EPA v Alkem Drums [2000] NSWCCA 416

EPA v Alkem Drums [2000] NSWCCA 416

A failure to comply with a notice under cl 21(1) of the Clean Waters Regulations by the stipulated time is a one-off offence; it is not a continuing offence in the absence of express statutory language to that effect. The daily penalty provision in cl 21(3) is invalid, being ultra vires the Clean Waters Act and Environmental Offences and Penalties Act, but severable so far as the maximum penalty provision is concerned.

Jurisdiction
Australia
Judgment Date
16 October 2000
Procedural Posture
Criminal Appeal / Appeal From Rulings in Land and Environment Court Via Case Stated
Outcome
Questions in the stated case answered: Q1 Yes; Q2 Yes; Q3 No; Q4 No; Q5 Yes; Q6 No; case remitted for further consideration.
Legal Topics
['breach of Environmental Regulations' 'compliance With Statutory Notice' 'continuing Offences' 'penalty Provisions' 'delegated Legislation and Ultra Vires']
['environmental Law' 'criminal Law' 'administrative Law'] ['breach of Environmental Regulations' 'compliance With Statutory Notice' 'continuing Offences' 'penalty Provisions' 'delegated Legislation and Ultra Vires']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal From Rulings in Land and Environment Court Via Case Stated

Legal Issues

  1. 1 ['Does cl 21(3) of the Clean Waters Regulations validly create an offence and provide for a daily penalty?' 'Is the offence of failing to comply with a notice under cl 21(1) a continuing offence?' 'Is the daily penalty provision in cl 21(3) severable from its other penalty provisions?' 'Does the Clean Waters Act or Regulations impose a duty to comply with a notice under cl 21(1)?' 'Does the charge as framed disclose an offence in law?']

Ratio Decidendi

A failure to comply with a notice under cl 21(1) of the Clean Waters Regulations by the stipulated time is a one-off offence; it is not a continuing offence in the absence of express statutory language to that effect. The daily penalty provision in cl 21(3) is invalid, being ultra vires the Clean Waters Act and Environmental Offences and Penalties Act, but severable so far as the maximum penalty provision is concerned.

Court Disposition

Questions in the stated case answered: Q1 Yes; Q2 Yes; Q3 No; Q4 No; Q5 Yes; Q6 No; case remitted for further consideration.

Orders

  • ['Questions in the stated case answered as follows: 1 Yes in each instance; 2 Yes; 3 No; 4 No; 5 Yes; 6 No.' 'Case remitted to the Land and Environment Court with this expression of opinion.']