In the recent decision of Sargent v Goebbels [2024] QDC 138, the District Court has clarified the meaning of “waste”.
The definition of waste under the Environmental Protection Act 19941 is key to the regulation of certain activities, including the tracking, transport and disposal of things classified as waste. Put another way, if something is not waste, it is generally not subject to the onerous waste provisions under the EP Act (and also the related Waste Reduction and Recycling Act 2011).
The decision was an appeal from the Magistrates Court at Dalby. In the first instance, the Magistrate found the defendants not guilty of all charges. That decision was upheld on appeal.
Background facts
Goebbels Machinery Pty Ltd (GM) operated a business of buying, selling and repairing farm machinery and equipment, as well as trading machinery parts. It brought machinery onto its site for this purpose, and most of the machinery it dealt with was acquired ‘second-hand’ from farm clearance sales. When machinery was brought to the site, it would be dismantled for its parts, with the remainder of the machinery often left on site for considerable periods, or otherwise scrapped.
The Department of Environment and Science (as it then was) considered that GM’s operation of trading in second-hand farm equipment, and its processing on site, was unlawful.
The alleged offending
The case was a prosecution brought by an officer of the Department against GM and its executive officer, Mr Goebbels. The Department alleged that GM:
- carried out an environmentally relevant activity without an environmental authority, contrary to section 426 of the EP Act. The prescribed environmentally relevant activity alleged to have occurred was that of a “Resource recovery and transfer facility operation”; and
- failed to comply with two direction notices, contrary to section 363E of the EP Act.
Mr Goebbels was charged with three offences of failing to ensure GM complied with the EP Act, contrary to section 493(2) of the EP Act.
The definition of waste
The definition of waste under section 13 of the EP Act at the time of the alleged offending was as follows:
“13 Waste
(1) Waste includes any thing, other than an end of waste resource, that is—
(a) left over, or an unwanted by-product, from an industrial, commercial, domestic or other activity; or
(b) surplus to the industrial, commercial, domestic or other activity generating the waste.
Example of paragraph (a)—
Abandoned or discarded material from an activity is left over, or an unwanted by-product, from the activity.
(2) Waste can be a gas, liquid, solid or energy, or a combination of any of them.
(3) A thing can be waste whether or not it is of value.“
The Court’s decision
All of the charges against GM, and Mr Goebbels, hinged on whether the material that was received at the site was waste. The alleged unauthorised environmentally relevant activity also required the Prosecution to prove “that the waste that was sorted, dismantled or baled was received; and it was received as waste” (decision at [53]).
In considering the definition of waste, the Court held that:
- “whether the thing is unwanted byproduct from the activity or surplus to it” requires consideration of “the relevant state of mind…of the person engaged in the activity” and the view of others as to the utility of the thing is not relevant (decision at [79]);
- the subjective state of mind of the person who disposed of material is relevant as to whether it is considered left over, unwanted or surplus (decision at [80]); and
- while section 13(4) meant that just because something has value did not mean it was not waste, a thing’s value “is not irrelevant to the enquiry as to whether the owner of the thing, subjectively, considers it left over from the activity, or surplus to it. Its valuelessness may lead to a thing being thought left over such that it might be abandoned or discarded. The value of a thing may result in it not being abandoned or discarded, but retained. The same can be said of qualities of utility, or purpose even if equated with value” (decision at [89]).
This reasoning led to the Court not being “satisfied that the material received on to the site from farm clearance sales considered by the trial Magistrate was waste for the purposes of the EP Act”. It dismissed the appeals and upheld the Magistrate’s decision.
Regulation of waste in Queensland
The Court’s decision demonstrates how reasonable minds may differ on the interpretation of statutory provisions and subjective opinions must be taken into account. It also shows that the meaning of waste is not straightforward, and operators should carefully consider the nature of any material dealt with and if an opinion is held that it’s not waste (a subjective opinion) that opinion should be recorded in writing, with reasons as to why it is held, so there is a record of your subjective opinion for when the regulator comes knocking.
HWL Ebsworth is able to assist if you need advice about managing material for your operations or dealing with the waste regulator in Queensland.
This article was written by Peter Bittner, Partner and Flynn Rush, Senior Associate.
1 which is now somewhat different and found in section 8AA of the Waste Reduction and Recycling Act 2011, but still picked up by the EP Act.