No. 6810 of 1998
- The appellant appeals against the orders of the Horsham
Magistrates' Court on a question of law under s.92(1) of the Magistrates' Court
Act 1989.
- The appeal turns on the construction of an offence under
s.40(1)(a) of the Agricultural and Veterinary Chemicals (Control of Use) Act
1992 and whether the offence is one of absolute liability or strict
liability. The section provides:
"40. Damage by spray drift
(1) A person must not carry out agricultural spraying which
injuriously affects -
(a) any plants or stock outside the target area; or
(b) any land outside the target area so that growing plants or keeping stock on
that land can be reasonably expected to result in
the contamination of the
stock or of agricultural produce derived from the plants or stock.
Penalty: In the case of a corporation, 400 penalty units.
In any other case, 200 penalty units.
(2) It is a defence to a prosecution under sub-section (1)(a) to prove that the
plants or stock have no economic value."
- The appellant was the subject of a charge on summons wherein it
was alleged that at Birchip on 12 August 1996 whilst engaged in
aerial spraying
of barley on a property of one O'Connor the appellant "injuriously affected"
the pea crop of a neighbour, one Gould,
by way of spray drift.
- The summons came on for hearing at the Horsham Magistrates'
Court on 4 June 1998 on which occasion the appellant pleaded not guilty.
The
parties submitted to the magistrate a statement of agreed facts and no evidence
was called. Submissions were made to the magistrate
by counsel on behalf of
the appellant and the respondent who was the informant. In the submissions the
respondent asserted that
s.40(1)(a) of the Act created an offence of absolute
liability and that the defence of honest and reasonable mistake was not
available. Submissions
on behalf of the appellant asserted that the section
created an offence of strict liability and that the defence of honest and
reasonable
mistake was available. The defence of honest and reasonable mistake
was significant because it was the case of the appellant that
the spray drift
was accidental. Arising from the statement of agreed facts it was said that an
error was made by the agent of the
owner of the target area in that a map
prepared for the purposes of the aerial spraying wrongly identified an
adjoining property
to the east as containing a cereal crop rather than a pea
crop. The appellant took preliminary precautions on the relevant day by
circling the property and checking conditions to ensure no drift would carry
from the target area. He checked weather conditions
and satisfied himself that
no drift would be carried to the north-east area where a canola crop was
growing and proceeded to spray
the target area. In the course of conducting
the spraying the agent of the owner of the target area installed markers in an
effort
to ensure the appellant correctly identified the boundaries of the
target area. During the course of the spraying spray drift occurred
and
injuriously affected approximately 140 acres of land to the east on which a pea
crop was grown.
- The magistrate held that the offence created by s.40(1)(a) of
the Act was as an offence of absolute liability and found the charge proved.
The magistrate ordered that the matter be adjourned
for a period of 12 months
and the appellant was placed on a good behaviour bond for that period. The
appellant was ordered to pay
the costs of the informant.
- Mr J. Langmead of counsel appeared for the appellant
before me. He submitted that the magistrate was in error for the following
reasons: firstly, on the basis of the principles expressed by the High Court in
He Kaw Teh v. R. [1985] HCA 43; (1985) 157 CLR 523 the offence was one of absolute
liability; secondly, the general scheme of the Act and the absence of words
such as "knowingly" or
"wilfully" does not lead to a conclusion that the
offence is intended to be absolute; thirdly, the enforcement of s.40(1)(a) of
the Act was not assisted by presuming absolute liability in substitution for
strict liability; fourthly, a presumption of absolute
liability must be
expressly stated by the legislature; fifthly, the Environment Protection Act
1970 is the primary legislation for protection of the environment in
Victoria whereas the Agricultural and Veterinary Chemicals (Control of Use)
Act plays a different legislative role in that it regulates rights between
land owners and users of chemicals.
- Mr Gipp appeared for the respondent and submitted that the
Parliamentary intention upon enactment of the Act was to protect the
environment. He submitted that the control of aerial spraying of chemicals and
the protection of land owners' rights are inextricably
interrelated with the
intention of the Parliament to protect the environment.
- In He Kaw Teh v. R. [1985] HCA 43; (1985) 157 CLR 523, the High
Court considered whether a provision in the Customs Act 1901 (Cth)
making the importation of prohibited products into Australia an offence
required mens rea before a conviction could be made
out. The majority of the
High Court (Wilson, J. dissenting) held that mens rea was required. The court
referred to the legal presumption
that mens rea is an essential ingredient in
every offence but which presumption can be displaced by the words of the
statute creating
the offence or the subject matter with which it is concerned
(per Gibbs, CJ and Mason, J 528). The High Court stated that the presumption
is weak, particularly with respect to modern statutes (per Gibbs, CJ and Mason,
J 528). The High Court observed, also, that there
is difficulty in applying
the presumption because of difficulties in ascertaining Parliamentary intention
and, further, in ascertaining
the mental state necessary to establish "mens
rea". (See Gibbs, CJ and Mason, J at 529; Brennan, J 566-7).
- In He Kaw Teh the High Court referred to the fact that
the courts have set down criteria to be applied in determining whether the
presumption of
mens rea has been displaced. The first criterion is
consideration of the words of the statute creating the offence (see Gibbs, CJ
and Mason, J 529; Brennan, J 567; Dawson, J 594). The second criterion is
consideration of the subject matter of the statute (see
Gibbs, CJ and Mason, J
529; Dawson, J 594). The third criterion is whether subjecting the defendant
to absolute liability will assist
in the promotion of observance of the
relevant statute (see Gibbs, CJ and Mason, J 530; Brennan, J 567). The
fourth criterion is
that where a statute creates an offence for the purpose of
regulating social conditions and public safety and where the penalty attached
to a statutory offence is monetary and moderately sized, the statute is more
easily regarded as imposing absolute liability (see
Brennan, J 567; Dawson, J
595).
- The High Court observed that the expression "mens rea" is
ambiguous, imprecise, difficult to define but can mean voluntariness,
knowledge
of all the facts constituting the necessary ingredients of the relevant
defence, knowledge of the wrongfulness of the act,
intent to cause the
wrongfulness and even recklessness in some cases (see Gibbs, CJ and Mason, J
530-531; Brennan, J 568-70). In
He Kaw Teh the High Court observed,
further, that an honest and reasonable mistake of fact will be a ground of
exculpation in cases in which
actual knowledge is not a necessary element of an
offence (see Gibbs, CJ and Mason, J 532; Brennan, J 574). Ultimately, the High
Court in He Kaw Teh was concerned with the grave conduct of heroin
importation. In applying the principles to be extracted from the case, the
High Court
held that mens rea was required.
- The present matter is concerned with legislation aimed at
controlling agricultural and veterinary chemicals. Before turning to
the
criteria nominated by the High Court. It is useful to consider an overview of
the Act itself and its legislative antecedent.
Section 40(1)(a) of the
Agricultural and Veterinary Chemicals (Control of Use) Act prohibits
agricultural spraying outside the target area that injuriously affects plants.
The section imposes a penalty of 400 penalty
units in the case of a corporation
and in any other case 200 penalty units. This penalty is on a par with other
offences under part 6 of the Act: s.38 (spraying of protected areas); s.42
(unlicensed piloting of an aircraft); s.43 (carrying out spraying without an
approved insurance policy); s.46 (using defective spraying equipment); s.50
(growing plants or keeping stock on prohibited land). Other offences under the
Act attract a lower penalty in the range of 100 and
50 penalty units. Part 6
of the Act is concerned with "controls over spraying of agricultural chemical
products". All offences in part 6 carry penalty units of 400 penalty units
with respect to a corporation and otherwise 200 penalty units.
- The main parts of the Act (Parts 2-7) are concerned with
unregistered use of chemical products, labelling of chemical products,
restrictions and prohibitions on manufacture,
sale and use of fertilisers and
stock products and controls over spraying of agricultural chemical products and
contaminated land,
stock and agricultural produce. The purposes of the Act as
set out in s.1 include the imposition of controls to protect the health of the
general public, to protect the environment, to protect the health
and welfare
of animals, to protect trade in agricultural produce and livestock, to control
agricultural spraying and to protect against
financial loss caused by
agricultural spraying and to impose controls to avoid contamination of food for
human consumption. Consideration
of the purposes set out in s.1 of the Act
reveals that the overwhelming purpose of the Act is to protect human health and
the environment. This analysis is supported
by the second reaching speech of
the Minister upon the introduction of the legislation and which I am entitled
to consider under
s.35(b) of the Interpretation of Legislation Act 1984.
The Minister stated in the second reading speech delivered on 9 May 1991 in the
Legislative Assembly (Hansard p.2039-2040):
"Agricultural and veterinary chemical use and chemical residues in
food are major community concerns ... Community responses focused
on the need
for tighter controls on chemical use.
The Bill aims to consolidate and
simplify current legislation and tighten controls over the manufacture,
distribution, sale and use
of agricultural and veterinary chemical
preparations, stock foods and fertilisers.
The other major purposes of
the Bill are:
1. to impose controls in relation to the production and sale of
agricultural produce to avoid the contamination of food for human
consumption;
2. to strengthen controls over the spray of chemicals and to continue to
protect persons from financial loss caused by spray drift
damage to plants and
animals;
...
The Bill represents a major initiative within the government's
"clean agriculture" policy. It also compliments the government's
policy of
promoting sustainable agriculture through the responsible use of chemicals.
...
New controls over the use of chemicals
are well overdue. Current legislation
imposes minimal controls on the person using a chemical or over the purpose for
or manner
in which it is used.
...
To address increased community concern about the way agricultural chemicals
are applied, the Bill extends
the scope of controls over aerial and ground
spraying.
...
The Bill will also make it an offence to damage plants or stock by
spray-drift."
- The Agricultural and Veterinary Chemicals (Control of Use)
Act repealed the Aerial Spraying Control Act 1966, the
Agricultural Chemicals Act 1958, the Animal Preparations Act 1987
and the Fertilisers Amendment Act 1974. It amended, also, the Stock
Diseases Act 1968 and the Veterinary Surgeons' Act
1958.
- The Aerial Spraying Control Act 1966 ("the 1966 Act")
established a framework to control and administer the aerial spraying of
chemicals. The 1966 Act required the certification of pilots, the lodgement of
insurance bonds by persons intending to carry out aerial spraying, the
retention
of aerial spraying records by pilots and, also, provided for a right
of entry onto and inspection by the Director of the Department
of Agriculture
of land allegedly affected by spray drift. The 1966 Act provided that where a
person alleged that crops, trees, pastures or other growth or other animal life
had been injuriously affected
by spray drift or aerial spraying, written
notification of such allegation was required to be given to the Director (see
s.12(4)).
Where a person failed to give such notice, no claim could be brought
in any court for loss and damage arising from such spray drift
or aerial
spraying (see s.13(1)). Under s.7 of the 1966 Act the Minister was permitted
to designate any area where there was a concentration of susceptible crops
grown to be a "hazardous area"
for the purposes of the Act. Under s.7(5) of
the 1966 Act, any person who carried out or caused or permitted to be carried
out any aerial spraying contrary to a notice declaring an area to
be a
hazardous area to be guilty of an offence and subject to a penalty of $400 or
imprisonment for six months or both. Section
7(5) provided, further, that
where the offence was committed by a pilot the Director-General of the
Department could cancel any certificate
or permit held by that pilot under the
1966 Act and/or the relevant regulations. The 1966 Act created three specific
offences: aerial spraying by an uncertified pilot (s.4(1)); aerial spraying
contrary to the regulations or
of a hazardous area (s.5); prevention or
obstruction of an investigation of alleged spray drift (s.12(3)). The 1966 Act
did not contain equivalent provisions prohibiting agricultural spraying which
had an injurious effect on plants and animals as exists
in s.40(1) of the
current Act. The 1966 Act remained in substantially the same form save for
amendments made in 1968, 1970 and 1978 (and which are not relevant to the
present
matter) until its repeal by the current Act.
- Hence, upon the repeal of the 1966 Act by the current Act
Parliament introduced a new provision, s.40(1), making it an offence to
injuriously affect plants or stock. The
significant difference between the two
Acts is that whilst the 1966 Act permitted only the individual to pursue civil
remedies, the current Act created a summary offence. It is this aspect of the
current
Act that reflects the intention expressed by the Minister in his second
reading speech " ... to strengthen controls over the spraying
of chemicals and
to continue to protect persons from financial loss arising from spray drift
damage ... ". The legislation achieved
this intention in part by creating an
offence under s.40(1).
- Turning to the criteria broadly applied by the High Court,
firstly, consideration of the words of the statute. Section 40(1)(a)
does not
expressly state that mens rea is required. There is a total absence of
language such as "knowingly caused" in the section
to expressly indicate a
requirement of knowledge. The sub-section does not prevent aerial spraying.
Rather, it stipulates that a
person must not carry out an activity that is
otherwise lawful where that activity "injuriously affects" plants or stock.
The section
does not provide a defence of honest and reasonable belief or
mistake. By contrast, a defence is provided in s.40(2), namely, that
it is a
defence to a prosecution to prove that the affected plants or stock have no
economic value. Applying the first criterion
specified by the High Court in
He Kaw Teh, there is nothing specific in the actual drafting of s.40 to
indicate that the provision is one to which absolute liability is attached.
The authorities do not suggest that in order for absolute liability to apply to
an offence it must be expressly stated in the relevant
legislation. Rather,
there must be clear language and which language must be considered in the
context of the purpose of the legislation.
It is necessary to consider the
specific words of the provision. In this respect I consider that the actual
drafting of the provision
reveals that it was clearly intended to create an
offence to which absolute liability attached on the basis that words such as
"knowingly
caused" were not used in the drafting of the provision. Further,
the prohibition imposed by the provision is on an otherwise lawful
activity
where that activity "injuriously affects" plants or stock. In addition, and
significantly, the Parliament made specific
insertion of a defence in s.40(2)
that does not contemplate strict liability and, furthermore, excluded a defence
of honest and reasonable
belief or mistake.
- The second criterion is consideration of the subject matter of
the statute. An analysis of the purposes expressed in the Act, the
framework
of the Act itself and the intentions revealed in the second reading speech make
it plain that the Act is concerned ultimately
with the protection of public
health and the environment. The subject matter of the Act itself is important
and is concerned with
a matter of social seriousness. However, it contrasts
markedly with legislation such as that before the High Court in He Kaw
Teh. The current Act is not concerned with a grave social matter. The
legislative context in He Kaw Teh was entirely different as described by
Gibbs, CJ and Mason, J at 529.
- It could not be said on any view that the activities governed
by Part 6 of the Agricultural and Veterinary Chemicals (Control of Use)
Act, in particular, s.40(1), are concerned with subject matter that is a
grave social evil and one that the Parliament intended to be rigorously
suppressed.
Further, s.40(1) of the Act is not concerned with a subject matter
that is a serious threat to the well-being of the community or
has led to an
increase in crime, corruption and the ruin of innocent lives. On no view could
the provision be construed as dealing
with an offence that is truly criminal.
Unlike the circumstances and the legislation before the High Court in He Kaw
Teh it is likely if not highly likely that the Parliament intended that the
consequences of committing an offence under s.40(1) of the
Act should be
visited on a person even if that person had no intention of doing anything
wrong or had no knowledge that he or she
was doing so. Whilst a breach of the
offence is socially important and serious it could not be regarded on any view
as "being one
of the most serious in the criminal calendar". (He Kaw
Teh per Gibbs, CJ and Mason, J at 535). Upon consideration of the second
criterion in the He Kaw Teh I consider that the offence is one of
absolute liability.
- Turning to the third criterion, the matter to be considered is
whether subjecting the appellant to absolute liability will assist
in
observance of the statute. In He Kaw Teh the High Court considered that
there must be clear language before a statute can be regarded as providing that
actions will make
a person criminally liable because of circumstances that the
person was ignorant about or could not foresee. (See Brennan, J at
567). In
this respect the courts have considered that it is not enough to infer that
absolute liability was intended in a statute
because the subject matter of the
statute is a grave social evil. It has been held consistently that more is
required, namely, an
inquiry as to whether the placing of a defendant under
absolute liability will assist in the enforcement of the relevant legislation:
in other words " ... there must be something he can do, directly or indirectly,
by supervision or inspection, by improvement of his
business methods or by
exhorting those whom he may be expected to influence or control, which will
promote the observance of the
regulations". (See Lim Chin Aik v. R.
(1963) AC 160, 174 per Lord Evershed; also, He Kaw Teh per Brennan, J at
567). The principle was stated by Brennan, J (at 567):
"The penalties of criminal law cannot provide a deterrent against
prohibited conduct to a person who is unable to choose whether to
engage in
that conduct or not, or who does not know the nature of the conduct which he
may choose to engage in or who cannot foresee
the results which may follow from
that conduct )(where those results are at least part of the mischief at which
the statute is aimed).
It requires clear language before it can be said that a
statute provides for a person to do or to abstain from doing something at
his
peril and to make him criminally liable if his conduct turns out to be
prohibited because of circumstances that the person did
not know or because of
results that he could not foresee. However grave the mischief at which a
statute is aimed may be, the presumption
is that the statute does not impose
criminal liability without mens rea unless the purpose of the statute is not
merely to deter
a person from engaging in prohibited conduct but to compel him
to take preventive measures to avoid the possibility that, without
deliberate
conduct on his part, the external elements of the offence might occur. A
statute is not so construed unless effective
precautions can be taken to avoid
the possibility of the occurrence of the external elements of the
offence."
- In the present matter a map was prepared for appellant by the
farm manager of the target area following an inspection of that area
and in
consultation with an agronomist. The map contained an error in that it
identified an area of land east of the target property
as containing a "cerial"
(sic) crop whereas in fact the area contained a pea crop. It was the pea crop
grown on the latter area
that was damaged by the spraying operation carried out
by the appellant. The map prepared by the manager was provided to the
appellant.
On the day that the aerial spraying was carried out the manager
attended at the airport and confirmed the information contained
on the map.
Further, at the time that the aerial spraying occurred the manager together
with an assistant was present at the target
area for the purpose of marking out
the area for spraying. It was agreed by the parties in the agreed facts
submitted to the magistrate
that the appellant circled the target area in the
aircraft in order to identify the area in accordance with the map, checked all
hazards and fence lines. He further checked conditions for the purpose of
ensuring that no drift would be carried across to another
area to the
north-east of the target area on which a canola crop was grown. It was agreed
in the agreed facts that the appellant
checked the wind direction and speed
with a smoke generator fitted to the aircraft and that the weather conditions
at the time were
cool, partly cloudy with a very mild north-west wind of
approximately seven knots. It was agreed between the parties in the agreed
facts document that during the course of the spraying carried out by the
appellant, the manager and an assistant used markers to
assist the appellant in
identifying the boundaries of the target area.
- The magistrate did not make a specific finding of fact as to
whether the preventative measures taken by the appellant were sufficient
to
demonstrate adequate observance of the requirements of s.40(1)(a). The
magistrate considered the criteria laid down in He Kaw Teh. It may be
assumed, therefore, that the magistrate was not satisfied that the steps taken
by the appellant were sufficient. The
appeal from the order of the magistrate
was not challenged on this basis and I need not consider, therefore, whether
the magistrate
was correct or in error in that respect. However, there remains
the issue of satisfying the objective test laid down in He Kaw Teh that
there must be something a person who is the subject of the prosecution can do
to promote the observance of the legislation.
Gibb, CJ and Mason, J (at 530)
considered steps could have been taken by the appellant in that case to ensure
observance of the
statute and formed the view that the public interest demands
care be taken to ensure that baggage brought into the country does not
contain
drugs. Applying that approach to the present matter, a person carrying out
aerial spraying could take steps in addition
to those taken by the appellant to
ensure that no injurious effects are caused by aerial drift. For example,
conducting independent
investigations of the nature of crops grown on land
adjoining the target area, being satisfied directly or indirectly that the
occupiers
of adjoining land have confirmed the category of crop growing next to
or near the target area that may be at risk from the proposed
aerial spraying.
It is not for this court to list exhaustively the steps open to the appellant.
Rather, it is sufficient that the
court be able to be satisfied other steps
were available. I am satisfied that for the purposes of applying the
third criterion in
He Kaw Teh that there was more that the appellant
could have done. I consider that it is clear from the broad purpose of the
statute that the
Parliament aimed to protect public health and the environment
when aerial spraying of agricultural chemicals occurs and to penalise
damage
arising from spraying even where it was accidental or no more than
careless.
- Turning to the other matter laid down by the High Court in
He Kaw Teh and which I have identified as a fourth criterion ( but
largely is an extension of the third criterion) consideration of the purpose
of
the legislation and the penalties imposed. It is clear that the
Agricultural and Veterinary Chemicals (Control of Use) Act created the
offence under s.40(1)(a) in order to regulate potential risk to public health
and the environment arising from aerial spraying. The statute falls,
therefore,
within the category of legislation introduced for the purpose of
regulating social conditions and public safety (see He Kaw Teh per
Brennan, J at 567 and Dawson, J at 595). The relevant penalty under
s.40(1)(a) is monetary and moderately sized being 200 penalty units ($20,000).
Insofar as s.7(5) of the 1966 Act is relevant, the Parliament increased the
monetary penalty but removed the penal penalty thereby considerably reducing
the penalty
to be suffered by a person convicted under s.40. These factors
lead to the conclusion that the intention of the Parliament was to
impose
absolute liability upon the appellant.
- The Full Court in Welsh v. Donnelly [1983] VicRp 79; (1983) 2 VR 173 had
before it a review of s.35(5) of the Motor Car Act 1958 that made it an offence
to overload a trailer. The court held that the provision imposed strict
liability (to be understood as the
law then stood as meaning absolute
liability). The Full Court applied the essential principles of considering the
common good, public
safety and compliance aspects of the legislation that were
later developed by the High Court in He Kaw Teh (see especially Welsh
v. Donnelly supra, at 178 per Young, CJ, at 18607 per McInerney, J and
at 197 per Southwell, J.) The same principles apply in the present matter
as
were considered by the Full Court. Welsh v. Donnelly has been overtaken
by He Kaw Teh. Although the High Court did not consider Welsh v.
Donnelly in He Kaw Teh there is nothing said by the High Court that
would cause me to not follow the Full Court. Furthermore, although Welsh v.
Donnelly was concerned with different legislation to that before me and,
therefore, is not binding nevertheless it is highly persuasive authority
in
support of the view that an offence under s.40(1)(a) of the Agricultural and
Veterinary Chemicals (Control of Use) Act is subject to absolute
liability.
- In Allen v. United Carpet Mills Pty Ltd & Anor
[1989] VicRp 27; (1989) VR 323 Nathan, J considered whether a statutory offence was subject to
absolute or strict liability. The judgment in Allen was the first
reported consideration by a judge of this court after He Kaw Teh of the
nature of the liability to be attached to a statutory offence.
- In Allen v. United Carpet Mills Pty Ltd & Anor
Nathan, J considered the nature of an offence under s.39(1) of the
Environment Protection Act 1970. The salient part of the offence was
that it provided: "A person shall not cause or permit any waters to be polluted
... ". As
with s.40(1)(a) of the Agricultural and Veterinary Chemicals
(Control of Use) Act the section did not stipulate a requirement of guilty
knowledge. Nathan, J considered and applied the criteria laid down in He
Kaw Teh and held that s.39(1) of the Environment Protection Act
creates an offence of absolute liability to which an offence of honest and
reasonable mistake is not available. Nathan, J stated
(at 330):
"Examining the Act as a whole and the purpose it is designed to
serve, I conclude it is directed at penalising all those persons in
control of
potential pollutants who allow, whether by design, neglect or sheer
inadvertence, the escape of those pollutants into
the environment which then
cause damage. The legislature has deliberately used the word 'cause' and has
avoided using language such
as 'knowingly cause' or 'negligently cause'
(pollution) which would have been expected, if the intention had been to create
an offence
of merely strict and not absolute liability. This is a strong
indication that absolute liability was intended.
I am further
drawn to this conclusion after considering the subject matter of the Act. It
is primarily concerned with pollution
of the air or water, both are in the
nature of common property, as distinct from property held in private hands.
The usual constraints
which prevent persons from intruding upon the property
rights of others (e.g. actions in trespass or nuisance) are not effective
in
creating a regime which protects the general environment. The Act is social
regulatory legislation designed to protect the environment.
Pollution of the
environment usually results in a burden and cost to the community. The Act
penalises those who have 'caused' pollution
and thereby brought a detriment to
the community as a whole."
- In Allen Nathan, J was required to consider a second
aspect, that of vicarious liability. The judgment in Allen was not
followed by the New South Wales Land and Environment Court in State
Pollution Control Commission v. Blue Mountains City Council (No. 2) (1991)
73 LGRA 337. However, the issue in the New South Wales authority turned on
vicarious liability and it was in that respect that Allen was not
followed. Hence, the New South Wales authority is not relevant to the present
matter.
- However, there is a line of authority in New South Wales that
approached legislation almost identical to that in Allen from a contrary
perspective. The New South Wales authorities were concerned with a provision
that provided: "A person shall not
pollute any waters" (s.16(1) of the Clean
Waters Act 1970 (NSW)). The New South Wales authorities considered the New
South Wales provision to create an offence of strict liability thereby
enabling
a defence of honest and reasonable mistake. (See Majury v. Sunbeam
Corporation Ltd (1974) 1 NSWLR 659, 663; Tiger Nominees v. State
Pollution Control Commission (1991) 25 NSWLR 715, 719; EPA v. N
(1992) 26 NSWLR 352, 357; Australian Iron and Steel Pty Ltd v. EPA
(1992) 29 NSWLR 497, 507).
- The kernel of the reasoning in the New South Wales authorities
appears to have been Alphacell Limited v. Woodward [1972] UKHL 4; (1972) AC 824 where
the House or Lords considered an environment protection provision that
provided: " ... a person commits an offence ... if he
causes or knowingly
permits to enter a stream any poisonous, noxious or polluting matter ... ".
Viscount Dilhorne (at 839) said:
"Then it is said that, even if that was so, there should not have
been a conviction for the offence charged was not an absolute offence.
As my
noble and learned friend, Lord Diplock, said in Sweet v. Parsley [1969] UKHL 1; [1970]
A.C. 132, 162:
'The expression 'absolute offence' ... is an imprecise phrase currently used to
describe an act for which the doer is subject
to criminal sanctions even though
when he did it he had no mens rea, but mens rea itself also lacks precision ...
'
In this case
it was argued that it was an essential ingredient of the offence
that the appellants should - the case being dealt with as if there
was no
negligence - have intended the entry of the polluting matter into the river,
that is to say, that they should have intended
the commission of the offence.
I cannot think that that was the intention of Parliament for it would mean that
a burden of proof
would rest on the prosecution that could seldom be
discharged. Only if the accused had been seen tipping the polluting material
into a stream or turning on a tap allowing a polluting liquid to flow into a
stream or doing something of a similar character could
the burden be
discharged. Parliament cannot have intended the offence to be of so limited a
character. Ordinarily all that a river
authority can establish is that a
discharge has come into a stream from a particular source and that it is of a
polluting character.
But the Act does not say that proof of that will suffice.
If that were so, the Act would indeed create an absolute offence. It
has also
to be proved that the accused caused or knowingly permitted the
pollution."
- On the same basis, the New South Wales courts have construed
s.16(1) of the Clean Waters Act as subject to strict liability and
thereby being open to a defence of reasonable and honest mistake. It was in
this respect that
Nathan, J in Allen took a divergent view to that
prevailing in New South Wales. Nathan, J in Allen (at 327) considered
Alphacell and observed:
"I consider this case to be of limited assistance. ... A further
difficulty with the English authorities in this area is that they
have not
developed, to the same extent and clarity, the tripartite categorisation of
criminal offences as was adopted in Teh's Case and accordingly, the
terms 'strict liability' and 'absolute liability' have tended to be used by the
English authorities interchangeably."
- The House of Lords decision preceded He Kaw Teh by some
13 years. However, the New South Wales authorities have considered both
Alphacell and He Kaw Teh. In R. v. Wampfler (1987) 11
NSWLR 541 Street, CJ observed in delivering the judgment of the Court of
Criminal Appeal concerned with a prosecution relating to the publication
of an
allegedly indecent article:
"He Kaw Teh is authority for the proposition that for the
purpose of considering criminal intent, statutory offences fall into three
categories:
(1) Those in which there is an original obligation on the
prosecution to prove mens rea.
(2) Those in which mens rea will be presumed to be present unless and until
material is advanced by the defence of the existence
of honest and reasonable
belief that the conduct in question is not criminal in which case the
prosecution must undertake the burden
of negativing such belief beyond
reasonable doubt.
(3) Those in which mens rea plays no part and guilt is established by proof of
the objective ingredients of the offence.
...
There is a discernible trend in modern authorities away from construing
statutes as creating absolute liability and towards
recognising statutory
offences as falling within the middle or second category - that is to say the
category in which the prosecution
must negative the honest and reasonable
belief in innocence if there is sufficient basis advanced to be capable of
raising a reasonable
doubt of such belief. If the matter were at large it
would be necessary to examine this trend of authority."
- Street, CJ proceeded to analyse the particular statutory
provision (s.6(1)) of the Indecent Articles and Classified Publications
Act 1975 (NSW) and determined that the sale of a pernicious publication
from a shop should not, prima facie, preclude a person from showing
that with
all care on his or her part the item was accidentally sold. The approach in
R. v. Wampfler was adopted in Strathfield Municipal Council v.
Elvy (1992) 25 NSWLR 745. Gleeson, CJ considered that an offence created
under s.46G of the Local Government Act 1919 (NSW) concerned with
pecuniary interests of municipal counsellors and cited He Kaw Teh and
Wampfler. Gleeson, CJ considered the offence before the court fell
within the second category of strict liability. He did so on the following
grounds: firstly, the relevant provision contained a defence where a defendant
satisfied the court that he or she did not know that
the matter before the
municipal council was one in which he or she had an interest; secondly, the
learned judge (at 750) considered
the defence was not inconsistent with leaving
it open to a defendant in a proper case to "raise an issue of honest and
reasonable,
but mistaken, belief of fact"; thirdly, Gleeson, CJ in rejecting a
construction of absolute liability stated (at 750) that it may
not be in the
public interest to punish a member of a municipal council for honest and
reasonable mistakes of fact; fourthly, the
learned judge observed (at 750-751)
that whilst the relevant provision carried a fine, that fine was not
insignificant and the civil
consequences of the provision could be far
reaching. The approach in R. v. Wampfler was adopted, also, by the New
South Wales Court of Criminal Appeal in Australian Iron and Steel Pty Ltd v.
EPA, supra at 507-8.
- The various New South Wales authorities were largely concerned
with legislative provisions that included words such as "pollutes",
"causes" or
"knowingly causes". Quite different language is used in s.40(1)(a) of the Act.
Furthermore, as already observed, the
sub-section prohibits a person from
carrying out an activity that is otherwise lawful save for injurious affects.
Furthermore, and
as already observed, by the insertion of a defence (in
s.40(2)) concerned with economic loss together with the non-inclusion of a
defence of honest and reasonable mistake, the Parliament has indicated an
intention that absolute liability attach to an offence
under s.40(1)(a).
- Notwithstanding the direction of the New South Wales
authorities, I consider the purpose and specific wording of s.40(1)(a), the
change represented by the legislation compared with the 1966 Act and the
provision of a defence that goes to the issue of economic value rather than
honest and reasonable mistake lead to the conclusion
that the section is one to
which absolute liability is attached.
- Before moving on from the New South Wales' authorities, I
observe that Allen was considered also by the New South Wales Court of
Criminal Appeal in Australian Iron and Steel Pty Ltd v. The Environment
Protection Authority, supra. The court was concerned essentially with the
issue of whether the defence of due diligence was available under environmental
legislation concerned with water, the Clean Waters Act 1970 (NSW). At 511 the
court observed that insofar as Nathan, J in Allen expressed the view
that an offence of strict liability imports a defence of due diligence, such
view did not accord with Australian
authority (e.g. see Proudman v.
Dayman, supra; Jiminez v. The Queen [1992] HCA 14; (1992) 173 CLR 572; He Kaw
Teh v. The Queen, supra). In any event the New South Wales Court of
Criminal Appeal observed that the view of Nathan, J in Allen
concerning due diligence was obiter since the learned judge found that the
relevant offence was one of absolute liability. It is
unnecessary for me to
embark upon this analysis of Allen in Australian Iron and Steel Pty
Ltd v. EPA because in the present case the appellant did not seek to argue
a defence of due diligence. Furthermore, the defence of due diligence
as such
was not ventilated in the court below.
- Finally, whilst Allen was concerned with different
legislation to that before me it is an authority of some assistance.
Nevertheless, an analysis of the
authorities, in particular He Kaw Teh
reveals that each statute must be construed in accordance with the criteria
laid down by the High Court before the nature of the
liability to be attached
to the relevant statutory offence can be determined.
- The classic statement of Dixon, J in Proudman v. Dayman
[1941] HCA 28; (1941) 67 CLR 536, at 540 is regarded as the genesis of the defence of honest
and reasonable mistake:
"As a general rule an honest and reasonable belief in a state of
facts which, if they existed, would make the defendant's act innocent
affords
an excuse for doing what would otherwise be an offence.
The strength of the
presumption that the rule applies to a statutory offence newly created varies
with the nature of the offence
and the scope of the statute. If the purpose of
the statute is to add a new crime to the general criminal law, it is natural to
suppose that it is to be read subject to the general principles according to
which that law is administered. But other considerations
arise where in
matters of police, of health, of safety or the like the legislature adopts
penal measures in order to cast on the
individual the responsibility of so
conducting his affairs that the general welfare will not be prejudiced. In
such cases there
is less ground, either in reason or in
actual probability,
for presuming an intention that the general rule
should apply making honest
and reasonable mistake a ground
of exoneration, and the presumption is but
a weak one.
Indeed, there has been a marked and growing tendency to treat
the prima facie rule as excluded or rebutted in the case of summary
offences
created by modern statutes, particularly those dealing with social and
industrial regulation. But, although it has been
said that in construing a
modern statute a presumption as to mens rea does not exist (per
Kennedy L.J., Hobbs v. Winchester Corporation), it is probably
still true that, unless from the words, context, subject matter, or general
nature of the enactment some reason to
the contrary appears, you are to treat
honest and reasonable mistake as a ground of exculpation, even from a summary
offence."
- In He Kaw Teh Brennan, J (at 576) after citing
Proudman v. Dayman observed: "The purpose of the statute is the surest
guide of the legislature's intention as to the mental state to be
implied".
- Upon the introduction of the Agricultural and Veterinary
Chemicals (Control of Use) Bill in the House, certain matters can be
observed: firstly, s.40(1)(a) added a new offence to the general criminal law;
secondly, the
legislation related to matters of public health; thirdly, the
context of the legislation as reflected in the Minister's Second Reading
Speech
indicates a legislative intent of absolute liability; fourthly, the same view
as to liability is supported by the words of
the section itself.
- Turning to the application of the principles in He Kaw
Teh, s.40(1)(a) of the Act is a section that does not expressly require
mens rea. The subject matter of the Act is the protection of
public health and
the environment. There were further steps that the appellant might have taken
to ensure that no injurious effects
were caused by aerial drift. Accordingly,
the magistrate was correct in finding that s.40(1)(b) of the Agricultural
and Veterinary Chemicals (Control of Use) Act was a provision to which
absolute liability applied. It follows that the appeal will be dismissed.
---
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