misconceive the statutory context in material respects.

127 By s 79F of the Evidence Act, it is provided:

"79F. Dispute as to happening of event

(1) Where in any proceedings the happening of an event is in question, and a system has been followed to make and keep a record of the happening of all events of that description, oral or other evidence to establish that there is no record of the happening of the event is admissible to prove that the event did not happen.

(2) …

(3) In estimating the weight, if any, to be attached to evidence rendered admissible by this section, regard shall be had to all the circumstances from which any inference

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can reasonably be drawn as to the accuracy or otherwise of the evidence, including whether or not any person concerned with the making or keeping of the relevant record had any incentive to omit recording the happening of the event in question."

Section 79F applied in the present case to the proceedings before the learned Magistrate: Evidence Act, s 79B, definition of "proceedings", and s 3, definition of "legal proceeding". In the present case, the "event" for the purposes of s 79F was the giving of notice by the appellant to the Commissioner of its intention to clear on Loc 3737.

128 Evidence was led before the Magistrate from an officer of the Department of Agriculture of the relevant system followed in the office of the Commissioner to make and keep a record of the happening of all events of that description; ie, of all occasions in which a notice as required by reg 4(1), that is, a form 1 notice, was received at the office of the Commissioner from an owner or occupier. Further, it was the evidence of that officer that there was no record of such a notice having been received, from the appellant or anyone else, in respect of this clearing on Loc 3737.

129 In my view, it is the effect of s 79F(1) of the Evidence Act that this evidence was "admissible to prove that the event did not happen". It was so regarded by the learned Magistrate. In particular, it is no objection to this evidence, for the reasons given earlier, that the witness, Ms Holyoake, was an officer of the Department of Agriculture and that the Commissioner himself was not called.

130 The weight to be attached to this evidence is the subject of specific provision in s 79F(3). The reasons of the learned Magistrate reveal that he did specifically consider the weight of this evidence. The evidence given had detailed the nature and working of this record-keeping system, which was under the direct supervision of the officer who gave the evidence. The Magistrate found inter alia that:

" ... there was no evidence contradicting that Holyoake never received a notice or that her record keeping system was flawed ... I accept that any notice ... would have gone through, and been processed by, Holyoake."

131 Cases such as James v Twiss [1929] SASR 110 at 177 and Albrighton v Royal Prince Alfred Hospital & Ors [1980] 2 NSWLR 542 at 567 were referred to by the appellant. The first did not concern a statutory provision such as s 79F, and the particular point of relevance of

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the second decision was that the evidence relevant to the question of the weight to be attached to the record-keeping system in place in the large hospital in that case was not before the jury, even though it was the jury which had to assess the weight to be attached to the evidence.

132 It is clear that the prosecution relied on the record-keeping system to establish that notice in accordance with reg 4(1) was not given to the Commissioner by the appellant. The weight to be given to the evidence led pursuant to s 79F, and whether that evidence provided a sufficient foundation for an inference that the required notice had not been given and to displace any other inference that might be consistent with innocence, so as to establish the failure of the appellant to give the required notice, and to do so beyond reasonable doubt, are matters of fact which may be influenced significantly by the particular circumstances of the case and by the Magistrate's evaluation of the system established and the other evidence, in particular of the critical witness Ms Holyoake.

133 None of the authorities relied on by the appellant establish the proposition advanced that, as a matter of law, the evidence in this case was not capable of satisfying the Magistrate, whether on a no case to answer submission or beyond reasonable doubt, that notice had not been given. This is not a case where the Magistrate had also to weigh competing evidence that notice had been given. There was no such evidence. Indeed, the primary case of the appellant was, on more than one basis, that notice was not required, and no evidence was called in defence.

134 In my view, nothing has been advanced which provides an adequate basis for displacing the finding made by the Magistrate. No error of fact or law in this respect has been demonstrated. These three grounds of appeal fail.

Ground 11

135 Ground 11 was expressly abandoned at the hearing of the appeal and need not be further considered.

SENTENCE - Grounds 12, 13, 14 and 15

136 Ground 13 was abandoned at the hearing of the appeal and I will not consider it further.

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137 The learned Magistrate imposed a fine on the appellant of $6000. However, reg 4(1) prescribes a maximum penalty of $2000 for a breach of the regulation. This is in accordance with s 48(3)(b) of the Act, which limits the penalty which can be prescribed for a breach of a regulation to a fine not exceeding $2000.

138 If that were all, it would be self-evident that the learned Magistrate had exceeded his powers with respect to penalty.

139 Subsequent to the enactment of s 48(3)(b) of the Act, and to the making of reg 4(1), however, the legislature provided by s 40 of the Sentencing Act1995 (WA) for the sentences which may be imposed where, as in the present case, the offender is a body corporate. In this respect, the provisions of s 40 of the Sentencing Act apply to all persons, including all bodies corporate, convicted of an offence under a written law (which includes subsidiary legislation such as the regulations: Sentencing Act s 3(1) and s 4(1), definition of "offence", Interpretation Act1984 s 5, definition of "written law").

140 As was observed by McLure J in Younger v Burswood Nominees Pty Ltd [2002] WASCA 36 at [25], the Sentencing Act1995 consolidated the laws with respect to sentencing to provide uniformity and consistency of approach, regardless of the source of the liability or penalty. Relevantly, by s 40(5) of the Sentencing Act it is provided that where the penalty specified by a written law for an offence is a fine, a body corporate convicted of the offence is liable to a fine which is five times the maximum that can be imposed on a natural person convicted of that offence. The only exception to this being where "a statutory penalty is expressly provided for a body corporate".

141 In this case, a maximum penalty of a fine of $2,000 is specified for a breach of Reg 4(1). That is the maximum penalty that can be imposed on a natural person for a breach of Reg 4(1). The effect of s 40(5) of the Sentencing Act is to render a body corporate, which is found guilty of a breach of Reg 4(1), to a maximum penalty of a fine of $2,000 x 5, ie $10,000: cfYounger v Burswood Nominees (supra) at [23] - [27].

142 The appellant argues that this cannot be so because the power to prescribe the maximum penalty for a breach of Reg 4(1) is limited to a fine not exceeding $2,000 by s 48(3)(b) of the Act. The difficulty with this submission is that the regulation itself prescribes a maximum penalty of $2,000. It makes no different provision where the offender is a body corporate.

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143 While s 48(3)(b) of the Act limits the power to make delegated legislation which prescribes a maximum penalty greater than $2,000 for an offence against the regulation, that provision cannot preclude the legislature itself from enacting some different provision at some future time. That has occurred in this case. It is not the regulation, but s 40(5) of the Sentencing Act itself, which has the effect that a maximum penalty of $10,000 applies where a breach of Reg 4(1) is committed by a body corporate. The parliament has power to make such provision. The Sentencing Act is a later Act of general application. Its object, relevantly, is clearly to render bodies corporate which commit an offence liable to a greater maximum penalty by way of fine than other offenders, even though the same offence may be committed.

144 In this case, therefore, the learned Magistrate was required to consider the exercise of the sentencing discretion on the basis that parliament had provided that for an offender such as the appellant the maximum penalty which could be imposed was a fine of $10,000. In my view, the learned Magistrate did not err in this respect.

145 Of course, the introduction of a distinction of this nature between the penalties to which a corporate and a natural offender are liable for the same offence requires a reappraisal of the approach to sentencing in some cases.

146 There are many legislative examples, which precede s 40(5), of the legislature providing a different maximum penalty according to whether the offender was a natural person or a body corporate. This was most usually the case, however, where a natural person might be sentenced to imprisonment or to a fine. In such cases there was clearly need to provide for a penalty, in the case of a corporate offender, which was adequate in circumstances where a natural person would have been imprisoned. Section 40(5) of the Sentencing Act is not limited to such cases, however, and its effect is to render a body corporate liable to a fine which is five times greater than might be imposed on a natural person for the same offence in all circumstances (save where there is specific provision as to the penalty applicable to a corporate offender).

147 Faced with such a clearly expressed legislative intention it appears to me that the legislature must have contemplated that when sentencing a corporate offender the Court should seek to assess the degree of criminality, ie the seriousness of the offence committed by the corporate offender, and should then seek to determine what fine would be appropriate to reflect that criminality, and the other relevant

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circumstances, in the knowledge that the maximum penalty which might be imposed in the present case is $10,000, even though the power to fine a natural person for the same breach would be limited to $2,000.

148 It appears to me that it does not follow that, in every case, the penalty imposed on a corporate offender will be five times that which would be imposed on a natural offender for the same offence. There will be circumstances, in particular, where the degree of criminality will be such that the maximum fine provided in respect of a natural offender would be adequate to reflect the criminality involved in the offence. In cases, however, where the maximum fine prescribed in respect of a natural offender appears inadequate to reflect adequately the degree of criminality involved in the offence as, regrettably, is only too often the case, the Court may more adequately reflect the full measure of the criminality when dealing with a corporate offender.

149 Although the analogy is by no means complete or accurate, there are some similarities to be found in the many provisions which provide for a maximum penalty for an offence where the conviction is on indictment, even though a lesser maximum penalty is provided for the same offence on summary conviction. The degree of criminality remains the same, but the sentencing power of the Court is greater in some situations than in others. In such cases the penalty imposed following conviction on indictment may well be no greater than the maximum penalty provided in the case of a summary conviction, because the degree of criminality involved does not warrant any greater penalty. In a case, however, where the degree of criminality justifies such a course, the penalty imposed may well exceed the maximum prescribed in respect of a summary conviction, notwithstanding the fact that a much lower maximum is provided by the legislature in the case of a summary conviction for that very same offence.

150 It has not been shown, in my view, that the Magistrate misconceived his powers in imposing a fine of $6,000, or that there was error in his approach to the exercise of the sentencing discretion, by virtue of the circumstance that he exercised that discretion in the context of a maximum penalty of $10,000, rather than $2,000. Ground 12 is not made out.

151 Ground 14 contends that the learned Magistrate erred in law in taking into account the circumstance that the clearing could result in salinity or land degradation when there was no specific evidence, it is submitted, on those points.

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152 The brief comments of the Magistrate relevant to this ground include the following:

"… there was a very large area of land cleared, in the vicinity of 502 hectares. No notice was given to the Commissioner. If it had been a different end result could have eventuated. … I am concerned as to a deterrent type of sentence. … I think it can fairly be said that there is the potential for degradation, in the sense of salinity issues. I think Brian Panizza would have to know that clearing the land in this State has led to salt problems, and without (the giving of) notice the Commissioner has no chance of addressing that issue. It causes problems for the State."

153 As I read the comments of the learned Magistrate it is not the case that he has sentenced on the factual basis that this clearing has, or will, result in degradation, in the sense of salinity issues, on Location 3737. His observations are much more generally directed. His Worship appears to be commenting on a general and State-wide basis when he observed that "… clearing the land in this State has led to salt problems… It causes problems for the State." The comments suggest no more than that when an area of land of this size, ie 502 hectares, is cleared "… there is the potential for degradation, in the sense of salinity issues."

154 In this era, in this State, that is a matter of notoriety which hardly requires specific evidence. In making these observations the learned Magistrate was really doing no more than reflecting one significant aspect of the manifest policy of the Act itself, in that the giving of the notice to the Commissioner in the circumstances required by Reg 4(1) is clearly to enable an assessment of the potential effects of the intended clearing so that action can be taken pursuant to the Act where the circumstances warrant such action. In the present case, the history of the application of the Act to the land, as evidenced by the 1996 Agreement, provided clear reason to expect that action would have been taken pursuant to the Act by the Commissioner had notice been given pursuant to Reg 4(1). As his Worship noted, had notice been given, "a different end result could have eventuated".

155 In my view the observations do not reveal that his Worship took into account any matter that was irrelevant or that was not well justified by the circumstances revealed in the evidence before him in this case.

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156 Ground 15 simply asserts the fine was excessive. There was no specific development of this ground on any basis distinct from those raised by grounds 12 and 14.

157 In this case, for the reasons indicated, the sentence imposed was well within the statutory maximum penalty for the offence when committed by a body corporate. The learned Magistrate did not err in fact in having express regard to the large area of land cleared, and to what he described as the "complete" nature of the clearing effected by the appellant's contractor, ie the total removal of the natural bush, generally to bare earth. In my view, his Worship was well justified in taking into account the significance for the State of the loss of the opportunity to regulate such land clearing which occurred because of the failure to give notice to the Commissioner. In this respect I note that at the hearing before the learned Magistrate there was no attempt by the appellant to advance by evidence in mitigation of penalty that it had acted in any way by mistake or in ignorance of the requirement to give notice. In the circumstances, there was, in my view, justification for the learned Magistrate to take the view that a deterrent sentence was called for, both to deter the present appellant and others as a matter of general deterrence.

158 No basis has been demonstrated on which it should be concluded that the sentence imposed was the result of an erroneous exercise of sentencing discretion.

Result

159 For the reasons given I would dismiss the appeal both in respect of conviction and sentence.