TITLE: WASTE MANAGEMENT & RECYCLING IN AUSTRALIA
The following is a law research paper work on Waste managing issues in Australia. The research paper concentrates on a former Australian Government owned Company located in New South Wales (Waste & Recycling Processing Corporation); which is currently been taken over by a private Company SITA Environmental Solutions which provides its services for the waste management and recycling of waste to Australian civil and has branches through out the globe. The research elaborates on which rules, regulations and legislated acts, the waste managing company should be following. It further discusses a case where the Company got involved in environment disturbance and what penalties, torts did they have to face for breaching of the law and so what actions did the Company did to improve their fault.
Waste Management has been a significant problem in Australia and one of the serious issues. Australia does not restrict the dumping materials that are common in other countries. Over the last decade the job for waste management has completely changed. It has involved the dispose of waste in landfill to that of acquiring sustainable resources and recycling into some other activity Rohlin, A. (n.d.) The effects of landfill Pollutants. E-how. Retrieved (2012) from http://www.ehow.com/list_6829847_effects-landfill-pollutants.html
A hazardous waste can be considered as a substance or object which exhibits hazardous features, and is no longer fitting for its intended usage and requires disposal. Some of these hazardous features include being toxic, flammable, explosive and poisonous. Hazardous wastes include:
Chemical products from industrial processes
Metals or other compounds such as lead, mercury and cadmium Waste mineral oils
Household chemicals and pesticides, and
Some hazardous wastes can be easily identified but others are less obvious. Some common consumer goods and household items contain hazardous substances such as lead, mercury and brominated flame retardants. Televisions, computers, smoke alarms, batteries, compact fluorescent lamps, paints and household cleaning products can contain potentially hazardous substances. The estimated quantity of hazardous waste generated in Australia has almost doubled from 0.64 million tonnes to 1.19 million tonnes per annum over the period 2002 and 2006. In 2007, hazardous waste was estimated to be 1.1 Mt or approximately 2.5 per cent of waste generated within Australia, An average of 30,000 tonnes of hazardous waste was exported from Australia for safe treatment overseas between 2003 and 2007. (2009) Hazardous substances and Hazardous waste. National Waste Policy. Retrieved (2012) from, http://www.environment.gov.au/settlements/waste/publications/pubs/fs-organic-waste.pdf WSN Environmental solutions (WASTE RECYCLING AND PROCESSING CORPORATION) better known as SITA after the acquisition in February 2011. WSN was a big corporation for the waste disposal in New South Wales, Australia owned by government body which was sold to SITA 2011 for $235 AU million. The acquisition of this corporation has made SITA as today’s largest and most advanced waste management company. WSN has been providing the best and advanced services in waste treatment technologies, especially in mechanical biological treatment operations 2012, SITA Environmental Solutions. Retrieved from, http://www.sita.com.au/
Legal Issue/Case Rules and Acts
The case occurred between Waste and Recycling Processing Corporation and the Environment Protection Authority. The case was filed under state law, in New South Wales under the judiciary of the land and environment court of New South Wales. The plaintiff where the Environment Protection Authority and Waste & Recycling Processing Corporation was defendant. The case was taken into consideration on 10th July, 2006 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) NSWLEC 419 (Austl.) According to the plaintiff, WSN was liable for disturbing the environment because, on one morning of 9th January, 2005 in a suburb known as Lucas Heights, there run a creek named Mill Creek. It is a typical urban creek and was moderately disturbed. Nevertheless, it functions ecologically. There where frogs and crustaceans, including freshwater crayfish. There where a variety of insects including mayflies, dragonflies, caddis flies, damselflies and crane flies. On the bottom and sides of the creek it provided good habitat for this fauna. Adjacent to Mill Creek there was a landfill which is one of the largest waste disposal sites in Sydney. It received up to 575,000 tonnes of solid waste each year. The landfill was owned by the Waste Recycling and Processing Corporation (WSN). A pulse of pollution entered the creek. Toxic leachate from the nearby landfill overflowed into Mill Creek, between 116,000 and 124000 litres escaped into the creek. It was polluted for a distance of about 800 metres which unfortunately contained the pollution. The pulse of toxic pollution killed most of the aquatic life in that length of creek, including the crayfish, insects and tadpoles suitable for sustainability of aquatic Environment Protection Authority v Waste Recycling and Processing Corporation (2006) NSWLEC 419 (Austl.)
Environment Protection Authority submitted that the environmental harm caused by the offence was substantial because: 1.the leachate itself by definition is a toxic substance which contains high pollutant qualities 2. The leachate was relatively spread pristine environment of Mill Creek. 3.Was responsible for having adverse effect on living organisms for more than 2 days. 4.Biochemical oxygen demand - crayfish had not re-colonised the section of Mill creek adversely impacted by the overflow. submits that the pollution incident caused both immediate and long term harm to the environment. According to Environment Protection Authority the effect was for a longer period of time aquatic Environment Protection Authority v Waste Recycling and Processing Corporation (2006) NSWLEC 419 (Austl.)
The pollution of the waters was a breach of the law. The New South Wales government has comprehensive legislation in order to protect public health and the environment from potential harm caused by anyone. For this a major component of the Protection of Environment Act was enacted in 1997. The POEO Act has been reviewed and a report was tabled in Parliament. The Protection of the Environment Operations Act 1997 (NSW) implies in this case. The Company was liable to breach the Section 120(1) of the Act which provides that any person who would be liable of polluting waters is found to guilty of an offence. Waste & Recycling Processing Corporation has pleaded as guilty to the charge that it committed an offence under section 120(1) of the Act by polluting the waters of Mill Creek section 120(1) of the Act provides that a person who pollutes any waters is guilty of an offence. There are a variety of ways in which a person may cause waters to be polluted, and hence pollute the waters. Of relevance to WSN case is the fact that the the Company is a holder of a licence under the Act and is considered to be the occupier of the premises from which pollution emanated. The Company was charged because offender by itself and with contractor Cleary Bros (Bombo) Pty Ltd (“Cleary Bros”), as they failed to provide any written instructions regarding the operation of the pump from where the leachate dams to the leachate storage tanks to the individual human operators of the pump. Also the Contractor of the Company did not provide sufficient electronic and mechanical means to make sure that the pump from leachate dam’s storage tanks would have not been continuing to pump after the storage of full tanks. WSN with its contractor failed to ensure that the bund around the leachate where adequate and won’t be able to overtopped. The issue happened because Mr Evans the holder of the license left the pump from the dams turned on, which produced the pollution in the waters Protection of the Environment Operations Act 1997 (NSW) s 120(1) (Austl.) Waste & Recycling Processing Company’s contractor was also charged with Section 257(2) of the Act, in which proceedings were still to be taken under the Act against Cleary Bros if they were shown to have actually caused the pollution. In fact, proceedings had been brought by the prosecutor against Cleary Bros. The Company was responsible for breaching Section 258(2) of the Act according to which in any proceedings under the Protection of Environment Operations Act, the holder holds a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period. Section (l) of the Act can be applied here as it says to control the generation, storage, collection, transportation, treatment and disposal of waste with a motive of decreasing, minimising and, wherever necessary, eliminating harm caused to the environment Protection of the Environment Operations Act 1997 (NSW) s 258(2) (Austl.)
Crimes (Sentencing Procedure) Act 1999
The Company had also faced the Crimes Act 1999. This act was implied here because the purpose of the Act says that any person or corporate is liable to be imposed to sentence on an offender to: -Ensure that the offender is been punished favourably
-To protect the environment from the offender
-For the promotion of rehabilitation of the offender
-To account the offender for his fault
-To let the offender recognise the harm done to the victim. The company has breached the Section 2A of the Act which led the Company to be liable of guilty. According to section 2A of the Act, it says that: In determining the appropriate sentence for an offence, the court has to take into considerations the following matters:
(a)Any objective or subjective factor that affects the relative seriousness of the offence. The matters referrers to in this subsection are in addition to any other matters which are required or been permitted to be taken into consideration by the court under any law or Act. (b) The offender has a previous record
(c) The offence was committed by the company
(d) The offence was committed without taking care for animal safety. Crimes (Sentencing Procedure) Act 1999 (NSW) s. 2A (Austl.)
Section 3(e-f) of the Act says that:
(a) The offender does not have any record (or any significant record) of previous convictions, (b) The offender was a person of good character.
Crimes (Sentencing Procedure) Act 1999 (NSW) s. 3(e-f) (Austl.)
The company breached section 22A of the act according to which the officers of the Company had to be found as guilty of being liable for sentenced. But the section 3(m) of the Crimes Act says that the offender is liable of enforcing authorities. Waste & Recycling Processing Corporation have faced guilty as the Company was offender. In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) The factual that the offender has pleaded guilty,
(b) When the offender pleaded guilty with intention
(c) The circumstances in which the offender indicated an intention to plead guilty and may accordingly impose a lesser penalty.
Crimes (Sentencing Procedure) Act 1999 (NSW) s. 22A (Austl.) Penalties
In sentencing for environmental crime, the court takes considerations in account to select the types and the severity of sentencing orders. In implying this, the court better consider the following a. It retributive aims by ensuring the sentence is appropriate to the objective gravity of the offence, the offender is adequately punished and the conduct of the offender is denounced, b. It aims by deterring the offender and other persons from committing similar offences which cause or are likely to cause environmental harmed c. Restorative aims by achieving restoration of the environment harm and reparation for the environmental harm caused by the individual or company. Crimes (Sentencing Procedure) Act 1999 (NSW) (Austl.)
Waste Recycling and Processing Corporation Act 2001 (NSW)
This Act is implemented as a statutory state owned Act to establish as a statutory State owned corporation in order to practice certain functions in regards to waste; to dispose off the Waste Recycling and Processing Service of New South Wales; to make consequential amendments to other legislation; and for other purposes.
The Company breached Section 5(a) of the Act according to which it says that a company is responsible when it does not imply its actions efficiently and comparably to maximise the net worth of the state. If the company would have been more negligent the principle of waste and recycling act 2001 would be implied in which it says that the company:
- should exhibit a sense of social responsibility by having considerations to the interests of the society in which it operates, - Company should be abide to protect the environment by conducting its operations in compliance with the principles of sustainable development mentioned in section 6 (2) of the Protection of the Environment Administration Act 1991, - It should also exhibit a sense of responsibility towards local development and decentralisation in the way in which it does the operations. - Company should provide and manage efficient, safe and reliable waste facilities and other related secondary resources - It should be an efficient and responsible provider of waste management services - Its objective should also be to minimise any adverse health and environmental impacts of its actions and services relating to waste management. The above mentioned principles are having equal importance in order to maintain the environment sustainable. Waste Recycling and Processing Corporation Act 2001 (NSW) s.5(a) (Austl.)
The Corporation has certain functions carried or imposed on it by or under this Act or law. The following are the functions that WSN and other waste managing companies should follow: 1. To establish, maintain and operate waste facilities, secondary resource facilities and related facilities 2. To conduct businesses or provide services with code of conduct 3. To provide waste management services, secondary resource management services and related services. 4. Company should do research and development and implement alternative technologies for managing waste. 5. Needs to trade in waste and secondary resources.
6. The Corporation may also provide any facilities or services that are ancillary or incidental to its objectives. 7. In exercising its practices, the Corporation must strive tin order to achieve international best practice in waste management. 8 Company should carry its functions in which the Corporation must act in accordance with the principles of ecologically sustainable development. Waste Recycling and Processing Corporation Act 2001 (NSW) s.5(6) (Austl.)
Civil Law (Wrongs Act) 2002
Wrong means any action or omission that gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law; or any person or company amounting to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort or because of the negligence Civil Law(Wrongs Act) 1990 (NSW) (Austl.)
Civil liability: Tort of negligence implies here as under common law it explains that if any individual or a company as whole is affected by release of pollutant in the property could seek a remedy under law because of their negligence. So the company needs to take care to avid such acts and omissions which can reasonably foresee; which would be likely to injure (Flood, Pendelton &Vicky, 2012 p.69) “Damage" means any loss occurred (including loss of life, personal injury, damage to property and economic loss) and “wrong” means an act or omission (whether or not an offence) (a) Which can give rise to a liability in tort in relation to which a defence of contributory negligence is available at common law; or (b) That amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort Civil Law (Wrongs) Act 2002 (NSW) s.101 (Austl.)
As the damage caused was caused by the negligence of WSN, it was responsible for breaching Section 144 under which it is been charged for being liable for contributory negligence. Under this Act it says, 1. If a person (the claimant) or another company suffers damage as the result partly of the claimant's failure to take considerable care (contributory negligence) and partly contributes of the wrong of any other person or companies. 2. A claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant. 3. The damages which can be recovered in respect of the wrong must be decreased to an extent where the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage caused Civil (Wrongs) Act 2002 (NSW) s. 144 (Austl.) The WSN had caused damages to the adjacent landfill so it should follow the Section 44 which says defendant does not operate to defeat any defence arising under a contract. The act which implies if any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages awarded to the claimant by virtue of subsection is not to exceed the maximum limit so applicable. Civil law Act says if a claim is brought in a court of limited jurisdiction, the court may entitle damages up to the limit of its jurisdiction even though the amount of damages has first been decreased. Wherever the damages can be recovered by any person by) is subject to such reduction as is therein mentioned, the court shall find and record the total damages which, would have been entitled with, if the claimant had not been guilty of contributory negligence Civil (Wrongs) Act 2002 s. 44(Austl.) Division 1 Negligence Section 41 of the Civil Act can be said to be applied as it says any claim for damages resulting from negligence of the party, regardless of whether the claim is brought in penalty, in contract, under statute or otherwise.
Duty of Care
Duty of care could be implemented for the organisations. The Company should have taken considerable care. The duty of care act implies here as, the duty to take reasonable care arises from the reasonably foreseeable risk of injury to others if reasonable care is not taken. Reasonable foresee ability is now more been considered as a test for the existence duty of care, it is been a part of the test for the remoteness damage (Davies, 2008 p.182) If the company fails to comply with duty of care they would entitled because of breaching of the following mentioned rules of the act.
(1) Any person or company is not negligent in failing to take precautions against a risk of harm unless: (a) The risk was foreseeable (that is, it is a risk of which the company knew or ought to have known). (b) The risk was not insignificant;
(c) In the situations, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to take into account the below mentioned (amongst other relevant things)—
(a) The probability that the harm would occur if care were not taken; (b) The likely seriousness of the harm;
(c) The burden of taking care to avoid the risk of harm;
(d) The social utility of the activity that creates the risk of harm.
(3) For the purposes of subsection
(a) Insignificant risks include, but are not limited to, risks that are far-fetched or based on actual fact.
(b) Risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks Civil (Wrongs) Act 2002 (NSW) s.42-44 (Austl.)
Corporations Act 2001
The purpose of this Act is to apply certain provisions of the Corporations Act 1989 of the Commonwealth and the Australian Securities and Investments Commission Act 1989 of the Commonwealth and of regulations under those Acts as laws of New South Wales. It is also applicable to apply certain other laws of the Commonwealth as laws of New South Wales for the purpose of the administration and enforcing of the law relating to corporations and for other matters Corporations Act 2001 (Cth.) (Austl.)
Under this Act it says that the directors of the corporation are responsible for the duty to take care of proper work and diligence. If the duty of care is not maintained the directors of the corporation would have to go through Section 180 of the Act which features significantly under the common law, provides that a director or other officer of a corporation must practice their powers and discharge their duties with the degree of care and diligence that a reasonable person would practice if they:
1. Where a director or officer of a Company in the corporation’s circumstances 2. Occupied the office held by, and had the same responsibilities within the corporation as a director or officer. The reference to a reasonable person indicates an goal standard of care, consistent with the development of the equivalent fiduciary duty. The foreseeable risk of harm which can be balanced against the potential advantages that could reasonably have been Corporations Act 2001 (Cth.) s. 180 (Austl.) If the directors of the company would not follow the Corporation Act, they would face with civil penalties. The Australian Securities and Investment Commission (ASIC) is the national body responsible for registered Australian companies. In regards to section 181, the Court may order a person a corporation for damage suffered if:
1. Any person has contravened a corporation civil penalty provision in relation to the corporation or scheme.
2. The damage resulted from the contravention.
(2011). A guide to directors rules and responsibility for non-public companies in Australia. Retrieved (2012) from, http://www.pwc.com.au/legal/assets/GuideDirectors_Apr08.pdf
Section 206C of the Corporations Act gives the court authority to disqualify a person from managing corporations for a contravention of a civil penalty provision. The courts have the authority to grant officers which include directors of the corporation relief from civil liability if the person has acted honestly and ought to fairly be excused Corporations Act 2001 (Cth.) s. 206(c) (Austl.). Measures taken by Waste & Recycling Processing Corporation
After all the allegations on the Company, the company admitted its fault and after breaching some of the laws the WSN took the following steps to improve their fault. The bund wall was repaired by contractor Cleary Bros to stop any further discharge from the bund. Mill Creek was dammed at a point approximately 1,500 metres downstream of the entry point. This point was chosen in order to avoid further damage to riparian habitats along the creek line which would have resulted if vehicles and equipment had to be taken away from the road Environment Protection Authority v Waste Recycling and Processing Corporation (2006) NSWLEC 419 (Austl.)
The leachate which remained in the area was pumped back into the storage tanks. WSN liaised very closely with the EPA, in the stages of clean-up,. Following discussions with EPA officers, on-site regarding the appropriate mitigation measures to be taken.
1. A pump was installed at largest affected part of the 2. A pump was also installed at a pool near the point at which the creek was dammed in 2006 until it was made sure that the area was not affected3. More pumps were installed to allow pumping to continue along the 800 metre stretch downstream from monitoring point. 4. The areas of Mill Creek which had been pumped dry or contained very small amount of liquid were emptied. This work was done largely by Cleary Bros' employees at the instruction of the WSN. WSN also sought the advice of specialists from outside for matters relating to water quality clean-up Environment Protection Authority v Waste Recycling and Processing Corporation (2006) NSWLEC 419 (Austl.)
The Corporation did not do a major damage but if the waste managing company is involved in breaching of law and damaging the property it could face the following penalties: Under the Wrongs Act for the negligence actions the directors of the company would face up to maximum penalty of $1000000. Under the Crimes Act, the directors would be sentenced to jail with the penalty of maximum $125000. For the breach of licensing the company under Pollution Act could face a penalty of $125000 as the maximum amount to be paid. For polluting the water according to Section 120(1) of the Protection of Environment and Operations Act 1997 the offenders are responsible for a penalty up to $250000. WSN was fined with the sum of $75000. The Corporation had also to pay EPA legal costs of proceedings which were worth $39500. WSN, pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 is to pay the prosecutor’s investigative costs and expenses, agreed at $7,240. Environment Protection Authority v Waste Recycling and Processing Corporation (2006) NSWLEC 419 (Austl.)
After all understanding and analysing of rules and regulations of the Acts, it can be concluded that the breaching of the sections of the Acts/legislations is having a proper and fair way to penalise the company’s for their fault, as in the above topic the Waste and Recycling Processing Corporation had breached certain sections from the mentioned Acts and therefore faced the consequences. According to the acts; rules and legislations formed by the Australian government for the Companies of Australia is thoroughly implacable in order to maintain the dignity of having safe and sound atmosphere and environment for the Australian civil. But also the law can be linient and improved to make some few changes for its penalties for an individual and Company’s as a whole; sometimes the companies non intentionally get involved in trouble so an act should imply for them where they can get compensation if the issue was caused without any intention. Hence in order to avoid such issues companies should take the responsibility for the actions of their agents, employees through the doctrine of various liabilities. A Company may be liable where the organisation’s actions are taken to those of the Company.
Davies, M.; Malkin, L. (2008) Torts (5th Ed.) Ligare Pty Ltd. NSW; Nexis Butterworths. Vickery, R.; Pendlenton, W. & Flood M. (2012). Australian Business Law- Compliance (7th Ed.) French Forest, NSW; Pearson Education Australia.
Rohlin, A. (n.d.) The effects of landfill Pollutants. E-how. Retrieved (2012) from, http://www.ehow.com/list_6829847_effects-landfill-pollutants.html
(2009) Hazardous substances and hazardous waste. National Waste Policy. http://www.environment.gov.au/settlements/waste/publications/pubs/fs-organic-waste.pdf. Retrieved (2012)
(2011). A guide to directors rules and responsibility for non-public companies in Australia. Retrieved (2012) from http://www.pwc.com.au/legal/assets/GuideDirectors_Apr08.pdf Websites:
(2012) SITA Environmental Solutions.
http://www.sita.com.au/about. Retrieved (2012)