Changing the Landscape: Criminal Court of Appeal Overturns Key Decision on Waste Offences

Recently we discussed the case of Environment Protection Agency v Grafil Pty Ltd; Mackenzie (2018) NSWLEC 99 partly in anticipation that the landmark decision would be underscored by the NSW Criminal Court of Appeal. However, the NSW Criminal Court of Appeal has now overturned this seminal decision, reversing nearly all of the original findings of the trial judge. The NSW Environment Protection Agency (EPA) succeeded on all its grounds in EPA v Mackenzie (2019). This outcome is perhaps somewhat surprising in that it places NSW at odds with other States where, for example, small amounts of asbestos are allowable in recyclable waste. It remains to be seen if it is appealed further to the High Court to settle these controversial issues once and for all.

One of the most far-reaching aspects of the judgment is what constitutes “asbestos waste”? The EPA has always taken a zero-tolerance approach but the LEC trial judge took a more pragmatic approach to very small amounts. The new ruling has significant implications for operators in recycling, transportation and others regarding the risks associated with asbestos.

The revised Grafil decision will impact the waste industry concerning inspection and compliance, particularly for those processing construction and demolition waste because of the strict interpretation of what constitutes asbestos waste.

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