Director General Department of Land and Water Conservation v Bailey

[2003] NSWCCA 361

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Statutes
2. › Construction
3. › Penal statutes
4. › Ambiguity construed against prosecution
5. › Whether exemption from prohibition on clearing native vegetation required designated development to be 'authorised'
6. › Native Vegetation Conservation Act 1997 (NSW), s 12(f)
7. › Environmental Planning and Assessment Act 1979 (NSW), s 77A
1. Environment and Planning
2. › Native vegetation
3. › Clearing native vegetation
4. › Exemptions from prohibition
5. › Rural structures exemption
6. › Whether water storage reservoir of 3000 megalitres capacity was a 'farm dam' or 'rural structure'
7. › State Environmental Planning Policy 46, Sch 3 cl (e)
8. › Native Vegetation Conservation Act 1997 (NSW), ss 12, 21
1. Criminal Law
2. › Case stated
3. › Questions of law or fact
4. › Whether facts as found fall within statutory provision properly construed
5. › Criminal Appeal Act 1912 (NSW), s 5BA
1. Criminal Law
2. › Elements of offence
3. › Strict liability
4. › Burden of proof
5. › Whether statutory exemption qualifies element of offence or is a defence
6. › Native Vegetation Conservation Act 1997 (NSW), ss 12, 17, 21

Quick Take

Section 12(f) of the Native Vegetation Conservation Act 1997 (NSW) exempts clearing that is designated development within the meaning of the EPA Act according to its ordinary meaning, without any superadded requirement that the designated development be 'authorised' or 'lawful'. The decision in Jackson reading in such a requirement is erroneous. Where a statutory exemption under s 12 of the NVC Act qualifies an element of the offence, the burden falls on the prosecution to prove beyond reasonable doubt that the exemption does not apply.