Pollution-and-environmental-offences.ppt

Covering key legislation, applications, and scopes

1. Pollution and Pollution and
environmental environmental
offencesoffences
by Sonia Brownhillby Sonia Brownhill
William Forster ChambersWilliam Forster Chambers
© Sept 2012© Sept 2012

2. NT legislationNT legislation
Waste Management and Pollution Control ActWaste Management and Pollution Control Act
(“WMPCA”)(“WMPCA”), , Part 11Part 11
of general applicationof general application
Mining Management ActMining Management Act (“MMA”), Part 3, (“MMA”), Part 3,
Division 3 and Part 9Division 3 and Part 9
applies to mining sitesapplies to mining sites
see also see also Water ActWater Act, esp Part 2, Division 2 and , esp Part 2, Division 2 and
Part 10, Division 3Part 10, Division 3
applies to pollution of water (in a waterway, ground applies to pollution of water (in a waterway, ground
water and tidal water)water and tidal water)
see also see also Marine Pollution ActMarine Pollution Act
applies to ship-sourced pollutantsapplies to ship-sourced pollutants

3. WMPCA – Scope & objectsWMPCA – Scope & objects

An Act to provide for the protection of An Act to provide for the protection of
the environment through the environment through
encouragement of effective waste encouragement of effective waste
management and pollution prevention management and pollution prevention
and control practices (long title)and control practices (long title)

Objectives of Act: to protect the quality Objectives of Act: to protect the quality
of the of the Territory environmentTerritory environment (s5) (s5)

4. WMPCA - ApplicationWMPCA - Application

NA to a contaminant or waste:NA to a contaminant or waste:

that results from carrying out of a mining activity, that results from carrying out of a mining activity,
petroleum exploration, or petroleum extraction petroleum exploration, or petroleum extraction
activity, activity, andand confined w/i the land on which activity confined w/i the land on which activity
carried out (s6(2))carried out (s6(2))

released from a pipeline during activity under released from a pipeline during activity under
Petroleum ActPetroleum Act, , Petroleum (Submerged Lands) ActPetroleum (Submerged Lands) Act, ,
Energy Pipelines ActEnergy Pipelines Act, , andand confined to land w/i 1 km confined to land w/i 1 km
of centre of pipeline (s6(3), (4))of centre of pipeline (s6(3), (4))

If not so confined, WMPCA applies to all If not so confined, WMPCA applies to all
contaminant or waste, not just that which is contaminant or waste, not just that which is
confined (s6(5))confined (s6(5))

NA to a circumstance to which NA to a circumstance to which Marine Marine
Pollution ActPollution Act applies (s6(8)) applies (s6(8))

5. WMPCA – Environmental offencesWMPCA – Environmental offences

A person must not:A person must not:

intentionally pollute the environment where serious environmental intentionally pollute the environment where serious environmental
harm results (s83(1))harm results (s83(1))

pollute the environment where serious environmental harm results pollute the environment where serious environmental harm results
(s83(2))(s83(2))

intentionally pollute the environment where material environmental intentionally pollute the environment where material environmental
harm results (s83(3))harm results (s83(3))

pollute the environment where material environmental harm results pollute the environment where material environmental harm results
(s83(4))(s83(4))

cause an environmental nuisance (s83(5))cause an environmental nuisance (s83(5))

intentionally cause or permit a contaminant or waste to be stored in intentionally cause or permit a contaminant or waste to be stored in
a manner/condition/place where it is reasonably likely to leak, spill, a manner/condition/place where it is reasonably likely to leak, spill,
escape into the environment and cause environmental harm (s83(6))escape into the environment and cause environmental harm (s83(6))

cause or permit a contaminant or waste to be stored in a cause or permit a contaminant or waste to be stored in a
manner/condition/place where it is reasonably likely to leak, spill or manner/condition/place where it is reasonably likely to leak, spill or
escape into the environment and cause environmental harm (s83(7))escape into the environment and cause environmental harm (s83(7))

Others: Others:

failure to report an incident causing or threatening pollution (s14)failure to report an incident causing or threatening pollution (s14)

failure to comply with pollution abatement notices (s80)failure to comply with pollution abatement notices (s80)

breach of terms of approvals and licences (s39)breach of terms of approvals and licences (s39)

6. WMPCA: Environmental harm WMPCA: Environmental harm
offencesoffences
11
stst
element: pollute the environment element: pollute the environment

““pollutepollute”: ”:

(a) emit, discharge, deposit or disturb, directly or indirectly, a (a) emit, discharge, deposit or disturb, directly or indirectly, a
contaminant or waste or contaminant or waste or

(b) cause, permit, or fail to prevent, directly or indirectly, the (b) cause, permit, or fail to prevent, directly or indirectly, the
emission, discharge, deposition or escape of a contaminant or wasteemission, discharge, deposition or escape of a contaminant or waste

““contaminantcontaminant”: a solid, liquid or gas or any combination ”: a solid, liquid or gas or any combination
thereof including: thereof including:

(a) noise, odour, heat and electromagnetic radiation(a) noise, odour, heat and electromagnetic radiation

(b) and (c) prescribed substances or properties(b) and (c) prescribed substances or properties

none prescribednone prescribed

““wastewaste”: a solid, a liquid or a gas or a mixture of such ”: a solid, a liquid or a gas or a mixture of such
substances that are left over, surplus or an unwanted by-substances that are left over, surplus or an unwanted by-
product from any activity (whether or not the substance is of product from any activity (whether or not the substance is of
value), including prescribed substances or properties [none]value), including prescribed substances or properties [none]

““environmentenvironment”: land, air, water, organisms and ecosystems, ”: land, air, water, organisms and ecosystems,
including: (a) the well-being of humans; (b) structures made including: (a) the well-being of humans; (b) structures made
or modified by humans; (c) the amenity values of an area; or modified by humans; (c) the amenity values of an area;
and (d) economic, cultural and social conditionsand (d) economic, cultural and social conditions

7. WMPCA: Environmental harm WMPCA: Environmental harm
offencesoffences
22
ndnd
element: environmental harm element: environmental harm
resultsresults

““environmental harmenvironmental harm”: ”:

(a) any harm to or adverse effect on the (a) any harm to or adverse effect on the
environment; or environment; or

(b) any potential harm (including the risk (b) any potential harm (including the risk
of harm and future harm) to or potential of harm and future harm) to or potential
adverse effect on the environment, adverse effect on the environment,

of any degree or duration and includes of any degree or duration and includes
environmental nuisanceenvironmental nuisance

8. WMPCA: Environmental harm WMPCA: Environmental harm
offencesoffences
22
ndnd
element: level of harm element: level of harm

““serious environmental harm”: environmental harm serious environmental harm”: environmental harm
that is more serious than material environmental that is more serious than material environmental
harm, including harm that: harm, including harm that:

(a) is irreversible or otherwise of a high impact or on (a) is irreversible or otherwise of a high impact or on
a wide scale; a wide scale;

(b) damages an aspect of the environment that is of a (b) damages an aspect of the environment that is of a
high conservation value, high cultural value or high high conservation value, high cultural value or high
community value or is of special significance; community value or is of special significance;

(c) results or is likely to result in more than $50,000 (c) results or is likely to result in more than $50,000
being spent on action to prevent or minimise the being spent on action to prevent or minimise the
harm or rehabilitate the environment; or harm or rehabilitate the environment; or

(d) results in actual or potential loss or damage to the (d) results in actual or potential loss or damage to the
value of more than $50,000value of more than $50,000

9. WMPCA: Environmental harm WMPCA: Environmental harm
offencesoffences
22
ndnd
element: level of harm element: level of harm

““material environmental harm”: material environmental harm”:
environmental harm that: environmental harm that:

(a) is not trivial or negligible in nature; (a) is not trivial or negligible in nature;

(b) consists of an environmental nuisance of a (b) consists of an environmental nuisance of a
high impact or on a wide scale; high impact or on a wide scale;

(c) results, or is likely to result, in not more (c) results, or is likely to result, in not more
than $50,000 being spent in action to prevent than $50,000 being spent in action to prevent
or minimise the harm or rehabilitate the or minimise the harm or rehabilitate the
environment; or environment; or

(d) results in actual or potential loss or (d) results in actual or potential loss or
damage to the value of not more than damage to the value of not more than
$50,000$50,000

10. WMPCA: Environmental harm WMPCA: Environmental harm
offencesoffences
33
rdrd
element: element: mens reamens rea (guilty mind) (guilty mind)

actual knowledge or reasonable actual knowledge or reasonable
forseeability for offences under s83(1), forseeability for offences under s83(1),
(2), (3), (4):(2), (3), (4):

knows ORknows OR

ought reasonably be expected to know, ought reasonably be expected to know,

that serious or material environmental that serious or material environmental
harm would result from the pollutionharm would result from the pollution

11. WMPCA: Environmental harm WMPCA: Environmental harm
offencesoffences
44
thth
element: element: mens reamens rea (guilty mind) (guilty mind)

intentionallyintentionally pollute the environment for s83(1) (3) pollute the environment for s83(1) (3)

ie the defendant intended to emit, discharge, etc a ie the defendant intended to emit, discharge, etc a
contaminant or wastecontaminant or waste

ie the defendant intended to cause, permit or fail to ie the defendant intended to cause, permit or fail to
prevent the emission, discharge, etc of a contaminant or prevent the emission, discharge, etc of a contaminant or
wastewaste

proved by: proved by:

(a) an admission by the defendant of their intention [rare] or (a) an admission by the defendant of their intention [rare] or

(b) an inference from the doing of the polluting and the (b) an inference from the doing of the polluting and the
circumstances in which it was donecircumstances in which it was done

12. WMPCA – Environmental WMPCA – Environmental
nuisancenuisance

No mental (fault) element:No mental (fault) element:

s83(5) [and (7)] = regulatory offence (s88)s83(5) [and (7)] = regulatory offence (s88)

mens reamens rea is not an element of the offence is not an element of the offence

still relevant for sentencingstill relevant for sentencing

““environmental nuisance” means:environmental nuisance” means:

(a) an adverse effect on the amenity of an area (a) an adverse effect on the amenity of an area
that:that:

(i) is caused by noise, smoke, dust, fumes or odour; and(i) is caused by noise, smoke, dust, fumes or odour; and

(ii) unreasonably interferes with or is likely to (ii) unreasonably interferes with or is likely to
unreasonably interfere with the enjoyment of the area by unreasonably interfere with the enjoyment of the area by
persons who occupy a place within the area or are persons who occupy a place within the area or are
otherwise lawfully in the area; orotherwise lawfully in the area; or

(b) an unsightly or offensive condition caused by (b) an unsightly or offensive condition caused by
contaminants or wastecontaminants or waste

13. WMPCA - DefencesWMPCA - Defences

Only for prosecutions under s83(1), (2), Only for prosecutions under s83(1), (2),
(3), (4) and (6) [not nuisance](3), (4) and (6) [not nuisance]

prove offence not result of def’s failure to prove offence not result of def’s failure to
exercise reasonable diligence (s84(1))exercise reasonable diligence (s84(1))

prove def complied with maximum prove def complied with maximum
allowable levels for particular contaminant allowable levels for particular contaminant
or waste in (s84(2)):or waste in (s84(2)):

provision of environment protection objectiveprovision of environment protection objective

condition of environment protection approval condition of environment protection approval
or licenceor licence

provision of the Regulationsprovision of the Regulations

14. WMPCA - PenaltiesWMPCA - Penalties

See See Environmental Offences and Penalties ActEnvironmental Offences and Penalties Act, read with , read with
Penalty Units Act 2009Penalty Units Act 2009 and Regulations [PU = $137] and Regulations [PU = $137]

Applicable to offending after 1 July 2011Applicable to offending after 1 July 2011
Prov’nProv’nIntentionIntentionEnviron Environ
conseqconseq
Environ Environ
Offence Offence
LevelLevel
Individ Individ
minmin
Individ Individ
maxmax
Body corp Body corp
minmin
Body corp Body corp
maxmax
s83(1)s83(1)PollutePollute SeriousSerious 11 $52,745$52,745$527,450$527,450
5 yrs gaol5 yrs gaol
$263,588$263,588$2,635,880$2,635,880
s83(2)s83(2)NoNo SeriousSerious 22 $21,098$21,098$210,980$210,980$105,490$105,490$1,054,900$1,054,900
s83(3)s83(3)PollutePollute MaterialMaterial22 $21,098$21,098$210,980$210,980$105,490$105,490$1,054,900$1,054,900
s83(4)s83(4)NoNo MaterialMaterial33 $10,549$10,549$105,490$105,490$52,745$52,745 $527,450$527,450
s83(5)s83(5)NoNo NuisanceNuisance44 $0$0 $10,549$10,549 $0$0 $52,745$52,745
s83(6)s83(6)StoreStore HarmHarm 33 $10,549$10,549$105,490$105,490$52,745$52,745 $527,450$527,450
s83(7)s83(7)NoNo HarmHarm 44 $0$0 $10,549$10,549 $0$0 $52,745$52,745

15. WMPCA – Liability for costsWMPCA – Liability for costs

Where person found guilty, Court may Where person found guilty, Court may
make an order requiring the offender to make an order requiring the offender to
reimburse the costs and expenses reimburse the costs and expenses
incurred by the agency in investigating incurred by the agency in investigating
the offence (s97(b))the offence (s97(b))

Can be substantialCan be substantial

16. WMPCA – Other provisionsWMPCA – Other provisions

Time limitation: complaint to be brought w/i 12 months after Time limitation: complaint to be brought w/i 12 months after
agency first became aware of commission of offence (s94)agency first became aware of commission of offence (s94)

Alternative verdicts: for s83(1), (2), (3) and (4), Court may find Alternative verdicts: for s83(1), (2), (3) and (4), Court may find
person charged w higher offence guilty of any of the lesser person charged w higher offence guilty of any of the lesser
offences (s85)offences (s85)

Continuing offences: daily penalties if offending continued after Continuing offences: daily penalties if offending continued after
notified of alleged offence (s87(2))notified of alleged offence (s87(2))

Liability of bodies corporate for acts of employees and agents (s90)Liability of bodies corporate for acts of employees and agents (s90)

Liability of directors for offence of body corporate (s91)Liability of directors for offence of body corporate (s91)

Liability of partners and members of unincorporated associations Liability of partners and members of unincorporated associations
(s92)(s92)

Liability of employer (not body corp) for offending of employees Liability of employer (not body corp) for offending of employees
(s93)(s93)

Articles used in commission of offence may be forfeited to Crown Articles used in commission of offence may be forfeited to Crown
(s98)(s98)

Court may require offender to publicise offence and consequences Court may require offender to publicise offence and consequences
(s97(c))(s97(c))

17. Move to Move to Mining Mining
Management Act Management Act (“MMA”)(“MMA”)

18. MMA – Scope & objectsMMA – Scope & objects

An Act to provide for the authorisation of An Act to provide for the authorisation of
mining activities, the management of mining mining activities, the management of mining
sites, the protection of the environment on sites, the protection of the environment on
mining sites (long title)mining sites (long title)

Objects of Act (s3): Objects of Act (s3):
–to ensure the development of the Territory’s to ensure the development of the Territory’s
mineral resources in accordance with mineral resources in accordance with
environmental standards consistent with best environmental standards consistent with best
practice in the mining industrypractice in the mining industry
–to protect the environment by [various]to protect the environment by [various]
–to assist the mining industry to introduce to assist the mining industry to introduce
programs of continuous improvement to achieve programs of continuous improvement to achieve
best practice environmental managementbest practice environmental management

19. MMA - ApplicationMMA - Application
MMA applies in relation to all mining sites and mining MMA applies in relation to all mining sites and mining
activities in the Territory (s5)activities in the Territory (s5)
““mining site”: an area of land: mining site”: an area of land:
–(a) in respect of which a person holds a mining interest; (a) in respect of which a person holds a mining interest;
–(b) on which mining activities are being, or have been, carried (b) on which mining activities are being, or have been, carried
out; or out; or
–(c) declared by the Minister(c) declared by the Minister
““mining activities”: mining activities”:
–(a) exploration for minerals; (a) exploration for minerals;
–(b) mining of minerals; (b) mining of minerals;
–(c) processing of minerals, tailings, spoil heaps or waste (c) processing of minerals, tailings, spoil heaps or waste
dumps; (d) decommissioning or rehabilitation of a mining site; dumps; (d) decommissioning or rehabilitation of a mining site;
–(e) operations and works in connection with such activities; etc(e) operations and works in connection with such activities; etc

NA to ozone-depleting substances prescribed under NA to ozone-depleting substances prescribed under
WMPCA (s26) [none prescribed]WMPCA (s26) [none prescribed]

20. MMA – Environmental MMA – Environmental
offencesoffences
A person must not:A person must not:
–intentionally do or fail to do an act in breach of Part 3, Div 1 that 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))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 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))environmental harm on a mining site (s27(3))
–intentionally do or fail to do an act in breach of Part 3, Div 1 that 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))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 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))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 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))environmental nuisance on a mining site (s27(9))
Others: Others:
–failure to report incidents (s29)failure to report incidents (s29)

21. MMA – Environmental harm offencesMMA – Environmental harm offences
11
stst
element: breach obligation under Part 3, element: breach obligation under Part 3,
Div 1Div 1

all persons on mining site (s13): take care of the environmentall persons on mining site (s13): take care of the environment

a person on mining site (s14): a person on mining site (s14):
–comply with instructions and procedures in the management systemcomply with instructions and procedures in the management system
–follow all reasonable directions given by operator about preventing environmental harmfollow all reasonable directions given by operator about preventing environmental harm

owner of mining site with operator appointed (s15):owner of mining site with operator appointed (s15):
–provide operator with all relevant informationprovide operator with all relevant information
–ensure operator is compenent and provides adequate resources to establish & ensure operator is compenent and provides adequate resources to establish &
implement management systemimplement management system

operator of mining site (s16):operator of mining site (s16):
–ensure environmental impact of mining activities limited to what is necessaryensure environmental impact of mining activities limited to what is necessary
–establish and maintain appropriate management structure of competent personsestablish and maintain appropriate management structure of competent persons
–ensure workers are competent to perform dutiesensure workers are competent to perform duties
–establish, implement and maintain appropriate environment protection management establish, implement and maintain appropriate environment protection management
systemsystem
–provide adequate resources for implementation and maintenance of systemprovide adequate resources for implementation and maintenance of system
–ensure, by regular assessment, that system operates effectivelyensure, by regular assessment, that system operates effectively

worker on mining site (s17):worker on mining site (s17):
–keep informed about, and comply with, work instructions and procedureskeep informed about, and comply with, work instructions and procedures
–report to operator any serious accident or critical incident or a situation they believe report to operator any serious accident or critical incident or a situation they believe
may present a risk to the environmentmay present a risk to the environment

contractor on mining site (s18):contractor on mining site (s18):
–similar to workersimilar to worker

22. MMA – Environmental harm offencesMMA – Environmental harm offences
22
ndnd
element: causes environmental element: causes environmental
harmharm

““environmental harmenvironmental harm”: ”:
–(a) any harm to or adverse effect on the (a) any harm to or adverse effect on the
environment; or environment; or
–(b) any potential harm (including the risk of harm (b) any potential harm (including the risk of harm
and future harm) to or potential adverse effect on and future harm) to or potential adverse effect on
the environment, the environment,
–of any degree or duration and includes of any degree or duration and includes
environmental nuisanceenvironmental nuisance

““environmentenvironment”: land, air, water, organisms ”: land, air, water, organisms
and ecosystems and ecosystems on a mining siteon a mining site, including: , including:
(a) the well-being of humans; (b) structures (a) the well-being of humans; (b) structures
made or modified by humans; (c) the amenity made or modified by humans; (c) the amenity
values of an area; and (d) economic, cultural values of an area; and (d) economic, cultural
and social conditionsand social conditions

23. MMA – Environmental harm offencesMMA – Environmental harm offences
22
ndnd
element: level of harm element: level of harm

““serious environmental harm”: environmental harm serious environmental harm”: environmental harm
that is more serious than material environmental that is more serious than material environmental
harm, including harm that: harm, including harm that:

(a) is irreversible or otherwise of a high impact or on (a) is irreversible or otherwise of a high impact or on
a wide scale; a wide scale;

(b) damages an aspect of the environment that is of a (b) damages an aspect of the environment that is of a
high conservation value, high cultural value or high high conservation value, high cultural value or high
community value or is of special significance; community value or is of special significance;

(c) results or is likely to result in more than $50,000 (c) results or is likely to result in more than $50,000
being spent on action to prevent or minimise the being spent on action to prevent or minimise the
harm or rehabilitate the environment; or harm or rehabilitate the environment; or

(d) results in actual or potential loss or damage to the (d) results in actual or potential loss or damage to the
value of more than $50,000value of more than $50,000

24. MMA – Environmental harm offencesMMA – Environmental harm offences
22
ndnd
element: level of harm element: level of harm

““material environmental harm”: material environmental harm”:
environmental harm that: environmental harm that:

(a) is not trivial or negligible in nature; (a) is not trivial or negligible in nature;

(b) consists of an environmental nuisance of a (b) consists of an environmental nuisance of a
high impact or on a wide scale; high impact or on a wide scale;

(c) results, or is likely to result, in not more (c) results, or is likely to result, in not more
than $50,000 being spent in action to prevent than $50,000 being spent in action to prevent
or minimise the harm or rehabilitate the or minimise the harm or rehabilitate the
environment; or environment; or

(d) results in actual or potential loss or (d) results in actual or potential loss or
damage to the value of not more than damage to the value of not more than
$50,000$50,000

25. MMA – Environmental harm offencesMMA – Environmental harm offences
33
rdrd
element: element: mens reamens rea (guilty mind) (guilty mind)

actual knowledge or reasonable actual knowledge or reasonable
forseeability for offences under s27(1), forseeability for offences under s27(1),
(3), (5), (7):(3), (5), (7):
–knows ORknows OR
–ought reasonably be expected to know, ought reasonably be expected to know,
–that the act or failure to act will or might that the act or failure to act will or might
cause serious or material environmental cause serious or material environmental
harmharm

26. MMA – Environmental harm offencesMMA – Environmental harm offences
44
thth
element: element: mens reamens rea (guilty mind) (guilty mind)

intentionallyintentionally act or fail to act in breach of Div 1 act or fail to act in breach of Div 1
obligation for s27(1), (5) obligation for s27(1), (5)

Possibilities:Possibilities:
–the defendant intended to do the act or fail to do the act, 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 knowing that it was in breach of Div 1 obligation [must have
known of obligations under Div 1]known of obligations under Div 1]
–the defendant intended to do the act or fail to do the act, w/o 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 knowing that it was in breach of Div 1 obligation [must have
known were not doing what was required of them]known were not doing what was required of them]

Intention proved by: Intention proved by:
–(a) an admission by the defendant of their intention [rare] or (a) an admission by the defendant of their intention [rare] or
–(b) an inference from the doing of the act/failure to act and (b) an inference from the doing of the act/failure to act and
the circumstances in which it was donethe circumstances in which it was done

27. MMA – Environmental MMA – Environmental
nuisancenuisance

No express mental (fault) element:No express mental (fault) element:
–likely that likely that mens reamens rea is not an element of the is not an element of the
offence – an offence of “strict liability”offence – an offence of “strict liability”
–still relevant for establishing defence of still relevant for establishing defence of
reasonable diligencereasonable diligence
–still relevant for sentencingstill relevant for sentencing
““environmental nuisance” means:environmental nuisance” means:
–(a) an adverse effect on the amenity of land (a) an adverse effect on the amenity of land
caused by noise, smoke, dust, fumes or caused by noise, smoke, dust, fumes or
odour; orodour; or
–(b) an unsightly or offensive condition (b) an unsightly or offensive condition
caused by contaminants or wastecaused by contaminants or waste

28. MMA - DefencesMMA - Defences

General defences for General defences for allall s27 offences s27 offences
–prove offence not result of def’s failure to exercise prove offence not result of def’s failure to exercise
reasonable diligence (s79(1))reasonable diligence (s79(1))
–prove def complied with maximum allowable levels prove def complied with maximum allowable levels
for particular contaminant or waste in (s79(2)):for particular contaminant or waste in (s79(2)):
provision of environment protection objective under provision of environment protection objective under
WMPCA orWMPCA or
condition of an approval, permit, lease, licence or condition of an approval, permit, lease, licence or
authorisation under an Actauthorisation under an Act

General defence for all offences under the General defence for all offences under the
MMA (s80)MMA (s80)
–prove act constituting offence or element of prove act constituting offence or element of
offence was in accordance with a guideline in force offence was in accordance with a guideline in force
at time act done or with another code, standard, at time act done or with another code, standard,
practice or methodology in force at time act done practice or methodology in force at time act done
and reasonable in the circumstancesand reasonable in the circumstances

29. MMA - PenaltiesMMA - Penalties

See See Environmental Offences and Penalties ActEnvironmental Offences and Penalties Act, read with , read with
Penalty Units Act 2009Penalty Units Act 2009 and Regulations [PU = $137] and Regulations [PU = $137]

Applicable to offending after 1 July 2011Applicable to offending after 1 July 2011
Prov’nProv’nIntentionIntentionEnviron Environ
conseqconseq
Environ Environ
Offence Offence
LevelLevel
Individ Individ
minmin
Individ Individ
maxmax
Body corp Body corp
minmin
Body corp Body corp
maxmax
s27(1)s27(1)YesYes SeriousSerious 11 $52,745$52,745$527,450$527,450
5 yrs gaol5 yrs gaol
$263,588$263,588$2,635,880$2,635,880
s27(3)s27(3)NoNo SeriousSerious 22 $21,098$21,098$210,980$210,980$105,490$105,490$1,054,900$1,054,900
s27(5)s27(5)YesYes MaterialMaterial22 $21,098$21,098$210,980$210,980$105,490$105,490$1,054,900$1,054,900
s27(7)s27(7)NoNo MaterialMaterial33 $10,549$10,549$105,490$105,490$52,745$52,745 $527,450$527,450
s27(9)s27(9)NoNo NuisanceNuisance44 $0$0 $10,549$10,549 $0$0 $52,745$52,745

30. MMA – Liability for costsMMA – Liability for costs

No provision permitting Court to order No provision permitting Court to order
payment of investigation costspayment of investigation costs

Left with ss 77A, 77C of Left with ss 77A, 77C of Justices ActJustices Act and and
r14 of r14 of Justices RegulationsJustices Regulations
–Court can only order defendant found Court can only order defendant found
guilty to pay $710 for 1guilty to pay $710 for 1
stst
day of hearing and day of hearing and
$470 per day thereafter unless$470 per day thereafter unless
–Court is of opinion that circumstances of Court is of opinion that circumstances of
the case or legal issues are of an the case or legal issues are of an
exceptional natureexceptional nature

31. MMA – Other provisionsMMA – Other provisions

Time limitation: complaint to be brought w/i 12 months Time limitation: complaint to be brought w/i 12 months
after CEO first became aware of commission of offence after CEO first became aware of commission of offence
(s77)(s77)

Alternative verdicts: for s27(1), (3), (5) and (7), Court Alternative verdicts: for s27(1), (3), (5) and (7), Court
may find person charged w higher offence guilty of any may find person charged w higher offence guilty of any
of the lesser offences (s28)of the lesser offences (s28)

Continuing offences: daily penalties if offending Continuing offences: daily penalties if offending
continued after notified of alleged offence (s71)continued after notified of alleged offence (s71)

Liability of bodies corporate for acts of directors, Liability of bodies corporate for acts of directors,
employees and agents (s73)employees and agents (s73)

Liability of directors for offence of body corporate (s74)Liability of directors for offence of body corporate (s74)

Liability of partners and members of unincorporated Liability of partners and members of unincorporated
associations (s75)associations (s75)

Liability of employer (not body corp) for offending of Liability of employer (not body corp) for offending of
employees (s76)employees (s76)

32. Recent sentencesRecent sentences
Grant v Darwin Port Corporation (2011)Grant v Darwin Port Corporation (2011)
pleaded guilty to breach of s83(5), WMPCApleaded guilty to breach of s83(5), WMPCA
causing environmental nuisancecausing environmental nuisance
allowed stormwater collected on wharf and infrastructure to flow directly into allowed stormwater collected on wharf and infrastructure to flow directly into
waters of Darwin Harbour, causing a plumewaters of Darwin Harbour, causing a plume
no environmental harm caused and stormwater system altered so flowed into no environmental harm caused and stormwater system altered so flowed into
settling pondssettling ponds
Max penalty then was $25,000Max penalty then was $25,000
Convicted and fined $19,000 (76% of max)Convicted and fined $19,000 (76% of max)
Ordered to pay $50,000 in costsOrdered to pay $50,000 in costs
Galton v Alcan Gove Pty Ltd (2011)Galton v Alcan Gove Pty Ltd (2011)
pleaded guilty to breach of s27(3), MMApleaded guilty to breach of s27(3), MMA
causing serious environmental harmcausing serious environmental harm
failure to implement EPMS by continuing steel tank in service w/o 10 yearly failure to implement EPMS by continuing steel tank in service w/o 10 yearly
internal inspectioninternal inspection
62,000 litres of unleaded petrol leaked into ground water and was moving 62,000 litres of unleaded petrol leaked into ground water and was moving
towards coasttowards coast
Alcan spent over $3m on remediation to remove petrol from groundwater and Alcan spent over $3m on remediation to remove petrol from groundwater and
prevent coastal breakthroughprevent coastal breakthrough
Penalty range then was $50,000 to $500,000Penalty range then was $50,000 to $500,000
Convicted and fined $160,000 (32% of max)Convicted and fined $160,000 (32% of max)
No order for costsNo order for costs