ENVIRONMENT PROTECTION AUTHORITY'S PROSECUTION OF
WELLINGTON COUNCIL FOR WATER POLLUTION STRUCK OUT
The effect of the merger of Wellington Council with Dubbo City
Council and the constitution of the Western Plains Regional Council
meant that the prosecution of Wellington Council for the offence of
causing water pollution was struck out despite Wellington Council
pleading guilty (before the merger) to the charge laid.
The key events were:
The EPA commenced criminal proceedings against Wellington
Council on 21 April, 2015.
Wellington Council was charged with an offence of "causing
water pollution" in breach of
section 120 of the Protection of the Environment Operations Act 1997
arising (allegedly) from three megalitres of untreated or partially
untreated raw sewage being discharged from the STP into Bushrangers
Creek, entering the Macquarie River.
On 21 August, 2015, the old Council entered a plea of
"guilty" to the charge laid against it.
A sentencing hearing had not occurred before the Council
On 12 May, 2016, a Proclamation dissolved Wellington Council
and Dubbo City Council and constituted a new Council; the Western
Plains Regional Council (first Proclamation).
The new Council sought to have the proceedings against
Wellington Council struck out.
There was a second Proclamation on 9 September, 2016 amending
the first Proclamation (second Proclamation). It transmitted,
expressly, criminal liability from dissolved councils to
reconstituted councils where that dissolution and reconstitution
had been effected by the first Proclamation.
CRIMINAL LIABILITY NOT EFFECTIVELY TRANSFERRED BY FIRST
PROCLAMATION AND NOT REVIVED BY AMENDED PROCLAMATION, COURT
Moore J appeared to accept the position of both parties that if
the first Proclamation did not have the effect of maintaining the
proceedings commenced against the old Council as being proceedings
continued against the new Council, then the second Proclamation
could achieve nothing substantive for the purposes of the
proceedings before the Court.
In respect of the first Proclamation, this was confined to
transferring civil liabilities, relevantly, and not criminal
His Honour held that the outcome of the first Proclamation was
to abate the proceedings against the old Council. His Honour
accepted the Council's submissions that "as the
prosecution had abated, as a consequence of no effective
transference by the first Proclamation, it was "gone" and
was not revived by the second Proclamation."
Interestingly, this is not the first example of this occurring.
Counsel for the Council referred in its submissions to a Workcover
prosecution against Sydney Electricity which failed in the 90s when
that body was dissolved and Energy Australia created (by
In relation to costs, as the "new Council did not become
(and never has been) the "accused person" for the
purposes of the proceedings that were commenced against the old
Council", the Prosecutor's argument for costs also
PROCLAMATIONS MUST BE CLEAR AND UNAMBIGUOUS ON TRANSFER OF
The judgment highlights that Proclamations need to be drafted
clearly and unambiguously to transfer criminal liability from one
legal person to another legal person. The simple transfer of a
former statutory body's staff, assets, rights and liabilities
(as most Proclamations are drafted and many government lawyers are
familiar with in various empowering Acts) to a new body will not
necessarily mean the two bodies become the same legal person. The
clear intention to do so is required.
A broader point of application arises from one of the
submissions of the Council, namely that "it is inconceivable
that a legal person, not in existence at the time of an alleged
offence, could be criminally responsible for that offence, an
offence said to have been committed by the actions or defaults of
another person." Changes to legal personhood, such as to a
corporation, need to be carefully considered in the context of any
criminal prosecution by a government agency, such as the EPA.
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