for Small Group Seminars
Semester 1, 2012
Week 2 case study
Deciding what legislation means
Case-study: The toxic waste
Late in the afternoon on 1 December 2009 Alex Demetriou, who owns a waste removal business, collects a truckload of contaminated soil from excavations at a building site in Melbourne. He drives the full truck back to his company’s yard in Werribee. He leaves it parked there overnight, intending to drive it to a remote dump the next day.
A municipal inspector sees the truck in the yard and discovers that the soil in the truck is toxic waste. The inspector tells Alex that the law forbids storing such materials near a river or river bed without a special permit. Alex admits that the soil is contaminated and says that he cannot produce a permit. The Werribee River is three kilometres from the haulage company’s yard.
The inspector makes a report to the Police, who charge Alex with a breach of s 3 of an Act called the Contamination Avoidance Act. Alex is given the option of admitting guilt and paying a fine of $1,000. Otherwise, he will have to defend the charge in court.
Alex asks for your advice. He admits the soil was left in the yard, but says it was only left there overnight and that he always intended to move it the next day. He says that, in these circumstances, he does not think he contravened the Act.
You are asked to advise Alex whether to pay the $1,000 fine or defend the charge in court.
You search the AustLii databases and find the Contamination Avoidance Act. The Act contains provisions dealing with various environmental issues. The relevant sections of this Act are as follows:
Contamination Avoidance Act 2006 (Vic)
In the name and on behalf of Her Majesty I hereby assent to this bill. Governor of Victoria, 30th July 2006.
The objects of this Act are:
(a) to preserve the water resources of Victoria; and (b) to prevent harm caused by the accidental spread of contaminants.
For the purposes of this Act
(a) “Minister” means the Minister of Environmental Affairs. (b) “river bed” means a river with intermittent flow (c) “toxic materials” means any materials that are contaminated with or that contain substances known to cause harm to animals or plants.
3. Storage of toxic materials prohibited
A person shall not store or permit the storage of toxic materials within five kilometres of a river or river bed without first obtaining a permit from the Minister.
An application for a permit to store toxic waste must be made on the prescribed form at least three weeks before the intended storage takes place.
5. Offences and Penalties
Any person who engages in conduct in contravention of this Act, or who causes another person to engage in conduct in contravention of this Act, shall be guilty of an offence and liable to a fine not exceeding $5,000.
In addition to the Act itself, you also find this extract from the Minister’s second reading speech.
“… The Contamination Avoidance Act will ensure that there is no risk at all of contamination to our precious waterways due to toxic material being left in any circumstances within the prescribed areas…”
Resolving the problem
▪ Does this Act apply to the case in question? Has it commenced operation? ▪ What facts must be proved to establish a breach of s 3? ▪ On the known facts, what argument is Alex making in his defence? Is it true to say that he is suggesting that leaving the soil in the truck overnight does not constitute...