Amalgamation gives council ‘get out of jail free card’

WRITTEN BY Alan Bradbury

In a decision handed down by Moore J on 2 February 2017, the Land and Environment Court has held that the amalgamation of two Councils effectively put an end to a criminal prosecution brought by the EPA for an environmental offence committed by one of the Councils prior to the amalgamation.

The EPA had commenced criminal proceedings against the former Wellington Shire Council on 21 April 2015 for an offence of ‘causing water pollution’ in breach of s.120 of the Protection of the Environment Operations Act 1997. The old Council entered a plea of guilty to the charge but a sentencing hearing for the offence had not been held when, on 12 May 2016, the Local Government (Council Amalgamations) Proclamation 2016 was made. That Proclamation dissolved both the old Council and the former Dubbo City Council and constituted a new Council now known as Dubbo Regional Council.

The Proclamation contained a number of provisions to give effect to the amalgamation, including provisions transferring a range of staffing, financial and legal responsibilities to the new Council. One of those provisions expressly provided that any proceedings relating to the assets, rights or liabilities commenced against one of the old Councils and pending immediately prior to the amalgamation were to be taken to be proceedings pending against the new Council.

Following the amalgamation, the new Council applied to strike out the EPA prosecution. The Council’s position was that clear words would be required in the Proclamation to result in the criminal liability of a former Council being transferred to the new Council. It argued that, in the absence of express statutory provision and clear language, it was ‘inconceivable’ that a legal person not in existence at the time of the alleged offence, could be found to be criminally liable for an offence alleged to have been committed by another person.

The Court accepted the Council’s argument, holding that clear and express language would be necessary to have the effect that criminal proceedings commenced against a former Council could be continued against the new Council. The Proclamation transferring assets and liabilities to the new Council should therefore be taken to have transferred only civil liabilities, not criminal ones.

A second Proclamation was made on 9 September 2016, the Local Government (Bayside) Proclamation 2016.  Although the primary purpose of this Proclamation was to dissolve the former Councils of Rockdale and Botany Bay, it also contained a number of amendments to the first Proclamation. One of those amendments was a new provision that expressly transferred criminal liability from dissolved Councils to newly constituted Councils.

Section 736 of the Local Government Act 1993 permits the amendment of a Proclamation by the Governor but expressly provides that, except with the consent of the relevant Council, such an amendment is not to affect anything done before the publication of the Proclamation. The Court found that these provisions meant that the second Proclamation could not have the effect of transferring criminal liability to the new Council unless the new Council had agreed to that occurring, which it had not.

In those circumstances, the Court struck out the prosecution that had been brought against the former Wellington Shire Council by the EPA and the Council was effectively given a ‘ get out of jail free’ card.

If you have any questions about Local Government Law, or about the proceedings above, please contact Alan Bradbury or our Planning, Environment & Local Government team at BAL.

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