Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd

[2021] NSWLEC 85

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd [2021] NSWLEC 85

Hearing dates:

13 July 2021

Date of orders:

13 August 2021

Decision date:

13 August 2021

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

See orders at [265].

Catchwords:

ENVIRONMENTAL OFFENCES: corporate defendants plead guilty to offences against the Mining Act 1992 – imposition of appropriate sentence – applicable sentencing principles – whether offences committed negligently – degree of environmental harm caused by the commission of the offences – whether substantial harm to the environment caused by the commission of the offences – whether assistance provided to authorities – whether power exists to order the payment of the prosecutor’s investigation costs – whether the ordering of a moiety appropriate – application of totality principle – comparable cases – publication order.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3), 22, 23

Criminal Procedure Act 1986, ss 257A, 257B, 257G

Fines Act 1966, ss 6, 122

Mining Act 1992, ss 3A, 5, 23A, 240AA(1), 240AA(2), 378D, 378D(1), 378D(3), 378EA, 378H(1), 378ZC(1), 378ZE(1)

Mining and Petroleum Legislation Amendment (Harmonisation) Act 2015, s 23A

Cases Cited:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Barbaro v The Queen; Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58

Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54

Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314

Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110

Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30

Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483

Environment Protection Authority v Abbas [2021] NSWLEC 57

Environment Protection Authority v Ardent LeisureLtd [2018] NSWLEC 36

Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58

Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211

Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66

Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64

Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143

Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114

Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39

Environment Protection Authorityv Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239

Environment Protection Authority v P&M Quality Small Goods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89

Environment Protection Authority v Rands [2019] NSWLEC 23

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299

Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27; (2019) 239 LGERA 31

Environmental Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45

Environmental Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189

Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386

Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353

Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422

Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93

Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Pesic v Sutherland Shire Council [2019] NSWLEC 38

Pham v R [2015] HCA 39; (2015) 256 CLR 550

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

Plath v Vaccount Pty Ltd [2011] NSWLEC 202

R v Crombie [1999] NSWCCA 297

R v Doan [2000] NSWCCA 317; 50 NSWLR 115

R v Dodd (1991) 57 A Crim R 349

R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Nichols (1991) 57 A Crim R 391

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Oliver (1980) 7 A Crim R 174

R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

R v Visconti [1982] 2 NSWLR 104

R v Wheeler [2000] NSWCCA 34

R v Wickham [2004] NSWCCA 193

Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154

Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26

Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125; (2020) 245 LGERA 241

Secretary, Department of Planning and Environment v AGL Energy Ltd; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1

Category:

Sentence

Parties:

Stephen James Orr (Prosecutor)
Narrabri Coal Operations Pty Ltd (Defendant)
Narrabri Coal Pty Ltd (Defendant)

Representation:

Counsel:
P English (Prosecutor)
T Howard SC (Defendant)

Solicitors:
Hunt & Hunt Lawyers (Prosecutor)
Ashurst (Defendant)

File Number(s):

2020/232873, 2020/232874, 2020/232875, 2020/232876, 2020/232877, 2020/232878, 2020/232879, 2020/232880, 2020/232881, 2020/232882, 2020/232883, 2020/232884, 2020/232885, 2020/232886, 2020/232887, 2020/232888, 2020/281850, 2020/281851, and 2020/281874

Publication restriction:

Nil

Judgment

TABLE OF CONTENTS

Narrabri Coal and Narrabri Coal Operations Contravene the Mining Act 1992 [1]

Unlawful Construction of Access Tracks (Charges 1 to 3) [6]

Unlawful Drilling or Rehabilitation of Boreholes (Charges 4 to 8) [10]

Failure to Adequately Rehabilitate a Borehole (Charge 9) [16]

Failure to Prepare a Site Rehabilitation Plan (Charge 10) [17]

Legislative Framework [19]

The Mining Project [24]

The Investigation by the Regulator [56]

Enforcement Action [65]

Contraventions [72]

Contraventions of the 2016 and 2018 Activity Approvals [72]

Contravention of the Commitment to Prepare a Site Rehabilitation Plan [82]

The Contravention of the ML [87]

Drone Footage [92]

Causes of the Commission of the Offences the Subject of Charges 1 to 3 [94]

The Humphris Affidavit [96]

Sentencing Principles [113]

The Purposes of Sentencing [113]

Statutory Matters Required to be Taken into Account in Sentencing [114]

Objective Seriousness of the Offences [119]

Nature of the Offences [121]

Maximum Penalty [127]

The Environmental Harm Caused or Likely to be Caused by the Commission of the Offences [130]

The Peake Reports [133]

Driscoll Report [143]

Findings on Environmental Harm [152]

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences [165]

State of Mind of the Defendants at the Time of the Commission of the Offences [170]

Reasons for Committing the Offences [186]

Control Over the Causes of the Commission of the Offences [188]

Practical Measures Which May be Taken to Avoid the Harm [191]

Conclusion on the Objective Seriousness of the Offences [193]

The Defendants’ Subjective Circumstances [197]

Whether the Harm to the Environment Was Substantial [199]

The Offences Were Not Committed for Financial Gain [200]

Prior Convictions [201]

Early Pleas of Guilty [202]

Assistance Provided to Authorities [204]

Contrition and Remorse [210]

Likelihood of Reoffending and Prospects of Rehabilitation [215]

Evidence of NC and NCO’s Good Corporate Character [216]

Whether the Offences Could Have Been Prosecuted in the Local Court [220]

General and Specific Deterrence [223]

Retribution and Denunciation [228]

Consistency in Sentencing [229]

Totality Principle [235]

Financial Means [239]

Costs [240]

Moiety [247]

Publication Order [253]

Appropriate Sentence [261]

Orders [265]

Narrabri Coal and Narrabri Coal Operations Contravene the Mining Act 1992

1. Narrabri Coal Pty Ltd (“NC”) and Narrabri Coal Operations Pty Ltd (“NCO”) (together, “the defendants”) have pleaded guilty to 19 offences of contravening s 378D of the Mining Act 1992 (“Mining Act”). The offences arose with respect to works undertaken at Narrabri Coal Mine (“the mine”), an underground coal mine located approximately 30 km southeast of Narrabri in New South Wales. The works comprise the unlawful construction of access tracks, the unlawful drilling and rehabilitation of boreholes, and the failure to prepare a site rehabilitation plan.

2. Liability in respect of the charges against NC arises under s 378D of the Mining Act on the basis that NC was the holder of exploration licence 6243 (“the EL”) and mining lease 1609 (“the ML”), and contravened various conditions of those authorisations.

3. NCO is charged with contravening s 378EA of the Mining Act on the basis that it caused or permitted NC’s contraventions. By doing so, NCO is also taken to have committed the offences in contravention of s 378D of the Mining Act.

4. This judgment concerns the appropriate sentence to be imposed on the defendants for the commission of the offences.

5. The various charges against NC and NCO are summarised below.

Unlawful Construction of Access Tracks (Charges 1 to 3)

6. Charges 2020/232881 (against NC) and 2020/232873 (against NCO) (together, “charge 1”) relate to the unauthorised construction of an access track between drill pad sites E318 and E319. The summons in 2020/232881 is in the following terms:

The Prosecutor claims:

1    An order that the Defendant, Narrabri Coal Pty Ltd (ACN 107 813 963), appear before a Judge of the Court to answer the charge that between 4-12 April 2019, on land within Exploration Licence 6243 approximately 30km southeast of Narrabri in the State of New South Wales (EL 6243), it committed an offence against section 378D of the Mining Act 1992 (NSW) (Act), in that it was the holder of an authorisation, a condition of which was contravened by a person.

Particulars

a.    Authorisation

EL 6243 - Activity Approval of Assessable Prospecting Operations for the Narrabri South Exploration Program (2018-2019), granted 15 November 2018 pursuant to section 23A of the Act (DOC18/808193).

b.    Licence condition contravened

The Final Review of Environmental Factors version 7 dated 12 October 2018 (DOC18/778339) (the 2018 REF), required access tracks to be constructed in accordance with Figure 2: Narrabri South Exploration REF – Site plan (pg 8) and that “no access track be constructed between drill sites E318 and E319 to avoid disturbance to the drainage lines present in this area” (pg 36).

c.    Person who contravened the Licence condition

i.    The Defendant appointed Narrabri Coal Operations Pty Ltd (ACN 129 850 139) (NCO) on or about 28 March 2008 as their agent to have possession and control of EL 6243, including granting NCO with all such powers, functions and authority as is necessary to perform the obligations imposed on or with respect to EL 6243.

ii.    NCO’s contractors, employees or persons associated with NCO in its capacity as agent for the Defendant, contravened the condition.

iii.   NCO was responsible for providing information, training, instruction and supervision of personnel who contravened the condition.

d.    Manner of breach

Access tracks were constructed other than in accordance with the 2018 REF Figure 2: Narrabri South Exploration REF – Site plan, namely, an access track was constructed between drill sites E318 and E319, crossing the drainage lines present in this area, in circumstances where NCO was required to amend the previous REF DOC18/462350 submitted 6/7/18 to remove the proposed access track between drill site pads E318 and E319.

2 An order under s 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence.

3   That the Defendant be dealt with according to law for the commission of the above offence.

4   An order that the Defendant pay the Prosecutor’s costs.

5   An order pursuant to section 378ZD of the Act that the Defendant pay an amount representing the monetary benefit acquired by the Defendant, or accrued or accruing to the Defendant, as a result of the commission of the offence set out in [1] above.

6   Such orders pursuant to section 378ZE of the Act as the Court sees fit.

7   Such other orders as the Court in its discretion sees fit to make.

7. The summons in 2020/232873 is in identical terms but charges NCO with accessorial liability for NC’s contravention.

8. Charges 2020/232882 (against NC) and 2020/232874 (against NCO) (together, “charge 2”) relate to the unlawful construction of an access track to drill pad site E307.

9. Charges 2020/232883 (against NC) and 2020/232875 (against NCO) (together, “charge 3”) similarly relate to the unlawful construction of an access track to drill pad site E309.

Unlawful Drilling or Rehabilitation of Boreholes (Charges 4 to 8)

10. Charges 2020/232884 (against NC) and 2020/232876 (against NCO) (together, “charge 4”) relate to the unauthorised drilling of exploration boreholes. The summons in 2020/232884 is, for example, as follows:

The Prosecutor claims:

1    An order that the Defendant, Narrabri Coal Pty Ltd (ACN 107 813 963), appear before a Judge of the Court to answer the charge that between 15 April 2019 and 6 May 2019, on land within Exploration Licence 6243 approximately 30km southeast of Narrabri in the State of New South Wales (EL 6243), it committed an offence against section 378D of the Mining Act 1992 (NSW) (Act), in that it was the holder of an authorisation, a condition of which was contravened by a person.

Particulars

a.    Authorisation

EL 6243 - Activity Approval of Assessable Prospecting Operations and Amendment of Licence Conditions for the Narrabri South Exploration Program, granted 19 September 2016 pursuant to section 23A of the Act (OUT16/28189).

b.    Licence condition contravened

The Review of Environmental Factors (Reference INW16/47465) dated 13 September 2016 (the 2016 REF) authorised the drilling of 41 exploration boreholes at the site locations identified in Table 1: Drill Site Locations (p6). The 2016 REF authorised one exploration borehole to be drilled at the site known as E259 (located at E773664 and N6611901).

c.    Person who contravened the Licence condition

i.    The Defendant appointed Narrabri Coal Operations Pty Ltd (ACN 129 850 139) (NCO) on or about 28 March 2008 as their agent to have possession and control of EL 6243, including granting NCO with all such powers, functions and authority as is necessary to perform the obligations imposed on or with respect to EL 6243.

ii.    NCO’s contractors, employees or persons associated with NCO in its capacity as agent for the Defendant, contravened the condition.

iii.   NCO was responsible for providing information, training, instruction and supervision of personnel who contravened the condition.

d.    Manner of breach

i.    Drilling of an exploration borehole NC735C (at E773680 and N6611908) on the drill pad site known as E259 commenced on 19 March 2019 and was completed on 22 March 2018;

ii.    Drilling of a second exploration borehole NC817L (at E773682 and N6611904) on the drill pad site known as E259 commenced on 15 April 2019 and was completed on 6 May 2019.

2 An order under s 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence.

3   That the Defendant be dealt with according to law for the commission of the above offence.

4   An order that the Defendant pay the Prosecutor’s costs.

5   An order pursuant to section 378ZD of the Act that the Defendant pay an amount representing the monetary benefit acquired by the Defendant, or accrued or accruing to the Defendant, as a result of the commission of the offence set out in [1] above.

6   Such orders pursuant to section 378ZE of the Act as the Court sees fit.

7   Such other orders as the Court in its discretion sees fit to make.

11. The summons in 2020/232876 is in identical terms but charges NCO with accessorial liability for NC’s contravention.

12. Charges 2020/232885 (against NC) and 2020/232877 (against NCO) (together, “charge 5”) relate to borehole NC817L (at E773682 and N6611904) being left unsealed on drill pad site E259.

13. Charges 2020/232886 (against NC) and 2020/232878 (against NCO) (together, “charge 6”) relate to the failure to rehabilitate sealed borehole NC737C on drill pad site E266.

14. Charges 2020/232887 (against NC) and 2020/232879 (against NCO) (together “charge 7”) relate to borehole NC798 having been drilled in an unapproved location at E775757 and N6615271, whereas the approved location was E774544 and N6615479 which was approximately 1.2 to 1.3 km to the west.

15. Charges 2020/232888 (against NC) and 2020/232880 (against NCO) (together, “charge 8”) relate to borehole NC799 which was drilled in an unapproved location at E775810 and N6614783. The approved location was E774544 and N6615032, approximately 1.2 to 1.3 km to the west.

Failure to Adequately Rehabilitate a Borehole (Charge 9)

16. The summons in proceeding 2020/281851 concerns the failure of NC to adequately rehabilitate a borehole. The summons charges NC as follows (“charge 9”):

The Prosecutor claims:

1    An order that the Defendant, Narrabri Coal Pty Ltd (ACN 107 813 963), appear before a Judge of the Court to answer the charge that between about 22 February 2015 to 24 May 2018, on land within Mining Lease 1609 approximately 30km southeast of Narrabri in the State of New South Wales, it committed an offence against section 378D of the Mining Act 1992 (NSW) (Act), in that it was the holder of an authorisation, a condition of which was contravened by a person.

Particulars

a.    Authorisation

Deed of Mining Lease No 1609 made 18 January 2008, between the Minister for Mineral Resources NSW and the Defendant (ML1609).

b.    Condition contravened

ML1609 Condition 17(2)(f) required that once any exploratory drill hole ceases to be used, the hole must be sealed in accordance with departmental guidelines.

During 22 February 2015 to 24 May 2018, the relevant guidelines were:

a.    Borehole sealing requirements on land: Coal exploration (EDG01) (2012);

b.   Guideline for mineral exploration drilling; drilling and integrity of petroleum exploration and production wells (DRE, 2016).

c.    Person who contravened the Condition

i.    The Defendant appointed Narrabri Coal Operations Pty Ltd (ACN 129 850 139) (NCO) on or about 28 March 2008 as their agent to have possession and control of ML1609, including granting NCO with all such powers, functions and authority as is necessary to perform the obligations imposed on or with respect to ML1609.

ii.    NCO’s contractors, employees or persons associated with NCO in its capacity as agent for the Defendant, contravened the condition.

iii.   NCO was responsible for providing information, training, instruction and supervision of personnel who contravened the condition.

d.    Manner of breach

i.    Drilling of an exploration borehole NC619C (at E772392 and N6620647) under ML1609 commenced on or about 16 February 2015 and was completed on or about 22 February 2016.

ii.    An audit conducted by the Department on 24 May 2018 identified that NC619C was inactive and left open, covered by a green bucket with a rock placed on top of it.

iii.   NC619C was not sealed in accordance with departmental guidelines which required:

(a)    A suitable casing cap or bridge over the top of the borehole (EDG01); and/or

(b)    Securing of the borehole to prevent leakage of fluids or gas to the surface, and prevent the unauthorised or inadvertent access by people, livestock and wildlife (DRE, 2016).

2 An order under s 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence.

3   That the Defendant be dealt with according to law for the commission of the above offence.

4   An order that the Defendant pay the Prosecutor’s costs.

5   An order pursuant to section 378ZD of the Act that the Defendant pay an amount representing the monetary benefit acquired by the Defendant, or accrued or accruing to the Defendant, as a result of the commission of the offence set out in [1] above.

6   Such orders pursuant to section 378ZE of the Act as the Court sees fit.

7   Such other orders as the Court in its discretion sees fit to make.

Failure to Prepare a Site Rehabilitation Plan (Charge 10)

17. The summons in 2020/281850 charges NC with a failure to prepare, as required, a site rehabilitation plan. The summons states as follows (“charge 10”):

The Prosecutor claims:

1    An order that the Defendant, Narrabri Coal Pty Ltd (ACN 107 813 963), appear before a Judge of the Court to answer the charge that between about 16 January 2019 and 9 September 2019, on land within Exploration Licence 6243 approximately 30km southeast of Narrabri in the State of New South Wales (EL 6243), it committed an offence against section 378D of the Mining Act 1992 (NSW) (Act), in that it was the holder of an authorisation, a condition of which was contravened by a person.

Particulars

a.    Authorisation

EL 6243 - Activity Approval of Assessable Prospecting Operations for the Narrabri South Exploration Program (2018-2019), granted 15 November 2018 pursuant to section 23A of the Act (DOC18/808193).

b.    Licence condition contravened

The Final Review of Environmental Factors version 7 dated 12 October 2018 (DOC18/778339) (the 2018 REF), Statement of Commitments required that Defendant prepare a site rehabilitation plan for the impacted areas of EL 6243 (2018 REF pg 79).

c.    Person who contravened the Licence condition

i.    The Defendant appointed Narrabri Coal Operations Pty Ltd (ACN 129 850 139) (NCO) on or about 28 March 2008 as their agent to have possession and control of EL 6243, including granting NCO with all such powers, functions and authority as is necessary to perform the obligations imposed on or with respect to EL 6243.

ii.    NCO’s contractors, employees or persons associated with NCO in its capacity as agent for the Defendant, contravened the condition.

iii.   NCO was responsible for providing information, training, instruction and supervision of personnel who contravened the condition.

d.    Manner of breach

i.    EL 6243 was approved on 15 November 2018.

ii.   Activities under EL 6243 commenced by at least 16 January 2019:

(a)    Drilling of borehole E327 (at E775361 and N6615354) commenced on or about 16 January 2019 and was completed on or about 22 January 2019;

(b)    Drilling of borehole E329 (at E775333 and N6614815) commenced on or about 12 February 2019 and was completed on or about 14 February 2019;

(c)    Construction of tracks between drill sites E318 and E319 took place on or about 12-14 April 2019;

(d)    Construction of a track to drill site E307 took place on or about 12-14 April 2019;

(e)    Construction of a track to drill site E309 took place on or about 16-19 April 2019;

(f)     Drilling of borehole E321 (at E772633 and N6610581) commenced on or about 1 May 2019 and was completed on or about 13 May 2019.

iii.   On 5 March 2019, the Resources Regulator conducted an audit report of EL 6243 and found no evidence that a site rehabilitation plan had been prepared by NCO. A draft report issued by the Resources Regulator on 9 April 2019 recorded the same.

iv.    In response to the draft audit report dated 9 April 2019, NCO committed to providing a site rehabilitation plan by no later than 31 May 2019.

v.    A rehabilitation management plan was not submitted to the Resources Regulator by NCO until on or about 9 September 2019 (being a plan prepared by Eco Logical Australia dated 29 August 2019).

2 An order under s 246(1)(a) of the Criminal Procedure Act 1986 for the attendance of the Defendant before the Court to answer the above offence.

3   That the Defendant be dealt with according to law for the commission of the above offence.

4   An order that the Defendant pay the Prosecutor’s costs.

5   An order pursuant to section 378ZD of the Act that the Defendant pay an amount representing the monetary benefit acquired by the Defendant, or accrued or accruing to the Defendant, as a result of the commission of the offence set out in [1] above.

6   Such orders pursuant to section 378ZE of the Act as the Court sees fit.

7   Such other orders as the Court in its discretion sees fit to make.

18. The summons in 2020/281874 is in identical terms save that it charges NCO with accessorial liability for NC’s contravention.

Legislative Framework

19. Section 5 of the Mining Act relevantly provides:

5    Mining or prospecting without authorisation

    A person must not prospect for or mine any mineral except in accordance with an authorisation that is in force in respect of that mineral and the land where the prospecting or mining is carried on.

20. Section 23A of the Mining Act was inserted into that Act on 1 March 2016 by the Mining and Petroleum Legislation Amendment (Harmonisation) Act 2015 and relevantly states:

23A  Activity approval required for assessable prospecting operations

(1)    An exploration licence is subject to a statutory condition that the holder of the licence must not carry out an assessable prospecting operation on land over which the licence is granted unless an activity approval has been obtained for the carrying out of the assessable prospecting operation in relation to that land and is in force.

…

(7)    For the purposes of this Act, it is a statutory condition of an exploration licence that the holder must comply with any activity approval granted to the holder and in force.

21. Section 378D(1) of the Mining Act provides that:

378D    Contravention of condition of authorisation-offence by holder

(1)        If a condition of an authorisation is contravened by any person, each holder of the authorisation is guilty of an offence.

22. And s 378EA of the Mining Act is in the following terms:

378EA   Aiding and abetting commission of offence

A person who—

(a)   causes or permits the commission of an offence against this Act or the regulations, or

(b)    aids, abets, counsels or procures another person to commit an offence against this Act or the regulations, or

(c)    attempts to commit an offence against this Act or the regulations, or

(d)   conspires to commit an offence against this Act or the regulations,

is guilty of that offence and liable to the penalty prescribed by this Act or the regulations in relation to that offence.

23. The following definitions are provided in the Dictionary to the Mining Act:

authorisation means an authority, a small-scale title or an environmental assessment permit granted under section 252.

…

authority means an exploration licence, an assessment lease or a mining lease.

The Mining Project

24. Many, but not all, of the facts recited below were contained in a detailed statement of agreed facts (“SOAF”) relied upon by the parties.

25. NC and NCO are both Australian proprietary companies limited by shares and are wholly owned subsidiaries of Whitehaven Coal Limited (“Whitehaven Coal”).

26. On 21 May 2004 NC was granted the EL by the Minister for Mineral Resources (“the Minister”) under the Mining Act to explore for group 9 minerals, that is, coal and oil shale, for a period of five years.

27. The EL was originally granted over an area of land much larger than the area currently the subject of the EL.

28. Since the EL was granted in 2004, exploration activities carried out pursuant to it have included the drilling of 130 boreholes and 30 km of seismic testing.

29. On 18 January 2008 NC was granted the ML for the prospecting and mining of coal for a period of 21 years.

30. On 26 March 2008 NC and NCO entered the Narrabri Joint Venture Management Agreement (“JVMA”) to undertake exploration and mining operations at the mine. Under the JVMA:

1. pursuant to cl 2.1, NCO was appointed as the manager to carry out the operations at the mine as the exclusive agent of the participants in the joint venture;

2. pursuant to cl 2.4, NCO (as manager) was required to carry out its duties and obligations in accordance with all authorisations (defined to include authorisations, leases, licences, permits and consents of and from any government);

3. under cl 3.1, NCO was given possession and control of the joint venture assets, and charge of and responsibility for the conduct of the operations; and

4. by reason of cl 3.6, NCO was entitled to appoint agents and delegate to any such agents the whole or any part of its rights and obligations in carrying out the operations. No such delegation diminished or relieved NCO of any of its obligations under the JVMA.

31. The EL was renewed on 9 October 2009, subject to conditions.

32. On 18 January 2010 the following entities were registered as the holders of the ML and the EL:

1. NC;

2. Upper Horn Investments (Australia) Pty Limited;

3. EDF Trading Australia Pty Limited;

4. J-Power Australia Pty Limited;

5. Daewoo International Narrabri Investment Pty Limited; and

6. Kores Narrabri Pty Limited.

33. Of these registered holders, only NC was charged with offences.

34. At all relevant times NCO was appointed by the parties to the JVMA as their agent having possession and control of the EL and the ML. NCO was granted all such powers, functions, and authority as was necessary to perform the obligations imposed on, or with respect to, those instruments.

35. NCO hired the contractors and personnel that were responsible for all activities relevant to the charges and had responsibility for providing them with information, training, instruction, and supervision.

36. The EL was renewed again on 18 February 2015, for a further term ending on 20 May 2019.

37. An application for further renewal of the EL was submitted prior to 20 May 2019.

38. As at 18 February 2015, it was a condition of the EL that NC was required to obtain the Minister’s written approval prior to carrying out Category 2 prospecting operations.

39. Category 2 prospecting operations relevantly included the construction of access ways such as tracks or roads and the non-intensive drilling of boreholes.

40. It was a further condition of the EL that NC was required to comply with the conditions of the Minister's written approval when carrying out these prospecting operations.

41. Any application for approval of Category 2 prospecting operations was required to be accompanied by a Review of Environmental Factors (“REF”) if the Minister was of the opinion that the prospecting operations could result in a more than minimal environmental impact.

42. On 5 July 2016 NCO submitted an Application to Conduct Exploration Activities for Assessable Prospecting Operations, together with a Review of Environmental Factors Narrabri South Exploration Program, Narrabri Coal Operations Pty Ltd Revision 1 dated 17 June 2016 prepared by Eco Logical Australia.

43. NCO submitted revised applications and accompanying REFs on 1 August and 13 September 2016, in response to requests from the NSW Resources Regulator (“Regulator”) for further information and clarification regarding the application. Each of the revised REFs were prepared by Eco Logical Australia.

44. By letter dated 19 September 2016, NCO was notified that the Minister had determined pursuant to s 23A of the Mining Act to grant the activity approval subject to certain terms (“2016 Activity Approval”). The letter stated that the "activity approval is effective from 19 September 2016."

45. It was a condition of the 2016 Activity Approval that the licence holder must carry out the activities in accordance with the Application to Conduct Exploration Activities submitted by it on 13 September 2016 and the corresponding REF (“2016 REF”).

46. On 6 July 2018 NCO submitted an Application to Conduct Exploration Activities for Assessable Prospecting Operations, together with a Review of Environmental Factors Narrabri South Exploration Project 2018-2019, Narrabri Coal Operations Pty Ltd dated June 2018 (“2018 REF”). The 2018 REF included a site plan which depicted proposed access tracks in light grey. It included an access track between proposed drill pad sites E318 and E319.

47. By letter dated 24 July 2018, the Regulator wrote to NC regarding its application. The letter requested it to "provide greater clarity and detail on the location and disturbance of existing tracks, new tracks and the number and nature of creek crossings to be upgraded or constructed".

48. On 3 August 2018 NCO submitted a response to the Regulator together with a revised Application to Conduct Exploration Activities for Assessable Prospecting Operations. In relation to the Regulator's letter of 24 July 2018, NCO provided the following response:

See the attached plan 'APN_22' dated 2/08/2018. Only tracks will be required through creeks as illustrated on APN_22. Tracks constructed through creeks will be constructed in accordance with Forestry Corporation of NSW standards as outlined in the REF. No drilling (including drill pad preparation) will be undertaken within 40m of a creek. One alternate route has been included in APN_22 to avoid the 40m buffer zone of a creek however the other nominated crossing will be required for drill pad access.

49. Map APN_22 included a proposed access track between drill pad sites E318 and E319.

50. On 20 August 2018 the Regulator again wrote to NC in the following relevant terms:

Required information

A revised REF is required to incorporate the numerous supporting documentation that post-dates the existing REF. The revised REF is to include:

…

An amended Site Plan of the alternate routes maps received 6/08/2018 and 8/08/2018 where: -

1.    existing tracks are to be used for activities;

2.    proposed crossings;

3.   drainage buffer lines;

4.    proposed borehole tracks and pads;

5.    label activity names clearly;

6.   remove activities for the purposes of ML 1609.

The revised REF is to include statements of commitment with regard to the mitigation of impacts communicated with yourself (via email and telephone), including, but not limited to: -

…

3.    Proposed access track between exploration bores E318 and E319 is to be removed (and illustrated in the Site Plan).

51. On 20 September 2018 NCO submitted a Review of Environmental Factors Narrabri South Exploration Project 2018-2019, Narrabri Coal Operations Pty Ltd. That document stated that, "no access track will be constructed between drill sites E318 and E319 to avoid disturbance particularly to the drainage lines present in this area".

52. Following a further request for information from the Regulator on 12 October 2018, NCO submitted a Review of Environmental Factors Narrabri South Exploration Project 2018-2019, Narrabri Coal Operations Pty Ltd dated October 2018 (“2018-2019 REF”).

53. The 2018-2019 REF:

1. described that 50 boreholes were planned to be drilled at specified locations;

2. depicted the proposed access track locations;

3. stated that:

All boreholes will be decommissioned and sealed within 28 days of completion of drilling. Drill sites will be rehabilitated after each stage of the exploration program and as soon as practicable once drilling activities have ceased, to minimise subsequent soil erosion and sedimentation and to return sites back to their predrilling state.

Rehabilitation of drill sites will occur within 3 months of completion of the drilling activities.

4. provided that:

The following specific recommendations have been made to minimise construction impacts for the proposed seismic lines, access tracks and drill sites:

…

No access track will be constructed between drill sites E318 and E319 to avoid disturbance, particularly to the drainage lines present in this area.

…

Prepare a site rehabilitation plan for the impacted areas…

5. and contained a statement of commitments including to:

Prepare a site rehabilitation plan for the impacted areas…

54. By letter dated 15 November 2018, NC was notified that a delegate of the Minister had decided pursuant to s 23A of the Mining Act to grant the activity approval with terms (“the 2018 Activity Approval”). The approval was effective from the date of that letter.

55. The 2018 Activity Approval provided that:

The licence holder must carry out Activity Narrabri South Exploration Program (2018-2019) in accordance with the Application Reference ESF4 DOC18/462353, Review of Environmental Factors (REF) DOC18/462350, submitted on 6/07/2018, [as amended by]:

(a)   Application Reference ESF4 dated 3/08/2018 (DOC18/551924),

(b)   Final REF version 7 dated 12/10/2018 (DOC18/778339).

DEFINITION

…

Activity Narrabri South Exploration Program (2018-2019) means the activities described in Application Form ESF4 (Application to conduct exploration activities for assessable prospecting operations) and Review of Environmental Factors (Application Reference ESF4 DOC18/462353) prepared by Narrabri Coal Pty Ltd and dated 6/07/2018 [as amended by]:

(c)   Application Reference ESF4 dated 3/08/2018 (DOC 18/551924),

(d)   Final REF version 7 dated 12/10/2018 (DOC18/778339).

The Investigation by the Regulator

56. On 24 May 2018 the Regulator conducted a compliance audit of the exploration activities associated with the mine. The audit was led by Jennifer Ehmsen, the Regulator’s Principal Compliance Auditor.

57. The scope of the audit was the exploration activities associated with the mine including:

1. exploration activities within the EL and the ML, including a selection of the 41 exploration drill holes authorised to be drilled at identified site locations in the 2016 REF;

2. rehabilitation activities for the drilling programs undertaken since January 2015;

3. a review of documents and records pertaining to the exploration activities; and

4. the assessment of compliance for the period commencing 1 January 2016 and ending 23 May 2018.

58. During the inspection the investigators observed borehole NC619C, which had been drilled on 16 February 2015, and was located at E772392 and N6620647, to be inactive and left open. It was covered by a green bucket with a rock placed on top of the bucket.

59. The findings of the audit were contained in an audit report issued by the Regulator in July 2018, which noted the issue with borehole NC619C.

60. On 5 March 2019 a compliance audit of the exploration activities associated with the EL and the 2018-2019 REF was conducted by the Regulator.

61. The findings of the audit were contained in an audit report issued by the Regulator in July 2019. The report identified that there was no evidence sighted during the audit to indicate compliance by NCO with its commitment in the 2018-2019 REF to "prepare a site rehabilitation plan for the impacted areas".

62. On 18 June 2019 the Regulator's inspectors, Arnott and Warner, undertook an inspection of drill pad sites and boreholes described in the 2016 REF and the 2018-2019 REF within the boundaries of the EL.

58. The Regulator’s findings of the inspection were contained in a letter sent to NCO on 11 July 2019. These included that:

1. "three access tracks have been constructed in locations not in accordance with the Narrabri South Exploration Program 2018-2019 approval";

2. a borehole at E259 had "a lack of appropriate safety infrastructure installed"; and

3. "the Regulator identified a second borehole drilled at the E259 location. A search of records has failed to locate an approval for this borehole".

64. On 31 July 2019 the Regulator again attended the mine to inspect the EL to obtain further evidence with respect to the issues identified on 18 June 2019, and to inspect further locations within the Pilliga East State Forest with the aid of an unmanned aerial vehicle.

Enforcement Action

65. As a result of the unauthorised clearing of access tracks identified during the 18 June 2019 inspection, a Notice of Proposed Direction to Suspend Specified Operations at EL6243 was issued by the Regulator on 24 July 2019.

66. Upon receiving the proposed suspension notice, NCO, as a holder of the EL:

1. voluntarily suspended exploration operations (except rehabilitation) under the EL; and

2. voluntarily commenced discussions with Umwelt (Australia) Pty Ltd (“Umwelt”) about engaging it to undertake a review of NCO's operations, systems and processes for complying with the conditions of the EL.

67. On 15 August 2019 the Regulator received a response to the proposed suspension notice from Jamie Frankcombe, a director of the defendants and Chief Operating Officer of Whitehaven Coal (“Frankcombe letter”). That response contained a proposal for an independent third party auditor to audit the systems and processes for compliance with the conditions of the EL.

68. On 22 August 2019 the Regulator issued a direction under s 240AA of the Mining Act to suspend all operations (except activities required to maintain a safe workplace or to undertake environmental rehabilitation) in relation to the EL. The direction was issued on the basis that consideration would be given to revoking the suspension once the licence holders had:

1. commissioned a suitably qualified independent person to the satisfaction of the Regulator to conduct a review of the licence holder’s systems and processes for meeting its compliance obligations under the Mining Act in respect of the EL;

2. commissioned a suitably qualified independent person to the satisfaction of the Regulator to conduct a review of the management systems applying to the approval of work under the EL (activity approvals);

3. submitted a detailed report to the satisfaction of the Regulator that identified the key findings, corrective actions, and recommendations arising from both reviews undertaken at subparagraphs (a) and (b) above (including copies of both reports); and

4. completed all corrective actions and recommendations arising from the reviews at subparagraphs (a) and (b) above to the satisfaction of the Regulator.

69. On 13 February 2020 the Regulator received a letter from NCO signed by Steve Bow, a director of NC and NCO, enclosing the following reports prepared by Umwelt and addressing the matters necessary for the Regulator to consider revoking the suspension:

1. EL6243 Activity Approvals Review – Narrabri Coal Operations; and

2. EL6243 Compliance Management Systems Review – Narrabri Coal Operations.

70. On 26 May 2020 Gerald Linde, the General Manager of NCO, sent an email to the Regulator attaching a report prepared by Umwelt titled EL 6243 Verification Report dated May 2020 (“Verification Report”). That report confirmed that NCO had completed all corrective actions and recommendations arising from Umwelt's reviews.

71. On 10 August 2020 the Regulator’s direction under s 240AA of the Mining Act dated 22 August 2019 was revoked.

Contraventions

Contraventions of the 2016 and 2018 Activity Approvals

72. The 2016 REF described the proposed exploration activities as including the drilling of 41 exploration boreholes at specified locations.

73. The 2016 REF stated that:

All boreholes will be sealed within 28 days of works. Drill sites will be rehabilitated after each stage of the exploration program and as soon as practicable once drilling activities have ceased, to minimise subsequent soil erosion and sedimentation and to return sites back to their pre-drilling state.

…

All borehole rehabilitation activities will be completed in accordance with the requirements of EDG01: Borehole Sealing Requirements on Land: Coal Exploration.

74. Forty-one boreholes were drilled by NCO between 9 March 2017 and 15 April 2019. Their locations were recorded:

1. in its annual exploration reports, which noted the drilling dates and coordinates of each borehole;

2. in an Environmental Management Report submitted on 28 May 2019, in support of an application to renew the EL; and

3. in relation to some of the boreholes, by Regulator inspectors Warner and Endicott at their site inspections on 18 June and 31 July 2019.

75. Warner prepared a map on 28 June 2019, which recorded the drill hole data from the approved locations in the 2016 REF and the actual reported drill sites submitted by NCO in its annual exploration reports.

76. Boreholes were drilled or rehabilitated other than in accordance with the 2016 REF as follows (leading to some of the charges set out above):

1. the 2016 Activity Approval authorised one exploration borehole to be drilled at drill pad site E259 (located at E773664 and N6611901). Borehole NC735C was drilled at this location between 19 and 22 March 2018. The drilling of a second unauthorised exploration borehole NC817L (at E773682 and N6611904) on drill pad site E259 commenced on 15 April 2019, and was completed on 6 May 2019 (charge 4);

2. borehole NC817L (at E773682 and N6611904) on drill pad site E259 was observed by the inspectors on the site inspection on 18 June 2019 (40 days after the drilling of that borehole was completed) to be unsealed and left open, in an unsafe manner and was covered with a star picket (charge 5);

3. borehole NC737C at drill pad site E266 was drilled between 3 and 10 April 2018. This borehole was observed at the site inspection on 18 June 2019 to be sealed, but was not the subject of any rehabilitation (charge 6);

4. exploration borehole NC798 at drill pad site E291 was drilled in an unapproved location at E775757 and N6615271, whereas the approved location in the 2016 REF was E774544 and N6615479, approximately 1.2 to 1.3 km to the west (charge 7); and

5. exploration borehole NC799 at drill pad site E292 was drilled in an unapproved location at E775810 and N6614783, whereas the approved location in the 2016 REF was E774544 and N6615032 approximately 1.2 to 1.3 km to the west (charge 8).

77. The 2018 Activity Approval authorised the construction of access tracks in accordance with the 2018-2019 REF. The access tracks as constructed were recorded:

1. during the site inspection on 18 June 2019, the inspector made observations at drill pad sites E318, E319, E307, and E309, and took photographs of the access tracks and the surrounding area;

2. in an email from Brent Baker, who commenced work at the mine as NCO’s Environmental Superintendent on 29 April 2019, to Jarod Dashwood, an officer at the Forestry Corporation, dated 16 July 2019, attaching spatial data files entitled 2019 Clearing not as per REF, and stating:

Spatial data of 2019 disturbance not consistent with the disturbance proposed by REFs. There were three tracks constructed which are not consistent with the disturbance proposed by the REF. This disturbance occurred prior to my employment with Narrabri Coal, however from discussions with other Narrabri Coal staff I am of the understanding that following pre-clearing surveys the proposed track placement was altered due to a combination of factors including topography and dense vegetation. It should be noted that these variations did not increase the proposed area of disturbance.

3. during a site inspection involving GPS mapping of the tracks on 31 July 2019. Three maps recording the location of the cleared access tracks were prepared at drill pad sites E318, E319, E307 and E309;

4. in surveys dated 8 August 2019, provided by NCO to the Regulator; and

5. in a letter from NCO dated 8 October 2019, recording the dates of the construction of the tracks.

78. A map prepared by an inspector on 28 August 2020 recorded the approved locations of the tracks and the locations where the tracks had in fact been constructed.

79. Access tracks were constructed other than in accordance with the 2018-2019 REF as follows (leading to some of the charges described above):

1. an access track was constructed between drill pad sites E318 and E319 crossing two natural drainage lines in circumstances where NCO was required to amend the previous REF submitted on 6 July 2018, to remove the proposed access track between drill pad sites E318 and E319 (charge 1);

2. an access track to drill pad site E307 was constructed from an existing track to the east of E307, whereas the approved site plan in the 2018-2019 REF showed access to E307 from an existing track to the south of E307 (charge 2); and

3. an access track to drill pad site E309 was constructed from the west of E309 and tracked east across a natural drainage line, whereas the approved site plan in the 2018-2019 REF depicted access to drill pad site E309 from an existing track to the east of E309 and across a natural drainage line (charge 3).

80. Pre-clearing surveys of the areas where the access tracks were constructed were carried out by ecologists in accordance with the 2018-2019 REF prior to the clearing of the access tracks to drill pad sites E307 and E309 and between drill pad sites E318 and E319. Those surveys did not identify any threatened species of flora or fauna within the proposed disturbance areas. The clearing of the access tracks was also supervised by a suitably qualified ecologist as required by the 2018-2019 REF.

81. Thirteen hollow-bearing trees were felled during the clearing of the access tracks the subject of charges 1 to 3. Ninety-four hollow-bearing trees remained standing within the surrounding vegetation 15m either side of the cleared access tracks.

Contravention of the Commitment to Prepare a Site Rehabilitation Plan

82. The following activities were commenced by NCO from at least 16 January 2019:

1. the drilling of borehole E327 (at E775361 and N6615354) that commenced on 16 January 2019, and that was completed on 22 January 2019;

2. the drilling of borehole E329 (at E775333 and N6614815) that commenced on 12 February 2019, and that was completed on 14 February 2019;

3. the construction of tracks between drill pad sites E318 and E319 between 10 and 12 April 2019;

4. the construction of a track to drill pad site E307 between 12 and 14 April 2019;

5. the construction of a track to drill pad site E309 between 16 and 19 April 2019; and

6. the drilling of borehole E321 (at E772633 and N6610581) on 1 May 2019, that was completed on 13 May 2019.

83. On 5 March 2019 Ehmsen conducted a compliance audit of the EL and found no evidence that a site rehabilitation plan had been prepared by NCO.

84. On 9 April 2019 the Regulator wrote to Mark Vile, the Environmental Superintendent for the mine, enclosing a copy of the draft audit report. The draft report noted that the 2018-2019 REF contained a commitment to prepare a site rehabilitation plan for the impacted areas and that there was no evidence sighted during the audit to indicate that this document had been prepared.

85. On 2 May 2019 Vile replied to correspondence from the Regulator stating that NCO would provide the rehabilitation plan by 31 May 2019.

86. The failure to comply with this requirement formed the basis of charge 10 as follows:

1. first, the requirement to prepare a site rehabilitation plan was a condition of the 2018 Activity Approval. That plan should have been prepared prior to the commencement of the activities authorised by the EL on 16 January 2019; and

2. second, a rehabilitation management plan was not submitted by NCO to the Regulator until 2 September 2019 (the plan was prepared by Eco Logical Australia and was dated 29 August 2019).

The Contravention of the ML

87. It was a term of the deed creating the ML that the leaseholder observe the conditions contained in the Schedule of Mining Lease Conditions 2007 (“Schedule”) which formed part of the deed.

88. Condition 17(2)(f) of the Schedule stated that:

(2)    If the lease holder drills exploratory drill holes he must satisfy the Director-General that:-

(f)    once any drill hole ceases to be used the hole must be sealed in accordance with Departmental guidelines. Alternatively, the hole must be sealed as instructed by the Director-General.

89. The relevant “Departmental guidelines” included:

1. for the period 23 April 2012 to 1 March 2016 the EDG01 Borehole sealing requirements on land: coal exploration, which required that:

If a hole is left open temporarily for any reason a suitable casing cap or bridge must be placed over the top of the hole for the period involved.

2. from 1 March 2016 the Guideline for mineral exploration drilling; drilling and integrity of petroleum exploration and production wells, which required that:

A suspended drillhole or well must be made safe before the site is put on hiatus. This includes:

a)    securing the hole to prevent leakage of fluids or gas to the surface, and

b)    securing the site to prevent unauthorised or inadvertent access by people, livestock and wildlife.

90. Each of the Mining Operation Plans (“MOP”) submitted by NCO in 2012 and 2017 referred to the relevant guidelines as follows:

1. section 4.5.2.1 of the MOP dated November 2012, provided as follows:

Infrastructure Decommissioning, Bore Sealing and Capping

…Each borehole will then be backfilled and capped in accordance with the EDG01 guideline “Borehole Sealing Requirements of Land: Coal Exploration.

2. section 2.3.1 of the MOP dated 6 November 2017, stated that:

Borehole rehabilitation will be completed in accordance with Condition 17 of ML1609, Exploration Code of Practice: Rehabilitation (DP&E, 2015), and the Guideline for Mineral Exploration Drilling; Drilling and Integrity of Petroleum Exploration and Production Wells (DRE, 2016).

91. The failure to comply with the Schedule and the Departmental guidelines resulted in charge 9 insofar as:

1. the drilling of exploration borehole NC619C commenced on 16 February 2015. It was completed on 22 February 2015. The drill type was a “partly cored drill hole” and the purpose of the borehole was recorded as being for “exploration”. The borehole was drilled to a total depth of 363m;

2. borehole NC619C's coordinates (E772392 and N6620647) were within the boundary of the ML;

3. during the compliance audit on 24 May 2018, Ehmsen observed borehole NC619C to be inactive, left open, and, as stated earlier, covered by a green bucket with a rock placed on top of it. This was contrary to condition 17(2)(f) of the Schedule and the Departmental guidelines;

4. on 28 June 2018 the Regulator wrote to Steven Farrar, the Environmental Superintendent of the mine, enclosing a copy of the draft compliance audit report. That audit report identified that borehole NC619C had not been sealed; and

5. on 27 July 2018 the Regulator received a letter from Farrar stating that:

The mine acknowledges that borehole sealing and rehabilitation of historical boreholes requires more attention and a rehabilitation tracking system has been developed and implemented at the mine. Boreholes drilled more recently are sealed at the time of drilling.

Drone Footage

92. At the sentencing hearing aerial drone footage of the clearing the subject of some of the charges was admitted into evidence. The footage was not able to be played in the courtroom, and therefore, with the parties’ consent it was viewed by the Court in chambers.

93. The footage showed cleared access tracks and drill pad sites, together with the surrounding environment. Care must be taken in placing too much weight on the footage because, as the defendants noted, the aerial footage captured both unlawfully and lawfully cleared areas.

Causes of the Commission of the Offences the Subject of Charges 1 to 3

94. The Frankcombe letter (referred to above) stated that the preliminary results of NCO's internal investigation into the causes of the offences the subject of charges 1 to 3 had identified that:

1. the original planning of the access tracks had occurred independent of, and prior to, the finalisation of the 2018-2019 REF;

2. following the grant of the 2018 Activity Approval, a number of key staff with carriage of the exploration activities under the EL had left the mine and the approved locations of the access tracks in the 2018-2019 REF were not adequately communicated to the new staff; and

3. the access tracks were cleared without reference to the location of the tracks in the 2018-2019 REF.

95. In the document entitled EL6243 Activity Approvals Review – Narrabri Coal Operation, Umwelt identified the following systemic failures within NCO that led to the contraventions the subject of charges 1 to 3:

1. the Environmental Management Strategy (“EMS”) for the mine detailed the relevant statutory approvals and referred to the ML and the EL conditions but did not detail what the Compliance Management System was or how it worked. The EMS did not set out the procedures to be utilised on site for the management of compliance obligations and requirements and there was no clear process which identified how the compliance requirements of the exploration process were to be managed. The activity approval requirements were not included in the relevant system documents thereby ensuring that they were entered into the Compliance Management System;

2. there was no procedure that provided guidance to site personnel as to how the activity approval process was to be undertaken, defined how the compliance requirements of the activity approval were to be transferred into the Permit To Work (“PTW”) process (which gave internal permissions for drilling and pad and track construction), or how these processes were to be implemented on the ground;

3. there were a number of staff changes at NCO between the version of the REF submitted in September 2018 and the final 2018-2019 REF submitted in October 2018. Staff responsible for signing off on PTWs did not know the site history and were not able to understand the background to the revisions made to the 2018-2019 REF;

4. the spatial information utilised for the development of PTWs was provided to the NCO survey team by the NCO Environmental Department prior to the approval of the 2018-2019 REF. This resulted in the survey team utilising spatial information not associated with final activity approvals. The spatial information was utilised to develop plans for PTWs which were subsequently implemented to develop access tracks within the EL that were in different locations to those approved in the 2018-2019 REF;

5. in accordance with the PTW procedure, a copy of the PTWs and selected documents associated with them were required to be stored on NCO computer servers at a designated folder location with a link to those documents noted on the PTWs. This did not occur and a copy of the 2018-2019 REF was not stored with the corresponding PTWs;

6. PTWs did not require the documentation of key controls which had to be implemented in accordance with the activity approvals. The PTW procedure required revision to ensure that environmental controls necessary for exploration works were documented on the PTW and that the implementation of the controls was reviewed, inspected and monitored on a defined frequency, either as articulated in the 2018-2019 REF, or as defined from a risk management perspective by NCO while the works were being undertaken; and

7. there was no requirement in the PTW procedures for NCO’s Environmental Department to verify that works had been completed. Only the PTW supervisor and the PTW holder were required to do so.

The Humphris Affidavit

96. In relation to all charges, the defendants relied upon the affidavit of Ian Humphris affirmed on 10 June 2021 (“the Humphris affidavit”).

97. Humphris is a director of NC and NCO. He was first appointed to those positions on 29 June 2020. Humphris is also a director of Whitehaven Coal Mining Limited (“WCML”). WCML is also a wholly owned subsidiary of Whitehaven Coal. He was appointed to this role on 1 July 2020.

98. Humphris commenced his employment with WCML as Executive General Manager, Operations, on 6 April 2020. In this role he has operational responsibility for all of Whitehaven Coal’s mining operations in New South Wales, including the mine.

99. Humphris was authorised by the boards of NCO, NC and Whitehaven Coal to, on behalf of those companies, accept responsibility, to express regret and apologise to the prosecutor, the Court, and the broader community for the commission of the offences.

100. In his affidavit he deposed that NCO and NC have sought to remediate the harm caused by the commission of the offences by:

1. rehabilitating the access tracks the subject of charges 1 to 3;

2. rehabilitating the boreholes the subject of charges 4 to 8;

3. sealing borehole NC619C (charge 9);

4. taking steps to minimise the possibility of any recurrence of the offences; and

5. committing to carry out the recommendations of Travis Peake, the prosecutor’s ecologist.

101. In addition to the matters referred to in the Frankcombe letter, Humphris added that the offences were committed, in his view, because of a lack of rigour and oversight in the mine's compliance management system and the PTW system.

102. Accordingly, Humphris deposed that since the commission of the offences NCO had:

1. developed and implemented an Environmental Compliance Management Standard;

2. reviewed the Compliance Management System to ensure compliance with requirements within activity approvals and the EL conditions;

3. updated the PTW procedure to include a requirement confirming that all works in the proposed PTW were consistent with those included in the approved REFs for those works;

4. developed and implemented a Narrabri Mine Drill Site Rehabilitation Procedure detailing environmental controls to be implemented during rehabilitation works following drilling;

5. commenced the preparation of environmental training packages to train employees and contractors on the requirements for exploration management; and

6. commenced developing a draft procedure for improved staff handover and change management processes to facilitate the appropriate transition of role responsibilities between staff.

103. NCO has also revised the documents and processes referred to above following its receipt of the recommendations by Umwelt by:

1. implementing an assurance review process which revises the status of compliance with the PTW procedure on an ongoing basis;

2. carrying out environmental training detailing the requirements for compliance management; and

3. finalising and implementing the procedure for staff handover processes and the appropriate transition of roles.

104. The work undertaken by NCO was summarised in the Verification Report as follows:

31A - Review of Compliance Management Systems

NCO have revised the Environmental Compliance Management Standard (Issue 2 – 9 April 2020) with amendments made to the standard including:

•    further detail regarding the types of compliance commitments to be included in the compliance management system

•    detail on spatial data management practices to be implemented

•    the processes to be undertaken to manage the compliance status when approvals/commitments are modified or new approvals are obtained

•    the monitoring process to be utilised to assess the compliance status of the commitments included in the compliance management system

Revision of the key roles and accountabilities to include the revised requirements of the standard.

31B - Activity Approvals Management Systems

The actions required to be undertaken to address the 31 B Report includes reference to Revised Environmental Compliance Management Standard as well as revisions made to the PTW Permit (Form for Surface Disturbance and Penetration Work (WHCFRM-NAR-PTW) (Issue 9 - 24/04/2020).

Revisions undertaken to the PTW Permit include consideration of the following items in the completion of the PTW Permit:

•    Confirmation that proposed works are compliant with the Activity Approval

•    Confirmation the PTW Plan references the Activity Approval ID

•    Requirement to confirm a table summarising the environmental management commitments of the Activity Approval are attached to the PTW Permit

•    A copy of the project description from the ESF 4 application are attached to the PTW Permit

•    Confirmation the drill sites requested by the PTW are consistent with the ESF4 application

•    Confirmation that Activity Approval documents (REF, ESF4, approval letter, approved spatial data) have been stored onto the NCO server at a prescribed server location

•    The forecast completion date for the drilling program

•    Confirmation that the NCO Environmental Superintendent is aware of the Activity Approval requirements that rehabilitation of disturbed areas is completed within 3 months of the completion of the drilling program

NCO have also provided copies of the NCO Training Needs Analysis which identifies training requirements for staff and contractors who will undertake works within EL 6243. NCO have also provided a copy of the NCO Personnel Handover Procedure Narrabri Coal Operations (Issue: 28/02/20) which details the system processes to be implemented when new staff join NCO or move between roles at NCO. The actions undertaken to address the recommendations of the Umwelt February 2020 reports are detailed in Table 3.1 and Table 3.2. As noted in the below tables, Umwelt have determined that actions undertaken by NCO since the Umwelt February 2020 reports have addressed the corrective actions and recommendations as detailed in the Umwelt February 2020 reports.

105. In addition to the measures described above, NCO has:

1. elevated the position of Environmental Superintendent to report directly to the General Manager of the site. The Environmental Superintendent is now part of the senior leadership team of the site in order to elevate environmental compliance;

2. created a new permanent position of Environmental Compliance Officer, reporting to the Environmental Superintendent and responsible for administering the updated compliance management systems; and

3. developed a comprehensive environmental training package (at a cost of approximately $24,000), which has been delivered to existing relevant personnel and which is now included in the induction of all new employees and contractors.

106. According to Humphris, NCO has further committed to carrying out a series of recommendations made by the prosecutor’s ecology expert (Peake) for the purpose of monitoring the regeneration of the vegetation affected by the unauthorised clearing, including annual ecological monitoring by a qualified ecologist for a period of five years.

107. Humphris deposed that NCO, NC and Whitehaven Coal are committed to ongoing engagement and participation in the community through various activities. In particular, there is an emphasis on First Nations peoples engagement through their Aboriginal and Torres Strait Islander Engagement Strategy. The companies also foster female involvement in the mining industry, invest in local skills development, prioritise local employment, and financially contribute to the local community.

108. With respect to First Nations peoples engagement:

1. in 2018 Whitehaven Coal launched its second Reconciliation Action Plan (“RAP”). The RAP is a strategic document that is part of Whitehaven Coal's business plan. It applies to its subsidiaries including NCO and NC. Its purpose is to contribute to advancing reconciliation by setting goals to develop respectful relationships with, and create meaningful opportunities for, First Nations peoples;

2. in the 2019/20 financial year the Whitehaven group expended $3.15 million on First Nations businesses and donated $127,259 to local First Nations communities;

3. Whitehaven Coal has donated over $125,000 to the Winanga-Li Aboriginal Child and Family Centre in Gunnedah, the first Aboriginal Child and Family Centre to open in New South Wales;

4. since 2019 $120,000 has been donated to the Clontarf Foundation by Whitehaven Coal to support the establishment of an academy at Narrabri High School for 56 First Nations students. The Clontarf Foundation aims to improve the education, self-esteem and employment prospects for young First Nations boys and men by using football as a means of retaining attendance at school;

5. Whitehaven Coal sponsors Australian Indigenous Oztag, the Narrabri Blues rugby league team and NSW Aboriginal Rugby League Knockout teams; and

6. 7.6% of the workforce at the mine identify as First Nations peoples.

109. With respect to fostering greater employment opportunities for women, Whitehaven Coal has:

1. sponsored the WIMNet NSW Mentor Program, which provides mentoring opportunities to women in the mining industry;

2. launched the Women of Whitehaven focus group, which encourages feedback and ideas on current gender diversity initiatives and improving diversity within the workplace;

3. become involved in industry recognition of women in the workplace by making submissions to the Women in Mining Awards; and

4. sponsored and developed female apprenticeships and promoted female cadet work experience programs.

110. Humphris additionally stated that Whitehaven Coal invests in local skills development through offering a range of graduate and vocational programs to local communities.

111. Furthermore, 82% of the mine’s employees live locally or in nearby areas, thereby providing local and regional employment.

112. Finally, since 2010 NCO has made over 36 discretionary charitable grants, donations and sponsorships, totalling over $160,000 to various Narrabri and Gunnedah local community initiatives. As at February 2021 the Whitehaven group and its employees have contributed more than $1,000,000 to the Westpac Rescue Helicopter.

Sentencing Principles

The Purposes of Sentencing

113. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

3A    Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a)    to ensure that the offender is adequately punished for the offence,

(b)    to prevent crime by deterring the offender and other persons from committing similar offences,

(c)    to protect the community from the offender,

(d)    to promote the rehabilitation of the offender,

(e)    to make the offender accountable for his or her actions,

(f)    to denounce the conduct of the offender,

(g)    to recognise the harm done to the victim of the crime and the community.

Statutory Matters Required to be Taken into Account in Sentencing

114. Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider when sentencing an offender. Relevant to the facts of this case these factors are:

21A    Aggravating, mitigating and other factors in sentencing

(2)    Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(o)    the offence was committed for financial gain,

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3)    Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a)    the injury, emotional harm, loss or damage caused by the offence was not substantial,

…

(e)    the offender does not have any record (or any significant record) of previous convictions,

(f)    the offender was a person of good character,

(g)    the offender is unlikely to re-offend,

(h)    the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)    the remorse shown by the offender for the offence, but only if—

(i)    the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)    the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

…

(m) assistance by the offender to law enforcement authorities (as provided by section 23)…

115. Section 378D(3) of the Mining Act provides further matters that the Court must take into account:

378D    Contravention of condition of authorisation—offence by holder

(3)    In imposing a penalty under this section for a contravention of a condition, the court is to take into consideration the following (so far as they are relevant)—

(a)    the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b)    the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c)    the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d)    the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

(e)    any other matters the court considers relevant.

116. The prosecutor bears the onus of proving beyond reasonable doubt any aggravating factor he relies upon for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). The defendants, however, must establish any factor in mitigation upon which they rely on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

117. The sentence to be imposed on the defendants must be proportionate to both the objective seriousness or gravity of the commission of the offences and the defendants’ subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

118. The appropriate sentence in respect of the defendants is to be determined by an instinctive synthesis of all of the objective and subjective factors relevant to the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

Objective Seriousness of the Offences

119. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of their objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).

120. The objective seriousness of the offences is to be determined by reference to the nature of the offences and not by reference to matters that are personal to the defendants (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]). A determination of the objective seriousness or gravity of the offences requires a consideration of the factors discussed below.

Nature of the Offences

121. The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision creating the offence and its place in the statutory scheme. A proper understanding of the underlying purpose of an offence is assisted by a consideration of the objects of the statute creating it. A fundamental consideration is the degree to which a defendant’s conduct offended against the legislative objectives expressed or implied in the creation of the offence (Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 at [97]; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at 242-246; Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]; and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]).

122. The objects of the Mining Act are contained in s 3A of that Act:

3A        Objects

The objects of this Act are to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular—

(a)    to recognise and foster the significant social and economic benefits to New South Wales that result from the efficient development of mineral resources, and

(b)    to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations, and

(c)    to provide a framework for compensation to landholders for loss or damage resulting from such operations, and

(d)    to ensure an appropriate return to the State from mineral resources, and

(e)    to require the payment of security to provide for the rehabilitation of mine sites, and

(f)    to ensure effective rehabilitation of disturbed land and water, and

(g)    to ensure mineral resources are identified and developed in ways that minimise impacts on the environment.

123. The offence of contravening a condition of an EL or ML is one of strict liability. By analogy to a breach of a condition of an environment protection licence under the Protection of the Environment Operations Act 1997 (“POEOA”), in Environment Protection Authorityv Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239, the Court observed as follows (at [104]):

104. It is difficult to envisage industrial production that would not, having regard to the broad definitions ascribed to the various forms of pollution regulated by the POEOA, give rise to conduct that would otherwise, but for a proscribed licensing regime under that Act, be unlawful. Compliance with licence conditions is the price that entities must pay for permission to engage in potentially polluting manufacturing processes. The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the POEOA are met.

124. Earlier, in Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39, Craig J stated that (at [65]):

65.   Conditions imposed upon an environment protection licence traverse a spectrum of obligations. Some may be seen to be merely procedural, the consequences of non-observance of which are not necessarily adverse to the environment. Others may be regarded as more fundamental in the control of the regulated activity. A condition requiring that the activity be carried out in a competent manner is a condition of the latter kind.

125. Similarly, Robson J remarked in Environment Protection Authority v P&M Quality Small Goods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 (at [37]):

37.   It is well accepted that there is a need for the regulatory system established under the POEO Act to be upheld. The system depends upon persons, first, taking steps to ascertain where a licence is required and, if so required, making applications for a licence. It is also clear that the imposition of conditions on a licence is intended to avert the risk of environmental harm that would otherwise eventuate were the activity not regulated. It is clear that the objects of the POEO Act are achieved by complying with authorisations and licences which enable certain conduct, which would otherwise be prohibited, to be carried out on specific conditions.

235. Care must nevertheless be taken “to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence” (Rawson at [222]; Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]; and R v Wheeler [2000] NSWCCA 34 at [36]–[37]). The application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that “what is in effect being offered is some kind of discount for multiple offending” (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).

236. The Court discussed the totality principle and its application at length in Orica (at [224] to [229]). More recently see the examination and application of the principle in Barlow (at [111] to [112]).

237. Applying those authorities to the present proceedings, I find that the totality principle applies separately to charges 1 to 3, having regard to the commonality of fact, timing and location of the conduct giving rise to those contraventions, and again to charges 4 to 10 (Orica at [248]).

Financial Means

239. There was no evidence that the defendants would be unable to satisfy any monetary penalty likely to be imposed on them by this Court (s 6 of the Fines Act 1966).

Costs

240. The prosecutor sought an order for his professional costs as agreed or assessed under s 257B of the Criminal Procedure Act 1986. The defendants have agreed to pay the prosecutor's professional costs as assessed under 257G of that Act.

241. In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on NC and NCO, the Court can take into account the costs that those parties agree to pay (Harris at [100]; Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123]; and Barnes at [78] and [88]). In doing so, the Court must be mindful that the payment of the prosecutor’s costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 at [50]).

242. The prosecutor also sought an order that the defendants pay his investigation costs. It is unclear if a power to award these costs in favour of the prosecutor exists under the Criminal Procedure Act (see the definition of “professional costs” in s 257A which purports to exclude such costs, whereas the reference in s 257B of that Act is more generally to “costs”, not “professional costs”. By contrast, s 257G refers to both).

243. As a consequence, the prosecutor relied upon the power expressly contained in s 378ZC(1) of the Mining Act:

378ZC Orders regarding costs and expenses of investigation

(1)    The court may, if it appears to the court that the Crown or a public authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the Crown or the authority the costs and expenses so incurred in such amount as is fixed by the order.

244. At the hearing, the defendants agreed to pay the prosecutor’s professional costs and did not cavil with the proposition by the prosecutor that they pay his investigation costs. I have taken this agreement into account.

245. Subsequent to the sentence hearing, in written correspondence with the Court the prosecutor resiled from any reliance on s 378ZC(1) of the Mining Act because he could not furnish the Court with any evidence as to the nature and quantum of his investigation costs.

246. In the result, the Court does not need to resolve the question of construction inherent in s 257B of the Criminal Procedure Act (namely, whether the “costs” referred to therein include investigation costs) because the prosecutor stated that if a moiety was ordered by the Court (see the discussion immediately below) then he would not seek an award of his investigation costs pursuant to that provision (T73:06-08).

Moiety

247. The prosecutor contended that half of all monetary penalties imposed in these proceedings ought to be paid to the prosecutor pursuant to s 122 of the Fines Act 1996. This was because an order for the payment of the prosecutor’s investigation costs would not compensate him for the totality of the time spent by the Regulator’s officers investigating the commission of the offences.

248. An award of a moiety to a prosecutor is discretionary (Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54 at [157]). One circumstance justifying the making of an order for a moiety is where a prosecutor does not have an independent right to recover its investigation costs (Secretary, Department of Planning and Environment v AGL Energy Ltd; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 at [143], citing Boggabri at [62]). Having said this, the existence of an independent right to recovery of such costs does not deprive the Court of the power to impose a moiety (AGL Energy at [154]-[155] and Environment Protection Authority v Abbas [2021] NSWLEC 57 at [123] per Pain J).

249. In AGL Energy Moore J made an order for moiety of the fine imposed in Class 5 sentence proceedings for an offence against the EPAA. His Honour concluded (at [150]) that a moiety could nevertheless be ordered when “the full suite of additional therapeutic (but not punitive) powers contained in Pt 8.3 of the POEO Act were available”, including the power to order the payment of the costs and expenses of the investigation. Although his Honour observed (at [155]) that the Court might decline “to exercise a discretion to award a moiety in circumstances where a statutorily based order [to pay costs] would have achieved the same outcome”, his Honour went on to say (at [158]):

158.    However, I also wish to make it clear that I am not to be taken as suggesting that there may not be other reasons why the ordering of a moiety might be appropriate. Specifically, it seems to me that there may be a basis for a prosecutor to seek both reimbursement of investigation expenses and a moiety of a fine in circumstances where a prosecutor could demonstrate that such an additional payment might support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.

250. As discussed above, in these proceedings, it is not immediately obvious that the Court can award the prosecutor his investigation costs under the Criminal Procedure Act. The prosecutor submitted that even if it could, such an award would, in any event, not include the significant time spent by officers of the Regulator investigating the offences and would not fully compensate him for his expenses in this regard (AGL Energy at [143] and Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [116]).

251. In Sydney Water Corporation [2020], the orders proposed by the prosecutor provided for the payment of an amount to the National Parks and Wildlife Service for the purposes of a bush regeneration project in a national park. A moiety order of 50% of any additional monetary penalty determined by the Court not paid to the project was sought. Her Honour accepted that the Environment Protection Authority did not obtain a windfall gain if the order was made and she was therefore “theoretically…open to doing so” (at [118]).

252. For the reasons discussed above, I am of the view that an order for a moiety is appropriate. This is because the prosecutor is unlikely to “obtain any windfall gain if such an order is made” (Sydney Water Corporation [2020] at [118]). I note that the defendants again did not cavil with the making of such an order.

Publication Order

253. Pursuant to s 378ZE(1)(b) of the Mining Act the Court is empowered to make an order requiring that the defendants notify specified persons or classes of persons of the offences, their circumstances and consequences of their commission and of any orders made against them.

254. In the context of the purposes of sentencing, a publication order serves the functions of general deterrence, denunciation and a recognition of the harm caused by the offending (Environmental Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105] per Duggan J).

255. In Environmental Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90, Preston J emphasised that the primary purpose of publicising the detection, prosecution and punishment of offenders is to enhance general deterrence (at [76]). His Honour observed that by the public becoming aware of offending conduct, people and businesses will be deterred from committing environmental offences (see also Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]-[165]).

256. As the prosecutor submitted, in order to achieve this purpose, the notice must be placed in publications and other media (including social media) accessed by the people and businesses to whom the deterrence is directed. In conformity with this principle, in Environment Protection Authority v Ardent LeisureLtd [2018] NSWLEC 36 Robson J ordered a notice to be published in six newspaper and industry publications (at [166]).

257. There is no authority for the proposition that publication orders are inappropriate in circumstances where there has been no or minimal environmental harm caused as a consequence of the offending conduct (Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 at [664]).

258. Having said this, it does not necessary follow that a publication order should be made as a matter of course in all sentencing proceedings for environmental crime (Bartter Enterprises (No 4) at [105]). The making of such an order must be warranted having regard to the circumstances of the case.

259. In the present case, a publication order is justified given that the offences involved contraventions of conditions of mining authorisations in the form of an EL and ML, caused actual and likely environmental harm, and where general deterrence is an important element in the imposition of an appropriate penalty.

260. The parties agreed to the terms of a publication order in the form annexed to this judgment at annexure ‘A’.

Appropriate Sentence

261. Instinctively synthesising the factors discussed above, I find that the imposition of a monetary penalty is warranted for each of the offences committed as follows:

1. charge 1 – for NCO a fine of $110,000 and for NC a fine of $55,000;

2. charge 2 – for NCO a fine of $70,000 and for NC a fine of $35,000;

3. charge 3 – for NCO a fine of $70,000 and for NC a fine of $35,000;

4. charge 4 – for NCO a fine of $30,000 and for NC a fine of $15,000;

5. charge 5 – for NCO a fine of $40,000 and for NC a fine of $20,000;

6. charge 6 – for NCO a fine of $30,000 and for NC a fine of $15,000;

7. charge 7 – for NCO a fine of $30,000 and for NC a fine of $15,000;

8. charge 8 – for NCO a fine of $30,000 and for NC a fine of $15,000;

9. charge 9 – for NC a fine of $40,000; and

10. charge 10 – for NCO a fine of $20,000 and for NC a fine of $10,000.

262. Each penalty must be discounted by 25% for the utilitarian value of NC and NCO’s pleas of guilty as follows:

1. charge 1 – for NCO a fine of $82,500 and for NC a fine of $41,250;

2. charge 2 – for NCO a fine of $52,500 and for NC a fine of $26,250;

3. charge 3 – for NCO a fine of $52,500 and for NC a fine of $26,250;

4. charge 4 – for NCO a fine of $22,500 and for NC a fine of $11,250;

5. charge 5 – for NCO a fine of $30,000 and for NC a fine of $15,000;

6. charge 6 – for NCO a fine of $22,500 and for NC a fine of $11,250;

7. charge 7 – for NCO a fine of $22,500 and for NC a fine of $11,250;

8. charge 8 – for NCO a fine of $22,500 and for NC a fine of $11,250;

9. charge 9 – for NC a fine of $30,000; and

10. charge 10 – for NCO a fine of $15,000 and for NC a fine of $7,500.

263. After the application of the totality principle, the penalties for the commission of charges 1 to 10 should be reduced respectively as follows:

1. charge 1 – for NCO a fine of $82,500 and for NC a fine of $41,250;

2. charge 2 – for NCO a fine of $40,000 and for NC a fine of $20,000;

3. charge 3 – for NCO a fine of $30,000 and for NC a fine of $10,000;

4. charge 4 – for NCO a fine of $22,500 and for NC a fine of $11,250;

5. charge 5 – for NCO a fine of $20,000 and for NC a fine of $10,000;

6. charge 6 – for NCO a fine of $15,000 and for NC a fine of $10,000;

7. charge 7 – for NCO a fine of $10,000 and for NC a fine of $5,000;

8. charge 8 – for NCO a fine of $10,000 and for NC a fine of $5,000;

9. charge 9 – for NC a fine of $15,000; and

10. charge 10 – for NCO a fine of $10,000 and for NC a fine of $5,000.

264. This brings the total fines imposed on NCO to $240,000, and on NC $132,500. In each case, half of this sum is to be paid to the prosecutor by way of moiety.

Orders

265. In conformity with the reasons given above, the Court makes the following orders:

Proceeding 2020/232873 (charge 1)

1. NCO is convicted as charged;

2. NCO is fined the sum of $82,500;

Proceeding 2020/232874 (charge 2)

3. NCO is convicted as charged;

4. NCO is fined the sum of $40,000;

Proceeding 2020/232875 (charge 3)

5. NCO is convicted as charged;

6. NCO is fined the sum of $30,000;

Proceeding 2020/232876 (charge 4)

7. NCO is convicted as charged;

8. NCO is fined the sum of $22,500;

Proceeding 2020/232877 (charge 5)

9. NCO is convicted as charged;

10. NCO is fined the sum of $20,000;

Proceeding 2020/232878 (charge 6)

11. NCO is convicted as charged;

12. NCO is fined the sum of $15,000;

Proceeding 2020/232879 (charge 7)

13. NCO is convicted as charged;

14. NCO is fined the sum of $10,000;

Proceeding 2020/232880 (charge 8)

15. NCO is convicted as charged;

16. NCO is fined the sum of $10,000;

Proceeding 2020/281874 (charge 10)

17. NCO is convicted as charged;

18. NCO is fined the sum of $10,000;

Proceeding 2020/232881 (charge 1)

19. NC is convicted as charged;

20. NC is fined the sum of $41,250;

Proceeding 2020/232882 (charge 2)

21. NC is convicted as charged;

22. NC is fined the sum of $20,000;

Proceeding 2020/232883 (charge 3)

23. NC is convicted as charged;

24. NC is fined the sum of $10,000;

Proceeding 2020/232884 (charge 4)

25. NC is convicted as charged;

26. NC is fined the sum of $11,250;

Proceeding 2020/232885 (charge 5)

27. NC is convicted as charged;

28. NC is fined the sum of $10,000;

Proceeding 2020/232886 (charge 6)

29. NC is convicted as charged;

30. NC is fined the sum of $10,000;

Proceeding 2020/232887 (charge 7)

31. NC is convicted as charged;

32. NC is fined the sum of $5,000;

Proceeding 2020/232888 (charge 8)

33. NC is convicted as charged;

34. NC is fined the sum of $5,000;

Proceeding 2020/281851 (charge 9)

35. NC is convicted as charged;

36. NC is fined the sum of $15,000;

Proceeding 2020/281850 (charge 10)

37. NC is convicted as charged;

38. NC is fined the sum of $5,000;

Proceedings 2020/232873, 2020/232874, 2020/232875, 2020/232876, 2020/232877, 2020/232878, 2020/232879, 2020/232880, 2020/232881, 2020/232882, 2020/232883, 2020/232884, 2020/232885, 2020/232886, 2020/232887, 2020/232888, 2020/281850, 2020/281851, and 2020/281874

39. pursuant to s 122 of the Fines Act 50% of each fine imposed is to be paid to the prosecutor in respect of the penalty imposed for each offence;

40. pursuant to s 257B of the Criminal Procedure Act NC and NCO are to jointly pay the prosecutor’s professional costs as determined pursuant to s 257G of that Act;

41. pursuant to s 378ZE(1)(a) and (b) of the Mining Act NC and NCO are to jointly:

1. within 28 days of the date of this order, cause a notice in the form of annexure ‘A’ to this judgment to be placed within the first 11 pages of the following publications, at a minimum size of 139 mm x 19 cm:

(i)    the Australian Financial Review;

(ii)    The Daily Telegraph; and

(iii)    The Narrabri Courier;

2. within 28 days of the date of this order and for a minimum of 30 days, cause a notice in the form of annexure ‘A’ to this judgment to be placed on the mine’s website:

3. within 14 days of the date of this order, post the text of annexure ‘A’ to this judgment on Whitehaven Coal’s LinkedIn page, together with the photo at annexure ‘B’. The text is to be posted between the hours of 8:00 am and 10:00 am or 4:30 pm and 6:30 pm on a weekday. The post must remain as a pinned post on the LinkedIn page for a minimum of seven days, and as a post on the LinkedIn page for 30 days;

4. within 35 days of the date of this order, provide to the prosecutor a complete copy of the pages of the publications and websites referred to in orders 41(a) to (c) above in which the notices have appeared or been posted pursuant to these orders;

5. cause a notice in the form of annexure ‘A’ to this judgment to be placed in the next Sustainability Report published by Whitehaven Coal; and

6. within 28 days after the publishing of the next Sustainability Report, provide to the prosecutor a complete copy of the page of the Sustainability Report in which the notice has appeared pursuant to these orders; and

42. the exhibits are to be returned.

Annexure A

Narrabri Coal Pty Ltd and Narrabri Coal Operations Pty Ltd Guilty of Breaching Mining Act and Fined a Total of $372,500

Narrabri Coal Pty Ltd (“NC”) has been convicted of 10 offences under the Mining Act 1992 (NSW) for being a holder of two authorisations under that Act, conditions of which were contravened by Narrabri Coal Operations Pty Ltd (“NCO”). The authorisations held by NC are Mining Lease 1609 (“ML”) in respect of the Narrabri Coal Mine (“mine”), approximately 30km from Narrabri, New South Wales, and Exploration Licence 6243 (“EL”).

NCO has been convicted of nine offences under the Mining Act 1992 for causing the contraventions of the EL.

NC and NCO are both wholly owned subsidiaries of Whitehaven Coal Limited (“Whitehaven Coal”). They were fined a total of $372,500 by the Land and Environment Court of NSW (“the Court”) for the commission of the offences.

Two activity approvals under the EL provided for a number of exploration boreholes to be drilled at numerous locations within the exploration area. NCO contravened a condition of the EL on nine occasions, including drilling two exploration boreholes in the wrong locations, failing to seal one borehole within 28 days after use, and creating access tracks in unapproved locations within the Pilliga East State Forest. NCO also failed to prepare a Rehabilitation Management Plan within a required time period.

As holder of the EL, NC was liable for those contraventions and was convicted for the nine offences. An exploration borehole within the ML was not sealed once it ceased to be used resulting in the tenth conviction against NC.

The creation of access tracks in unapproved locations within the Pilliga East State Forest led to short term minimal environmental harm through the loss of habitat, breaks in ecological connectivity, and disturbances to the ecosystem in those locations.

The conduct comprising the offences was first discovered by the NSW Resources Regulator (“the Regulator”) during an audit of the mine. Following the audit, the defendants voluntarily suspended exploration activities from 24 July 2019. The Regulator formally suspended exploration activities from 22 August 2019, pending completion of a third party audit and report in relation to the defendants' systems for compliance with conditions of the EL and the completion of all necessary corrective actions to the satisfaction of the Regulator.

The defendants completed all corrective actions and recommendations arising from the third party audit, and on 10 August 2020 the Regulator revoked the suspension.

On 13 August 2021 the Court convicted the defendants of the offences against s 378D of the Mining Act 1992, and:

1. imposed fines totalling $372,500;

1. ordered the defendants to jointly pay the prosecutor's professional costs;

2. ordered the defendants to publish this notice in the Australian Financial Review, The Daily Telegraph, The Narrabri Courier; and

3. ordered the defendants to publish this notice on the mine’s website and on Whitehaven Coal's Linkedln page and in its next Sustainability Report.

Annexure B

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Decision last updated: 13 August 2021