Grafil Pty Ltd v Environment Protection Authority; Mackenzie v Environment Protection Authority

The applicants, Grafil Pty Ltd and Mackenzie, sought special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal. The dispute concerned the interpretation of the definition of "waste" under the *Protection of the Environment Operations Act 1997* (NSW), specifically whether certain recycled materials intended for use as road base constituted "waste" under the Act. The applicants argued that these materials, having been processed and intended for reuse, should not be classified as waste, particularly given the Act's objects of promoting resource recovery and recycling.

The central legal issue before the High Court was whether the Court of Criminal Appeal had erred in its construction of the definition of "waste". This involved determining the proper interpretation of the word "or" linking the various paragraphs of the definition, and the interplay between the general provisions (such as paragraph (a)) and the specific provision dealing with processed, recycled, reused, or recovered substances (paragraph (d)). The applicants contended that a literal interpretation, which allowed general provisions to encompass specific ones, rendered the specific provisions otiose and undermined the legislative objects of encouraging recycling. They argued for a purposive approach that would give effect to the specific provisions dealing with recycled materials.

The High Court considered submissions regarding the legislative objects of the *Waste Avoidance and Resource Recovery Act* and the *Protection of the Environment Operations Act*, which included promoting resource recovery and preventing environmental degradation. The applicants argued that the Court of Criminal Appeal's interpretation was anti-purposive, failing to recognise that materials intended for reuse should not be classified as waste unless they fall within prescribed circumstances that indicate potential harm. The respondent argued that the Court of Criminal Appeal's construction was consistent with the regulatory scheme, which aimed to balance recycling objectives with the need to regulate potentially harmful substances. The Court noted that the definition of waste included a specific provision (paragraph (d)) that applied to processed, recycled, reused, or recovered substances only in circumstances prescribed by regulations, and that the last sentence of the definition stated that a substance is not precluded from being waste merely because it is or may be processed, recycled, reused, or recovered.

The High Court determined that the applications for special leave to appeal did not have sufficient prospects of success to warrant the grant of leave. Consequently, the applications were refused, and there was no order as to costs.