DPP v Italiano & Anor

1. SKM Services Pty Ltd ('SKM') was a proprietary company which occupied 90-110 Maffra Street Coolaroo, Victoria, with Robert Italiano ('Mr Italiano') operating as the sole director of SKM. It is understood that SKM is in receivership/liquidation and will not appear at trial.
2. SKM operated a business which processed recycled materials, including paper, plastic, metal, aluminium and glass.
3. Prior to the alleged events which make up the basis of the charged offences, on 28 February 2017 a fire had broken out at SKM which significantly damaged one of the buildings. The result of this damage was that SKM's capacity to process recycled materials was reduced, and subsequent to the fire a volume of recycled materials stored on the property increased significantly.
4. On 13 July 2017, a fire broke out within a rubbish heap and the Metropolitan Fire Brigade ('MFB') was notified. The rubbish heap covered 25,000 square meters and spread across multiple holding yards at the SKM facility. The rubbish heap was made up of a mixture of paper, plastics, scrap metal, glass and food scraps, these materials being both loose and in bails which had been stacked.
5. The fire spread rapidly due to strong winds and became out of control. The fire was declared under control approximately 48 hours after it began, however the fire continued to burn for several days, and was only fully extinguished after approximately 10 days.
6. A state-wide emergency management response was triggered in response to the fire. The Environment Protection Authority ('EPA') and MFB, other State agencies assisted during the fire, including Victoria Police, Ambulance Victoria, Hume City Council and the State Emergency Service ('SES').
7. The result of the fire was, amongst other things, a considerable amount of smoke in the air which spread into nearby areas. EPA air-monitoring equipment revealed that the smoke contained PM 2.5 particles, exceeding the national air quality standard of 25ug/m^3.
8. In the opinion of Dr Dennekamp, it is highly likely that exposure to PM 2.5 particles from 13 July 2017 fire was harmful to human health. Similarly, Dr Alwneh opines that the detected levels of PM particles were much higher than safe limits, and that there were health impacts to those exposed to it.
9. Several residents in the area around Dallas were evacuated from their homes and witnesses reported a variety of health impacts.
10. SKM,[1] and Mr Italiano,[2] have been charged with five offences under the EP Act, namely:

(a) Pollution of the atmosphere so as to make it noxious or offensive;[3]

(b) Polluting the atmosphere so as to make it harmful to health;[4]

(c) Polluting the atmosphere so as to make it detrimental to any beneficial use;[5]

(d) Permitting an environmental hazard;[6] and

(e) Aggravated pollution.[7]

1. An issue has arisen in relation to Charges 4 and 5 on the indictment, namely whether the Combustible Recyclable Waste Material ('CRWN') alleged to have caused the pollution the subject of these charges was an 'environmental hazard' within the definition in s 4(1) of the EP Act.

1. Mr Livermore submitted that the EP Act is concerned with substances having 'particular dangerous characteristics', and therefore is not drafted to capture materials such as recyclable paper, cardboard and empty plastic milk containers, which are combustible but not flammable. He submitted that combustible has a simple dictionary definition of material which is "able to catch fire and burn easily" and is to be differentiated from substances such as flammable materials possessing 'dangerous characteristics.'
2. In support of this characterisation, Mr Livermore provided three documents which ostensibly defined both terms:

(a) The Memorandum of Understanding between Worksafe and the Environment Protection Authority dated 29 March 2017 ('MOU');[8]

(b) A Document titled 'Management and Store of Combustible, Recyclable and Waste Materials - Guideline 1667.2' dated 2018 ('Guideline');[9] and

(c) Australian Code for the Transport of Dangerous Goods by Road and Rail ('ADG Code').[10]

1. These documents were characterised by Mr Livermore as extrinsic materials to assist in the interpretation of the term "environmental hazard" by way of context.
2. Mr Livermore submitted that the inclusion of the phrase "environmental hazard" in the MOU supports his contention that the qualifier "dangerous" ought to be imported into the definition of "flammable.....characteristics" in s 4(1) of the EP Act.
3. Mr Livermore underscored that the MOU is one between Worksafe - which administers the Dangerous Goods Act 1985 ('Dangerous Goods Act') - and the EPA, regarding the overlapping objectives of both regulators in dealing with substances having "toxic, corrosive, flammable, explosive, infectious or otherwise dangerous characteristics" on the one hand, and combustible recyclable material or paper, cardboard and plastic on the other. This code consolidates the international and national classification of dangerous goods, and has consolidated the industry, trade, and regulatory understanding of these terms. It was submitted that because of this unity between regulators, inconsistent definitions between the ADG Code and the EP Act would undermine the ability of each agency to carry out their respective statutory functions.
4. Mr Livermore argued that the plain text of the s 4(1) of the EP Act definition directs its focus to "substances" which have "dangerous characteristics," and therefore is not concerned with any substance capable of catching fire or emitting smoke, but rather substances that readily ignite at ambient temperatures and are therefore dangerous by dint of being dangerously "flammable."
5. He submitted that the legislature has clearly defined the substances relevant to the meaning of 'environmental hazard' through the ADG Code. The ADG Code has identified the "dangerous characteristics" of flammable substances. If the definition of environmental hazard in s 4(1) of the EP Act had been intended to encompass combustible materials such as recyclable paper cardboard and plastic, the definition would have said so. It was argued that the legislature has linked s 4(1) of the EP Act to the precise wording in the ADG Code, which supports an adoption of the ADG Code definition.
6. As to the Guideline, Mr Livermore took the court to page 15, where under the heading "fuel sources" a distinction is drawn between "flammable liquids, gases and solids" on the one hand and "combustible goods and waste materials" on the other.
7. Finally, regarding the ADG Code, Mr Livermore took the court to a number of definitions set out therein.
8. 'Flammable liquids' are defined in the ADG Code as:

"... liquids, or mixtures of liquids, or liquids containing solids in solution or suspension (for example, paints, varnishes, lacquers, etc., but not including substances otherwise classified on account of their dangerous characteristics) which give off a flammable vapour at temperatures of not more than 60° C, closed-cup test, or not more than 65.6° C, open-cup test, normally referred to as the flash point. > > This class also includes: > > (a) liquids offered for transport at temperatures at or above their flash point; and > > (b) substances that are transported or offered for transport at elevated temperatures in a liquid state and which give off a flammable vapour at a temperature at or below the maximum transport temperature."[11]

"..... readily combustible solids and solids which may cause fire through friction. > > Readily combustible solids are powdered, granular, or pasty substances which are dangerous if they can be easily ignited by brief contact with an ignition source, such as a burning match, and if the flame spreads rapidly. The danger may come not only from the fire but also from toxic combustion products."[12]

10. On the basis of these definitions, Mr Livermore submitted that the ADG Code defines flammable substances as a subcategory of combustible material, in that flammable materials are those more easily ignited than combustible materials. He argued that this subcategory is more dangerous than combustible material, in that it possesses 'dangerous characteristics', and if stored improperly could give rise to a state of danger in contravention of the EP Act. As a further distinction between the terms, the ADG Code indicates the 'flash point' of flammable material is less than 60 degrees Celsius, and the 'flash points' for paper and cardboard is around 450 degrees Celsius. The flashpoint of plastics is around 340 degrees Celsius.
11. Mr Livermore submitted that if Parliament had intended for CRWM to be included in the definition of 'environmental hazard', Parliament would have included the adjective 'combustible' in the definition.
12. In response to prosecution arguments as to the clear meaning of the definition of "environmental hazard", Mr Livermore submitted that the prosecution definition ignores the words "or any other dangerous characteristic". He argued that a plain reading of the definition means that substances which are toxic, corrosive, flammable, explosive or infectious must themselves possess dangerous characteristics independent of, and prior to, the danger that is generated by their handling, location or storage before they qualify as an "environmental hazard."
13. It was submitted that it is "beyond rational argument" to suggest that recyclable paper, cardboard or plastic, however described, could possess "dangerous characteristics" of any kind.[13] Rather, they will combust and burn but only at temperatures far in excess of materials which could be described as having a dangerous flammable quality. To make this point, Mr Livermore again raised the differences in flash points between the materials. It was submitted that the phrase "otherwise dangerous characteristics" only applies to substances with a high risk of damage or injury or a perilous situation, which a piece of paper, a piece of cardboard or an empty plastic bottle do not have.

1. Mr Mandy with Ms Locke on behalf of the Prosecution, submitted that there is no judicial authority which has considered the interpretation of "environmental hazard" in s 4(1) the EP Act. Therefore, the interpretation of the phrase must be construed from 'basal principle'.
2. The prosecution submitted that the EP Act does not draw a distinction between 'flammable' and 'combustible,' nor does it define either term. Nor does the EP Act seek to differentiate degrees of 'toxic', 'infectious', 'corrosive', 'explosive' or 'otherwise dangerous' substances. Rather, the EP Act establishes a broad category of adjectives which apply to substances which can produce pollution. This categorisation contained everything that Parliament could think of that could be dangerous in the context of the EP Act. Therefore, each of these plain English words should be interpreted according to their plain English meaning.
3. The Prosecution further submits that, as the adjectives "corrosive", "toxic", "flammable", "infectious" and "explosive" are linked to the term "characteristics", the only way to read "environmental hazard" in s 4(1) of the EP Act is to conclude that the state of danger referred to in the definition is the danger created by the handling, storage or location of materials with these characteristics and not, as contended by Mr Livermore, that substances with these qualities must first be dangerous before their handling, storage or location, render them even more dangerous. Mr Mandy also argued that there is an inherent dangerousness in flammable material notwithstanding that the use, location or storage of it might mitigate its dangerousness. He argued that where cardboard, for example, is not handled, stored or located in a manner which creates an immediate danger, the dangerousness of the substance remains because it remains easily set alight.
4. He argued that to adopt the defence analysis of the distinction between "flammable" and "combustible" would lead to a peculiar result. Such reasoning might exclude paper and cardboard from falling under the operation of the EP Act, despite being more flammable, and therefore more likely to produce pollutants. The EP Act is concerned with polluting the environment, and if substances are flammable, they will produce smoke and pollutants if set alight, producing the pollution that the EP Act seeks to regulate.
5. As part of the interpretation exercise, very little use can be made of the documents identified by Mr Livermore as extrinsic materials relied on by the defence, namely the:

(a) MOU;

(b) Guideline; and

(c) ADG Code.

1. The EP Act does not use the term 'Combustible Recyclable Waste Material', a term used in a guidance document published after the charged events. Nor does it expressly incorporate definitions of other Acts. To the extent that other Acts define terms also defined in the EP Act, those other Acts, notably the Dangerous Goods Act 1985, have different purposes from the EP Act and a far more refined set of definitions and incorporated Regulations which are consistent with the purposes of those Acts.
2. Mr Mandy submitted that the ADG Code has limited relevance, as the code concerns the transportation of dangerous goods, and therefore falls to be read as a supplement to the Dangerous Goods Act. If Parliament had intended to align the definitions in the EPA with those in the Dangerous Goods Act, Parliament has had many years to do so. The fact that there has been no such alignment indicates an intention to differentiate between definitions in the EP Act and definitions of similar adjectives in other Acts of Parliament.
3. The Guideline has no relevance to the interpretation exercise either. During oral submissions, Mr Mandy took the Court to page 15 of the document, wherein it ostensibly differentiates between flammable and combustible substances. Where Mr Livermore argued that this page picks up the words of the Dangerous Goods Act, Mr Mandy submitted that the document instead identifies the different kinds of chemical states of various substances. Substances may be gaseous, liquid or a solid, and any form of the substance can be flammable. Read in this way, the document provides a definition which is consistent with the Prosecution's interpretation of "environmental hazard."
4. Mr Mandy further submitted that the MOU does not displace Parliament's intention, and that it is the words used by Parliament that are relevant to this argument.
5. Mr Mandy submitted that, according to the plain meaning of the words, both paper and cardboard are 'flammable'. The EP Act, concerned with protecting the environment, uses a wide, general and non-exhaustive series of adjectives to describe any substance with potentially polluting characteristics.
6. To the extent that paper and cardboard are arguably "combustible" and not "flammable", both substances would otherwise be captured in the definition of "environmental hazard" given that combustibility is an 'otherwise dangerous' characteristic for the purposes of pollution. By way of an example of a substance that is "otherwise dangerous", Mr Mandy proffered the adjectives 'radioactive' and 'explosive'. Mr Mandy submitted that a substance which is either radioactive or explosive is clearly dangerous and is therefore caught by the phrase 'otherwise dangerous' in the definition of environmental hazard. Substances with these qualities, he argues, can become dangerous to the environment through their location, storage or handling.

1. The state of danger referred to in the definition of environmental hazard is a state of danger produced as a consequence of the "location, storage or handling of any substance having...flammable...characteristics". The fact that the definition of environmental hazard in s 4(1) refers to substances having "otherwise dangerous characteristics" does not operate to qualify the definition of flammable in s 4 (1) to mean dangerously flammable.
2. The Macquarie dictionary defines 'flammable' as "easily set on fire",[14] and 'combustible' as "capable of catching fire and burning."[15] These definitions accord with those provided in oral submissions by Mr Livermore. I note for completeness that the Oxford English Dictionary defines 'flammable' as the same as 'inflammable',[16] which is in turn defined as "capable of being inflamed or set on fire; susceptible to combustion."[17] The Oxford English Dictionary defines 'combustible' as "capable of being burned or consumed by fire; fit for burning; burnable."[18]
3. I do not accept Mr Livermore's argument that the definition of the term 'environmental hazard' imports into the adjective 'flammable' the qualifier 'dangerous'. The better view in my opinion is that the definition has been framed to capture articles which have flammable properties only and which, as a consequence of the way they have been stored located or handled, create a state of danger to human beings or the environment whether imminent or otherwise.
4. I have derived little assistance from the materials provided to the court during oral argument due to the qualifications to their use prescribed by the authorities. I also accept Mr Mandy's submission that the MOU relied upon by Mr Livermore does not displace Parliament's intention.
5. I am mindful that when construing the definition of environmental hazard I need to keep the objects of the EP Act squarely in mind and apply well-settled principles of statutory construction. I must give the words of the statute the meaning which the legislature has intended.[19] The surest guide to this intention is typically the language employed in the text of the legislation,[20] however, the context within which these words are used may ascribe a different legal meaning to the words from their ordinary or grammatical meaning.[21] Finally, in constructing statutory provisions, the construction which promotes the purposes of the EP Act or provisions is to be preferred over other constructions.[22]
6. Undertaking that exercise here, I find that the definition of "environmental hazard" is an intentionally broad one designed to encompass a non-exhaustive variety of substances which have the potential to pollute the environment when not stored, handled or located safely.
7. I accept Mr Mandy's argument that if Parliament had intended to circumscribe or delineate what might be defined as flammable, explosive, infectious or corrosive it would have done so bearing the objects of the EP Act in mind. I accept Mr Mandy's argument that the definition of flammable in s 4(1) was designed to capture articles which produce smoke that will damage the environment. The definition of environmental hazard is linked to the way in which an article which is capable of being set alight is located, stored or handled.
8. I therefore rule that the adjective flammable in s 4 of the EP Act does not mean dangerously flammable. I find that the adjective flammable is to be given its ordinary meaning and when given its ordinary meaning it encompasses materials such as paper, cardboard and plastic.
9. I find therefore that the Combustible Recyclable Waste Material which is alleged to have caused the pollution the subject of charges 4 and 5 meets the definition of environmental hazard in s 4(1) of the EP Act.

[3] Environment Protection Act 1970 (Vic) ss 41(1)(a), 66B(1).

[5] Environment Protection Act 1970 (Vic) ss 41(1)(e), 66B(1).

[11] National Transport Commission, 'Chapter 2.3: Class 3 - Flammable Liquids' in The Australian Code for the Transport of Dangerous Goods by Road & Rail (Edition 7.8, 2022) 108 [2.3.1.2].

[12] National Transport Commission, 'Chapter 2.4: Class 4 - Flammable solids; substances liable to spontaneous combustion; substances which, in contact with water, emit flammable gases' in The Australian Code for the Transport of Dangerous Goods by Road & Rail (Edition 7.8, 2022) 111 [2.4.2.1].

[14] Macquarie Dictionary (online at 16 February 2023) 'Flammable'.

[15] Macquarie Dictionary (online at 16 February 2023) 'Combustible'.

[16] Oxford English Dictionary (online at 17 February 2023) 'Flammable'.

[17] Oxford English Dictionary (online at 17 February 2023) 'Inflammable'.

[18] Oxford English Dictionary (online at 17 February 2023) _'_Combustible'.

[19] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 384.

[20] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [47].

[21] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [32].

[22] Interpretation of Legislation Act 1984 (Vic) s 35(a).