Environment Protection Authority v Magistrates' Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 01844
S ECI 2024 02742

Environment Protection Authority	Appellant
v
Magistrates’ Court of Victoria	First Respondent
-and-
Simon Madden Fleming	Second Respondent

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2025
DATE OF JUDGMENT:	18 June 2025
CASE MAY BE CITED AS:	Environment Protection Authority v Magistrates’ Court of Victoria
MEDIUM NEUTRAL CITATION:	[2025] VSC 353

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ENVIRONMENTAL LAW — Appeal — Criminal Procedure Act 2009 (Vic) — Appeal from the Magistrates’ Court of Victoria against dismissal of charges brought under the Environment Protection Act2017 (Vic) — Illegal storage of ‘waste’ or ‘industrial waste’— Whether finding of illegal receipt of waste can be relied upon for charge of failure to comply with an Improvement Notice — Defence of ‘reasonable excuse’ not available to first charge of receiving waste — Receipt of tyres in relation to Charge 1 admitted — Use of tyres as building material in construction of a fire wall — Defence of ‘reasonable excuse’ in separate charge — Failure to comply with Improvement Notice without ‘reasonable excuse’ — Whether behaviour inconsistent or in breach of the Act bars a finding of ‘reasonable excuse’ — Statutory context and circumstances relevant to determination of ‘reasonable excuse’ — Expert evidence on utility of the re‑use of tyres as construction material — Ambulatory construction of the phrase ‘reasonable excuse’ — No error by Magistrate — Appeal dismissed.

ENVIRONMENTAL LAW — Appeal — Criminal Procedure Act 2009 (Vic) — Appeal from the Magistrates’ Court of Victoria against dismissal of charges brought under the Environment Protection Act2017 (Vic) — Charge of obstruction of authorised officer — Whether ‘abusive’, ‘threatening’, or ‘insulting’ language — Body worn camera footage available to Magistrate — Objective test required — Whether Magistrate applied a subjective test — Magistrate’s reasons given must be read fairly and in their entirety — Reasons demonstrate no error in use of an objective test — Whole of the context to be considered in determining if the words and behaviour alleged constituted abusive, threatening or insulting language — No error by Magistrate — Appeal dismissed.

Environment Protection Act 2017 (Vic) ss 3(1), 6, 18, 134, 246, 266(c), 271, 286(1) — Criminal Procedure Act 2009 (Vic) s 272 — Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248 — Wood v Adelaide Resource Recovery Pty Ltd [2017] SASCFC 13 — Taiko v R (1996) 186 CLR 454, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L Howard Mr T Clamart	Environment Protection Authority
For the First Respondent	No appearance
For the Second Respondent	Self-represented

HER HONOUR:

INTRODUCTION

Theses appeals arise from enforcement action pursued by the Environment Protection Authority (the ‘EPA’) against Mr Simon Fleming in relation to some 11,800 tyres stockpiled on his property located in Clearlake in the north‑west of regional Victoria (the ‘Property’).[1] The EPA alleged that the tyres were ‘waste’ or ‘industrial waste’ as defined by the Environment Protection Act 2017 (Vic) (‘EP Act’). Mr Fleming maintained that the tyres were being repurposed as building material to construct a protective fire wall on his Property.
[1]Being Crown Allotment 125 in the Parish of Carchap, located in Clearlake.

The EPA brought three charges against Mr Fleming in the Magistrates’ Court of Victoria. The first charge being that Mr Fleming received industrial waste (waste tyres) without authorisation. This charge was found proven. It is in respect of the further two charges which were dismissed that are the subject of the appeals before this Court. The first appeal relates to a charge that Mr Fleming used abusive, threatening, or insulting language to an authorised officer carrying out their duties.[2] The second appeal relates to a charge of Mr Fleming failing to comply with an improvement notice without reasonable excuse.[3]
[2]Environment Protection Authority v Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S ECI 2024 01884, commenced 18 April 2024).
[3]Environment Protection Authority v Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S ECI 2024 02742, commenced 31 May 2024).

Both appeals are brought pursuant to section 272 of the Criminal Procedure Act 2009 (Vic). In both appeals, the EPA seeks that the Magistrate’s orders be set aside and the proceedings remitted to the Magistrates’ Court of Victoria for rehearing. The appeals were heard together at trial on 28 February 2025.

Taking a Hardiman approach,[4] the first respondent, the Magistrates’ Court of Victoria, did not participate in the appeal.
[4]R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13.

BACKGROUND

At the time of the events that are the subject of the appeals, Mr Fleming was stockpiling a large quantity of tyres at his Property as he intended to use the tyres as building material for a protective fire wall.

On 18 January 2022, the EPA inspected the waste tyres at Mr Fleming’s Property and subsequently issued an improvement notice to him pursuant to section 271 of the EP Act (‘Improvement Notice’). The Improvement Notice required Mr Fleming to immediately cease accepting waste tyres at the premises unless permission or an exemption was obtained.

On 19 January 2022, Mr Fleming returned the Improvement Notice to the EPA with the annotation ‘Contract Declined’.

On 23 February 2022, Mr Fleming returned a second copy of the Improvement Notice with the following annotations; ‘no consent’, ‘contract declined’, and ‘received and declined’.

On 24 March 2022, EPA investigators attended the premises again. On this occasion, officers of Victoria Police were also in attendance. The EPA investigators asserted that there was an increase in the number of tyres on the Property since the first inspection on 18 January 2022 and the issuing of the Improvement Notice on the same date.

Mr Fleming did not welcome the EPA’s attendance at his Property. Mr Fleming’s engagement with the officers in attendance was described by the learned Magistrate as ‘forceful’ and ‘theatrical’. There was an exchange with the EPA officer, Ryan Straub, which was recorded by a body worn camera recorder worn by one of the Victoria Police officers and tendered at the trial.[5] The interaction between Mr Fleming and Mr Straub concluded with Mr Fleming using some adjectival language not normally used in polite company.
[5]Transcription of Body Worn Camera Footage Captured by First Constable Samuel Foster, Victoria Police, on 24 March 2024, CB 220–230.

Mr Fleming was subsequently served with an Environmental Action Notice, requiring him to remove the waste tyres from the premises.[6] Mr Fleming returned the Environmental Action Notice with similar annotations to those referred to above. The Environmental Action Notice is not the subject of these appeals.
[6]Pursuant to the Environment Protection Act 2017 (Vic) s 274.

Body worn camera footage of the incident was provided to the Court, the relevant parts of which were reviewed by me.

Magistrates’ Court Decision

The charges laid by the EPA on 8 July 2022 were that Mr Fleming contravened:

Section 134(1) of the EP Act, by receiving industrial waste (the waste tyres) at his Property without authorisation between 11 November 2021 and 24 March 2022 (‘Charge 1’);[7]
Section 266(c) of the EP Act, by using abusive, threatening, or insulting language to an authorised officer being Officer Straub on 24 March 2022 (‘Charge 2’);[8] and
Section 286(1) of the EP Act, by failing to comply with the Improvement Notice without reasonable excuse (‘Charge 3’).[9]

[7]Pursuant to the charge sheet on CB 33, Mr Fleming had not been authorised to receive industrial waste. Waste tyres are industrial waste per the Environment Protection Act 2017 (Vic) s 6.

[8]Pursuant to the charge sheet at CB 35.

[9]Pursuant to the charge sheet at CB 36.

On 20 March 2024, the charges were heard at the Horsham Magistrates’ Court. The trial did not conclude on that day and was extended for a second day to be heard on 3 May 2024. On the first day of the hearing, His Honour dismissed Charge 2. On the second hearing day, he dealt with the two remaining charges, that of unauthorised receipt of industrial waste, and the charge of failing to comply with an Improvement Notice issued under section 271 of the EP Act. No formal written reasons for judgment were provided, but a copy of the transcripts which sets out the Magistrate’s findings was provided to this Court.[10]
[10]Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 20 March 2024), and Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 3 May 2024).

Whilst only Charges 2 and 3 are the subject of this appeal, as the EPA relied on an alleged inconsistency between the learned Magistrates’ findings in relation to Charge 1 to establish part of its contentions in relation to Charge 3, more needs to be said about Charge 1.

Charge 1

Section 134(1) of the EP Act provides:

134 Duties of persons receiving industrial waste
(1)A person in management or control of a place or premises must not receive industrial waste at the place or premises, unless the place or premises is authorised to receive industrial waste.

Industrial waste is defined in section 3(1) of EP Act, as:

(a)waste arising from commercial, industrial or trade activities or from laboratories; or
(b)waste prescribed to be industrial waste for the purposes of this definition …

The term ‘waste’ is also defined in section 3(1) to include (relevantly) in sub‑paragraph (c): ‘matter that is discarded, rejected, abandoned, unwanted or surplus, irrespective of any potential use or value’.

The EPA made submissions that the tyres in question fell within the definition of ‘waste’ for the purposes of the EP Act.[11]
[11]Discussions between counsel for the EPA and His Honour on the definition of waste under the EP Act at 32–41 of the Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 3 May 2024).

The learned Magistrate found Charge 1 proven, concluding that the evidence established that Mr Fleming did receive industrial waste (tyres) without authorisation contrary to section 134(1) the EP Act. In evidence, Mr Fleming admitted receiving the tyres but maintained they were received to be used as building material to construct a protective firewall on the Property.

His Honour found that waste, as properly defined for the purposes of the EP Act, and in the circumstances of this case, fell within the definition under section 3(1)(c). Accordingly, His Honour found that it must follow that for the purposes of Charge 1, Mr Fleming did receive industrial waste.[12]
[12]Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 3 May 2024) 43.

His Honour then went on to deal with Charge 3.[13]
[13]His Honour refers to Charge 3 as Charge 2, the earlier designated Charge 2 had already been dismissed on its merits at the first hearing on 20 March 2024. Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 20 March 2024) 96.

Charge 2

Charge 2 claims that Mr Fleming, on 24 March 2022, used abusive, threatening, or insulting language to an authorised officer of the EPA who was performing a function, or duty, or exercising a power under the EP Act. It was alleged that the EPA officer was exercising a power under section 246 of the EP Act, being a power to enter and inspect the place or premises.

Section 246(1) of the EP Act provides that ‘for the purposes of performing a function or duty or exercising a power under the Act, an authorised officer may enter and inspect a place or premises.’

Section 266(c) of the EP Act provides:

266 Obstruction of authorised officer
If an authorised officer is performing a function or duty or exercising a power under this Act, a person must not do any of the following—
…
(c)use abusive, threatening or insulting language to the authorised officer or any person assisting the authorised officer.[14]

[14]In the case of a natural person the penalty is 60 penalty units.

His Honour dismissed Charge 2, following a no case submission on the first day of the hearing.[15] His Honour observed that he ‘did not see any threat, abuse or insult.’ The reasoning can be seen in the following exchange between His Honour and counsel for the EPA:
[15]Order of Kilias M, in Environment Protection Authority v Simon Fleming (Supreme Court of Victoria, N117303704, 16 April 2024).

HIS HONOUR: … but can I just say, Ms Peek‑Lasry, I don’t think I’ve got any evidence before me that any witness felt either abused or intimidated or insulted or threatened by the, can I say, the theatrical behaviour of Mr Fleming in the sense that it was – he projected. Had he been on stage one would think … would have heard him because he was projecting but … that makes out charge (2). I’m going to dismiss that charge unless you have anything … out of the evidence that I’ve missed.
MS PEEK-LASRY: … Your honour, it would just be the- I mean, the number of times saying.
HIS HONOUR: … If annoying were a charge …
MS PEEK-LASRY: … Yes
HIS HONOUR: … he would probably be found guilty but it’s not a charge … duties. He is asserting what he believes to be his right. Well, we can argue about that — about whether … rights will not on another occasion that doesn’t involve litigation but I didn’t see any threat, abuse or insult. And I think – yes, I think the only proper thing to do is dismiss that charge.
MS PEEK-LASRY: For the record, it is – just for your information, it’s the first time that has been — that particular charge has been run to contest so …
HIS HONOUR: Not the best example of it but I’m sure you’ll get a better one day …
MS PEEK-LASRY: It is at least of assistance to the EPA to have that indication of what the benchmark is.
HIS HONOUR: But it falls on the facts and we’re so lucky that we had body worn camera footage …
MS PEEK-LASRY: Yes.
HIS HONOUR: … Because you could just – I can just see it and understand what has happened and, you know, as I’ve said, I think he was very — he was projecting quite well and he was loud and he was asserting what he believed to be his rights but I don’t think at any time he used threatening language, nor insulting language, nor abusive language. In fact, other than the volume and the theatricality of it, I thought he behaved himself rather well.
MS PEEK-LASRY: The F–bomb is dropped a number of times though.
HIS HONOUR: Yes but it’s … common parlance and the police officer dropped it himself.
MS PEEK-LASRY: Yes, that probably didn’t help our case but …
HIS HONOUR: It probably doesn’t but …
MS PEEK-LASRY: Your Honour, we hear what your Honour says. I am just looking at the time …[16]

[16]Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 20 March 2024) 98–99.

On 18 April 2024, the EPA filed its appeal against the dismissal of Charge 2.

Charge 3

The hearing resumed on 3 May 2024, with the balance of the evidence being called and submissions on the law in respect of Charges 1 and 3.

Charge 3 alleges that from 18 January 2022 until 24 March 2022, Mr Fleming failed to comply with the requirements of Improvement Notice 00001947, issued under section 271 of the EP Act, without reasonable excuse.

Section 271 of the EP Act provides:

271 Improvement notices
(1)The Authority or an authorised officer may issue a person with an improvement notice if the Authority or authorised officer reasonably believes that the person—
(a)is contravening or has contravened a provision of this Act, the regulations or a subordinate instrument made under this Act; or
(b)is not complying or has not complied with a permission issued or granted under this Act; or
(c)has engaged in or proposes to engage in an activity that has caused or is likely to cause harm to human health or the environment from pollution or waste.

(2)An improvement notice may require the person to whom it is issued—
(a)to take any action that the Authority or authorised officer reasonably considers necessary to remedy the contravention, or the matters or activities that are causing the contravention; or
(b)to remedy the activity that has caused or is likely to cause harm to human health or the environment from pollution or waste.

(3)A requirement contained in an improvement notice may include directions as to the measures to be taken for the purpose of remedying the matters referred to in subsection (2), including but not limited to clean up measures.
(4)An improvement notice must—
(a)specify the name and address of the person to whom the notice is issued; and
(b)state the grounds on which the notice is issued; and
(c)specify the actions that the person must take to comply with the notice; and
(d)specify the period within which the person must comply with the notice; and
(e)set out the penalty for failing to comply with the notice; and
(f)specify how the person may seek review of the decision to issue the notice.

Section 286(1) of the EP Act provides:

286 Non-compliance with improvement notice
(1)Subject to section 288,[17] a person to whom an improvement notice is issued must not, without reasonable excuse, fail to comply with that notice.
…
(2) An offence under subsection (1) is an indictable offence.[18]

[17]Section 288 of the Environment Protection Act 2017 (Vic) relates to a failure to report where an improvement notice or prohibition notice requires a person to report to the Authority on a specified matter.

[18]The penalty for non‑compliance in the case of a natural person is 500 penalty units. Section 286(1) of the Environment Protection Act 2017 (Vic) is also a civil penalty provision.

The Improvement Notice was issued on 17 January 2022.[19] The charge was as follows:

From 18 January 2022 until 24 March 2022 the accused at Clearlake in the State of Victoria and being the subject of Improvement Notice 00001947 issued under Section 271 of the Environment Protection Act 2017, did fail to comply with the requirements of the notice without reasonable excuse.
Particulars:
• Improvement Notice # 00001947 was issued on 17 January 2022.
• Conditions required: You must immediately cease accepting industrial waste (waste tyres) at the premises unless the premises holds an appropriate permission to accept those types of industrial wastes or an exemption is granted.
• The accused continued to receive industrial waste (waste tyres) at the premises without gaining, or attempting to gain, an appropriate permission or exemption.

[19]A copy of the Improvement Notice was not provided to the Court.

Mr Fleming gave evidence that he was using the tyres as building materials to complete a protective fire wall. Expert evidence was called on behalf of both Mr Fleming and the EPA in respect of the use of the tyres in this manner. It was argued on Mr Fleming’s behalf that this was a legitimate use of the tyres and, as such, he could establish ‘reasonable excuse’.

His Honour stood the matter down for a period of time and then gave an ex tempore decision setting out his findings and decision as follows:[20]

HIS HONOUR: Thank you all. Here are my findings and my decisions. I agree with counsel for the EPA’s submissions that waste, as properly defined, for the purposes of the Act, and the circumstances of this case, is to be found in subparagraph (c) of the definition section. Definition of waste is to properly be found there. That is to say, a matter — tyres, in this case — that is unwanted by the original entity or owner, irrespective of any potential use or value. That is the waste.
Accordingly, it must follow that for the purposes of Charge 1, the defendant did receive an industrial waste notice, as per the definition of the term industrial waste in the Act, and so Charge 1, in my view, is proven. With regard to Charge 2, however, I’ve heard both expert evidence from both prosecution and defence, and evidence from the defendant himself.[21] I am satisfied that the defendant, at all relevant times, did fail to comply with the improvement notice. However, I am not satisfied that he failed to comply without reasonable excuse.
At all times, and usually accompanied, I might add, by his rather forceful demeanour and a fairer degree of theatricality on his part, the defendant maintained that the tyres located on his property were being repurposed or reused as building materials. Indeed, the slow but nonetheless continuing process of so using or repurposing the tyres was evident to the EPA’s officers as they attended from time to time to perform their lawful duties at the site. The defendants’ reasonable excuse, as claimed by him and supported – that’s supported by the evidence, indeed, of Mr Scimonello, was to build a fire‑safe wall behind which he would protect his animals in the event of a bushfire.
Mr Farley, the EPA’s fire expert, expressed the view that such a wall, built properly with packed earth and concrete forming part of the wall, would represent a lower risk in a fire, a risk he described in any case, as very rare. My assessment is that the defendant’s failure to comply is itself encased in his stated objective to build the fire protective wall, and that the tyres that remained on the property were there for that and no other purpose. In contradistinction to other cases where tyres and other materials are dumped on properties and not being used. I deem this, therefore, to be a reasonable excuse. It follows that his failure to comply with the notice was not without reasonable excuse, and accordingly, Charge 2 must fail.[22]

[20]Ibid 44.

[21]His Honour refers to what was Charge 3 as Charge 2 in the context of the two charges which were still before him at this date, having dismissed what was the original Charge 2 on the Charge sheet at the earlier hearing.

[22]Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 3 May 2024) 44.

The appellant filed a separate appeal against the decision in respect of Charge 3 on 31 May 2024.

The Appeals

As noted above, the EPA has filed two separate appeals pursuant to section 272 of the Criminal Procedure Act 2009 (Vic):

(a) first, the appeal commenced on 18 April 2024 against the Magistrate’s dismissal of Charge 2 (the ‘Charge 2 Proceeding’);[23] and

(b) second, the appeal commenced 31 May 2024 against the Magistrate’s dismissal of Charge 3 (the ‘Charge 3 Proceeding’).[24]

[23]Environment Protection Authority v Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S ECI 2024 01884, commenced 18 April 2024).

[24]Environment Protection Authority v Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S ECI 2024 02742, commenced 31 May 2024).

I will refer to the abovementioned appeals collectively as ‘the Appeals’.

I heard the Appeals together at the trial on 28 February 2025. The EPA was represented by counsel. Mr Fleming was self‑represented.[25] Although Mr Fleming was self‑represented at the hearing, he had been provided with some legal assistance earlier in the proceeding, and had been represented by counsel at the hearing before the Magistrate.
[25]Mr Fleming was accompanied by a support person, Mr Jyran Quarrell.

Before Mr Fleming chose not to continue to retain counsel, written submissions had been filed on his behalf, addressing the substance of the appeal, which were of much assistance to the Court.

ADJOURNMENT APPLICATION

Prior to the trial date, Mr Fleming indicated that he sought an adjournment on the basis that he wished to call a witness who was unavailable on the scheduled date. He advised that he was now self‑represented.

The parties were advised that any application for adjournment would be dealt with at the commencement of the hearing as scheduled.

At the trial, prior to hearing the parties’ submissions, I explained the nature of the proceeding to Mr Fleming, noting he is a self‑represented litigant and the duty of the Court to assist him. The ability and relevance of calling a witness was explained to Mr Fleming. I further informed Mr Fleming that the Court would take into account the written submissions prepared by counsel on his behalf, and that if there were matters which were raised in the Appeals by the EPA which were not already dealt with by those submissions, I would explain them to him and ask him for his response. Mr Fleming was content to proceed on this basis and no adjournment was granted.

QUESTIONS OF LAW AND GROUNDS OF REVIEW
Charge 2

The notice of appeal filed 18 April 2024 identified two questions of law supported by five grounds of review.

Questions of law

Does section 266(c) of the EP Act require an objective assessment of the language used, rather than of any subjective evidence of the feelings of the officer to whom the language was directed?

Does section 266(c) of the EP Act require an assessment of the language used in all of its context, rather than an assessment of its use or meaning in isolation?

In summary, the grounds relied upon in support of those questions are as follows:

(a) Charge 2 alleges Mr Fleming contravened section 266(c) which states:

If an authorised officer is performing a function or duty or exercising a power under this Act, a person must not do any of the following—
…
(c)use abusive, threatening or insulting language to the authorised officer or any person assisting the authorised officer.

(b) On its proper construction, section 266(c) requires (and only requires) an objective assessment of the language that was used and directed to the authorised officer. The Magistrate dismissed the charge on the basis that there was no evidence from the relevant officer as to whether he felt abused, threatened or insulted. In so doing, His Honour erred by failing to assess the language objectively as is required.

(c) Further, or in the alternative, the Magistrate dismissed the charge on the basis of the ‘common parlance’ nature of the profanity used. In doing so, His Honour erred by failing to analyse the language used in all its context.

The appellant seeks orders that the Magistrates’ order dismissing Charge 2 be set aside and that the charge be remitted to the Magistrates’ Court of Victoria to be heard differently constituted, for further hearing and determination according to law.

EPA’s submissions

The EPA submitted that section 266(c) of the EP Act does not depend on the subjective evidence from an authorised officer about what they felt on receipt of abuse, nor an assessment of common language devoid of its entire context.

Objective test required

As argued before me, the EPA alleged that the primary error was the conclusion reached by the Magistrate that the offence required proof that the officer felt abused, threatened, or insulted, and this was inconsistent with the objective approach required to be taken.

The objective approach is said to be well‑established for offensive language offences in summary offences legislation. The characterisation of the language depends on how a reasonable person would characterise the language, that is, the ‘external standard’, which is well‑established in criminal law.[26]
[26]Anderson v Kynaston [1924] VLR 214, 217; Inglis v Fish [1961] VR 607, 609–611.

Failure to assess the language in all its context

The second alleged error was said to be that the learned Magistrate mischaracterised the use of the word ‘fuck’ in its context. The EPA argued that the use of the word cannot be justified as being used in common parlance.

It was accepted by the EPA that the use of the word is common but it was submitted that the context was important, as words can be deployed to abuse or to convey emphasis. The word was alleged to have been used by Mr Fleming in an abusive manner.

Mr Fleming’s submissions

The written submissions, filed on behalf of Mr Fleming in respect of the first appeal, argued that neither of the questions of law posed by the appellant raised questions of law for the purposes of the jurisdiction under section 272 of the Criminal Procedure Act 2009 (Vic).

In respect of Question 1, it was submitted that it was uncontentious that section 266(c) of the EP Act calls for an objective assessment of language. It was submitted that, in making an objective assessment, the prosecution would have been entitled to adduce evidence and the Magistrate would have been entitled to consider evidence of the reaction of the officer and, indeed, others nearby. This does not substitute a legal test but, rather, is relevant contextual evidence to the analysis. It was unexceptional for the Magistrate to remark that no such evidence was tendered. The Magistrate did not substitute the correct legal test, he simply made an observation of the evidence.

In respect of the second question, that is whether section 266(c) of the EP Act required an assessment of the language used in all its context, it was submitted that this question was a thinly disguised question of fact rather than a question of law. A question of fact is not amenable to appeal.

It was submitted that, even if the question of law did arise, it is plain that the Magistrate was mindful to consider the language in context. It was submitted that the Magistrate reached a factual conclusion that Mr Fleming’s behaviour was projected and loud, but not threatening, insulting or abusive, and that other than volume and theatricality, ‘he behaved himself rather well’.

Consideration of Question 1

On the first question of law, I agree (as do the parties) that, in respect of the test to be applied, an objective assessment of the language is the correct test.

However, I am not persuaded that the proper characterisation of His Honour’s findings demonstrate that he applied the wrong test and instead applied a subjective test.

Reading the whole of the passage from the transcript (set out at [26] above), it is clear from his specific reference to the body worn camera footage, and his own observations of the exchange between Mr Fleming and the officers, that he formed the view that the language used by Mr Fleming did not meet the characterisation required to make out the offence. He simply formed the view that his observation was that he did not see ‘any threat, abuse or insult’. He specifically comments ‘but it falls on the facts and we’re so lucky that we had body worn camera footage’. This observation confirms to me that he has undertaken an objective assessment of the circumstances and formed the view that the behaviour did not qualify as being of threatening, abusive or insulting character as alleged.

A clear and holistic reading of the transcript of reasons given by His Honour demonstrates that the EPA relies only on selective quotes and not the whole of the exchange and comments made by His Honour. If one does take the whole of the observations in that context, the emphasis and conclusion sought to be drawn by the EPA cannot be fairly made out.

Rather, His Honour refers to the value of the body worn camera footage to demonstrate that he had the opportunity to look at the whole of the context, including the poor choice of language used by the police officer during the interaction with Mr Fleming.[27] In particular, I refer to the transcript of His Honour’s observations and findings where His Honour says specifically:

But it falls on the facts and we’re so lucky that we had body worn camera footage: …[28]
… but I didn’t see any threat, abuse or insult. And I think – yes, I think the only proper thing to do is to dismiss that charge.[29]
… as I’ve said, I think he was very – he was projecting quite well and he was loud and he was asserting what he believed to be his rights but I don’t think at any time he used threatening language,[30] nor insulting language, nor abusive language. In fact, other than the volume and the theatricality of it, I thought he behaved himself rather well.

[27]Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 20 March 2024) 98–99.

[28]Ibid 98.

[29]Ibid.

[30]Ibid 99.

I do not agree with the EPA’s submission that His Honour’s comments in respect of the evidence demonstrate the application of the wrong test. I find there is no legal error in that regard. Consequently, I am satisfied that this alleged error cannot be sustained on this ground.

In relation to the second question of law raised, I am also not persuaded that there is an error of law made by the Magistrate in taking into account the context.

Reviewing the body worn camera footage and the transcript of His Honour’s consideration and findings, I am not satisfied that His Honour failed to consider the usage in its context. Rather, His Honour makes the observation that Mr Fleming was theatrical and loud, but also that ‘he behaved himself rather well’.

In my view, such an observation cannot be consistent with the characterisation of the use of the word in its context as abusive, threating, or insulting. His Honour did observe that the word is used in common parlance (a conclusion, which is in my view, inescapable) and that the police officer ‘dropped it himself’. However, as noted above, His Honour had the benefit of the body worn camera footage, and accordingly characterised the actions and demeanour of Mr Fleming as ‘theatrical’ but not threatening.

In my view, the conclusion that His Honour formed was open to him and I agree with it. The use of the word as an adjective of emphasis is both common and in context (shown clearly by the body worn camera footage); this was consistent with his finding. To quote the authority referred to by the EPA in Rowlands v The Queen:[31]

Terms such as ‘fuck’ and its derivatives in their various forms often serve merely to emphasise the purpose or the proposition that is being said in conjunction with the term. Nowadays, those terms are understood often to merely indicate an emphasis or exaggeration of a proposition rather than having some other offensive meaning. If that is the case, they do not reach the high levels of offence required to make out the charge and are unlikely to cause offence, outrage and significant emotional reaction to a reasonably tolerant bystander, who must be regarded as a robust, contemporary and not especially sensitive person.

[31][2021] NSWDC 723, [42] (Taylor J).

I also note that the circumstances which led to the interaction, and the language and demeanour of the officers, must also form part of the context. A level of agitation is both expected and commonplace in such situations. There is no doubt that it would be preferable if every citizen spoke to each other, and in particular to authority, with politeness and respect, without resorting to language which is common enough, but is considered less than polite. However, such is not the expectation, in my view, of a reasonably tolerant bystander which is the test to be applied.

Charge 3

The notice of appeal filed on 31 May 2024 identified one question of law supported by six grounds of review in respect of Charge 3.

Question of law

Can a ‘reasonable excuse’, for the purposes of section 286(1) of the EP Act, entail the continuation of the conduct in contravention of the EP Act?

In summary, the grounds relied upon are as follows:

(a) Charge 3 alleged contravention of section 286(1) of the EP Act.

(b) Section 286(1) states ‘[s]ubject to section 288, a person to whom an improvement notice is issued must not, without reasonable excuse, fail to comply with that notice’.

(c) The Magistrate dismissed the charge on the basis that Mr Fleming had proved that he had a reasonable excuse, being that he was constructing a fire wall with the waste tyres that he was receiving and storing on the Property.

(d) The Property was not authorised to receive industrial waste and, as such, the receipt and storage of waste tyres on the premises was in contravention of section 134 of the EP Act (the subject of Charge 1), and section 45 or 47 of the EP Act (and items 13 and 14 of Schedule 1 of the Environmental Protections Regulation 2021 (Vic) (the ‘EP Regulations’)).

(e) The Magistrate erred in concluding that the concept of a ‘reasonable excuse’ admits an excuse that is in contravention of the EP Act.

(f) The legal construction of ‘reasonable excuse’ cannot admit an excuse that is in contravention of the EP Act.

The appellant seeks orders setting aside the orders of the Magistrate dismissing Charge 3, and remitting to the Magistrates’ Court of Victoria, differently constituted, for further hearing and determination according to law.

Charge 3 Decision

As set out above, His Honour was satisfied that Mr Fleming had received industrial waste and, at all relevant times, did fail to comply with the Improvement Notice.[32] However, he was ‘not satisfied that he failed to comply without reasonable excuse’.[33] He expressed this conclusion by taking into account expert evidence from the prosecution, defence, and Mr Fleming himself.
[32]Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 3 May 2024) 44.
[33]Ibid.

His Honour found that Mr Fleming maintained that the tyres were being repurposed or reused as building materials. His Honour said that:

the slow but nonetheless continuing process of so using or repurposing the tyres was evident to the EPA’s officers as they attended from time to time to perform their lawful duties at the site. The defendants reasonable excuse, as claimed by him and supported — that’s supported by the evidence, indeed, of Mr Scimonello, was to build a fire‑safe wall behind which he would protect his animals in the event of a bushfire.[34]

[34]Ibid.

His Honour referred to the expert evidence of the EPA given by Mr Farley that such a wall, when built properly with packed earth and concrete forming part of the wall, would represent a lower risk in a fire, a risk he described in any case as very rare.[35]
[35]Ibid.

His Honour drew the distinction that the tyres remained on the Property for that purpose, and no other purpose, as distinct from other types of circumstances where tyres and other materials are dumped on properties and are not being used. He concluded that this was, therefore, a reasonable excuse and it followed that his failure to comply with the notice was not without reasonable excuse. Thus, this charge failed.[36]
[36]Ibid.

I note that His Honour’s focus during the trial, and reflected in his findings, was what he termed ‘the threshold question of how do we determine that it’s waste?’[37] Much of the discussion between His Honour and counsel for the EPA in particular, was directed to his satisfaction of the characterisation of the tyres as waste.
[37]Ibid 35, 44.

Charge 1 alleged that waste was received at the premises. There was no charge or particulars of the charge referring to the storage of waste.

The terms of Charge 3 similarly referred to the receiving of waste and not storage of waste on the premises. Whilst His Honour found that he was satisfied that waste had been received in contravention of the Improvement Notice, it is difficult to discern from the evidence before me (primarily the transcript of the trial) that there is any direct evidence of the receipt of waste at all after the Improvement Notice was issued on 17 January 2022. Save that Mr Fleming admits receipt of waste generally, there is no explicit admission by him of receipt of further tyres after 17 January 2022. He admits to receiving tyres over a long time period but nowhere can I discern is there any evidence of whether the receipt of tyres continued after 18 January 2022, save for the assertion by the EPA to that effect. On his own admission, there were around 150 tyres on his Property at the time of the trial, the balance already incorporated into his wall. He was not charged with storage of waste or industrial waste but receiving it.

The Improvement Notice was issued on 17 January 2022 and required him to cease immediately accepting industrial waste (tyres) and alleged that he continued to receive the industrial waste (tyres) after the Improvement Notice was issued. The focus of his evidence was about the repurposing of the tyres.

This throws some doubt onto whether the Improvement Notice was in fact contravened, and that His Honour may not have turned his mind to the terms of the contravention as charged. Be that as it may, this issue is not raised by the terms of the challenge by the EPA to His Honour’s decision. That challenge is confined to the issue of ‘reasonable excuse’.

EPA’s submissions

The EPA submitted that the learned Magistrate erred in concluding that the concept of ‘reasonable excuse’ admits an excuse that is in contravention of the EP Act. It was argued that there was an obvious contradiction between the dismissal of Charge 3 and the upholding of Charge 1.

Mr Fleming’s intention to build a wall constructed with waste tyres involved the receipt of such tyres at the premises without authorisation in contravention of section 134(1) of the EP Act. Furthermore, pursuant to section 45 of the EP Act, storage of more than 5,000 waste tyres is a ‘prescribed operating activity’ that requires a licence. Therefore, Mr Fleming contravened this section as he failed to obtain the required operating licence to store the waste tyres he was stockpiling.[38]
[38]See Environment Protection Regulations 2021 (Vic) sch 1 item 13, which provides that storage of more than 40 tonnes, or 5,000 EPU, is a prescribed operating activity for the purposes of the EP Act. ‘EPU’ stands for ‘equivalent passenger units’. A standard passenger car tyre counts for one EPU according to the Environment Protection Regulations 2021 (Vic) sch 2.

A ‘reasonable excuse’ defence exists in many criminal and regulatory statutes. The EPA submitted that the case law could be summarised as follows:

(a) The phrase has an ‘ambulatory operation’ and an ‘indeterminate reference’.[39]
[39]Taikato v The Queen (1996) 186 CLR 454, 466 (‘Taikato’); Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 338–339.

(b) The phrase has a different connotation to ‘lawful excuse’ and ‘lawful authority’, and has a wider operation when compared to those terms.[40]
[40]Attorney General (Cth) v Breckler (1999) 197 CLR 83, [17] (‘Breckler’); Smith v Lawrence (2002) 171 FLR 68, [99].

(c) A ‘reasonable excuse’ in any given statutory setting will depend on two matters:

(i) the circumstances of the individual case; and

(ii) the purpose of the provision to which the defence of reasonable excuse is an exception.[41]

[41]Breckler [17]; Taikato 464.

The EPA acknowledged that the interpretation of the phrase in one statutory context will provide no useful guidance for the meaning of the phrase in another statutory context.[42]
[42]Taikato 464.

Applying these principles, the EPA submitted that the statutory purpose of section 286(1) is to provide a mechanism under the EP Act that is intended to secure compliance with the EP Act upon the EPA holding a reasonable belief that there is non‑compliance. Notices of this kind appear within regulatory regimes as an alternative to litigation, providing an opportunity for the contravener to rectify non‑compliance so that they can avoid penal consequences arising from litigation. Notices of this kind are intended to engender the efficient and cost effective rectification of non‑compliant behaviour.[43] Reference was made in another regulatory context to these propositions.[44]
[43]Breckler [17]; Taikato 464.
[44]See Fair Work Ombudsman v Joys Child Care Ltd (No2) [2020] FCCA 2326, [11]; Hindu Society of Victoria (Australia) Inc v Fair Work Ombudsman (2016) 304 FLR 264, [23]–[25].

In light of the statutory purpose, it was contended that Mr Fleming cannot have had a reasonable excuse under section 286(1) when his excuse was in contravention of the EP Act; that the excuse is antagonistic to the statutory purpose of section 286(1).

Mr Fleming’s submissions

The written submissions filed on behalf of Mr Fleming submitted that the EPA’s submissions on this ground are circular. They relied on proof of other offences which were not charged or proven here, bearing in mind that Charge 1 relates to an earlier date than in the present allegation.

Charge 3 related to a direction that Mr Fleming must cease accepting industrial waste (waste tyres). The EPA submissions also rely on this language.

However, it was contentious that Mr Fleming was acting without a reasonable excuse, namely, accepting tyres which he did not believe to be industrial waste or waste tyres for the purpose consistent with the objectives of the EP Act.

The EP Act provides an inclusive definition of ‘waste’ and, before the Magistrate, the prosecution relied on the definition of ‘waste’ set out in subsection 3(1)(c) of the EP Act being ‘matter that is discarded, rejected, abandoned, unwanted or surplus, irrespective of any potential use of value’.[45]
[45]Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 3 May 2024) T 34.8, 34.34, 39.7.

It was submitted that there was no evidence before the Magistrate concerning the origin of the tyres, which were the subject of Charge 3. This has the following consequences:

(a) it has not been proven that the tyres meet the definition of ‘industrial waste’. Rather, it was suggested that the preponderance of evidence indicates that those definitions are not applicable; and

(b) any contention that the tyres are waste on the basis that someone else discarded, rejected, or abandoned the tyres, is an offence by some person other than Mr Fleming. Waste in the hands of one party may cease to be waste when transferred into the hands of another party.[46] Whether the new party has a continuing use of the material is a relevant indicator that it is not waste.[47]

[46]Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248, [63].

[47]Ibid [71]–[73].

Mr Fleming told officers during the inspections that not all of the tyres were waste, rather they were being used as material to construct a legitimate fire protection wall.

The prosecution’s expert witness, Mr Fahey, provided evidence that:

(a) he would need to do a risk assessment to determine whether the wall, being built, would fit into his list of fire risk assessments, but that it would reduce the risk of fire;

(b) he was unaware of the practice of using tyres for construction in Australia and in particular in Victoria;

(c) he was unable to say whether such construction would come within the scope of building houses in fire restriction zones but conceded that the render used in this construction would provide protection against fire; and

(d) this was a sensible use or recycling of old disposed tyres in accordance with section 18 of the EP Act.

The expert evidence called on behalf of Mr Fleming from Mr Scimonello went further to set out the benefits of such construction and use of tyres as building material.

It was submitted that the situation in this case was markedly different from a situation where a large number of tyres are indiscriminately dumped.

Reliance was placed on section 18 of the EP Act, which provides a hierarchy for how waste should be managed. It was submitted that this provision is not strictly applicable if the tyres were not ‘waste’ but applies by analogy as demonstrative of the purpose and intent of the EP Act.

Section 18 of the EP Act provides that the principles of waste management hierarchy are that:

Waste should be managed in accordance with the following order of preference, so far as reasonably practicable—
(a)avoidance,
(b)reuse,
(c)recycling,
(d)recovery of energy,
(e)containment,
(f)waste disposal.

The defence contained within section 286(1) of the EP Act is one of ‘reasonable excuse’. The use of the words ‘reasonable excuse’, as distinct from ‘legal excuse’, leaves the consideration of what is reasonable as being a factual conclusion for the Court. It is not then open to the EPA to argue that, as a matter of law, the excuse was unreasonable because it comprised of uncharged and unproven contraventions of the EP Act.

By way of reply, the EPA submitted that the question of law concerned what a ‘reasonable excuse’ is for the purposes of section 286(1). This question depends on an examination of the statutory setting of the EP Act, including Mr Fleming’s duties under both section 134 of the EP Act to only receive industrial waste at an authorised premises, and section 45 of the EP Act to have an operating licence to store the amount of tyres he was accumulating at the time.

Consideration of Question 2

Concept of ‘reasonable excuse’

There are a number of authorities which have discussed the concept of ‘reasonable excuse’; in particular, the High Court decision in Taikato v The Queen (1996) 186 CLR 454 (‘Taikato’). This case is illustrative of the principles to which the EPA referred to in its submissions, and which I accept as a correct statement of the approach to be taken in determining this question of what constitutes ‘reasonable excuse’.

In Taitako, the subject matter of the charge was possessing in a public place, anything capable of discharging by any means (not being a firearm),[48] such as any irritant matter in liquid, powder, gas or chemical form, or any dense smoke, except ‘if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose.’ Mrs Taikato was convicted in the Local Court of being in possession of a canister of pressurised formaldehyde, a substance known to be an irritant substance in contravention of section 545E of the Crimes Act 1900 (NSW) (the ‘Crimes Act’).
[48]Crimes Act 1900 (NSW) s 5454E(1)(a)(i), renumbered as s 93FB.

On appeal to the District Court, she did not dispute that the possession of the canister fell within section 545E(1) of the Crimes Act, but argued that she had it for a lawful purpose or, alternatively, had a reasonable excuse for possessing it. Rummery DCJ accepted her evidence that, following an attempted assault during a robbery at her home, she carried the cannister in case she was attacked. Nevertheless, His Honour held that acceptance of her evidence did not constitute a defence under section 545E(2) of the Crimes Act, because she had not been under fear of immediate attack and was not entitled to carry the cannister in case she was attacked. The High Court said:

The term ‘reasonable excuse’ has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of ‘reasonable excuse’ is an exception.

In discussing the approach to determining what might be a ‘reasonable excuse’,[49] the majority determined that, in the context of whether self‑defence could be a reasonable excuse for the purposes of the section in question:

However, the reality is that when legislatures enact defences such as ‘reasonable excuse’ they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a ‘reasonable excuse’ in cases coming within s 545E even when it requires the courts to make judgements that are probably better left to the representatives of the people in Parliament to make.[50]

[49]Taikato 464–467.

[50]Taikato 466.

The context of both the purpose of the offence and the factual circumstances can be illustrated by the Taikato example. The High Court refers to a number of other cases to illustrate the point of the intersection between the purpose of the offence and whether the individual factual circumstances can fall within an exception to it.

In Taikato, the circumstances of the excuse given was accepted but the temporal connection between the fear of her personal safety and the intention and purpose of the offence to prevent the possession of dangerous weapons were such that the defence in those circumstances was held not to be reasonable.

A number of examples were footnoted in Taikato which demonstrate a variety of contexts in which the phrase ‘reasonable excuse’ had been considered, none of which are on all fours with the statutory and factual context of this case.[51]
[51] These examples include: Clough v Leahy (1904) 2 CLR 139, where allegations of impropriety of the appointment of the Commission was not a ‘reasonable excuse’ in the circumstances for the refusal of a witness to be sworn and give evidence before a Royal Commission; Lichaa v The Queen (1980) 3 A Crim R 355, where it was not found to be a reasonable excuse for possession of drugs (the phrases used here was lawful excuse and not reasonable excuse); and Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423, where the NSW Court of Appeal found that reasonable excuse was not confined to risk of self‑incrimination in civil or criminal matters. Refusal by a witness to answer questions put by the Commissions on the basis that the answers might incriminate the witness, was rejected by the Commissions. The Court held that there was no apparent reason to read down exemptions for reasonable excuse in the legislation but rather every reason to give the words used their ordinary construction; McDonald v Australian Securities Commissions (No 2) (1994) 48 FCR 210, where a failure to comply with notices to produce issued under the Australian Securities Commission Act 1989 (Cth), without reasonable excuse, was in question. The Court found that the mere fact that there was litigation challenging the notices at the time was not a reasonable excuse, particularly where the basis for the challenge was ill‑founded.

‘waste’ or ‘industrial waste’

The EPA and the written submissions of Mr Fleming make reference to the Victorian Court of Appeal decision of Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248 (‘Dasma’).[52] The Dasma case largely considered the definition of ‘waste’ and ‘industrial waste’ for the purposes of the validity of a Clean Up Notice issued by the EPA under the previous legislation.[53]
[52]Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248 (‘Dasma’).
[53]Section 4(1) of the Environment Protection Act 1970 (Vic). This Act was repealed on 1 July 2021 by section 63 of the Environment Protection Amendment Act 2018 (Vic).

The decision provides guidance in interpreting the concept of ‘waste’, but does not go to the issue of ‘reasonable excuse’. The question of whether the learned Magistrate properly found that the tyres were ‘waste’ for the purpose of the conviction in Charge 1 or in relation to Charge 3 is not in issue here. The question is whether His Honour correctly applied the law in respect of what might be a ‘reasonable excuse’ for the purposes of section 286 of the EP Act.

In Dasma, the central issue in determining whether the Clean Up Notice was valid fell on whether the materials, the subject of the Notice, constituted ‘waste’ and ‘industrial waste’.

The Court observed on appeal that the key statutory concepts of ‘waste’ and ‘industrial waste’ are to be construed in accordance with accepted principles by reference to the text, context, and purpose of the statute.[54] The definition of ‘waste’ was (as it stood then) inclusive, and waste had its ordinary meaning. Relevantly, the definition also included ‘any discarded, rejected, unwanted, surplus or abandoned matter’. In determining whether the material falls within this extended definition, and whether the intention to deal with materials in the way specified in the definition, namely recycling, reprocessing, recovery, purification by a separate operation from that which produce the waste or sale, will not prevent the material from being characterised as waste. The Court accepted the observation of the trial judge that the specific additional meaning is that material will still be waste notwithstanding an intention to sell, recycle or reprocess, if it is otherwise discarded, rejected, unwanted, surplus or abandoned material.[55]
[54]Dasma [56]; referencing Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7 [47] ( Hayne, Heydon, Crennan and Kiefel JJ); SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).
[55]Dasma [57]–[58].

The definition of ‘waste’ in the current legislation is not identical. However, the expression is inclusively defined and is observed to have its ordinary meaning as it was previously. Moreover, the definition of ‘waste’ also relevantly includes the extended definition in s 3(1)(c) of the current legislation as ‘matter that is discarded, rejected, abandoned, unwanted or surplus, irrespective of any potential use or value’.

The Court acknowledged submissions with respect to the concept of waste by reference to decisions in jurisdictions with broadly comparative legislative provisions. However, the Court said that the fundamental question confronting the trial judge was simply whether, as a matter of fact, the materials in issue fell within the ordinary meaning of the word ‘waste’, or within the ordinary meaning of the words, ‘any discarded, rejected, unwanted, surplus or abandoned matter’, read subject to the proviso contained in section 4(1)(c).

In dealing with Dasma’s submissions in relation to the concept of ‘waste’, the Court concluded that the concept of ‘waste’ is relative and purposive. Waste in the hands of one party may cease to be waste when transferred into the hands of another party. The simple example used to demonstrate this concept was that of chicken manure, which will be properly characterised as waste from the production of chickens at a broiler farm but when transported and composted will be a useful product or input as fertilizer for a market garden.[56]
[56]Dasma [63].

The Court also made reference to the decision of the Full Court of the Supreme Court of South Australia in Wood v Adelaide Resource Recovery Pty Ltd [2017] SASCFC 13 (‘Wood’). At first instance, the trial judge determined that once the material had been sorted from other materials, it had lost its character as waste. On appeal, the Court took a different view stating that:

In ordinary parlance, waste is a purposive concept. It is a relative and not absolute concept. It is not an inherent characteristic of material that it comprises waste: it must be assessed from the perspective of a person whose purpose is to be considered at the relevant time. Waste is the antithesis of a product in ordinary parlance.[57]

[57]Wood v Adelaide Resource Recovery Pty Ltd [2017] SASCFC 13, [44].

To summarise the observations in Wood, accepted by the Court of Appeal in Dasma:

(a) as a matter of its ordinary meaning, ‘waste’ is a purposive concept and is the antithesis of product;

(b) in many cases it will be a question of fact and degree whether waste has ceased to be waste and become a product;

(c) the specific statutory provisions relating to intention (which are relevantly analogous to the Victorian provisions), make clear that the mere fact that material is intended for recycling does not prevent it from being waste; and

(d) it is necessary for the Court to make an objective assessment having regard to the circumstances of the whole.[58]

[58]Dasma [82].

The Court said that what is required is a purposive enquiry, however the ultimate test is simply the application of the statutory criteria to the facts.[59]
[59]Dasma [84].

I also note that in the circumstances of Dasma, rubble was being converted to useable material for road making, which demonstrates that the process engaged in to produce a material that is no longer properly categorised as waste, may well be unlawful (for example, the waste was reprocessed into gravel for road making without a planning permit for the production), but the characterisation of the material once transformed is no longer that of waste.[60]
[60]Dasma [112].

Applying this approach to the facts in this matter before me, the tyres being already integrated and repurposed as part of the fire wall can be categorised as no longer being waste, whilst the remaining unused tyres remain categorised as waste. Again, this does not go directly to the point of reasonable excuse, but does demonstrate a fundamental concept that waste is to be determined objectively and purposively.

From Dasma, I draw the conclusion that the concept of waste is to be determined in accordance with the usual statutory interpretation principles, and the meaning is purposive. The decision does no more than reinforce the correctness of the Magistrates’ decision on the characterisation of waste for the purposes of Charges 1 and 3. It sheds no illumination on the concept of ‘reasonable excuse’, save that it acknowledges that waste can change its character depending on the circumstances, such as in the chicken manure example referred to previously at [113] above.

Relevant Purposes of the EP Act

I turn now to the purposes of the EP Act which (relevantly) include:

·to establish principles of environmental protection;
·to set out the legislative framework for the protection of human health and the environment from pollution and waste;
·to provide for a general environmental duty to minimise risks of harm to human health and the environment from pollution or waste;
·to provide a framework for the management of waste;
·to enable the EPA to ensure compliance with the EP Act; and
·to provide the system of criminal and civil penalties, civil remedies and compensation orders.[61]

[61]Environment Protection Act 2017 (Vic) ss 1(e), (f), (g), (i), (k), (l), (m), (o).

The mechanisms set out in the EP Act for enforcement include utilising a variety of notices for compliance including improvement notices,[62] prohibition notices,[63] environmental action notices,[64] as well as the ability to prosecute offences. In each of these types of notices, there is a ‘without reasonable excuse’ defence available for non‑compliance. I was not referred to any authority in respect of the interpretation of the reasonable excuse defence in connection with any prosecution brought under Part 10.8 of the EP Act.
[62]Ibid ss 271, 286.
[63]Ibid ss 272, 287.
[64]Ibid ss 274, 290.

I accept the submission of the EPA that the statutory purpose of section 286(1) is to provide a mechanism under the EP Act intended to secure compliance with the Act where the EPA holds a reasonable belief that there is non‑compliance. I accept notices of this kind appear within regulatory regimes as an alternative to litigation providing an opportunity for rectification prior to penal consequences. From a public policy point of view, notices of this kind are directed to the efficient and cost‑effective rectification of non‑compliant behaviour.

However, this statutory contextual justification is not determinative in establishing ‘reasonable excuse’, as the phrase must also be considered in the context of the individual case.

Where the notice being issued is based on reasonable grounds and there is a positive finding of contravention, there is still some work to do for the words ‘without reasonable excuse’. Some meaning must be given to the phrase. In my view, that meaning — given its statutory context — leads to the conclusion that the reasonableness of the excuse has to be assessed objectively. The factual and statutory context overall feed into the assessment of the reasonableness of the excuse measured from a rational perspective. In making this assessment, it was open to His Honour to take into account the waste hierarchy set out in the EP Act, the changing characterisation of the tyres from waste to a product repurposed, and the expert evidence as to the utility of the course being carried out by Mr Fleming. His actions in utilising the tyres had a legitimacy, even though the manner in which he went about the process was not in accordance with the EP Act. However, he was not charged with any other breaches of the legislation. The charges related only to receipt of waste.

In Dasma, the Court of Appeal acknowledged that the character of a material can alter from ‘waste’, as defined by the legislation, into a product no longer classified as waste. I note in Dasma that the modification of the crushed aggregate material in question from waste to product had occurred without authorisation, but that did not prevent the material being characterised at the relevant time as product and not waste because it had been transformed.[65]
[65]Dasma [112]

By contrast to the defence available for Charge 3, it was not open to Mr Fleming to argue ‘reasonable excuse’ as a defence to Charge 1. No such defence arises from the terms of section 134 of the EP Act (which was the section relied upon for Charge 1). There was no consideration open to the Magistrate of reasonable excuse in respect of Charge 1. The defence for Charge 3 focused on the characterisation of the tyres as waste, and this issue was a live one until the Magistrate found the elements of that charge proven.

Indeed, in considering the elements of Charge 3, His Honour found that waste was received and that Mr Fleming had not complied with the notice. He then turned his mind to whether there was a reasonable excuse for that non‑compliance. I can see no error in this approach. Effectively, what the EPA urges, is that once these two elements are found to be established, there is no room for consideration of whether there was a reasonable excuse. I do not accept that this is the correct interpretation of the section. The Magistrate did not err in his interpretation nor in his application of the phrase to the facts before him. He expressly takes into account the expert evidence from both expert witnesses as well as the repurposing of the tyres as being undertaken by Mr Fleming.

I note that in relation to the penalty for Charge 1, His Honour did not impose an immediate penalty but adjourned the matter for a number of months, commenting in respect of the construction work being done by Mr Fleming using the tyres, ‘if not complete what he’s doing at least to get to a position hopefully with the EPA where everyone is happy, and if they’re not, then we’ll deal with it’.[66]
[66]Transcript of Proceedings, Environment Protection Authority v Simon Fleming (Magistrates’ Court of Victoria, N117303704, Kilias M, 3 May 2024) 48.

To accept the proposition that, for the purpose of one charge, the tyres in question were deemed ‘waste’ must then dictate the outcome of the further charge of non‑compliance with an improvement notice which allows for a defence of ‘reasonable excuse’ is too simplistic. To put it another way, following the EPA’s analysis once there is a finding in relation to Charge 1 that the tyres are ‘waste’, there can be no factual or operational excuse which would qualify as being a ‘reasonable excuse’. A litigant would be effectively constrained to a non‑factual excuse to succeed. In my view, this is not what is intended by the concept of reasonable excuse in section 286(1).

CONCLUSION

In relation to Question 1 and 2 in the Notice of Appeal dated 18 April 2024, I am satisfied His Honour made no error in applying the correct test, that being an objective test in characterising the behaviour and language of Mr Fleming. Reading the reasons for the dismissal of the charge as a whole, and taking into account His Honour’s direct observation from the body worn camera footage, was sufficient to dismiss the appeal both on the correct and fair characterisation of His Honour’s findings as well as the application of the correct objective test.

In relation to Question 1 in the Notice of Appeal dated 31 May 2024, the question of what is a ‘reasonable excuse’ for the purposes of section 286(1) of the EP Act must be considered in its statutory context and the circumstances of the individual case. The ambulatory operation of the phrase is well established.

Equally, it has been well established that there is a difference between the terms ‘lawful purpose’ or ‘lawful excuse’, and that of ‘reasonable excuse’. The latter has consistently been interpreted as having a wider meaning than that of the former.

There is little doubt that the evidence before the Magistrate supported a factual finding that the tyres being stored on the premises were stored for the purpose of building a fire safe compound on Mr Fleming’s land. The expert evidence supported that course of use, being one which was sustainable as a building material. Mr Fleming was adamant about his purpose and intention to repurpose the tyres and it was a process in which he was actively engaged (albeit slowly).

Further, as I have indicated above, the charges as articulated in Charges 1 and 3 both refer to and rely on unauthorised receipt of waste and not storage of waste.

In my view, the range of excuses which might fall within the term ‘reasonable excuse’ can encompass the factual and evidentiary rationale before the Magistrate.

The position argued by the EPA emphasises the legality (or illegality) of the actions of Mr Fleming. That is, it is illogical and a misconstruction of the phrase in its statutory context that Mr Fleming can rely on behaviour which would amount to separate breaches of the EP Act to found his reasonable excuse.

This begs the question of why provide for a defence of ‘reasonable excuse’ at all if the legislature intended that the excuse be confined to the narrower defence of ‘lawful excuse’ or ‘lawful purpose’.

The approach urged by the EPA is to narrowly interpret the words in the context of section 286(1) of the EP Act. However, given the acceptance that the phrase has been previously considered as being more permissive than the ‘lawful purpose’ or ‘lawful excuse’ phrase, it is my view that it must be given some emphasis or distinction.

For the foregoing reasons, I am not satisfied that there is an error of law in His Honour’s decisions in relation to Charge 2 nor that of Charge 3.

The Appeals are dismissed.

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[2025] VSC 353

18 June 2025