Pollution and
environmental
offences
by Sonia Brownhill
William Forster Chambers
© Sept 2012
NT legislation
 Waste Management and Pollution Control Act
(“WMPCA”), Part 11
 of general application
 Mining Management Act (“MMA”), Part 3,
Division 3 and Part 9
 applies to mining sites
 see also Water Act, esp Part 2, Division 2 and
Part 10, Division 3
 applies to pollution of water (in a waterway, ground
water and tidal water)
 see also Marine Pollution Act
 applies to ship-sourced pollutants
WMPCA – Scope & objects


An Act to provide for the protection of the
environment through encouragement of
effective waste management and pollution
prevention and control practices (long
title)
Objectives of Act: to protect the quality of
the Territory environment (s5)
WMPCA - Application

NA to a contaminant or waste:




that results from carrying out of a mining activity,
petroleum exploration, or petroleum extraction
activity, and confined w/i the land on which activity
carried out (s6(2))
released from a pipeline during activity under
Petroleum Act, Petroleum (Submerged Lands) Act,
Energy Pipelines Act, and confined to land w/i 1 km of
centre of pipeline (s6(3), (4))
If not so confined, WMPCA applies to all
contaminant or waste, not just that which is
confined (s6(5))
NA to a circumstance to which Marine Pollution
Act applies (s6(8))
WMPCA – Environmental offences

A person must not:








intentionally pollute the environment where serious environmental
harm results (s83(1))
pollute the environment where serious environmental harm results
(s83(2))
intentionally pollute the environment where material environmental
harm results (s83(3))
pollute the environment where material environmental harm results
(s83(4))
cause an environmental nuisance (s83(5))
intentionally cause or permit a contaminant or waste to be stored in a
manner/condition/place where it is reasonably likely to leak, spill,
escape into the environment and cause environmental harm (s83(6))
cause or permit a contaminant or waste to be stored in a
manner/condition/place where it is reasonably likely to leak, spill or
escape into the environment and cause environmental harm (s83(7))
Others:



failure to report an incident causing or threatening pollution (s14)
failure to comply with pollution abatement notices (s80)
breach of terms of approvals and licences (s39)
WMPCA: Environmental harm offences
1st element: pollute the environment

“pollute”:



“contaminant”: a solid, liquid or gas or any combination
thereof including:





(a) emit, discharge, deposit or disturb, directly or indirectly, a
contaminant or waste or
(b) cause, permit, or fail to prevent, directly or indirectly, the emission,
discharge, deposition or escape of a contaminant or waste
(a) noise, odour, heat and electromagnetic radiation
(b) and (c) prescribed substances or properties
none prescribed
“waste”: a solid, a liquid or a gas or a mixture of such
substances that are left over, surplus or an unwanted byproduct from any activity (whether or not the substance is of
value), including prescribed substances or properties [none]
“environment”: land, air, water, organisms and ecosystems,
including: (a) the well-being of humans; (b) structures made or
modified by humans; (c) the amenity values of an area; and (d)
economic, cultural and social conditions
WMPCA: Environmental harm offences
2nd element: environmental harm results




“environmental harm”:
(a) any harm to or adverse effect on the
environment; or
(b) any potential harm (including the risk
of harm and future harm) to or potential
adverse effect on the environment,
of any degree or duration and includes
environmental nuisance
WMPCA: Environmental harm offences
2nd element: level of harm





“serious environmental harm”: environmental harm that
is more serious than material environmental harm,
including harm that:
(a) is irreversible or otherwise of a high impact or on a
wide scale;
(b) damages an aspect of the environment that is of a
high conservation value, high cultural value or high
community value or is of special significance;
(c) results or is likely to result in more than $50,000
being spent on action to prevent or minimise the harm
or rehabilitate the environment; or
(d) results in actual or potential loss or damage to the
value of more than $50,000
WMPCA: Environmental harm offences
2nd element: level of harm





“material environmental harm”: environmental
harm that:
(a) is not trivial or negligible in nature;
(b) consists of an environmental nuisance of a
high impact or on a wide scale;
(c) results, or is likely to result, in not more than
$50,000 being spent in action to prevent or
minimise the harm or rehabilitate the
environment; or
(d) results in actual or potential loss or damage
to the value of not more than $50,000
WMPCA: Environmental harm offences
3rd element: mens rea (guilty mind)

actual knowledge or reasonable
forseeability for offences under s83(1),
(2), (3), (4):



knows OR
ought reasonably be expected to know,
that serious or material environmental harm
would result from the pollution
WMPCA: Environmental harm offences
4th element: mens rea (guilty mind)

intentionally pollute the environment for s83(1) (3)



ie the defendant intended to emit, discharge, etc a
contaminant or waste
ie the defendant intended to cause, permit or fail to
prevent the emission, discharge, etc of a contaminant or
waste
proved by:


(a) an admission by the defendant of their intention [rare] or
(b) an inference from the doing of the polluting and the
circumstances in which it was done
WMPCA – Environmental nuisance

No mental (fault) element:




s83(5) [and (7)] = regulatory offence (s88)
mens rea is not an element of the offence
still relevant for sentencing
“environmental nuisance” means:

(a) an adverse effect on the amenity of an area that:



(i) is caused by noise, smoke, dust, fumes or odour; and
(ii) unreasonably interferes with or is likely to unreasonably
interfere with the enjoyment of the area by persons who
occupy a place within the area or are otherwise lawfully in
the area; or
(b) an unsightly or offensive condition caused by
contaminants or waste
WMPCA - Defences

Only for prosecutions under s83(1), (2),
(3), (4) and (6) [not nuisance]


prove offence not result of def’s failure to
exercise reasonable diligence (s84(1))
prove def complied with maximum allowable
levels for particular contaminant or waste in
(s84(2)):
provision of environment protection objective
 condition of environment protection approval or
licence
 provision of the Regulations

WMPCA - Penalties


See Environmental Offences and Penalties Act, read with
Penalty Units Act 2009 and Regulations [PU = $137]
Applicable to offending after 1 July 2011
Prov’n
Intention
Environ
conseq
Environ
Offence
Level
Individ
min
Individ
max
Body corp
min
Body corp
max
s83(1)
Pollute
Serious
1
$52,745
$527,450
5 yrs gaol
$263,588
$2,635,880
s83(2)
No
Serious
2
$21,098
$210,980
$105,490
$1,054,900
s83(3)
Pollute
Material
2
$21,098
$210,980
$105,490
$1,054,900
s83(4)
No
Material
3
$10,549
$105,490
$52,745
$527,450
s83(5)
No
Nuisance
4
$0
$10,549
$0
$52,745
s83(6)
Store
Harm
3
$10,549
$105,490
$52,745
$527,450
s83(7)
No
Harm
4
$0
$10,549
$0
$52,745
WMPCA – Liability for costs


Where person found guilty, Court may
make an order requiring the offender to
reimburse the costs and expenses incurred
by the agency in investigating the offence
(s97(b))
Can be substantial
WMPCA – Other provisions









Time limitation: complaint to be brought w/i 12 months after agency
first became aware of commission of offence (s94)
Alternative verdicts: for s83(1), (2), (3) and (4), Court may find person
charged w higher offence guilty of any of the lesser offences (s85)
Continuing offences: daily penalties if offending continued after
notified of alleged offence (s87(2))
Liability of bodies corporate for acts of employees and agents (s90)
Liability of directors for offence of body corporate (s91)
Liability of partners and members of unincorporated associations (s92)
Liability of employer (not body corp) for offending of employees (s93)
Articles used in commission of offence may be forfeited to Crown (s98)
Court may require offender to publicise offence and consequences
(s97(c))
Move to Mining
Management Act (“MMA”)
MMA – Scope & objects
An Act to provide for the authorisation of mining
activities, the management of mining sites, the
protection of the environment on mining sites
(long title)
 Objects of Act (s3):

– to ensure the development of the Territory’s mineral
resources in accordance with environmental
standards consistent with best practice in the mining
industry
– to protect the environment by [various]
– to assist the mining industry to introduce programs of
continuous improvement to achieve best practice
environmental management
MMA - Application


MMA applies in relation to all mining sites and mining
activities in the Territory (s5)
“mining site”: an area of land:
– (a) in respect of which a person holds a mining interest;
– (b) on which mining activities are being, or have been, carried
out; or
– (c) declared by the Minister

“mining activities”:
– (a) exploration for minerals;
– (b) mining of minerals;
– (c) processing of minerals, tailings, spoil heaps or waste dumps;
(d) decommissioning or rehabilitation of a mining site;
– (e) operations and works in connection with such activities; etc

NA to ozone-depleting substances prescribed under
WMPCA (s26) [none prescribed]
MMA – Environmental offences

A person must not:
– intentionally do or fail to do an act in breach of Part 3, Div 1 that
causes serious environmental harm on a mining site (s27(1))
– do or fail to do an act in breach of Part 3, Div 1 that causes serious
environmental harm on a mining site (s27(3))
– intentionally do or fail to do an act in breach of Part 3, Div 1 that
causes material environmental harm on a mining site (s27(5))
– do or fail to do an act in breach of Part 3, Div 1 that causes material
environmental harm on a mining site (s27(7))
– do or fail to do an act that is in breach of Part 3, Div 1 that causes
environmental nuisance on a mining site (s27(9))

Others:
– failure to report incidents (s29)
MMA – Environmental harm offences
1st element: breach obligation under Part 3, Div 1


all persons on mining site (s13): take care of the environment
a person on mining site (s14):
– comply with instructions and procedures in the management system
– follow all reasonable directions given by operator about preventing environmental harm

owner of mining site with operator appointed (s15):
– provide operator with all relevant information
– ensure operator is compenent and provides adequate resources to establish & implement
management system

operator of mining site (s16):
–
–
–
–
ensure environmental impact of mining activities limited to what is necessary
establish and maintain appropriate management structure of competent persons
ensure workers are competent to perform duties
establish, implement and maintain appropriate environment protection management
system
– provide adequate resources for implementation and maintenance of system
– ensure, by regular assessment, that system operates effectively

worker on mining site (s17):
– keep informed about, and comply with, work instructions and procedures
– report to operator any serious accident or critical incident or a situation they believe may
present a risk to the environment

contractor on mining site (s18):
– similar to worker
MMA – Environmental harm offences
2nd element: causes environmental harm

“environmental harm”:
– (a) any harm to or adverse effect on the
environment; or
– (b) any potential harm (including the risk of harm and
future harm) to or potential adverse effect on the
environment,
– of any degree or duration and includes environmental
nuisance

“environment”: land, air, water, organisms and
ecosystems on a mining site, including: (a) the
well-being of humans; (b) structures made or
modified by humans; (c) the amenity values of
an area; and (d) economic, cultural and social
conditions
MMA – Environmental harm offences
2nd element: level of harm





“serious environmental harm”: environmental harm that
is more serious than material environmental harm,
including harm that:
(a) is irreversible or otherwise of a high impact or on a
wide scale;
(b) damages an aspect of the environment that is of a
high conservation value, high cultural value or high
community value or is of special significance;
(c) results or is likely to result in more than $50,000
being spent on action to prevent or minimise the harm
or rehabilitate the environment; or
(d) results in actual or potential loss or damage to the
value of more than $50,000
MMA – Environmental harm offences
2nd element: level of harm





“material environmental harm”: environmental
harm that:
(a) is not trivial or negligible in nature;
(b) consists of an environmental nuisance of a
high impact or on a wide scale;
(c) results, or is likely to result, in not more than
$50,000 being spent in action to prevent or
minimise the harm or rehabilitate the
environment; or
(d) results in actual or potential loss or damage
to the value of not more than $50,000
MMA – Environmental harm offences
3rd element: mens rea (guilty mind)

actual knowledge or reasonable
forseeability for offences under s27(1),
(3), (5), (7):
– knows OR
– ought reasonably be expected to know,
– that the act or failure to act will or might
cause serious or material environmental harm
MMA – Environmental harm offences
4th element: mens rea (guilty mind)


intentionally act or fail to act in breach of Div 1
obligation for s27(1), (5)
Possibilities:
– the defendant intended to do the act or fail to do the act,
knowing that it was in breach of Div 1 obligation [must have
known of obligations under Div 1]
– the defendant intended to do the act or fail to do the act, w/o
knowing that it was in breach of Div 1 obligation [must have
known were not doing what was required of them]

Intention proved by:
– (a) an admission by the defendant of their intention [rare] or
– (b) an inference from the doing of the act/failure to act and the
circumstances in which it was done
MMA – Environmental nuisance

No express mental (fault) element:
– likely that mens rea is not an element of the
offence – an offence of “strict liability”
– still relevant for establishing defence of
reasonable diligence
– still relevant for sentencing

“environmental nuisance” means:
– (a) an adverse effect on the amenity of land
caused by noise, smoke, dust, fumes or
odour; or
– (b) an unsightly or offensive condition caused
by contaminants or waste
MMA - Defences

General defences for all s27 offences
– prove offence not result of def’s failure to exercise
reasonable diligence (s79(1))
– prove def complied with maximum allowable levels
for particular contaminant or waste in (s79(2)):
 provision of environment protection objective under WMPCA
or
 condition of an approval, permit, lease, licence or
authorisation under an Act

General defence for all offences under the MMA
(s80)
– prove act constituting offence or element of offence
was in accordance with a guideline in force at time
act done or with another code, standard, practice or
methodology in force at time act done and reasonable
in the circumstances
MMA - Penalties


See Environmental Offences and Penalties Act, read with
Penalty Units Act 2009 and Regulations [PU = $137]
Applicable to offending after 1 July 2011
Prov’n
Intention
Environ
conseq
Environ
Offence
Level
Individ
min
Individ
max
Body corp
min
Body corp
max
s27(1)
Yes
Serious
1
$52,745
$527,450
5 yrs gaol
$263,588
$2,635,880
s27(3)
No
Serious
2
$21,098
$210,980
$105,490
$1,054,900
s27(5)
Yes
Material
2
$21,098
$210,980
$105,490
$1,054,900
s27(7)
No
Material
3
$10,549
$105,490
$52,745
$527,450
s27(9)
No
Nuisance
4
$0
$10,549
$0
$52,745
MMA – Liability for costs
No provision permitting Court to order
payment of investigation costs
 Left with ss 77A, 77C of Justices Act and
r14 of Justices Regulations

– Court can only order defendant found guilty
to pay $710 for 1st day of hearing and $470
per day thereafter unless
– Court is of opinion that circumstances of the
case or legal issues are of an exceptional
nature
MMA – Other provisions







Time limitation: complaint to be brought w/i 12 months
after CEO first became aware of commission of offence
(s77)
Alternative verdicts: for s27(1), (3), (5) and (7), Court may
find person charged w higher offence guilty of any of the
lesser offences (s28)
Continuing offences: daily penalties if offending continued
after notified of alleged offence (s71)
Liability of bodies corporate for acts of directors,
employees and agents (s73)
Liability of directors for offence of body corporate (s74)
Liability of partners and members of unincorporated
associations (s75)
Liability of employer (not body corp) for offending of
employees (s76)
Recent sentences

Grant v Darwin Port Corporation (2011)
 pleaded guilty to breach of s83(5), WMPCA
 causing environmental nuisance
 allowed stormwater collected on wharf and infrastructure to flow directly into
waters of Darwin Harbour, causing a plume
 no environmental harm caused and stormwater system altered so flowed into
settling ponds
 Max penalty then was $25,000
 Convicted and fined $19,000 (76% of max)
 Ordered to pay $50,000 in costs

Galton v Alcan Gove Pty Ltd (2011)
 pleaded guilty to breach of s27(3), MMA
 causing serious environmental harm
 failure to implement EPMS by continuing steel tank in service w/o 10 yearly
internal inspection
 62,000 litres of unleaded petrol leaked into ground water and was moving
towards coast
 Alcan spent over $3m on remediation to remove petrol from groundwater and
prevent coastal breakthrough
 Penalty range then was $50,000 to $500,000
 Convicted and fined $160,000 (32% of max)
 No order for costs