Posted on February 16, 2011 by Stuart Simington
The Wide Scope Of Investigatory Notice Powers Under POEO Act
Section 193 of the Protection of the Environment Operations Act 1999 (POEO Act) enables an authorised officer to require a person to furnish to the officer with information or records (or both) in connection with any matter within ‘the responsibilities and functions of the regulatory authority‘.
Under the POEO Act, the relevant matters are specified in s184 of the Act as:
- for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under the POEO Act,
- for obtaining information or records for purposes connected with the administration of the POEO Act,
- generally for administering the POEO Act and protecting the environment.
The s193 notice power (and indeed all of the POEO Act Chapter 7 powers) can also be exercised in connection with certain other statutes such as the Pesticides Act 1999. That was the situation that arose in D’Anastasi v Environment Protection Authority  NSWLEC 260.
The subject notice asked 54 questions in relation to a pesticides incident concerning all persons involved in the management of certain premises, visitors to the premises, pest management at the premises, and pesticide handling at the premises during three separate periods.
The Applicant argued that the questions posed required the Applicant to inquire with third parties and that there was no statutory power to do so. The Applicant also argued that the notice was impossible to answer, and that it was unfair because it required the Applicant to answer on more than the basis of his own knowledge.
The Court dismissed the recipient’s challenge. Pain J held that the notice could require a person to seek-out information from third parties, and was not impossible to comply with or unfair.
Pain J confirmed that a s193 notice can be used to conduct a “fishing expedition”. A “fishing expedition” is, in essence, an inquiry where the inquirer does not know if there is any likelihood that the inquiry will disclose anything of relevance but simply makes the inquiry to see if there is anything.
Pain J also confirmed that a s193 notice can be oppressive and burdensome. This distinguishes statutory notices from subpoenas and notices to produce in court proceedings where the law is that:
- fishing expeditions are not allowed,
- there must be a legitimate forensic purpose for the notice, and
- requirements that are overly oppressive or burdensome will be set aside.
Pain J also held a recipient must use best endeavours to answer the questions posed and that this may involve a requirement to make further inquiries.
While the case is generally consistent with previous Land and Environment Court cases (which have upheld the very broad scope of statutory notice powers under the POEO Act), the decision is novel in that it indicates that a notice may require a person to find out information that the person does not already know.
UPDATE: Appeal to the NSW Court of Appeal – D’Anastasi v Environment, Climate Change & Water NSW  NSWCA 374
The recipient, Mr D’Anastasi, lodged an appeal against the decision of Pain J, arguing that the s193 notice was invalid because it did not identify the ‘matter’ in connection with which the notice was issued, asked for information that the EPA already had in its possession, and required him to make inquiries of third parties.
The Court unanimously held that the notice was invalid because it did not fairly indicate to the recipient what the ‘matter’ was that was within the responsibilities and functions of the EPA about which the EPA required information.
The Court seems to have considered that the notice should have set out when the suspected misuse of pesticides occurred, by whom, which pesticides and which possible offences had occurred.
This was quite different to the approach taken by Pain J in the Land and Environment Court, who appeared to assume that the ‘matter’ was an investigation under the Pesticides Act 1999.
In relation to the other points argued by Mr D’Anastasi, the Court held that a request can be made for ‘information’ under s193 even if the enquirer already has the same information and that a notice under s193 will not be invalid because it requires the addressee to find the answers to questions by making enquiries of other persons.
In relation to making inquiries, a ‘common sense’ approach is required and the recipient of the notice does not have to act as a ‘detective’. Nonetheless, a s193 notice will not be invalid just because the recipient might have to spend considerable time searching through its own records.
Whilst the Court of Appeal endorsed the wide scope of the investigatory powers under s193, it is clear that councils and public authorities using those powers must ensure that they comply strictly with the requirements of the section. Anything less than strict compliance may result in a court holding that the notice is invalid.