Posted on February 9, 2023 by Liam Mulligan

Court clarifies when environmental prosecutions are commenced out of time

In a recent decision, the NSW Land and Environment Court considered the rules of statutory interpretation which apply to time limitations for the commencement of prosecutions under the National Parks and Wildlife Act 1974 (‘NPW Act‘) and the Biodiversity Conservation Act 2016 (‘BC Act‘).

In Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4, the defendant sought to have 20 charges laid against it under the BC Act and NPW Act dismissed on the basis that the Prosecutor had laid the charges out of time.

The facts

The charges related to alleged land clearing in Bringelly, near the site of the new airport in the outer west of Sydney. The NPW and BC Acts variously required the charges to be laid ‘within but not later than two years’ after the offending conduct became known to an authorised officer (in the case of the NPW Act) and ‘not later than 2 years‘ after the date that offence became known (under the BC Act).

The parties agreed that:

(a)  Evidence of each of the charged offences first came to the attention of a relevant officer on 11 June 2020.

(b)   11 June 2022 was a Saturday.

(c)   12 June 2022 was a Sunday.

(f)   13 June 2022 was a public holiday in the State of New South Wales.

(g)   The Prosecutor commenced the proceedings by Summonses on 14 June 2022.

The issue

The issue was whether the charges were laid prior to the expiry of the two-year limitation period.

The Defendant argued that the prosecutions were commenced out of time for two reasons:

  1. firstly, that the day that the offending conduct came to the attention of the authorised officer counted in the calculation of the two-year limitation period; and
  2. in the alternative, that section 36(2) of the Interpretation Act 1987 (‘Interpretation Act‘), which would normally operate to extend the time period until the next working day (as it expired on a weekend / public holiday), did not apply.

If the day the offending conduct came to the attention of the authorised officer was included in the calculation of the two-year limitation period, then all of the prosecutions would have been commenced out of time.

In addition, s 190(4) of the NPW Act, and s 13.4(4) of the BC Act both stated that the 2 year limitation period in those Acts ‘applies despite anything in the Criminal Procedure Act 1986 or any other Act‘. The Court was required to consider if these sections resulted in s 36 of the Interpretation Act not applying.

The Prosecutor argued that:

  • there is a general principal of law that time periods expressed as requiring something to happen ‘within‘ a certain period after a specified event always exclude the date of the event from calculation; and
  • neither the BC Act nor the NPW Act operated to exclude section 36(2) of the Interpretation Act (which is a provision found in every Australian jurisdiction including the Commonwealth).

The ruling

The Court agreed with the Prosecutor’s submissions. The Court accepted, firstly, that the long-standing principle of common law operates in this context such that the date of the offending conduct is not counted in the calculation of the limitation period.

Secondly, by reference to decisions of courts of other States (which the Court considered it was bound to follow),  neither the NPW Act nor the BC Act exclude the operation of section 36(2) of the Interpretation Act 1987. Following those earlier decisions from other jurisdictions, the Court found (apparently with some hesitation) that the facultative provision in s 36(2) applied regardless of 190(4) of the NPW Act and s 13.4(4) of the BC Act.

The Defendant therefore failed on both grounds and as a consequence the judgment confirms that:

  1. the day that offending conduct comes to the attention of an authorised officer is not calculated as part of limitation period under the NPW and BC Acts; and
  2. if the last day to commence proceedings falls on a Saturday, Sunday or a bank or public holiday, s 36 of the Interpretation Act will have effect according to its terms.

A link to the judgment is here.

If you have any questions about this post, please contact Liam Mulligan on (02) 8235 9715.