THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION

THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : ECLIPSE RESOURCES PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2016] WASC 62

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : ECLIPSE RESOURCES PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2016] WASC 62

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : ECLIPSE RESOURCES PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2016] WASC 62

Local government and environment - 'Waste' - Material deposited and compacted in voids at premises - Waste management - Statutory construction - Meaning of 'waste' - Meaning of 'waste accepted for burial' - Meaning of 'waste disposed of to landfill'

Constitutional law - Duties of excise - Whether levy imposed on waste disposed of to landfill is a duty of excise

Environmental Protection Act 1986 (WA)

Environmental Protection Regulations 1987 (WA)

Waste Avoidance and Resource Recovery Act 2007 (WA)

Waste Avoidance and Resource Recovery Levy Act 2007 (WA)

Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA)

Waste Avoidance and Resource Recovery Regulations 2008 (WA)

Second Respondent : Mr G R Donaldson SC & Ms J Shaw

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

Second Respondent : Mr G R Donaldson SC & Ms J Shaw

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

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

Anderson's Proprietary Limited v The State of Victoria [1964] HCA 77; (1964) 111 CLR 353

Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1

Bighorn (Municipal District No 8) v Bow Valley Waste Management Commission (2013) ABQB 723

Carter Holt Harvey Ltd v North Shore City Council [2007] NZCA 420; [2008] 1 NZLR 744

City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334

Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629

Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389

Commissioner for Australian Capital Territory Revenue v Kithock Pty Ltd [2000] FCA 1098; (2000) 102 FCR 42

Commissioners for Her Majesty's Revenue and Customs v Waste Recycling Group Limited [2008] EWCA Civ 849

Corporation of the City of Adelaide v Circelli [2017] SASCFC 12

Coverdale v West Coast Council [2016] HCA 15; (2016) 214 LGERA 160

Dainford Limited v Smith [1985] HCA 23; (1985) 155 CLR 342

Dennis Hotels Proprietary Limited v The State of Victoria [1960] HCA 10; (1960) 104 CLR 529

Director General of Department of Transport v McKenzie [2016] WASCA 147

Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353

Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62

Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332

Environment Protection Authority v N (1992) 26 NSWLR 352

Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162; (2010) 176 LGERA 31

Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; (2013) 84 NSWLR 679

Gosford Meats Proprietary Limited v The State of New South Wales [1985] HCA 5; (1985) 155 CLR 368

Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465

Howell v Macquarie University [2008] NSWCA 26

Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1

IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309

Logan Downs Proprietary Limited v The State of Queensland [1977] HCA 3; (1977) 137 CLR 59

M R Hornibrook (Pty) Ltd v The Federal Commissioner of Taxation [1939] HCA 29; (1939) 62 CLR 272

Master Education Services Pty Limited v Ketchell [2008] HCA 38; (2008) 236 CLR 101

Matthews v Chicory Marketing Board (Victoria) [1938] HCA 38; (1938) 60 CLR 263

Municipal Officers' Association of Australia v Lancaster [1981] FCA 151; (1981) 54 FLR 129

Mutual Pools & Staff Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 4; (1992) 173 CLR 450, 454

News Limited v South Sydney District Rugby League Football Club Limited [2003] HCA 45; (2003) 215 CLR 563

O'Grady v The Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356

Parton v Milk Board (Victoria) [1949] HCA 67; (1949) 80 CLR 229

Philip Morris Limited v The Commissioner of Business Franchises (Victoria) [1989] HCA 38; (1989) 167 CLR 399

Queensland Nickel Pty Ltd v Commonwealth of Australia [2015] HCA 12; (2015) 255 CLR 252

Re Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351

Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; (2013) 84 NSWLR 688

Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245

Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716

Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

Technical Products Pty Limited v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45

Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [No 5] [2013] NSWLEC 68

Wood v Adelaide Resource Recovery Pty Ltd [2017] SASCFC 13

Workers' Compensation Board of Queensland v Technical Products Proprietary Limited [1988] HCA 49; (1988) 165 CLR 642

Wright v TIL Services Pty Ltd (1956) 56 SR (NSW) 413

Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31; (1996) 187 CLR 310

1 These three appeals relate to a decision of Beech J in Eclipse Resources Pty Ltd v The State of Western Australia [No 4][1] (primary decision). The primary proceedings involved three actions concerning the appellant's (Eclipse's) liability to pay a waste levy in respect of its operations at certain sites between 1 July 2008 and 30 September 2014.[2] Liability to pay the waste levy arises under a legislative regime that, in essence, imposes a levy when waste is accepted for burial at premises and disposed of to landfill.[3]

2 Eclipse operates an integrated business involving sequential land use and resource recovery operations.[4] As part of its operations, at various times between 1 July 2008 and 30 September 2014, Eclipse received materials from third parties and deposited and compacted some of those materials in voids created by quarrying activities conducted on the sites in question.[5]

3 The respondents (Government Parties) asserted, in essence, that Eclipse was liable to pay levy under the legislative regime in respect of each site for certain periods in which these operations were conducted.[6] Eclipse submitted that it was not liable to pay the levy or, alternatively, that the legislative regime imposing the levy is unconstitutional because it amounts to a duty of excise.[7]

4 The primary judge concluded that the legislative regime imposing the waste levy applied to Eclipse's operations at the three sites and, in its application to all or any of Eclipse's sites, the levy was not an excise. His Honour accordingly found in favour of the Government Parties. Eclipse appeals against that decision.

5 The appeals should be dismissed for the reasons which follow.

6 The primary decision involved lengthy findings of fact. Many of the facts were agreed at trial and there were relatively few factual issues of any real magnitude.[8] There are likewise no factual issues in dispute on appeal.[9] Eclipse raises four grounds of appeal, each of which asserts errors of law. It is, accordingly, unnecessary to recite in detail all the principal findings of fact made by the primary judge. A summary, based on the judge's findings, is sufficient for present purposes.

7 The primary proceedings related to Eclipse's alleged liability to pay levy in respect of its operations conducted at three sites located within the metropolitan region in Western Australia[10] (collectively the 'sites' or 'Eclipse's sites'). The sites were at Flynn Drive in Carramar (Flynn Drive Site), Abercrombie Road in Postans (Abercrombie Road Site) and Wanneroo Road in Neerabup (Wanneroo Road Site). Eclipse's liability for its operations at the Flynn Drive Site related to the period 1 July 2008 to 30 June 2009, for the Abercrombie Road Site for the period 1 July 2008 to 30 September 2014, and for the Wanneroo Road Site for the period 1 June 2009 to 20 September 2014.[11] These time periods, corresponding with the 'return periods' for which any levy is payable, will together be referred to as the 'Relevant Period'.

8 When Eclipse first took occupation of the sites, each site contained a void created by previous quarrying of sand or limestone or both.[12]

9 Eclipse's business is, in essence, focussed on sequential land use and resource recovery operations. Its business incorporates limestone and sand mining, the production of water retentive soils and mulches, and the production of structural fill for off-site sales and for on-site projects.[13] During the Relevant Period, Eclipse conducted the following operations. On the Flynn Drive Site, Eclipse:[14]

(b) produced blended soils for use on the site; and

(c) completed the filling of the former quarry void on the site.

10 On the Abercrombie Road Site, Eclipse:[15]

(a) quarried virgin, naturally occurring, sand and limestone from the site, thereby increasing the size of the void created by the existing quarry;

(d) continued to fill the quarry void on the site; and

(e) at times from about July 2014, removed materials it had previously deposited and compacted in the quarry void on the site.

11 On the Wanneroo Road Site, Eclipse:[16]

(a) excavated some remediated (previously acidic) peat and accompanying limestone buried by Eclipse at the site between June 2002 and March 2004;

Licensing and operation of the sites: category 63 - class 1 inert landfill

12 Throughout the Relevant Period, the Flynn Drive Site, the Abercrombie Road Site and the Wanneroo Road Site were all licensed by the Department of Environment Regulation (DER) under pt V of the Environmental Protection Act 1986 (WA) (EP Act).[17] The Flynn Drive Site had a licence identifying it as, relevantly, a 'Category 63 - Class I inert landfill site' and allowed for a 'nominal rated throughput' of not more than 500,000 tonnes of 'waste accepted' per year.[18] The Abercrombie Road Site was licensed as having a capacity of 50,000 to 500,000 tonnes per annum for the category 63 'Class I Inert Landfill'.[19] The Wanneroo Road Site was licensed by DER as having a capacity for category 63 'Class I inert landfill' of 50,000 to 500,000 tonnes per annum.[20]

13 There were various quality controls, inspection and testing measures applied to the materials received at the sites, which had to meet certain environmental and geotechnical standards imposed by Eclipse. Eclipse determined the environmental suitability of the materials received by reference to certain criteria published by the DER known as, relevantly, 'Environment Investigation Levels (EILs)' and 'Health Investigation Levels (HILs)'.[21]

14 Eclipse categorised the materials received from third parties for invoicing purposes. Its classification codes were, broadly, as follows:[22]

(a) Clean Construction and Demolition Materials - for which no sorting was required and which were established as meeting EILs by virtue of sampling and analysis;

(b) Natural Earth Material (predominantly sand) - for which analytical data had been provided, before acceptance by Eclipse, showing that the material met EILs;

(c) Acidic peats containing organic matter - in respect of which Eclipse was satisfied, on the basis of analytical data, that the materials would be capable of remediation to counter their acidity;

(d) Acidic soil - for which analytical data satisfied Eclipse that the soils were capable of remediation to counter their acidity;

(e) Soils suitable for bio-remediation - soils contaminated with hydrocarbons or some pesticides for which analytical data indicated that the materials could be bio-remediated;

(f) Any other special job - for example, one that requires special handling, processing or pricing;

(g) Soil actually or potentially containing asbestos chips;

(h) Inert material which analytical data indicated that the materials may exceed EILs, but did not exceed HILs;

(i) Structural fill - product made from recycled and virgin materials to meet customer specifications;

(j) Virgin materials - materials coming from a site and a reputable operator known to Eclipse, usually accepted and then stockpiled for use in blended soils or for final cover;

(k) General inert construction and demolition materials with only minor sorting required; and

15 During the Relevant Period, Eclipse received and accepted materials from third parties at each of the sites. The materials received by Eclipse would generally be transported by a third party to a site in a large truck, with the capacity of more than 20 tonnes. At some of the sites, materials were delivered to Eclipse in skip bins.[23]

16 Some of the trucks arriving at a site were directed to deposit their loads at the operational bench in the void at the site.[24]

17 Eclipse sorted materials received at the sites when it considered it necessary to do so. In sorting materials, Eclipse removed, where necessary:[25]

(a) materials such as plastic and timber and transported them off-site to a licensed Class III landfill;

(b) metals for separate stockpiling and subsequent sale by Eclipse as scrap metal; and

(c) plant material for separate stockpiling in its mulching area for use in the production of mulch.

The provenance and nature of the materials received by Eclipse at the sites

18 The materials received by Eclipse at the sites were given to it by persons who had no present use for the materials, who did not want the materials, and who generally paid Eclipse to accept them.[26]

19 There was no evidence, and the judge was not satisfied, that Eclipse paid for any of the material that it received at the sites for deposit and compaction in the voids.[27]

20 Eclipse sometimes did not charge for, nor was it paid for, materials it needed to produce blended soils.[28]

21 At each of the sites, Eclipse accepted:[29]

(a) plant material, including grass and tree branches, stumps and logs arising from vegetation clearing as part of site works for residential, commercial and industrial development, and from kerb-side pickups by local governments; and

(b) materials that came from construction, demolition and remediation works and earthworks on other sites, including works relating to tunnels, underground car parks, roads, railways, service trenches, commercial and industrial developments and smaller-scale housing sites and swimming pools.

22 More particularly, the provenance of the materials accepted by Eclipse included:[30]

(a) materials that had been excavated as part of the preparation of sites for development which were unsuitable for, or in excess of requirements of, the developer;

(b) surplus materials from construction and demolition projects;

(c) virgin material and construction and demolition material from site cleanups; and

(d) materials arising from the demolition of buildings and infrastructure, being mainly concrete and bricks.

23 The nature of the materials accepted by Eclipse at the sites included:[31]

(a) Soil (sometimes containing plant roots or other plant matter), sand, rocks, limestone (except at the Flynn Drive Site), clay, peat, silt and diatomaceous earth (at the Abercrombie Road Site only).

(b) Bricks, pavers, concrete (including reinforced concrete), limestone blocks, bitumen, asphalt, gravel, roof tiles, other tiles, and small quantities of glass (for example, bottles), plasterboard, Hardifence panels and other rubble arising from construction and demolition works and earthworks.

(c) Small quantities of plastic strapping (including green plastic brick strapping), wrapping, sheeting, bags and piping and other plastic (such as buckets and drink containers).

(d) Small quantities of paper packaging, cardboard, wood (including wooden pallets), steel roof sheeting, corrugated metal sheeting, metal wires, and other metal (such as metal drainage grates and paint cans).

(e) Small quantities of bicycles, bathtubs, fabric, carpet and insulation materials.

24 Eclipse also accepted at the sites loads of material containing a mixture of different types of material, including soil mixed with bricks, concrete, tiles and pieces of plastic, metal and paper.[32]

25 In relation to the Abercrombie Road Site (between 1 July 2008 and June 2012) Eclipse also accepted materials containing asbestos wrapped in plastic. It also accepted soils containing or potentially containing asbestos chips at the Abercrombie Road Site during the Relevant Period.[33]

26 At the Abercrombie Road Site, Eclipse also accepted soils contaminated with hydrocarbons and pesticides.[34]

27 Also at the Abercrombie Road Site and the Wanneroo Road Site, Eclipse accepted acid sulphate soils (including peats).[35]

28 During the Relevant Period, a significant proportion of the materials received by Eclipse comprised soils, sand, peat, riverine silts, clay and limesand dredgings excavated from source sites classified under the Contaminated Sites Act 2003 (WA). Eclipse accepted materials from classified sites with the intention that they would be remediated or bio-remediated.[36]

29 Quantities of rock and concreting materials accepted by Eclipse have considerably decreased, although gradually, from 2008. Mr Sippe of Eclipse estimated that no more than approximately 5% of material accepted by Eclipse comprised rocks and concrete during the Relevant Period.[37]

30 As is apparent from the foregoing, an element of Eclipse's operations at each of the sites during the Relevant Period included the filling of voids located on the sites.[38] The filling of the voids was conducted so as to make the land suitable for its intended ultimate purpose, which was for subdivision or use as a national park or private open space.[39] The voids were filled and compacted and then a final cover of material would be placed over the compacted material.[40]

31 More than 500 tonnes of material had been deposited on each site for each year of the Relevant Period.[41] The evidence showed that:

(a) a total of 96,824 m3 was deposited as fill at the Flynn Drive Site during the Relevant Period;[42]

(b) a total of 443,380 m3, net, was deposited as fill at the Abercrombie Road Site during the period 1 July 2008 to 31 March 2013;[43] and

(c) a total of 96,464 m3 was deposited as fill at the Wanneroo Road Site during the period 1 June 2009 to 30 September 2012.[44]

The nature and provenance of the materials used to fill the voids

32 Generally speaking, the materials received by Eclipse, for filling voids, were materials that the third parties did not want or need. Eclipse did not pay for any of the material that it received at the sites to be deposited and compacted in the voids.[45] The third parties generally paid Eclipse to accept the material. They were materials for which, at the time they were deposited, Eclipse had no other higher use (eg, for its mulching operations and blended soil operations).[46]

33 The materials deposited and compacted in the voids at the sites during the Relevant Period included:

34 Building rubble itself included, as minor inclusions, pieces of metal, brick strapping, wood and plastic.[48]

35 In addition, at the Abercrombie Road Site and the Wanneroo Road Site, the material compacted in the voids included small quantities of timber, plastic, metal and cardboard.[49]

36 Building material which was deposited and which included building rubble, such as broken concrete or bricks, was not 'clean fill' as defined in the Waste Definitions.[50] (The Waste Definitions are referred to later in these reasons at [109] below.)

37 Any remediated acid sulfate soils which were not suitable, or were not, at that stage, wanted by Eclipse for the production of blended soils or as final cover materials, were deposited and compacted in the voids at the sites.[51]

38 There was some evidence that the material could be re-mined and thereby used as a resource for other purposes.[52] Eclipse used the term 're-mining' to describe excavations of material that has been received and deposited on site, the purpose of the excavation being to produce products, principally structural fill or water retentive soil products.[53]

39 With respect to the Flynn Drive Site and the Wanneroo Road Site, his Honour was not satisfied that Eclipse re-mined materials deposited and compacted in the voids at those sites during the Relevant Period. Nor was his Honour satisfied that Eclipse deposited any of the materials in those voids for the substantial or operative purpose of later extraction or availability for later extraction. Further, with specific reference to the Flynn Drive Site, his Honour noted that the site had been landscaped and found that Eclipse had no intention to re-mine any of the deposited and compacted materials in the site's void, now or in the future.[54]

40 With respect to the Abercrombie Road Site, his Honour found that no re-mining of materials in the void occurred in a substantial or organised way before 22 August 2014.[55] It was only in July or August 2014 that Eclipse formed an intention to extract, to any significant degree, materials that had been deposited in the void at the Abercrombie Road Site in order to use the materials to make products.[56] It followed that, from about August or perhaps July 2014, Eclipse deposited material in the void in order to fill it, but also so that the deposited and compacted material would be available for re-mining for use in the production of soil and sand products.[57] For the period 30 June 2014 to 30 September 2014, approximately 47,900 m3 of materials were extracted from the void on this site.[58]

41 Eclipse gave certain evidence of receipt at the Flynn Drive Site of peat from Innaloo in 2006, in what it called an example of re-mining. Although this peat was remediated in situ in the void at the Flynn Drive Site, it was not compacted.[59] At the Abercrombie Road Site certain peat from Innaloo was received, but not deposited in the void.[60] Other peat material received at the Flynn Drive Site prior to February 2005 was not compacted.[61] Even if it had been compacted, the material was not intended to be used to produce other products for sale.[62]

42 Peat was received, remediated and buried at the Wanneroo Road Site from 2002 - 2004.[63] Since, in effect, 2008, Eclipse has been permitted to extract peat from the Wanneroo Road Site, and has since done so. Eclipse has not paid any levy in respect of peat buried at the Wanneroo Road Site in the period 2002 - 2004, and the Government Parties do not make any claim for levy in respect of such peat.[64]

43 As noted above, mulch was produced from plant material received at the sites.[65] The plant material was stockpiled and then ground with the use of a tunnel grinder.[66] At least some of the mulch produced at the Wanneroo Road Site and the Abercrombie Road Site during the Relevant Period was sold and distributed by Eclipse Soils.[67]

44 Eclipse also produced blended soils from certain materials received at the sites. Eclipse produced blended soils by mixing together different types of soils from stockpiles (including stockpiles of remediated soils),[68] together with other materials, such as mulch fines, clay, fly ash and sand.[69] It also used peat, which it had previously deposited at the Wanneroo Road Site in 2002 - 2004, and which it dug out during the Relevant Period. The blended soils at the Flynn Drive Site, and some of the blended soils at the Wanneroo Road Site, were used as final cover material. The blended soils at the Abercrombie Road Site, and the remainder of the blended soils produced at the Wanneroo Road Site, were marketed, sold and distributed by Eclipse Soils.[70]

45 As noted earlier, the materials which Eclipse deposited and compacted in the voids throughout the Relevant Period were materials for which it had no other use, such as in its blended soils or mulching operations.[71]

46 As noted earlier, the judge observed that, in general terms, a waste levy is applied when waste is accepted for burial at premises and disposed of to landfill.[72] This levy arises by reason of the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (Levy Regulations). These regulations are made under the Waste Avoidance and Resource Recovery Act 2007 (WA) (Waste Recovery Act) and by virtue of s 4(1) of the Waste Avoidance and Resource Recovery Levy Act 2007 (WA) (Levy Act). Other relevant bodies of legislation include the Waste Avoidance and Resource Recovery Regulations 2008 (WA) (Waste Recovery Regulations), the EP Act and the Environmental Protection Regulations 1987 (WA) (EP Regulations).

47 Eclipse has not paid any money in respect of the (alleged) levy since 1 July 2008.[73] For the period 1 July 2008 until 31 December 2011, the chief executive officer of the DER (CEO) made estimates of the levy payable by Eclipse. A bank guarantee for $100,000, provided by Eclipse to DER on 6 August 1998, was called on 19 July 2010 in respect of the estimations.[74] The Government Parties' claimed $10,535,632.70 by way of unpaid levy plus penalties.[75]

48 The Government Parties claimed the amounts estimated by the CEO as levy payable for each return period from 1 July 2008 until 31 December 2011. Since 1 January 2012, no estimates have been made and so the Government Parties did not make any claim for levy payable. Rather, for the return periods since 1 January 2012, Eclipse sought declarations to the effect that it was not liable to pay levy.[76]

The primary proceedings and the primary decision The elements necessary for levy to be payable

49 In a section of his reasons under the above heading, the judge said:[77]

In order for levy to be payable by Eclipse, it must be established that waste was 'received at a category 63 landfill premises' within the meaning of reg 12 of the Levy Regulations. If that is established, it would also engage reg 4(1)(a), which applies to 'waste received at landfill premises'. Landfill premises include (but are not limited to) category 63 landfill premises. Premises will be a 'category 63 landfill premises' if and only if the activities set out in category 63 under 'description of category' are conducted on the premises. That will be so whether the premises are licensed or unlicensed.

Thus, the Government Parties must show, for each of the Sites and for each return period, the following:

(1) The site was a category 63 landfill premises, within the meaning of sch 1 of the EP Regulations, adopted in the Levy Regulations. That requires that the site was premises on which 'waste' was 'accepted for burial'.

(2) 'Waste' was 'received at' the site within the meaning of reg 4 and reg 12 of the Levy Regulations. That phrase is to be construed as having the same meaning as it has in s 4, s 5 and s 6 of the Levy Act.

There is a third requirement, which arises in the following way. The amount of levy calculated under reg 12 of the Levy Regulations is founded on the volume of waste 'disposed of to landfill', which is to be determined under reg 10 (by calculation by a surveyor) or estimated by the CEO under reg 11.

Thus, no levy will be payable unless it is shown that:

(3) 'Waste' was 'disposed of to landfill' within the meaning of regs 10, 11 and 12 of the Levy Regulations.

In summary, levy is payable if and only if, at a site during a return period, waste received at the site was accepted for burial, and waste was disposed of to landfill.

50 The Government Parties alleged, in effect, that:[78]

(1) all of the materials which were deposited and compacted in the voids at the sites between 1 July 2008 and 30 September 2014 were waste;

(2) all of the materials deposited and compacted in the voids at the sites between 1 July 2008 and 30 September 2014 were 'accepted for burial' within the meaning of Category 63 in sch 1 to the EP Regulations;

(3) at all relevant times, Eclipse's sites were 'prescribed premises' specified in Category 63 of the EP Regulations and were 'licensed landfills' within the meaning of the Levy Regulations;

(4) Eclipse failed to comply with reg 10(6) of the Levy Regulations in respect of each site for each relevant return period from 1 July 2008 to 31 December 2011;

(5) Eclipse was liable to pay levy on the volume of waste disposed of to landfill at the sites between 1 July 2008 and 31 December 2011 as estimated by the CEO;

(7) the CEO was authorised to call on Eclipse's bank guarantee in partial discharge of the amount of levy owing for the return period 1 July to 30 September 2008.

51 Eclipse argued that for one or more of the following reasons it was not liable to pay levy:[79]

(1) the materials it received from third parties were not waste;

(2) if they were, Eclipse did not accept them for burial; and

(3) the materials that Eclipse deposited and compacted in the void were not waste disposed of to landfill.

52 Alternatively, Eclipse submitted that if it were otherwise liable to pay levy in relation to the three sites, or some of them, the legislative regime imposing the levy is unconstitutional because, on one or other of the following three bases, it amounts to a duty of excise:[80]

(1) the levy is a tax on the materials received by Eclipse, which were a valuable commodity when in Eclipse's hands;

(2) the levy is a tax in respect of products that are made by Eclipse when it removes compacted materials and uses them to make soil products;

(3) the levy is a tax on or in respect of the sand and limestone quarried from one of the sites, in that the depositing and compacting of materials constitutes necessary rehabilitation of the quarried area.

53 The judge summarised the issues in the primary proceedings as follows.[81]

For the first part of the Relevant Period (1 July 2008 until 31 December 2011) in which the CEO made estimates

54 The first issue was whether, for each return period at each site, some waste was received and accepted for burial. If not, Eclipse would succeed. If so, each site was a category 63 licensed landfill, and the second issue would arise for determination.

55 The second issue was whether Eclipse failed to comply with reg 10(6) of the Levy Regulations. If that were established, the CEO's power to make an estimate was enlivened. If not, the Government Parties' claims for the estimated amounts would fail.

56 The third issue was whether, for each return period, the estimate made by the CEO was valid.

For the return periods from 1 January 2012 to 30 September 2014

(1) In each return period at each site, was some waste received and accepted for burial?

(2) Had Eclipse established that no waste was disposed of to landfill during this part of the Relevant Period?

(3) Should it be declared that, insofar as they comprised Natural Earth Material and Construction and Demolition Material, alternatively insofar as they comprised Natural Earth Material, the materials deposited by Eclipse in the void on each site during the Relevant Period were not waste and, further or alternatively, were not disposed of to landfill?

58 His Honour noted that over the entirety of the Relevant Period, there was an issue as to whether the levy regime is invalid as an excise. This issue was only to be determined if and to the extent that the levy is (otherwise) payable.

The judge's conclusions as to the proper construction of the statutory instruments

59 The judge found in favour of the Government Parties. In relation to the word 'waste' in the relevant legislative context, his Honour said:[82]

The parties' written submissions referred to many cases decided in other jurisdictions relating to legislation concerning waste. In the end I think both parties agreed that, given the markedly different legislative frameworks, the decisions from other jurisdictions are of quite limited assistance. Having read all of the cases referred to by the parties, that is my view.

In my view, the ordinary meaning of the word waste, in the Levy Regulations, and in its context in category 63 of sch 1 to the EP Regulations, is unwanted or excess material, viewed from the perspective of its source. In my view, an apposite dictionary definition of waste is 'anything left over or superfluous, as excess material, by-products, etc, not of use for work in hand'...

Eclipse accepts that, in this context, 'waste' bears its ordinary meaning of unwanted or excess material.

Eclipse submits that whether material is 'waste' accepted for burial is determined by whether the material is unwanted or excess material in the hands of, or from the perspective of, the party receiving it. On Eclipse's construction, that will be so if and only if the party receiving the material receives it to deal with as waste. The position will be otherwise if the party receives it to be used as something other than waste, including by recycling, re-using or reprocessing it. For example, the party will not accept waste for burial if they receive material to use it as fill.

For the reasons that follow, I do not accept these submissions. (footnotes omitted)

60 His Honour summarised his conclusions on the proper construction of the legislative levy regime as follows:[83]

(1) In the context of 'waste received' and 'waste accepted for burial', 'waste' is any material that is unwanted by or excess to the needs of the source of that material.

(2) Clean fill, including sand and soil, and what Eclipse calls Natural Earth Material, received from a source for whom they are unwanted, are waste.

(3) Material that is received with the intention that it will be or is likely to be put into the ground and buried is 'accepted for burial'.

(4) That applies equally to sand and soil.

(5) In the context of 'waste disposed of to landfill', whether material is waste is not determined by reference to whether it is excess to the requirements of the licensee who is said to be disposing of it. Material that was waste when received will be waste in this context, unless, (perhaps) it has been substantially transformed.

(6) Any material, including sand or soil, clean fill or what Eclipse calls Natural Earth Material, that is placed into the ground and buried at a licensed landfill is 'waste disposed of to landfill'.

(7) The intention with which material is buried does not control or influence whether material is 'waste disposed of to landfill'.

Judge's conclusions as to the application of the facts to the levy regime properly construed

61 It followed from this construction of the legislative levy regime that Eclipse accepted waste for burial at each site during each return period in the Relevant Period.[84]

62 The judge said that on his construction of the levy regime, in the context of 'waste received' and 'waste accepted for burial', any material received at premises that is unwanted by or excess to the needs of its source is waste.[85] His Honour said:[86]

Applying that construction of the ordinary meaning of waste, the material received by Eclipse at the Sites during each return period in the Relevant Period was, and certainly included, waste. As I understood it, Eclipse concedes that this is so.

63 The judge also reiterated[87] his findings, to the effect that:

(a) the parties supplying the materials to Eclipse at the sites did not want them, and evidently had no present use for them;

(b) Eclipse's executives said as much in their evidence;

(c) it is also clear from the nature and source of the materials that they were waste, in that the materials received were mostly the 'unwanted by-products of, or unused or excess materials left over from, excavation, clearing, construction, demolition and other similar works at various other sites'; and

(d) the materials were not wanted for work being carried out at the source sites and had to be disposed of elsewhere, and that was reflected in the fact that those bringing the materials to the sites paid Eclipse to accept them.

64 His Honour said that that was sufficient to dispose of Eclipse's argument on 'waste received'.[88]

65 In relation to the waste being 'accepted for burial', his Honour said that, on the one hand, while some materials were not 'accepted for burial', such as materials used in the process of mulch and blended soil products, other materials were. In particular, the materials that were deposited into voids and compacted were 'accepted for burial'.[89] His Honour said:[90]

On my construction, material is accepted for burial if it is received with the intention that it will be or is likely to be buried; that is, put in the ground and covered with other material. On my construction, that applies equally to sand and soil and to what Eclipse calls Natural Earth Material.

66 In relation to any proposed re-mining of the material, his Honour observed that Eclipse's closing submissions did not refer to the re-mining element of its case in the context of whether waste was 'accepted for burial'. His Honour nevertheless did not accept any contention by Eclipse that it did not accept materials for burial because it intended to deposit and compact them in the void so that they would be available for later extraction.[91] As a matter of fact (as noted earlier) his Honour found that, with respect to the Flynn Drive Site and the Wanneroo Road Site, Eclipse had not shown that it re-mined materials deposited and compacted in the voids of those sites during the Relevant Period. Nor was his Honour satisfied that Eclipse deposited any of the material in those voids for the purpose of later extraction, or for the purpose of having the materials available for later extraction.[92]

67 In relation to the Abercrombie Road Site, his Honour had accepted that, in much of the return period from 1 July 2014 to 30 September 2014, Eclipse deposited the material in order to fill the voids, but also so that the deposited and compacted material would be available for re-mining for use in the production of soil and sand products.[93] Nevertheless, his Honour said that even in relation to the Abercrombie Road Site:[94]

Materials received with the intention that they be buried are accepted for burial notwithstanding that the receiving party intends that, depending on future contingencies, the materials may be exhumed at a later stage.

68 The judge then turned to the question of whether the power of the CEO to estimate the volume of waste disposed of to landfill was enlivened. That turned on whether Eclipse failed to comply with reg 10(6) of the Levy Regulations.[95]

69 His Honour found, first, that insofar as Eclipse provided a survey report after the 28-day deadline, the CEO's power to estimate arose because reg 10(6) required the material to be submitted within 28 days and Eclipse had failed to do that. His Honour noted that Eclipse did not contend to the contrary, nor did it make submissions directed to this category of estimates.[96]

70 His Honour said that the issue between the parties as to Eclipse's compliance with reg 10(6) related to the estimates made by the CEO in circumstances where Eclipse had provided a survey report that related to only part of the active void at the Abercrombie Road Site and the Wanneroo Road Site. His Honour observed that (subject to an exception for the period 1 July to 30 September 2011) Eclipse had submitted volumetric surveys to DER which contained raw survey data for areas of the voids at the sites outside of the category 63 area, but had only reported the surveyor's calculation of the volume of material filled within the category 63 area. The Government Parties submitted that, in providing DER with survey reports limited to the category 63 area, Eclipse had failed to comply with reg 10(6). Eclipse's contention was to the effect that there was no waste disposed of to landfill, or at least no waste disposed of to landfill outside of the category 63 area, and that Eclipse had lodged a complying report in respect of the waste disposed of to landfill in the category 63 area. Eclipse conceded that if the court was satisfied that waste was disposed of to landfill outside of the category 63 area, then Eclipse did not comply with reg 10(6).[97]

71 Eclipse's submission that no waste was disposed of to landfill was based, in effect, on contentions that the material deposited and compacted in the voids 'was a resource' and that it was not getting rid of the material, but was intending for it to be re-mined. His Honour rejected each of these contentions.[98] He made reference to his reasons given in relation to the proper construction of the legislative regime and said, with respect to Eclipse's contention regarding re-mining:[99]

Eclipse's second contention is founded in part on the construction it advances, and in part on the factual findings which it invites as to its intention to re-mine.

I do not accept Eclipse's submission that, in order for waste to be disposed of to landfill, the party said to be disposing of it must have intended to permanently get rid of it.

Material that is deposited and compacted with the intention that it might be later exhumed is nevertheless 'disposed of to landfill'. I construe the levy regime as meaning that whether waste is 'disposed of to landfill' is an objective question that is not governed by the intention of the licensee or occupier of the premises. For waste to be 'disposed of to landfill' it does not have to be permanently and immutably dealt with in that way.

Further and in any event, with the exception of the return period 1 July 2014 to 30 September 2014 for the Abercrombie Road Site, I have found that when Eclipse deposited and compacted material in the void at one of the Sites it did not do so with the intention or substantial purpose that it be available for re-use after re-mining.

72 His Honour also rejected Eclipse's alternative proposition that no waste was disposed of to landfill outside of the category 63 area insofar as Natural Earth Material and Construction and Demolition Material was put into the ground and covered with similar materials. His Honour rejected that contention, having regard to the proper construction of the levy regime.[100] His Honour reiterated[101] that on his construction:

(a) sand and soil, clean fill and what Eclipse calls Natural Earth Material are waste when received if they are unwanted by or in excess to the requirements of their source; and

(b) any such materials that are put into the ground and buried by the licensee of a licensed landfill will be waste disposed of to landfill.

73 His Honour found that the material deposited and compacted in the area outside of the category 63 area was largely sand and soil, together with some construction and demolition rubble, that had been sent to Eclipse from excavation, cleaning, demolition or construction works at other sites.[102] His Honour observed:[103]

On Eclipse's case, only clean sand, soil and other Natural Earth Material or Construction and Demolition Material that, in all cases, is established as meeting EILs, and which Eclipse characterises as clean fill, was deposited into the Civil Works Area at the Abercrombie Road Site and the Wanneroo Road Site. The Government Parties submit that because what was deposited included building rubble such as broken concrete or bricks, it was not clean fill as defined in the Waste Definitions but, rather, was 'Type 1 inert waste'. I accept that this is so. But in any event, on my construction of the levy regime, whether the materials were clean fill or Type 1 inert waste makes no difference to whether they were 'waste disposed of to landfill'. On my construction, clean fill received from a source that does not want it which is then put into the ground and buried is waste disposed of to landfill. Accordingly, on Eclipse's case as to what occurred in the Civil Works Area, waste was disposed of to landfill.

For these reasons, I find that Eclipse disposed of waste to landfill outside of the Category 63 Area at the Abercrombie Road Site and the Wanneroo Road Site in each relevant return period, and that, accordingly, Eclipse did not comply with reg 10(2). (emphasis added)

74 In relation to the question of whether the estimates made by the CEO were valid, Eclipse had contended that the CEO had misconstrued the levy regime. On the basis of his Honour's findings as to the proper construction of the levy regime, his Honour rejected that contention.[104]

75 His Honour also rejected any suggestion by Eclipse (to the extent that it was made), that the CEO's estimates were incorrect as a result of a failure to exclude what was said to be stockpiles.[105]

76 With respect to the other issues in the primary proceedings, the judge rejected Eclipse's claims for declarations relating to the return periods from 1 January 2012.[106] His Honour also concluded that the waste levy was not invalid as an excise.

Legislative Regime[107] Levy Act

(1) The Governor may, on the recommendation of the Minister, make regulations under the Waste Avoidance and Resource Recovery Act 2007 prescribing an amount by way of levy that is to be payable in respect of waste received at disposal premises.

...

(2) The regulations may -

(a) provide that the amount by way of levy is to be payable in all cases, in all cases subject to specified exceptions or in any specified case or class of case; and

(b) prescribe different amounts by way of levy that are payable in respect of different cases or classes of case; and

(c) provide for the levy to be calculated on such basis, and in accordance with such factors, as are specified; and

(d) provide for the reimbursement of administrative costs incurred by the person, organisation or licensee collecting the levy.

78 Section 3 of the Levy Act defines 'disposal premises' as premises:

(a) which are used for the purpose of receiving waste; and

(b) in respect of which the occupier is required to hold a licence, whether or not such a licence is in force.

79 Section 5 imposes the levy through regulations. It provides:

If an amount by way of levy is prescribed in respect of waste received at disposal premises, that levy is imposed in respect of waste received at the disposal premises.

80 Section 6 identifies the person who is liable to pay levy imposed:

The holder of a licence in respect of disposal premises, or in the case of disposal premises in respect of which a licence is not in force, an occupier required under the EP Act to hold such licence in respect of the premises, is liable to pay the amount of any levy imposed in respect of waste received at the disposal premises. (emphasis added)

81 The Levy Regulations are made under the Waste Recovery Act by virtue of the Levy Act.[108]

82 The Levy Regulations prescribe an amount to be paid in respect of waste received at 'landfill premises'. Subject to any exemption granted on application under reg 5, the Levy Regulations apply to, amongst other things:[109]

(a) all waste received at landfill premises in the metropolitan region on or after 1 July 2008; and

(b) all waste collected within the metropolitan region, irrespective of when it is collected, and received at landfill premises outside the metropolitan region on or after 1 July 2008.

83 'Landfill premises' is defined in reg 3 to mean:

(a) a licenced landfill; or

(b) premises that would, if the occupier of the premises held a licence in respect of the premises as required under the EP Act, be a licensed landfill.

84 A 'licensed landfill' is defined to mean premises specified in category 63, 64 or 65 of sch 1 to the EP Regulations in respect of which a licence is held. 'Licence' means a licence granted and in force under div 3 of pt V of the EP Act.[110]

85 Regulation 5 sets out nine situations in which an application can be made for an exemption for waste received at a licensed landfill. These include for:

(a) uncontaminated soil or other clean fill that -

(i) is, or is to be, used after the completion of landfill operations to cover, to a depth of up to 500 mm, waste disposed of on the premises; and

(ii) was accepted by the licensee at no charge;

(b) waste that is not disposed of to landfill but is collected and stored at a licensed landfill for reuse, reprocessing, recycling or use in energy recovery.

86 Regulations 10, 11 and 12 prescribe, amongst other things, the basis on which to calculate 'the amount by way of levy that is payable in respect of waste to which these regulations apply that is received at a category 63 landfill premises during a return period'.[111] They are in the following terms:

(a) a licensed surveyor as defined in the Licensed Surveyors Act 1909 section 3(1); or

(b) a person who is, or is eligible to be, a member of -

(i) the Institution of Surveyors, Australia; or

(ii) the Spatial Sciences Institute.

(2) The licensee of a category 63 licensed landfill must, in accordance with subregulations (3) and (4) -

(a) cause a survey of the premises to be conducted by a surveyor for the purpose of establishing a base from which the volume of waste subsequently disposed of to landfill on the premises can be measured (the baseline survey); and

(b) lodge with the CEO a report of that survey prepared by the surveyor (the baseline report).

(a) after the licence is issued; and

(b) not more than 14 days before the licensee commences accepting waste for disposal to landfill on the premises.

(4) The baseline report must be lodged within 14 days after the licensee commences accepting waste for disposal to landfill on the premises.

(5) Subject to any exemption granted on application under regulation 5(3), after the end of a return period the licensee of a category 63 licensed landfill must cause a survey of the premises to be conducted by a surveyor for the purpose of calculating the volume of waste disposed of to landfill during that return period (a quarterly survey).

(6) The licensee must lodge a report on a quarterly survey, prepared by the surveyor, with the return lodged under the Waste Avoidance and Resource Recovery Regulations 2008 regulation 18 for that return period.

(7) The report referred to in subregulation (6) must include the surveyor's calculation of the number of cubic metres of waste disposed of to landfill on the premises during the return period based on a comparison of the quarterly survey for that return period and the previous quarterly survey or, if there is no previous quarterly survey, the baseline survey for the premises or the estimated base established under regulation 11(1).

(8) The volume of waste so calculated by the surveyor is to be the volume used for the purposes of determining the amount of the levy under regulation 12.

1. CEO may make estimates if survey not conducted or category 63 premises not licensed

(1) If the licensee of a category 63 licensed landfill fails to comply with regulation 10(2) the CEO may establish an estimated base from which the volume of waste subsequently disposed of to landfill on the premises can be measured.

(2) If the licensee of a category 63 licensed landfill fails to comply with regulation 10(6) in respect of a return period the CEO may estimate the number of cubic metres of waste disposed of to landfill on the premises during the return period.

(3) The CEO must give written notice to the licensee of any estimated base established under subregulation (1) or any estimation made under subregulation (2).

(4) If waste is received at premises -

(a) in respect of which the occupier does not hold a licence as required under the EP Act; and

(b) that would, if the occupier of the premises held a licence as required under the EP Act, be a category 63 licensed landfill,

the CEO may estimate the number of cubic metres of waste disposed of to landfill on the premises during any return period, and the estimate is to be the number that is used for the purpose of determining the amount of the levy under regulation 12.

(5) For the purposes of this regulation the CEO may cause a survey of the kind referred to in regulation 10(2)(a) or (5) to be conducted in respect of the licensed landfill.

(6) The costs incurred by the CEO under subregulation (1), (2) or (4) for the purpose of determining the amount of levy payable by a person under regulation 12 may be included in the amount of levy payable by that person and, if so included, are recoverable accordingly.

(7) The CEO may call on or use the financial assurance provided by the licensee under the Waste Avoidance and Resource Recovery Regulations 2008 regulation 15 to cover any costs incurred under subregulation (1) or (2) that are included in the amount of levy payable by a person.

(1) The amount by way of levy that is payable in respect of waste to which these regulations apply that is received at a category 63 landfill premises during a return period is the amount (in dollars) equal to L in the formula -

1. is the number of cubic metres of waste to which these regulations apply received at the landfill premises during the return period determined in accordance with regulation 10 or estimated under regulation 11(2) or (4); and

(a) before 1 January 2010 - $3;

(b) on or after 1 January 2010 and before 1 January 2015 - $12;

(c) on or after 1 January 2015 and before 30 June 2016 - $60;

(d) on or after 1 July 2016 and before 30 June 2017 - $75;

(e) on or after 1 July 2017 and before 30 June 2018 - $90;

(f) on or after 1 July 2018 and before 30 June 2019 - $105;

(g) on or after 1 July 2019 - $105; and

(a) in the case of licensed landfill premises, the lesser of -

(i) the cost incurred by the licensee in complying with regulation 10(5) and (6) in respect of the return period; and

(2) The amount by way of levy that is payable in respect of waste to which these regulations apply that is received at a category 64 or 65 landfill premises during a return period is the amount (in dollars) equal to L in the formula -

1. is the number of tonnes of waste to which these regulations apply received at the landfill premises during the return period determined in accordance with regulation 8 or 9; and
2. is, if the first day of the return period is -

(a) before 1 July 2009 - $7;

(b) on or after 1 July 2009 and before 1 January 2010 - $8;

(c) on or after 1 January 2010 and before 1 January 2015 - $28;

(d) on or after 1 January 2015 and before 30 June 2016 - $55;

(e) on or after 1 July 2016 and before 30 June 2017 - $60;

(f) on or after 1 July 2017 and before 30 June 2018 - $65;

(g) on or after 1 July 2018 and before 30 June 2019 - $70;

(h) on or after 1 July 2019 - $70.

Waste Recovery Act and Waste Recovery Regulations

87 The Waste Recovery Act and Waste Recovery Regulations, in effect, provide for when and in what manner a levy imposed under the Levy Act is due and payable. The objects of the Waste Recovery Act, as set out in s 5(1), are as follows:

(1) The primary objects of this Act are to contribute to sustainability and the protection of human health and the environment, in Western Australia and the move towards a waste-free society by -

(a) promoting the most efficient use of resources, including resource recovery and waste avoidance; and

(b) reducing environmental harm, including pollution through waste; and

(c) the consideration of resource management options against the following hierarchy -

(i) avoidance of unnecessary resource consumption;

(ii) resource recovery (including reuse, reprocessing, recycling and energy recovery);

(iii) disposal.

88 Section 5(2) of the Waste Recovery Act provides that the principles set out in s 4A of the EP Act apply in relation to the objects of the Waste Recovery Act. Section 4A of the EP Act includes, relevantly, principles 4 and 5.

1. Principles relating to improved valuation, pricing and incentive mechanisms

(1) Environmental factors should be included in the valuation of assets and services.

(2) The polluter pays principle - those who generate pollution and waste should bear the cost of containment, avoidance and abatement.

(3) The users of goods and services should pay prices based on the full life cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes.

(4) Environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, which enable those best placed to maximise benefits and/or minimise costs to develop their own solutions and responses to environmental problems.

90 Principle 5 is the principle of waste minimisation. It is that '[a]ll reasonable and practicable measures should be taken to minimise the generation of waste and its discharge into the environment'.

91 Section 3 of the Waste Recovery Act provides that waste includes matter:

(a) whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment; or

(b) prescribed by the regulations to be waste.

A definition of waste in substantively the same terms is included in s 3 of the EP Act.

92 Section 3(2) of the Waste Recovery Act provides that if a term has a meaning in the EP Act, it has the same meaning in the Waste Recovery Act unless the contrary intention appears in the Waste Recovery Act.

93 Section 3(1) of the Waste Recovery Act provides that 'levy' means a levy imposed under the Levy Act.

94 Section 73(1) of the Waste Recovery Act provides that a 'levy is due and payable at such time or times, and in such manner, as is prescribed by the regulations'.

95 Regulation 14(1) of the Waste Recovery Regulations sets the return periods in which levy is payable each year as 1 July to 30 September; 1 October to 31 December; 1 January to 31 March; and 1 April to 30 June.

96 Regulation 17 of the Waste Recovery Regulations requires that, upon receiving waste at a category 63 licensed landfill, the licensee make a record showing, among other things, the volume of the waste disposed of to landfill in the premises calculated in accordance with regs 10 or 11 of the Levy Regulations.

97 Regulation 18(2) of the Waste Recovery Regulations requires a licensee of a licensed landfill to lodge a return in the approved form in respect of each return period setting out details of waste received, completed on the basis of the details entered in the records referred to in reg 17 and any estimates made under regs 9 or 11 of the Levy Regulations. The return must be accompanied by a remittance for the amount of levy payable on the waste to which that return relates.[112]

98 As noted earlier, by s 4A of the EP Act, the object of the EP Act is to protect the environment, having regard to specified principles, including principles 4 and 5 referred to in [89] - [90] above.

99 Sections 56, 57, 62 and 62A of the EP Act, within pt V of the EP Act, provide relevantly as follows:

1. Occupiers of prescribed premises to be licensed for emissions etc.

(1) Subject to this Act, the occupier of any prescribed premises who -

(a) causes or increases, or permits to be caused or increased, an emission; or

(b) alters or permits to be altered the nature of the waste, noise, odour or electromagnetic radiation emitted,

from the prescribed premises commits an offence unless he is the holder of a licence issued in respect of the prescribed premises and so causes, increases, permits or alters in accordance with any conditions to which that licence is subject.

(2) Subsection (1) does not apply if the emission is caused, increased or altered -

(a) as a result of anything done in accordance with a works approval; and

(b) while the works approval is in force.

1. Licences, applying for, granting, refusing etc.

(a) made in the form and in the manner approved by the CEO; and

(b) accompanied by such fee as is prescribed by or determined under the regulations; and

(c) supported by such plans, specifications and other documents and information, including a summary thereof, as the CEO requires.

(3) The CEO shall, after having taken into account any comments received from any public authority or person from which or whom comments were sought under subsection (2)(b) or (2a) and subject to section 60 -

(a) in the case of an application for a licence made under subsection (1) relating to a matter in respect of which a works approval has not been granted and subject to subsection (4) -

(i) grant a licence subject to such of the conditions referred to in section 62 as the CEO specifies in the licence; or

(1) A works approval or licence may be granted subject to such conditions as the CEO considers to be necessary or convenient for the purposes of this Act relating to the prevention, control, abatement or mitigation of pollution or environmental harm.

(2) Section 62A sets out some kinds of conditions that may be attached to a works approval or licence and further kinds of conditions may be prescribed, but nothing in that section or the regulations prevents other conditions from being attached.

(3) Subject to section 60 a condition is not to be inconsistent with an approved policy or a prescribed standard.

(1) The following list sets out things that the occupier of premises to which a works approval or licence relates can be required to do (at the expense of the occupier) under conditions attached to the works approval or licence

(j) dispose of waste in a specified manner;

(k) if practicable -

(ii) make waste available for reuse by another person[.]

100 Section 3(1) of the EP Act contains definitions of 'emission', 'waste' and 'discharge'. The word 'emission' is defined to mean:

(a) discharge of waste; or

(b) emission of noise, odour or electromagnetic radiation; or

(c) transmission of electromagnetic radiation. (emphasis added)

Waste includes matter -

(a) whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment; or

(b) prescribed to be waste. (emphasis added)

102 The word 'discharge' in relation to 'waste' includes 'deposit it' or 'cause or permit it to be ... deposited' (emphasis added).

103 Furthermore, s 3(2aa) of the EP Act provides that:

(2aa) A reference in this Act to the discharge, emission or transmission of anything (whether accompanied by the expression 'into the environment' or not) -

(a) is a reference to discharge, emission or transmission onto or into land, water, the atmosphere or living things; and

(b) in relation to discharge, emission or transmission from premises, includes a reference to discharge, emission or transmission onto or into land, water, the atmosphere or living things on, in, under, above or part of the premises.

104 'Prescribed premises' are defined in s 3(1) of the EP Act as premises prescribed for the purposes of pt V. By s 123, read with sch 2 (cl 26), of the EP Act, the Governor may make regulations prescribing any premises or class of premises as prescribed premises for the purposes of pt V.

105 Regulation 5 of the EP Regulations provides that the premises specified in sch 1 are prescribed premises for the purposes of pt V of the EP Act. Schedule 1 of the EP Regulations sets out numbered categories of premises. Each category is identified by reference to the activities carried out on the premises and, in some cases, by reference to the 'production or design capacity' of the premises. Having regard to the definitions in the EP Act and the EP Regulations, 'prescribed premises' means premises on or at which any prescribed activity (ie, one coming within the description and production/design capacity in sch 1 of the EP Regulations) is conducted.[113]

106 In sch 1 to the EP Regulations, category 63, which is said to have a 'production or design capacity' of '500 tonnes or more per year', has the following as its 'description of category':

Class I inert landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial. (emphasis added)

61A Solid waste facility: premises (other than premises within category 67A) on which solid waste produced on other premises is stored, reprocessed, treated or discharged onto land.

1. Solid waste depot: premises on which waste is stored, or sorted, pending final disposal or re-use.

1. Class II or III putrescible landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial.
2. Class IV secure landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial.
3. Class V intractable landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial.

...

67A Compost manufacturing and soil blending: premises on which organic material (excluding silage) or waste is stored pending processing, mixing, drying or composting to produce commercial quantities of compost or blended soils.

108 It was common ground at first instance that a particular site may be prescribed premises under more than one category.[114] Indeed, various other licenses for different categories were held over the sites during the Relevant Period.[115]

Landfill Waste Classification and Waste Definitions 1996

109 As noted above, category 63 in sch 1 to the EP Regulations referred to 'Landfill Waste Classification and Waste Definitions 1996' (Waste Definitions) published by the CEO. The Waste Definitions are also referred to in the descriptions for categories 64 - 66. His Honour noted the following:[116]

The Waste Definitions define and describe the types of waste that each class of landfill site can accept. Table 1 sets out, for each Landfill Class (also identified by reference to categories 63 - 66 of sch 1 to the EP Regulations), a common name for the class and the waste types permitted for disposal at it. Table 1 is in the following terms:

•Contaminated solid wastes meeting waste acceptance criteria specified for Class I landfills (possibly with specific licence conditions)

•Type 2 Inert Waste (with specific licence conditions)

•Contaminated solid waste meeting waste acceptance criteria specified for Class II landfills (possibly with specific licence conditions)

•Type 2 Inert Wastes (with specific licence conditions)

•Type 1 and Type 2 Special Wastes (for registered sites as approved under the Controlled Waste Regulations)

•Contaminated solid waste meeting waste acceptance criteria specified for Class II or Class III landfills (possibly with specific licence conditions)

•Type 2 Inert Wastes (with specific licence conditions)

•Contaminated solid waste meeting criteria specified for Class II, Class III or Class IV landfills (possibly with specific licence conditions)

•Type 2 Inert Wastes (with specific licence conditions)

•Intractable and other wastes in accordance with the approvals for the site

Note: Materials used for rehabilitation and final landforming (including Class I landfills) need not be wastes, and may include clean fill and soil mixes incorporating mulches, grass sods, peat and biosolids. Rehabilitation of landfills should be conducted primarily with sand and loam to a depth generally not exceeding two metres and may involve the use of neutralised peat or acid sulfate soils or other organic matter to aid soil structure, but not as the main ingredients.

Each of the waste types set out in the table is a defined term.

'Clean fill' is defined to mean:

Material that will have no harmful effects on the environment and which consists of rocks or soil arising from the excavation of undisturbed material.

For material not from a clean excavation, it must be validated to have contaminants below relevant ecological investigation levels (as defined in the document Assessment Levels for Soil, Sediment and Water, Department of Environment, 2003).

'Inert Waste Type 1' is defined to mean:

Non-hazardous, non-biodegradable (half-life greater than 2 years) wastes containing contaminant concentrations less than Class I landfill acceptance criteria but excluding paper and cardboard (paper and cardboard are biodegradable materials and are therefore considered as putrescible waste), or materials that require treatment to render them inert (eg. peat, acid sulfate soils).

'Inert Waste Type 2' is defined to mean:

Waste consisting of stable non-biodegradable organic materials such as tyres and plastics which require special management to reduce the potential for fires.

'Inert Waste Type 3' is defined to mean:

Waste material from DEP licensed secondary waste treatment plants, subject to appropriate assessment and approval of that waste and the specified inert landfill.

'Special Waste Type 1' is defined to mean 'Waste which includes asbestos and asbestos cement products'.

In defining 'Waste', the following is said:

For the purpose of these guidelines waste may mean one or more of the following:

• any substance that is discarded, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment;
• any discarded, rejected, unwanted, surplus or abandoned substance;
• any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery, or purification by a separate operation from that which produced the substance;
• any substance described in regulations under the Environmental Protection Act 1986 as waste.

Table 2 sets out a description (from the definition) and examples of various waste types. If waste can be classified according to table 2, no more detailed assessment is required. Thus, the examples in table 2 are intended to have operative effect. Table 2 includes the following:

Material that will have no harmful effects on the environment and which consists of rocks or soil arising from the excavation of undisturbed material

Virgin excavated natural material (e.g. clay, gravel, sand, soil and rock), or such material that is mixed with:

•waste that has been excavated from areas that are not contaminated as a result of industrial, commercial, mining or agricultural activities, with manufactured chemicals, and does not contain sulfidic ores or soils (e.g. acid-sulfate soils and peats), or

•Materials not from a 'clean excavation' that have been validated to meet relevant ecological investigation levels.

Wastes that are largely non-biodegradable, non-flammable and not chemically reactive. Inert wastes are subdivided into three separate classes:

•Type 1 - Inert Wastes are listed below and contain contaminants in concentrations less than the specified criteria.

•Type 2 - Wastes consisting of non-biodegradable organic materials such as tyres and plastics, which are flammable and require special management to reduce the potential for fires.

•Type 3 - Waste material from DEP licensed secondary waste treatment plants, subject to appropriate assessment and approval of that waste and the specified landfill.

•Building and demolition waste (e.g. bricks, concrete and associated unavoidable small quantities of paper, plastics, glass, metal and timer1 [sic, timber] that should be recovered), being material resulting from the demolition, erection, construction, refurbishment or alteration of buildings or from the construction, repair or alteration of infrastructure-type development such as roads, bridges, dams, tunnels, railways, and airports, and which is not mixed with any other type of waste (specifically green and food waste), and does not contain asbestos.

•Asphalt waste (e.g. resulting from road construction and waterproofing works).

•Casting sand (that does not contain leachable components which would require disposal in a higher class of landfill.

•Blasting sand or garnet (including that used for stripping tributyl tin - containing paints).

Used, rejected or unwanted tyres (included shredded tyres or tyre pieces).

1. Includes treated timber such as copper chrome arsenate (CCA), high temperature creosote (HTC), pigment emulsified creosote (PEC) and light organic solvent preservative (LSOP) treated timber.

110 In relation to the significance of the Waste Definitions for construction purposes, the judge said:[117]

Under the Waste Definitions, clean fill can be received and disposed of at all premises within categories 63, 64, 65 and 66. The Government Parties submit that this shows that clean fill is waste. In response, Eclipse submits that the Waste Definitions do not purport to, and do not, define what is and is not waste. Rather, they identify the types of material, when that material is waste, that a licence holder for each relevant category is permitted to receive.

In large measure, I accept Eclipse's submissions as to the character and function of the Waste Definitions. Nevertheless, for reasons I will explain, I think the references to that document in sch 1 of the EP Regulations indicate that the levy regime classifies clean fill as waste.

Categories 63 to 66 are all described in sch 1 of the EP Regulations as premises on which waste, as determined by the Waste Definitions, is accepted for burial. Consequently, the only way of distinguishing between categories 63, 64, 65 and 66 is by reference to the type of waste that, under that document, that category of landfill site is permitted to accept.

I accept that the Waste Definitions do not in their terms purport to and do not determine or define what is waste. The definitions of waste in the EP Act and the [Waste Recovery] Act do not refer to them. I do not read the words in parenthesis 'as determined by reference to the waste type' as intended to direct attention to the waste types in the Waste Definitions in order to ascertain whether what is accepted for burial is waste. Rather, I consider that the intended function of the words in parenthesis is to identify which types of waste in the Waste Definitions are accepted for burial, so as to enable the identification of which of category 63, 64, 65 or 66 the site falls into. Nevertheless, to my mind the reference in sch 1 of the EP Regulations to the Waste Definitions suggests an assumption or intention that waste types referred to in the Waste Definitions, including clean fill, are waste. Accordingly, I think the references in sch 1 of the EP Regulations to the Waste Definitions are consonant with, and supportive of, a reading of the levy regime that classifies clean fill received at premises unwanted by its source as waste. (footnotes omitted)

111 Eclipse raises four grounds of appeal.[118]

112 Ground 1 alleges that the judge erred in holding that when determining whether 'waste ... is accepted for burial' within the meaning of Category 63 in sch 1 to the EP Regulations, the purpose for which material is accepted is irrelevant. Eclipse alleges that the purpose for which the material is accepted is a 'relevant consideration', and that, accordingly, having regard to Eclipse's purpose for the material, all of the material received by Eclipse (or at least the Natural Earth Material, either by itself or combined with the Construction and Demolition Material) was not 'waste ... accepted for burial'.

113 It should be noted here that Eclipse appears to use the word 'purpose' in ground 1 as signifying, in general terms, its intention to use the materials to fill voids with a view, ultimately, to rehabilitating the sites.[119] In that regard, Eclipse contends[120] that the 'key findings' challenged by this ground are as follows:[121]

In my opinion, in the context of identifying whether there is 'waste received' at premises and 'waste accepted ...' at premises, whether material has the character of being unwanted or excess is to be determined by reference to the perspective of the person who is the source of the material, not from the perspective of the party receiving or accepting it. As a matter of construction, at the point of receipt the character of material as waste is not determined, or in my view influenced, by what the recipient wants or intends to do with it, or by whether the material is useful to the recipient.

...

[U]se of waste as fill to be added to the land at the premises and buried does not constitute 're-use' as distinct from disposal to landfill. To construe the regime so that received material is not waste because it is wanted by or useful to the licensee or occupier for use by it as fill to be added to the land on the premises and buried would subvert or undermine the purpose of the regime. A narrow conception of waste that encompasses only material unwanted by the recipient or only material to be used by the recipient as waste would unduly narrow the reach of the levy regime. A receiving party who wants material, and for whom it is useful, would then not be subjected to the economic disincentive the imposition of which is the object of the regime. (emphasis added)

114 Ground 2 alleges, in effect, that the judge erred in holding that the material (or at least the Natural Earth Material, either by itself or combined with the Construction and Demolition Material, or, alternatively, such of the Natural Earth Material that had been remediated or bio-remediated) used by Eclipse to fill the voids on the sites constituted 'waste disposed of to landfill'. Eclipse contends that the material was not 'waste'; and/or was not 'disposed of'; and/or was not disposed of 'to landfill'.

115 Ground 3 alleges that the judge erred in holding that the CEO's estimates were valid. Eclipse contends that they were invalid because the CEO did not discriminate between, amongst other things, the 'Natural Earth Material' and the 'Construction and Demolition Material', or, alternatively, the 'Natural Earth Material' and the balance of the material measured. Relevantly, ground 3 does not arise for determination if Eclipse fails on both grounds 1 and 2.[122]

116 Ground 4 alleges that the judge erred in not finding that the tax imposed on Eclipse in respect of the materials received at the sites was an excise and invalid for being contrary to s 90 of the Commonwealth Constitution.

Eclipse's arguments in support of grounds 1 and 2

117 In what it described as its 'overarching' submissions, Eclipse's arguments included the following. Eclipse contends that:

As for the [Waste Recovery] Act and the [Levy] Act (and their regulations), the trial Judge (correctly) observed as follows:

(a) 'in essence, the object of the levy is to discourage the disposal of waste to landfill and to encourage the recycling, re-use and reprocessing of waste';

(b) 'an element of how the levy functions is to reduce the disposal of waste to landfill by creating a relative financial incentive to re-use, reprocess and recycle waste';

(c) '... the legislation and regulations make a distinction between recycling, re-using and reprocessing on the one hand, and disposal and disposal to landfill on the other';

(d) 'no levy is payable for material that is re-used and recycled, rather than being disposed of to landfill';

(e) 'I do not doubt the desirability of the philosophy that one person's waste can and should wherever possible become another person's resource. That philosophy is reflected in the hierarchy in the [Waste Recovery] Act ... That philosophy is reflected in a legislative and regulatory scheme that encourages re-use and recycling of waste in preference to its disposal to landfill'. (emphasis omitted) (footnotes omitted)

118 Eclipse contends that such observations arise not only by reason of s 5(1) of the Waste Recovery Act and principles 4 and 5 of the EP Act, but also by reason of the explanatory memoranda, second reading speeches and parliamentary debates.[123]

119 Eclipse submits that, to the extent possible, the levy regime should be construed to give effect to its objective of discouraging landfill and encouraging re-use and recycling. Therefore, the levy should not apply to Eclipse's business of sustainable and sequential land use.

120 Eclipse also submits that the levy regime is a tax, and that any ambiguity in the taxing statute should be resolved in favour of the taxpayer. Reference was made to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[124] In Alcan, Hayne, Heydon, Crennan and Kiefel JJ said, in the passage referred to by Eclipse:[125]

Given the basis on which this appeal is to be allowed, it is not necessary to deal with these arguments beyond the making of two points. First, tax statutes do not form a class of their own to which different rules of construction apply; they are to be construed by application of the settled principles referred to above. Secondly, the fact that a statute is a taxing Act, or contains penal provisions, is part of the context and is therefore relevant to the task of construing the Act in accordance with those settled principles. Whether or when 'rules' of the kind considered in Anderson and Waugh v Kippen may be relied upon need not be decided. (footnotes omitted)

121 The 'settled principles' to which their Honours referred in that passage appear to be those stated in particular as follows:[126]

This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

...

Fixing upon the general legislative purpose of raising revenue carried with it the danger that the text did not receive the attention it deserves. This danger was adverted to by Gleeson CJ in Carr v Western Australia when he said:

'[I]t may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.' (footnotes omitted)

122 Eclipse also contends that the judge erred in finding that the decision of Environmental Protection Authority v N[127] had no relevant application. Eclipse contends that that decision is authority for the proposition that the word 'disposes' means to get rid of, and that such an action is necessarily deliberate or intentional.[128] It was also submitted that the judge did not refer to any of the other authorities referred to by Eclipse.

123 Eclipse submits, with reference to a ministerial media statement dated 4 June 1997, that:

In short, on the proper interpretation of the levy regime and its application to the operations of Eclipse, Eclipse submits that the regime should operate as the then Minister for the Environment said it would, namely to be applied 'on waste being dumped in metropolitan rubbish tips' and 'as an incentive for industry and local government to look at environmentally preferable alternatives to dumping. The less waste taken to landfill, the less levy paid'. Eclipse's operations are the antithesis of what the levy seeks to discourage and apply to it, not avoid it. It is in the business of 'resource recovery (including reuse ... (and) recycling ...)', and not 'disposal'. (emphasis omitted) (footnotes omitted)

124 In relation to ground 1, Eclipse submits that in identifying whether there has been 'waste received' and 'waste accepted' at premises, regard is to be had to the nature of the material and the premises, why the material is being provided, and why the material is being received. The material is not necessarily waste in the hands of the receiver if it is waste in the hands of the supplier. The nature of the material and the purpose for which it is being received will determine whether it continues to be waste at the point of receipt. The material will change its character from waste if it is being received to be used other than as 'waste', particularly where it is to be used for its natural and usual purpose.

125 Eclipse acknowledges that the majority of the decisions referred to in its submissions support the judge's finding that whether or not material received or accepted is 'waste', is to be determined by reference to the material in the hands of the supplier of the material, and not in the hands of the receiver. Nevertheless, Eclipse submits that this court should follow those authorities which hold to the contrary.[129] Reference in this regard is made in particular to Bighorn (Municipal District No 8) v Bow Valley Waste Management Commission.[130]

126 Eclipse also contends that his Honour should not have referred to Levy Regulation 5(1)(b) as a textual indication of the fact that material can still be characterised as 'waste' even if a party receives that material in order to re-use or recycle it. Eclipse contends that Levy Regulation 5(1)(b) speaks of an exemption referrable to categories 64 or 65, but not to category 63 and, accordingly, it has no application on the question of the proper construction of the Levy Regulations with respect to a category 63 premises.

127 Further, Eclipse submits that, with regard to the question of whether material is waste in the hands of the receiver of the material, it is irrelevant (or, at least, indeterminative) to consider whether the receiver was paid to accept the material.

In short, ... when regard is had to all the circumstances, whilst the material might be 'waste' in the hands of the supplier, it is not 'waste' received/accepted by Eclipse, as Eclipse only accepts material that is fit for purpose, alternatively it can be rendered fit for purpose ... In this sense material is received/accepted by Eclipse as a 'resource' (and other than as a 'resource' because it is waste, such as someone who operates a traditional waste disposal facility or who operates a business of transporting waste).

129 As for 'accepted for burial', Eclipse submits that having regard to the material it receives and the purpose for which it receives/accepts it, the concept of the material being 'discharged onto land' rather than being 'buried' is more apt, the former being the language used for category 61A premises (in respect of which no levy is payable).

130 In relation to ground 2, Eclipse's arguments included the following.

131 Eclipse submits that even if, when received, the material is 'waste ... accepted for burial', to determine whether the material is 'waste disposed of to landfill', consideration must be given to the nature of the material, the manner and purpose of its use and the nature of the premises on which the material is being used. The material does not need to be 'substantially transformed' by the recipient in order for it to cease being waste. Eclipse submits that it is no longer 'waste' if it is being used as a resource, particularly where it is virgin material, which would otherwise have to be acquired by that person for that purpose. In the alternative, Eclipse also submits that soil which has been remediated 'well satisfies' the judge's observation that waste accepted for burial continues to have that character unless it has been 'substantially transformed' between when it was received and when it is disposed of to landfill. Further, even if the material properly remains classified as 'waste', where the material is Natural Earth Material, particularly sand and soil, its use as fill, being its natural and ordinary use, constitutes the re-use or recycling of that 'waste', as opposed to its 'disposal to landfill'. Eclipse also contends that the nature of the premises is very relevant, and that Eclipse's sites are not 'landfills', but are used to carry on a business with the same objective that the levy regime aims to achieve. It submits that there was no justification for the conclusion that everything put into the ground at a licensed landfill is leviable. Only 'waste', so dealt with, is leviable.

132 Eclipse also contends that the judge did not refer to any of the dictionary definitions of 'dispose' and 'landfill' which were referred to by Eclipse at trial for the purpose of illustrating the natural and ordinary meaning of those two words. In relation to 'dispose', Eclipse refers to various definitions from a range of dictionaries, many of which define 'dispose' in terms of 'getting rid of'. In relation to 'landfill', Eclipse, again, refers to a number of definitions from various dictionaries. They include the Oxford Dictionary and Macquarie Dictionary definitions of 'landfill'. According to Eclipse, the former reads: 'the disposal of waste material by burying it, especially as a method of filling in or re-claiming excavated pits'.[132] The latter reads: 'material as garbage, building refuse, etc, deposited under layers of earth to raise the level of the site ... the area raised in this fashion'.[133]

133 Eclipse also referred to a number of authorities, which were said to be in support of the following propositions:[134]

(a) 'disposal' ordinarily connotes 'getting rid of';

(b) assuming that the fact that a material may be recycled, and the fact that the recipient intends to recycle the material, are both facts that do not prevent material being waste, then the question of whether the material which is capable of being recycled or reused remains 'waste' and is 'disposed of' (rather than being re-used or recycled), is a mixed question of law and fact. This question is informed in part by the nature of the material and what is done with it, and also by the intention of the party who allegedly 'disposed' of the 'waste'; and

(c) whether the recipient pays to receive the material or is paid to receive it is irrelevant to the question of whether or not it is 'waste' in the hands of the recipient.

134 Eclipse also contends that, in relation to the word 'waste', if material is, in fact, 'substantially transformed' (as was said to be postulated by the judge),[135] that is a fact relevant to determining whether or not the material remains 'waste'. However, the fact that the material is not 'substantially transformed' does not mean that it has not ceased to be 'waste'. It contends that a requirement that something be 'substantially transformed' in order to cease to be 'waste' is entirely unjustified, both textually and as a matter of policy, and leads to absurd results. Eclipse contends:[136]

What is at play here is the concept of 'end-of-waste'. This is a concept recognised by [the Government Parties] both in documents and by words. In particular in her evidence in cross-examination, the [Government Parties'] witness, Ms Dowd, agreed that, amongst her profession, there is a live issue as to the 'end-of-waste'. In her own words, Ms Dowd succinctly described that issue as follows:

'The key issue is that under the [EP Act] the definition of 'waste' is very broad and it does not identify when waste can cease to be waste, which many other jurisdictions do. And, therefore, where people would like to re-use waste or other material for a purpose, it is unclear at what stage that waste may become a product.' (emphasis removed) (footnotes omitted)

135 Eclipse submits that whether material continues to be 'waste' when it is deposited and compacted into the ground, in addition to the ordinary meaning of the word as determined by the judge, regard must be had to the nature of the material and the premises on which it is being used, and the purpose for which it is being used. This approach is said to be supported by the authorities to which they referred, including Bighorn.

136 Eclipse submits that, on the facts found by the judge:[137]

(a) the material was no longer 'unwanted' or 'surplus to needs' when being dealt with by Eclipse;

(b) most of the material deposited and compacted at the sites was soil and sand (Natural Earth Material);

(c) the relevant premises and activities were the filling of a quarry for incorporation as part of residential subdivisions (Flynn Drive Site), the filling of a quarry for the purpose of returning the land to its original state for its intended use as a light industrial subdivision (Abercrombie Road Site), and the filling of a quarry to restore land with the ultimate purpose of it becoming a national park (Wanneroo Road Site); and

(d) the soil and sand, in particular, is being used for its natural and ordinary purpose, and for which Eclipse would otherwise have had to acquire virgin soil and sand.

137 Eclipse also contends that there would be no textual or policy reason why other Natural Earth Material, such as bricks and concrete, would need to be crushed into fine particles for use as fill in lieu of virgin sand or soil in order for such materials to no longer be considered waste.

138 Eclipse also contends that, if a test of whether something is 'substantially transformed' were applied, the remediated and bio-remediated soil has undergone a 'substantive transformation' before being put in the void, and has ceased to be 'waste'.[138]

139 In relation to the term 'disposed of', Eclipse refers to the dictionary definitions referred to earlier. It submits that it is 'artificial in the extreme' to speak of Eclipse's use of materials on site as 'disposing' of the materials. That is particularly so having regard to the objects of the legislation, and given that Eclipse's use of the material is 'precisely what the levy regime is designed to do, namely encourage the "re-use" or "recycling" of that material'. Eclipse refers to the judge's acceptance that 're-mined' material placed on the premises in stockpile had not been 'disposed of to landfill'. Eclipse contends that this is a good example of how the nature of the material and Eclipse's purpose and use of the material (both of which the judge had held to be irrelevant) are critical to the determination of whether or not, when Eclipse subsequently uses the material, it is 'waste disposed of to landfill'. Eclipse observed that it is difficult to categorise material that has effectively been stockpiled (even if below ground and having been compacted) as having been 'disposed of'.

140 In relation to 'landfill', Eclipse submits that the judge did not address its submissions as to the meaning of 'landfill' where it appears in the expression 'waste disposed of to landfill'. Eclipse refers to the dictionary definitions referred to earlier, and submits that none of the sites comprise a 'landfill' within the meaning of the legislation (or at all).

141 In relation to 'sand and soil', Eclipse submits that the judge appears to have misunderstood its submission. Eclipse says that it did not submit that 'clean fill' can never be 'waste' or 'disposed of to landfill' within the meaning of the Levy Regulations. Eclipse says, for example, that it accepts that sand and soil from infrastructure projects is capable of constituting 'waste' in the hands of the developer of the infrastructure project in the sense that it is unwanted by the developer, and if that material is simply transported to a traditional landfill or rubbish tip for disposal then it would be 'waste disposed of to landfill', and thus leviable.[139] It says its case was, and is, that whether it is acquired from someone in whose hands it is 'waste', or whether it is acquired from someone in whose hands it is not 'waste', if the material is used for a purpose other than simply getting rid of it, particularly for a purpose for which the material is commonly used, then the use constitutes the re-use or recycling of the material and not a disposal to landfill. It says that the Minister for the Environment implicitly recognised and endorsed this.[140] Reference was made to a letter from the Minister, dated 23 April 2012, which concerned a report on the reform of existing policies and guidelines for inert waste.

142 Eclipse also gave further examples of what it said were errors in his Honour's reasoning. Eclipse said that the effect of the judge's analysis is that levy will almost always apply to sand and soil because, given the nature of such material, its re-use will almost always involve it being placed in the ground. It submits that this result is erroneous because:

(a) when sand and soil is being put in the ground, it is no longer 'waste' (by reference to the party who generated the material); and

(b) the use of sand and soil as fill in this way does not result in it being 'disposed of to landfill' because the material is not being 'disposed of', but rather, is being used for its primary purpose, its use is consistent with the material being 'discharged onto the land' (category 61A), and the material is not being discharged or disposed of 'to landfill' because it is being re-used for property development.

143 It is submitted that Levy Regulation 5(1)(a) and the Waste Definitions support this conclusion, as do the remainder of the points made by Eclipse in relation to ground 2.

144 In a section of the submissions headed 'Response to other specific conclusions of the trial Judge', Eclipse's submissions include the following. It submits that construing 'waste' so as to not exclude material received with the intention that it be re-used or recycled does not inform the question of whether such material is ultimately 'waste disposed of to landfill'. It submits that, whilst the legislative scheme proceeds on the basis that 'waste disposed of to landfill' at premises will be a subset of the waste received at the premises, it does not follow that anything done with the 'waste received at the premises' that involves it being 'dispersed on' the ground and buried constitutes the same being 'disposed of to landfill'. It submits that, if in the hands of the receiver, the material is useful and wanted and is in fact used other than as waste, then 'it is difficult to see how the Court's analysis can withstand scrutiny'. It says that '[w]hatever might be said in that regard about broken bits of brick and concrete (or other material), it must be correct with respect to soil and sand which, if not sourced from 'waste', would need to be sourced by other means to satisfy a property developer's demands and requirements for such material ... In such circumstances, to speak of such material as 'waste' or being 'disposed of to landfill' does violence to the ordinary and natural meaning of those words and to the stated objectives of the levy regime'.

145 Eclipse also, in effect, challenges the judge's view that 'as a matter of proper construction, the intention revealed by the levy regime as a whole is that any material placed into the ground and buried by the licensee of a licensed landfill is 'waste disposed of to landfill'. First, it submits that the judge was erroneous in his view that the mechanism for calculating the levy payable 'seems to me to reveal an intention that any material that is put into the ground will, to the extent that it raises the level of the land, be "waste disposed of to landfill"'. In that regard, Eclipse says, in effect, that there are practical difficulties arising in respect of his Honour's analysis of the mechanism which has been inserted to calculate the levy, and that any such difficulties are not to be resolved by giving the levy regime a construction it does not reasonably bear and that is inconsistent with its objects.[141]

146 Secondly, Eclipse says that the finding that 'clean fill' is 'waste for the purposes of the ... levy regime insofar as [it is] unwanted by [its] source', only goes towards whether material when received constitutes 'waste', and does not provide support for the judge's conclusion that 'any material placed into the ground and buried by the licensee of a licensed landfill is "waste disposed of to landfill"'. Thirdly, Eclipse submits, in effect, that the judge was erroneous in his view that intention is irrelevant because 'the mechanism for determination of a volume of waste disposed of to landfill does not sit well with the operation of the regime being sensitive to intention in that way'. Eclipse relies on the same points set out earlier, and also notes that, on the judge's construction, material that is stored and compacted with the intention that it subsequently be removed and used elsewhere would be 'waste disposed of to landfill' and leviable. It says that this is another unintended consequence and contrary to the objects of the levy regime. Eclipse also contends, in effect, that the judge has conflated the concepts of 'waste' and waste 'accepted for burial' with the concept of 'waste disposed of to landfill'.

147 Eclipse's final point in relation to ground 2 is that the judge did not explain why he concluded that 'I do not think that sand or soil that is to be put into a void and covered with more material is "discharged onto land" within the language of Category 61A'. It submits that the judge completely ignored the use of sand and soil to raise levels, and that this creates an unsatisfactory dichotomy between the use of material to fill a hole on land and the use of material to raise levels across the whole of the land.

Further cases referred to by Eclipse after the hearing

148 Subsequent to the hearing of the appeals, Eclipse sought, and was granted, leave to provide written submissions on two further cases: Corporation of the City of Adelaide v Circelli[142] and Wood v Adelaide Resource Recovery Pty Ltd.[143]

149 In Circelli, the question was, relevantly, whether a condition attached to a licence for a waste or recycling depot at Wingfield was invalid as being contrary to s 6(5) of the Wingfield Waste Depot Closure Act 1999 (SA) (Closure Act). Section 6(5) and s 6(6) of the Closure Act provided:

(5) Subject to subsection (6) a licence or any other environmental authorisation must not be granted, renewed or varied under the Environment Protection Act 1993 so as to authorise the use ... of Wingfield as a depot for the reception or disposal of waste.

(6) Nothing in this section prevents the Authority from granting, renewing or varying a licence or any other environmental authorisation so as to authorise the use of Wingfield as a depot for the reception of waste for recycling or waste transfer purposes. (emphasis added)

150 The relevant licence included terms to the effect that the local authority was required to comply with a 'Capping Plan' at the premises, the purpose of which was to reduce the potential for infiltration of water, generation of leachate, uncontrolled erosion, pest and vermin access to waste, and to contain landfill gas.[144] The cap was, in general terms, to comprise an underlying layer of clay, then a layer of soil, followed by a layer of processed mulch. The relevant Capping Plan identified the predominant source of the clay and soil required for the capping as clean fill (described by the court as 'waste fill') obtained from large earthworks projects in the Adelaide region. It was clear that this 'waste fill' was a by-product of excavations for development purposes and, from the perspective of the developer, was surplus matter.[145] Justice Blue (with whom Lovell & Hinton JJ agreed) said that waste is a purposive concept, and is a relative and not absolute concept. His Honour said that whether matter is waste must be assessed from the perspective of the person whose purpose is to be considered at the relevant time.[146] In that case, it was accepted that the relevant material was 'waste' within the meaning of the Environment Protection Act and the Closure Act. Nevertheless, the court held that assuming the material was brought to the depot for the construction of the cap, the prohibition in s 6(5) of the Closure Act would not apply on two related bases. The first was that the waste fill was used 'for recycling ... purposes' (within s 6(6)) in the construction of the cap. The second was that, as the material was being recycled, there was no 'disposal of waste' (within s 6(5)).[147]

151 In Wood, the question was whether the respondent had contravened s 45(5) of the Environment Protection Act 1993 (SA) (1993 Act) by contravening a condition attached to an environmental authorisation under which waste was required to be stored within a particular storage area.[148] It was common ground that the relevant material was received as 'waste' within the meaning of the 1993 Act. The issue was whether it ceased to be waste by the time it was deposited into stockpiles.[149]

152 Justice Blue (with whom Lovell J agreed) said:[150]

This dichotomy between waste and a product is reflected in the first limb of the definition of 'waste' in the Act. If material that was waste has been used to make or has otherwise become a product, by a combination of what it says and does not say the definition treats the material as no longer being waste. Thus, the definition explicitly provides that the mere fact that the material is intended for sale, recycling, reprocessing, recovery or purification does not prevent it being waste if it falls within the first part of the limb. Conversely, the definition implicitly provides that if the material has actually been sold, recycled, reprocessed, recovered or purified such that it is now a product, it is no longer waste.

The conversion of unwanted waste into a product of value may be a complex process over an extended time period. In many cases, it will be a question of fact and degree to determine the point at which waste has changed its character and become a product. However, the mere fact that there may be questions of judgment involved in determining the precise point at which this occurs does not detract from the dichotomy evident in the definition between waste and a product. The definition makes plain that mere intention to convert waste into a product will not suffice: the enquiry is into objective fact.

In the present case, the material contained in the Stockpile had not in an affirmative sense been processed. It was the residue of the waste input into the picking station. Other components, including components which could themselves be sold in their existing state (such as metals or high grade plastics), had been removed from the stream and in a negative sense this might be described as processing. Essentially the material output from the picking station placed in the Stockpile still comprised waste from which each of the other components had been removed. If and when that material was shredded so that it complied with the specification for refuse derived fuel, it may potentially have comprised a product. Whether it would have comprised a product at that point would depend largely on economic demand for the material at that point. If there was no available market for the material, it could not be characterised as anything but waste which might in future become a product if a demand arose for it. On the other hand, if there was an available market and demand for the product, the mere fact that it was not to be sold and delivered to a customer immediately would not deprive it of characterisation as a product. These questions ultimately involve matters of fact and degree. However, it is not necessary to consider these questions because the material had not yet been processed to the point at which it might be considered to be a product. (original emphasis)

153 Eclipse contends that Circelli strongly supports its submissions in grounds 1, 2 and 4 that the purpose for which Eclipse received the material was very relevant in determining whether the material remained 'waste' when received and used by Eclipse; that the material was not 'waste' in its hands; that when it was deposited in the void, it was not 'waste' but was being used, and not 'disposed of to landfill'; and that the material was a 'product'. In relation to Wood, Eclipse contends that, other than that the decision reaffirmed the same court's views regarding 'waste', it is, in effect, of no relevance as it considered the application of the provisions of different legislation.

General observations on the statutory scheme

154 The general principles of statutory construction were not in contest. They have been set out, relatively recently, by the Court of Appeal in, eg, City of Kwinana v Lamont[151] and Director General of Department of Transport v McKenzie.[152]

155 The following observations may be made in relation to the operation of the statutory scheme. At the outset, it may be observed that the issues in this case, to a large degree, focus on the meaning of the word 'waste' as it appears in category 63 of sch 1 pt 1 of the EP Regulations, and as it appears in the Levy Regulations. In each set of regulations, the word 'waste' has the meaning which it has under the enactment under which the regulations were made: s 44(1) of the Interpretation Act 1984 (WA). In the case of the EP Regulations, that is the EP Act, and in the case of the Levy Regulations, that is the Waste Recovery Act by virtue of s 4(1) of the Levy Act.

'Prescribed premises' and 'waste' under the EP Act

156 As noted earlier, 'prescribed premises' are defined in the EP Act to mean premises prescribed for the purposes of pt V of the EP Act. By s 123, read with sch 2 cl 26 of the EP Act, the Governor may make regulations prescribing any premises or class of premises as prescribed premises for the purposes of pt V of the EP Act. Regulation 5 of the EP Regulations provides that the premises specified in sch 1 of the EP Regulations are prescribed premises for the purposes of pt V of the EP Act. Relevantly, 'prescribed premises' in sch 1 of the EP Regulations include landfill sites in categories 63, 64 and 65 (discussed below).

157 The effect of s 56 of the EP Act (read with the definitions in s 3(1) of the EP Act) is that a person is required to hold a licence if they are an occupier of 'prescribed premises' who (inter alia) causes or increases an 'emission' from the 'prescribed premises', ie, who causes or increases a 'discharge of waste'.

158 The word 'waste' is defined in s 3(1) of the EP Act in an inclusive way (and subject to any contrary intention appearing). It includes any 'matter' 'whether useful or useless' which is 'discharged into the environment'. The inclusive definition, particularly in the context of a definition section which distinguishes between 'means' and 'includes', indicates that the word 'waste' in s 56 of the EP Act is intended to comprehend such things as the word would ordinarily comprehend, as well as those specifically included: Re Gray; Ex parte Marsh;[153] Zickar v MGH Plastic Industries Pty Limited;[154] Coverdale v West Coast Council.[155] The word 'waste' would ordinarily comprehend, as the judge observed, 'anything left over or superfluous, as excess material, by-products, etc, not of use for work in hand'.[156]

159 As to the specific inclusion of waste as any 'matter' which is 'discharged into the environment', whether it is 'useful or useless', the word 'useful', in its ordinary signification, means 'serving some purpose' or 'of practical use'.[157] Accordingly, any 'matter', even if serving some purpose or of practical use, is 'waste' within the definition of that term in s 3(1) of the EP Act if it is 'discharged into the environment'. That raises the question of what is meant by 'discharged into the environment' for the purposes of the inclusive definition of 'waste' in the EP Act. The word 'discharged' would bear at least its ordinary meaning. As the judge noted, the word 'discharge' in its ordinary meaning signifies 'to remove, send forth or get rid of'.[158] Accordingly, for the purposes of the EP Act, 'waste' (subject to a contrary intention) would mean (at least) anything left over or superfluous, as well as any matter, whether useful or useless, which is gotten rid of into the environment.

160 Further, the word 'discharge' itself has an inclusive definition under s 3(1) of the EP Act to include the 'deposit' of waste. The word 'deposit' is not defined, but would ordinarily mean to 'put or lay down'.[159] Also, by s 3(2aa), the 'discharge' of waste (whether accompanied by the expression into the environment or not) includes a reference to its 'discharge ... onto or into land'. These expansive definitions apply unless a contrary intention appears in the EP Act: s 3(1). It is unnecessary, for present purposes, to consider the extended meanings of 'discharge' given by these further inclusive definitions in their application to the inclusive definition of the word 'waste' in s 3 of the EP Act.

161 For present purposes it is sufficient to note that for the purposes of the EP Act, the word 'waste' means (in accordance with its ordinary meaning) anything left over or superfluous, as well as any matter, whether useful ie, serving some purpose or a practical use, or useless, which is gotten rid of into the environment (subject to any contrary intention appearing).

162 Not only is the word 'waste' given an inclusive definition under the EP Act, but it is also not the subject of any express words of exclusion either generally, or in relation to particular material such as sand and soil. Nor could any such words of exclusion be implied in the EP Act, having regard to the principles in Taylor v The Owners - Strata Plan No 11564.[160]

163 It is to be recalled that the term 'waste' is defined in the Waste Recovery Act in substantively the same terms as it is in s 3(1) of the EP Act. Accordingly, the word 'waste' in the Waste Recovery Act not only has its ordinary meaning of something left over or superfluous, but has the inclusive definition of any matter, whether useful or useless, which is 'discharged' into the environment.

164 Although the Waste Recovery Act does not define 'discharge', by s 3(2) of the Waste Recovery Act, that word has the same meaning as it has in the EP Act, unless a contrary intention appears in the Waste Recovery Act. Accordingly, the word 'discharge' for the purposes of the definition of 'waste' in s 3(1) of the Waste Recovery Act would include, at least (on the ordinary meaning of 'discharge'), any matter, whether useful or useless, which is gotten rid of into the environment, subject to any contrary intention appearing in the Waste Recovery Act. Again, for present purposes, it is unnecessary to consider the effect of the application of the expanded definitions of 'discharge' given in the EP Act on the meaning of the word 'waste' in s 3(1) of the Waste Recovery Act.

165 Also, again, the word 'waste' in the Waste Recovery Act is given an inclusive definition and there are no words of exclusion, either generally or in relation to particular material such as sand and soil. Nor could such words of exclusion be implied on the basis of the principles in Taylor referred to earlier.

166 The premises which, by reg 5 of the EP Regulations, are 'prescribed premises' for the purposes of pt V of the EP Act, include the premises in sch 1, category numbers 63, 64 and 65, each of which is, in terms, referred to as a 'landfill site' being 'premises on which waste ... is accepted for burial' (emphasis added).

167 The word 'waste' is not defined in the EP Regulations. Nevertheless, it has the same meaning as in the EP Act.[161] Accordingly, the word 'waste' in the EP Regulations will bear its ordinary meaning of anything left over or superfluous, and, at least, the inclusive meaning given to it under the EP Act referred to earlier, ie, any matter, whether useful or useless, which is gotten rid of into the environment (unless a contrary intention appears).

Prescribed premises - category 63 in sch 1 of the EP Regulations - 'waste'

168 As noted earlier, sch 1 of the EP Regulations described category 63 as:

Class I inert landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Landfill Waste Classification and Waste Definitions 1996' published by the Chief Executive Officer and as amended from time to time) is accepted for burial. (emphasis added)

169 There was no suggestion in this appeal that the reference to the Waste Definitions in category 63 (or categories 64 or 65) rendered that item in sch 1 invalid.[162]

170 As noted earlier, the judge said with reference to the Waste Definitions in parentheses in category 63:[163]

I accept that the Waste Definitions do not in their terms purport to and do not determine or define what is waste. The definitions of waste in the EP Act and the [Waste Recovery] Act do not refer to them. I do not read the words in parenthesis 'as determined by reference to the waste type' as intended to direct attention to the waste types in the Waste Definitions in order to ascertain whether what is accepted for burial is waste. Rather, I consider that the intended function of the words in parenthesis is to identify which types of waste in the Waste Definitions are accepted for burial, so as to enable the identification of which of category 63, 64, 65 or 66 the site falls into.

171 Eclipse did not contend that his Honour erred in this regard. His Honour was, with respect, correct in so finding.

172 Eclipse in this appeal nevertheless, in effect, challenged his Honour's additional finding that the reference to the Waste Definitions suggests 'an assumption or intention that waste types referred to in the Waste Definitions, including clean fill, are waste' and that 'the references in sch 1 of the EP Regulations to the Waste Definitions are consonant with, and supportive of, a reading of the levy regime that classifies clean fill received at premises unwanted by its source as waste' (emphasis added).[164] Eclipse contends that the fact that 'clean fill' is referred to in the Waste Definitions indicates no more than that 'clean fill' can be waste, but not that it is always waste.[165]

173 The proper construction of category 63 is discussed later in these reasons, under the disposition of ground 1 of the appeal. As will emerge, it is unnecessary, for the disposition of this appeal, to determine the correctness of the judge's additional finding based on the Waste Definitions, referred to in the preceding paragraph.

The power to levy and the imposition of a levy: 'waste' in s 4 and s 5 of the Levy Act

174 Section 4(1) of the Levy Act empowers the Governor to make regulations under the Waste Recovery Act prescribing an amount, by way of levy, that is to be payable 'in respect of waste received at disposal premises' (emphasis added). Section 5 of the Levy Act provides that if an amount by way of levy is so prescribed, that levy is imposed 'in respect of waste received at the disposal premises' (emphasis added).

175 'Disposal premises' are defined by two elements under s 3 of the Levy Act. The first is that the premises 'are used for the purpose of receiving waste' (emphasis added). The second is that they are premises 'in respect of which the occupier is required to hold a licence'. As to the second element, for the reasons given earlier, the occupant of premises in category 63 of sch 1 of the EP Regulations who causes or increases a 'discharge of waste' requires a licence.

176 As to the first element, the word 'waste' is not defined in the Levy Act. It may be inferred that the legislature intended the word 'waste' in s 4(1) and s 5 of the Levy Act to have the same meaning as it has in the Waste Recovery Act and the EP Act, either on the basis that the Levy Act operates in this context with the Waste Recovery Act and the EP Act as an overlapping statutory scheme[166] or, alternatively, because the statutes are in pari materia.[167] If it did, the defined meaning of 'waste' in those enactments would apply unless a contrary intention appears. It is sufficient for the purposes of the disposition of this appeal to observe that the word 'waste' in the Levy Act has, at least, its ordinary meaning of superfluous or leftover material. Moreover, in conjunction with the word 'received', the word 'waste' in s 4(1) and s 5 of the Levy Act indicates that regulations are intended to be made 'in respect of' material which has the character of waste at the point of receipt at the prescribed premises.

177 Further, there are no express words in the Levy Act excluding sand or soil from 'waste' (superfluous or leftover material), and no words of exclusion to that effect could be implied in the Levy Act on the principles in Taylor, referred to earlier.

The Levy Regulations: the levy on 'waste' received at landfill premises

178 By reg 4(1)(a) of the Levy Regulations, the Levy Regulations apply in relation to 'all waste received at landfill premises' (emphasis added) in the metropolitan region on or after 1 July 2008. In general terms, the effect of reg 3 of the Levy Regulations is, amongst other things, to define 'landfill premises' as premises specified in categories 63, 64 or 65 of sch 1 of the EP Regulations. It was common ground that a particular site may be prescribed premises under more than one category.[168]

179 Regulation 10 provides, in effect, that the licensee of a category 63 licensed landfill must cause a survey of the premises to be done to enable the calculation of the 'volume of waste disposed of to landfill' (emphasis added) during the return period.

180 By reg 10(8), the volume of waste so calculated is used for the purpose of determining the amount of the levy under reg 12.

181 Regulation 12 sets out a calculation giving the 'amount by way of levy that is payable in respect of waste to which these regulations apply that is received at a category 63 landfill premises during a return period' (emphasis added).

182 Although the Levy Regulations did not define the term 'waste', the term has the same meaning as it has in the statute under which the Levy Regulations were made.[169] In other words, the word 'waste' in the Levy Regulations would include (at least) leftover or superfluous materials. As with the position under the Levy Act, the use of the word 'waste' in conjunction with the word 'received' in reg 4 of the Levy Regulations indicates that the word 'waste' is anything leftover or superfluous at the point of its receipt at the disposal premises. The word 'waste' in the Levy Regulations does not take its character from the activities carried out on the premises. See also the use of the word 'received' in the formula in reg 12 of the Levy Regulations. Thus, for example, reg 5(1)(b) of the Levy Regulations also recognises that waste received at a licensed landfill for 'reuse, reprocessing, recycling or use in energy recovery' is nevertheless 'waste'. Further, reg 5(1)(g) indicates that waste used for 'construction or maintenance work' on the licensed landfill is still 'waste' within the meaning of the Levy Regulations.

183 Further, as with its use in the Waste Recovery Act (and the EP Act and the Levy Act), the word 'waste' in the Levy Regulations does not expressly or impliedly exclude sand or soil. On the contrary, the Levy Regulations make it plain that 'waste' includes 'uncontaminated soil or other clean fill': reg 5(1)(a).[170]

184 The word 'fill', in this context, evidently bears its ordinary meaning of a 'mass of earth ... etc, used to fill a hollow, etc'.[171] There is nothing in the Levy Regulations which would confine the generality of reg 5(1)(a) to categories 64 and 65 of the EP Regulations. Similarly, insofar as reg 5(1)(g) refers to 'waste' used for 'construction or maintenance work', this would ordinarily include soil or sand for the construction or maintenance of roads or other structures on the landfill premises.

185 The arguments raised by Eclipse in relation to grounds 1 and 2 are to be assessed in light of the preceding observations.

186 It is convenient to recall here the error alleged in ground 1. It alleges that the judge should have held that the 'purpose for which the material is accepted is a relevant consideration and that, having regard to the purpose for which Eclipse accepted the material, all of what it received, alternatively the Natural Earth Material and Construction and Demolition Material received, alternatively the Natural Earth Material received, was not "waste" and, or alternatively, was not "waste ... accepted for burial"'. (emphasis added)

187 As explained below, the definition of category 63 premises in sch 1 pt 1 of the EP Regulations refers to purpose, but not in the sense advanced by Eclipse in this appeal. Eclipse contends, in effect, that the intended ultimate purpose, for the sake of which the material is accepted for burial, is the relevant purpose to which category 63 refers.[172] That is not correct.

188 The word 'for' in the phrase 'accepted for burial' in category 63 in sch 1 pt 1 of the EP Regulations indicates object or purpose.[173] The phrase conveys the meaning of 'accepted for the purpose of burial'. Purpose in this sense refers to burial being the direct or immediate objective for which the waste is accepted.

189 It may be observed, however, that the judge used the language of 'intention' rather than 'purpose'. The judge held that 'material is accepted for burial if it is received with the intention that it will be or is likely to be buried; that is, put in the ground and covered with other material'.[174] The judge found as a fact that Eclipse accepted some waste 'for' burial in that sense at each of the sites.[175] The judge distinguished between premises at which waste is accepted 'for' burial in the sense that it is intended that it will be, or is likely to be, buried, and Eclipse's motivation or 'intended ultimate purpose' for burying the waste material. His Honour said:[176]

[W]hen Eclipse deposited and compacted material in the void at any of the Sites, its intention was to progressively fill the land so that it could be used for the intended ultimate purpose of the relevant site; namely, subdivision or use as a national park or private open space. (emphasis added)

190 In relation to the question of re-mining, the judge found, without challenge, that Eclipse did not re-mine at the Flynn Drive Site and Wanneroo Road Site in the Relevant Period. Nor did it deposit and compact materials in the voids at the Flynn Drive Site and the Wanneroo Road Site for any substantial or operative purpose of later extraction or making the material available for later extraction.[177] As to the Abercrombie Road Site, for the period 1 July 2014 to 30 September 2014 (only), Eclipse deposited the material in order to fill the void, but also so that the deposited and compacted material 'would be available for re-mining for use in the production of soil and sand products'.[178] Nevertheless, even there the judge found that the intention was for burial, and that burial with a prospect of later exhumation depending on future contingencies, was still burial.[179]

191 It is, with respect, more consistent with the statutory language of category 63 in sch 1 pt 1 of the EP Regulations to refer to 'purpose' rather than 'intention'. Nevertheless, the judge was, with respect, correct insofar as he considered that the words 'accepted for burial' in the phrase 'premises on which waste ... is accepted for burial' in the context of a definition of a 'landfill' site, more aptly refer to the direct or immediate objective for which the waste is accepted, and not to some more remote objective, the fulfilment of which is to occur after the premises have ceased to be landfill.[180] Also, consistently with the use of the passive voice in category 63, proof of purpose would ordinarily be inferred from proof of the facts that at the premises in question, waste is accepted and buried. However, the judge's finding of fact that at each site waste was received with the intention that it would be or would likely be buried was, in substance, a finding that at each site waste was accepted for the purpose of burial.

192 With those observations in mind, it is convenient to turn to the proper construction of the words 'waste ... is accepted for burial' within the sentence 'Class I inert landfill site: premises on which waste ... is accepted for burial' in category 63 of sch 1 pt 1 of the EP Regulations.

193 For the reasons given earlier, 'waste' in its ordinary meaning signifies leftover or superfluous materials. The word 'accepted' means taken or received.[181] The phrase 'accepted for burial' in relation to waste is used in contradistinction, eg, to waste 'discharged onto land or into waters' (categories 19, 20 and 22), waste 'stored, reprocessed, treated or irrigated' (category 61), waste 'stored, reprocessed, treated, or discharged onto land' (category 61A) and waste 'stored pending processing' (category 67A). 'Burial' in this context should be given its ordinary meaning. 'Burial', ie, the noun of the verb to 'bury', means putting in the ground and covering with earth.[182] Its ordinary meaning in category 63 is confirmed by the reference to 'landfill' in the phrase 'inert landfill site', having regard to the ordinary meaning of 'landfill' in the dictionary definitions referred to by Eclipse (see [132] above), which include a 'disposal of waste material by burying it, especially as a method of filling in or re-claiming excavated pits'.[183] (The word 'landfill' in the context of the Levy Regulations is discussed later in these reasons.)

194 When the sentence which designates category 63 premises in sch 1 pt 1 of the EP Regulations is read as a whole, as it should be,[184] its plain and ordinary meaning is that it is referring to premises on which material is accepted by the occupier of the premises from persons for whom the material is leftover or superfluous, for the purpose of burying the material. Category 63 refers, in effect, to one purpose - burial. If 'waste', ie, leftover or superfluous material is accepted at the premises for the purpose of burial, that, on the language of the instrument, is the beginning and end of the enquiry as to purpose.

195 Eclipse resists this conclusion on the basis that because Eclipse fills voids on the land so as to make the land suitable for its ultimate intended purpose (subdivision, national park or private open space), the sites are not premises at which waste material is accepted for the purpose of burial. Eclipse contends that where material is accepted that is fit for a useful purpose, or can be rendered fit for a useful purpose, and it is then used for that purpose, it is not 'waste'. Rather, it then takes on the character of a 'resource', particularly where it is used for its natural and ordinary purpose and where, otherwise, virgin material would have to be acquired.

196 That contention does not, however, squarely address the language of the instrument. On its plain meaning, category 63 refers to material which has the character of 'waste' at the point of receipt at the premises. That strongly suggests that the 'waste' to which category 63 refers is material which is 'waste' to the person from whom the material is received at the premises. If the material is 'waste' at the point of receipt, there is nothing in the language of category 63 to suggest that the material is stamped with a different character by virtue of the nature of the licensee's business.

197 Also, sch 1 pt 1 of the EP Regulations recognises that material may be 'waste' even if it is to be put to some use on the premises. Thus, 'waste' may be reprocessed on the premises (categories 61 and 61A), or stored pending re-use on the premises (category 62), or stored pending processing on the premises (category 67A), but does not on those accounts cease to be 'waste'.

198 Further, category 63 in sch 1 pt 1 of the EP Regulations contains no express exclusion for sand or soil. Nor could an exclusion be implied:

(a) when the EP Act under which the EP Regulations are made contains no such exclusion;[185]

(b) in a context where exclusions in categories in sch 1 of the EP Regulations are expressly identified (eg, categories 17(a), 18, 31, 46, 54(a), 60, 61 and 61A); and

(c) in a context where s 57(3)(a), read with s 62 and s 62A(1)(j) and (k) of the EP Act, expressly contemplates that a condition on a licence granted under s 56 may require that 'waste' if practicable, be reused or made available for reuse by another person.

199 Eclipse's construction argument also, at least to some degree, involves the proposition that the definition of category 63 premises in sch 1 pt 1 of the EP Regulations should be read so that it refers to premises on which waste material is accepted for the purpose of burial, other than premises where the licensee's motivation or ultimate reason for accepting the material for burial is to redevelop the land. That involves reading a substantial qualification into the simple words 'premises on which waste ... is accepted for burial' in category 63 of sch 1 pt 1 of the EP Regulations, which has no foothold in the language of the instrument. Further, if Eclipse's argument were correct, it is difficult to see why the occupier of a site which Eclipse would call a traditional waste disposal facility, who wanted ultimately to use the land as, for example, a park or golf course, could not equally say that it does not occupy premises upon which waste is accepted for burial. Yet, Eclipse's case, in large part, involves distinguishing its business from what it calls a traditional waste disposal facility.[186]

200 Nevertheless, Eclipse contends that its construction is the preferred construction for, in effect, the following reasons. First, it is more consistent with the objectives stated in s 5 of the Waste Recovery Act. Secondly, the levy is a tax, and any ambiguities should be resolved in favour of the taxpayer. Thirdly, the judge erred in his consideration of the case law. Eclipse contends that there is authority to the contrary and places particular reliance on Bighorn. Also, as noted earlier, in submissions made after the hearing, Eclipse places considerable reliance on the South Australian decision of Circelli. Fourthly, Eclipse contends that its construction is supported by a ministerial press release and statements made in Parliamentary debates, and second reading speeches. Fifthly, Eclipse contends that each of its sites was only properly characterised as category 61A premises.

201 By its first point, Eclipse contends that it has no obligation to pay a levy because the general nature of its enterprise and the activities it conducts are consistent with the objects outlined in s 5 of the Waste Recovery Act (to which the principles in s 4A of the EP Act apply). Eclipse contends, in effect, that its filling of voids contributes to a broader private or public good by assisting the rehabilitation of the land in which the voids exist, particularly as part of its sequential land use operations.[187] It says that it does so by 'reusing' materials that 'may have been waste' or 'may have been in danger of being waste', but once they are received by Eclipse, the material is 'not waste ... and [is] used ... for a productive purpose'.[188] Eclipse says that, accordingly, '[it] is not being wasteful' and should not be 'penalised' for doing something which is not 'wasteful', where the object of the Waste Recovery Act is 'to stop wastefulness'.[189] Eclipse draws a distinction between what it calls a 'traditional waste disposal facility', and its use of leftover or superfluous materials with the intention of using them in its business operations.[190]

202 As to Eclipse's first point, it is true that a provision expressed in general terms may have its meaning properly constrained by reference to the particular context in which that provision appears within the scheme of the statute as a whole and in light of the evident objects of the statute: K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited; Independent Commission Against Corruption v Cunneen.[191] Nevertheless, the objectives stated in the Waste Recovery Act, insofar as they refer to 'waste' avoidance, are to be read in light of the inclusive definition of 'waste' in that statute. As noted earlier, 'waste' means anything leftover or superfluous and includes any matter, whether useful or useless, which is gotten rid of into the environment. The burial of material is, in ordinary parlance, a form of getting rid of it into the environment. There is no inconsistency.

203 Further, Eclipse's proposition assumes, rather than demonstrates, the correctness of its construction argument. In other words, the argument assumes, but does not demonstrate by reference to the text of category 63 in the context of the EP Regulations as a whole, that if Eclipse does not 'waste' the material it receives or does something with it which is not 'wasteful', then the unwanted material it receives from third parties is not 'waste' for the purposes of the EP Act and the Waste Recovery Act and the regulations made under those enactments.

204 Also, Eclipse's contentions that it did not 'waste' the material it received, or that it was not 'wasteful' of that material, and that the object of the Waste Recovery Act is to 'stop wastefulness', pitch the argument at such a high level of generality as to be of no real assistance on the question of construction. Section 5 of the Waste Recovery Act is not to be read in isolation. It is to be read and understood in the context of the statute as a whole.[192] The objectives in s 5 of the Waste Recovery Act are to be understood as being effectuated by the provisions of that statute.[193] They include the provision that a levy imposed under the Levy Act is due and payable as prescribed by the regulations (s 73(1) read with the definition of 'levy' in s 3(1)). Unless Eclipse can succeed on ground 2 in relation to the proper construction of the Levy Regulations, the general assertions that Eclipse is not 'wasteful' and that the object of the statute is to 'stop wastefulness', cannot assist it.

205 Further, there is no reason to suppose that the Waste Recovery Act objectives (especially s 5(1)(a), s 5(1)(b) and s 5(1)(c)(i) - (ii)) would not be served by levying businesses such as Eclipse's. It may be inferred that the legislature intended that a levy would, through a charge back to the supplier, ultimately be borne by the source of the waste material, and that the levy would thereby create a financial incentive to reduce or eliminate the volume or extent of waste created at its source. Further, there would be a financial incentive on the generator of the waste to reuse, or at least give consideration to reusing, to the greatest extent possible, its leftover materials in its own operations. In other words, the legislature, it may be inferred, intended that whether the waste is disposed of into what Eclipse calls a traditional landfill, or is used to fill voids elsewhere, the disposal should come at a cost which acts, ultimately, as a disincentive to the production of waste and an incentive to the more careful management and reuse of resources in the first place. It is a misunderstanding of the objects of the Waste Recovery Act to regard the levy as a 'penalty' on Eclipse's business when an evident purpose of the levy is to provide a financial mechanism to influence the conduct of the creators of waste.

206 Eclipse's contention that the judge's construction reveals error because if Eclipse did not take the waste materials from others and use them for filling excavated voids, it would have to extract fresh material or procure fresh material extracted for that purpose, with the consequent depletion of natural resources contrary to the intention of the Waste Recovery Act, cannot be accepted. The regulatory obstacles in extracting fresh material, the costs of extraction and the costs of transport[194] would, it may be inferred, make it unlikely that fresh natural resources would be extracted from the natural environment simply in order to be used as a substitute for the waste used by Eclipse at its sites. That is particularly so where Eclipse's business relies on the generators of waste delivering it to Eclipse's premises and paying Eclipse to take it. The legislature evidently recognised, in a policy area where (it may be inferred) perfect outcomes may be difficult to achieve, that some level of waste would still be generated and require disposal,[195] and that a regime for the disposal of waste at prescribed premises, together with a levy intended to act as a disincentive on the creation of waste at its source, would provide one aspect of an appropriate strategy in the overall management of resources.

207 Further, to the extent that there may be competition between businesses undertaking landfill (including the filling of quarry voids) and other industries (such as construction, building and manufacturing) for clean sand and soil resources, it is consistent with the objectives of the Waste Recovery Act[196] that the clean sand and soil resources be directed (through price signals) to the other industries, leaving voids to be filled with a variety of materials which are regarded as suitable for that purpose, but which may not, in that form (or at all), be susceptible to use in those other industries. In this regard, it is to be recalled that at category 63 premises, waste permitted for disposal includes type 1 inert waste, type 2 inert waste, type 3 inert waste and type 1 special waste as set out in the Waste Definitions, referred to in [109] above.

208 As to Eclipse's second point, whilst the levy may be a form of tax, the meaning of the word 'waste' has the same meaning in the EP Regulations as in the EP Act.[197] There is no basis, under the EP Act, for reading down the meaning of the word 'waste' so as to exclude from its meaning superfluous or leftover sand or soil.

209 As to the third point, the cases referred to by Eclipse do not assist its construction point. Bighorn is a single judge decision of the Court of Queen's Bench of Alberta in relation to a contractual dispute. The case concerned the interpretation of a clause contained in a sale and purchase agreement (Sale Agreement) dated 10 December 1999, entered into between the Municipal District of Bighorn No 8 (Bighorn) and the Bow Valley Waste Management Commission (Bow). The Sale Agreement transferred ownership of a Class III Landfill from Bighorn to Bow. The clause in dispute was cl 3.02, which provided:[198]

In addition to the Purchase Fee, [Bow] shall pay [Bighorn], the sum of One Dollar and Eight Cents ($1.80) [sic] for each tonne of C & D waste (excluding all Industrial Waste) tipped at the Dry Waste Landfill Site (hereinafter referred to as the 'Hosting Fee').

210 The dispute concerned, relevantly, whether 'C & D waste ... tipped' at the site included recyclable materials. Bow asserted that recyclables were not included in 'C & D waste ... tipped' and therefore it need not pay a Hosting Fee to Bighorn for recyclables brought to the site. Bighorn contended that a Hosting Fee was payable for these materials and that Bow had breached the Sale Agreement by failing to pay the fee.

211 The judge found that, as between the vendor and purchaser of the site, 'the recyclables received [were] not waste' from the perspective of Bow.[199] He continued:[200]

They have a value, in that, once processed, they can be resold by the landfill owners to users of the recycled product.

Here the focus must be on the recipient of the materials not on the customer delivering materials to the landfill site. Are recyclables 'waste' in the eyes of the landfill? I find that they are not.

...

The materials delivered to the landfill by the landfill's customers were certainly waste to those customers. However, the agreement relates to the ownership and operation of a landfill in which the parties have a mutual interest. To the landfill, recyclables are not 'useless remains or byproducts'. Recyclables are useful to the landfill owners. (emphasis added)

212 In coming to this conclusion, the judge in Bighorn, in effect, distinguished cases relied upon by Bighorn to the effect that 'waste' is to be judged from the perspective of a person delivering it. He said that those decisions involved legislative interpretation and were of no assistance in the context of the Sale Agreement.[201]

213 Eclipse's argument that a decision in a private contractual context, where the decision itself recognised that the contractual term 'waste' differed from the meaning given to it in the statutory contexts referred to, is not a compelling one.

214 The other cases referred to by Eclipse in its original submissions, unsurprisingly, turn on the particular legislative provisions in dispute in those cases. For example, Commissioners for Her Majesty's Revenue and Customs v Waste Recycling Group Limited[202] concerned a tax charged on a 'taxable disposal'. The relevant statute included a provision that a 'disposal of material is a disposal of it as waste if the person making the disposal does so with the intention of discarding the material' (emphasis added). It was held that there was no taxable disposal in circumstances where the landfill site operator used waste materials for cover and road construction, either because there was no disposal, or there was no intention to 'discard' such material. The relevant intention, under the legislation, was that of the landfill operator and not the original producer of the waste.[203]

215 As Eclipse's submissions recognise, in a number of other cases material has been treated as 'waste' for the purposes of the relevant legislation if it was unwanted or surplus material at its source without regard to what the recipient of the material intended to do with it.[204]

216 A different approach was taken in the New Zealand case of Carter Holt Harvey Ltd v North Shore City Council.[205] In that case, the appellant's (Carter Holt's) business involved manufacturing paper products from recyclable paper. It acquired, in part, recyclable paper under private contractual arrangements involving the delivery of the paper to its recycling premises. Under one enactment (the '2002 Act'), the council was entitled to make bylaws regulating 'waste management' and 'solid wastes'. Under another enactment (the '1974 Act'), it was entitled to make bylaws regulating, amongst other things, the 'deposit of waste' and 'the collection and transportation of waste'. The court held that 'waste', for the purposes of these statutes, was material that had been abandoned by its former owner, in other words, the former owner had abandoned all rights to an ownership in the material, by some overt act, such as kerbside disposal.[206] It continued:[207]

In the case of used and unwanted paper, paper which is left at the kerb for collection or delivered to a recycling centre has obviously been abandoned by its former owner and is therefore 'waste'. The paper which Carter Holt acquires by contract has, equally clearly, not been abandoned and is therefore not 'waste'. In essence, Carter Holt acquires a secondhand good for consideration rather than collecting 'waste'.

217 Leaving aside the obvious differences in the legislative text, this decision does not assist Eclipse for three reasons. First, the focus is on the source of the material in determining whether it is waste, in that the court concluded that the paper was waste if the owner of the material had abandoned it. Secondly, even if abandonment were the test for 'waste' under the levy regime, on the facts as found by the judge, the material had been effectively abandoned (ie, left behind completely and finally)[208] at Eclipse's premises. Thirdly, Eclipse did not give consideration or value for the material received. The owners of the material generally paid Eclipse to take it.

218 In relation to the decisions referred to by Eclipse after the hearing of this appeal, the following observations may be made.

219 Eclipse submits, in effect, that the decision in Wood is of no relevance. That is correct. It considered the application of the facts to different legislation, in a context where the parties had agreed that the relevant material was 'waste' within the meaning of the legislation in that case.

221 As noted earlier, it was accepted in that case that the relevant material was 'waste' within the meaning of the Environment Protection Act and the Closure Act, and would have remained 'waste' up to and beyond the point at which it passed onto the land.[209] Nevertheless, the court found that there would be no contravention of s 6(5) of the Closure Act if the material were used to construct the cap, for two reasons. First, the reception of material for use in the construction of the cap would involve reception 'for recycling ... purposes'. Justice Blue observed that the definition of 'recycle' in the Oxford English Dictionary does not require that waste be the subject of some degree of processing.[210] Justice Blue also said:[211]

If the Council had received waste fill for the purpose of using it to construct the cap, the use of the material would have comprised recycling and the reception of the material would have been for the purpose of recycling. This is because the Council would have reused the waste material and converted it from waste into an independently usable form, namely a cap to perform the functions identified in the Management Plan of reducing the potential for infiltration of water, generation of leachate, uncontrolled erosion, pest and vermin access to waste, and containing landfill gas. The fact that the Land had performed the function of a waste depot was in this respect happenstance: the position would be the same if the Land had previously been used for general industrial purposes and it was sought to construct a cap for, say, future residential development.

222 The second reason why there would be no contravention of s 6(5) of the Closure Act is that the reception of the material for the purpose of the construction of the cap would not be a 'disposal of waste' for the purposes of s 6(5) of the Closure Act.[212] His Honour said:[213]

Section 6 [of the Closure Act] treats disposal as an antithesis of recycling. If material is recycled, it is diverted from a path that would otherwise lead to its disposal. By its transmutation into a useful product via recycling, material ceases to be waste and is not disposed of as waste.

223 Accordingly, the decision in Circelli turned on the application of the facts to the statutory language of 'reception of waste for recycling ... purposes', and 'use ... as a depot for ... disposal of waste', in a context where it was accepted that the material was 'waste' within the relevant statutory regime.

224 It may be accepted, as a general proposition, that material may be 'waste' for the person to whom it is surplus, but may not be characterised as 'waste' if and when the material is obtained or procured for, or put to, productive use by another person. Much will, however, depend upon the purpose of the inquiry, the nature of the material, and the circumstances in which the material is obtained or procured by the other person. Where the inquiry is conducted for the purpose of considering the application of a statute, the word 'waste' will take its meaning from the particular legislative context in which it is used.

225 In Circelli the court was not examining a provision such as the definition of category 63 premises in sch 1 pt 1 of the EP Regulations, which refers to 'Class I inert landfill site', and contains the phrase 'premises on which waste ... is accepted for burial'. For the reasons given earlier, the designation of category 63 premises in sch 1 pt 1 of the EP Regulations is, properly construed, a reference to premises on which material is accepted by the occupier of the premises from persons for whom the material is leftover or superfluous, for the purpose of burying the material.

226 Also, the court in Circelli was not examining statutory language in the form of 'waste subsequently disposed of to landfill' or 'waste disposed of to landfill' as used in reg 10 and reg 11 of the Levy Regulations. On the undisputed facts in the present case, the material received by Eclipse to fill the voids was 'waste' and 'disposed of to landfill'. The material sent by Eclipse to landfill did not, on the facts, involve any 'transmutation into a useful product via recycling'.[214]

227 As to Eclipse's fourth point, the Parliamentary materials do not, on examination, provide any material assistance to Eclipse on the question of construction. On the contrary (although this conclusion is not critical to the disposition of this appeal), much of the material tends to confirm the construction reached above. For example, in the lower house second reading speech in relation to the bill for the relevant predecessor legislation, the Environmental Protection (Landfill) Levy Act 1998 (WA) (1998 Act), the Minister said:[215]

The Bill imposes that the levy be prescribed and further provides that the levy is payable by the licensee of the premises at which the waste is received. Therefore the onus is on the licensee to calculate and collect the levy from the people delivering waste. (emphasis added)

228 In relation to the 1998 Act in the Legislative Council, the Minister said:[216]

The new waste management levy will help to ensure that the impact of our wastes on the environment is minimised ... It attacks the problem of excessive waste by funding the initiatives necessary to deal with it. It is efficient because it falls most heavily on those who generate the most waste and sends them a clear signal to reduce and recycle. (emphasis added)

229 In the second reading speech in the Legislative Assembly of the Waste Avoidance and Resource Recovery Levy Bill 2007, the Minister said:[217]

A levy has been in place since 1998 under the [1998 Act]. The Waste Avoidance and Resource Recovery Bill 2007 will repeal that act and this bill will replace it. There are two objectives of the landfill levy. It functions as an economic instrument for influencing waste management practices, including reducing waste to landfill, by increasing the price of landfill disposal. The funds raised by the landfill levy are then used to support waste-related programs that have the effect of reducing waste to landfill. The effect of the bill is essentially unchanged, but the name has been changed to reflect the companion bill, the Waste Avoidance and Resource Recovery Bill 2007. (emphasis added)

230 The ministerial statement dated 4 June 1997[218] in relation to the 1998 Act on which Eclipse relies is of no material assistance. That is because (1) it was a public announcement preceding the introduction of the legislation to Parliament, (2) it was effectively (as the name 'media statement' indicates) a general statement in the form of a short public announcement which was evidently not intended to be a comprehensive statement of the effect of the legislation later introduced to Parliament, and (3) insofar as it refers to a levy being applied to waste 'dumped in metropolitan rubbish tips', it was correct but did not reflect the complete effect of the legislation as subsequently enacted.

231 Further, insofar as Eclipse relies more generally in this appeal on ministerial documents, such as letters, made after the legislation came into effect, that material cannot be relied on as an aid to statutory interpretation: Australian Education Union v Department of Education and Children's Services.[219]

232 Finally, Eclipse's contention that each of its sites was more properly characterised as a category 61A premises (only) cannot be accepted. Category 61A refers to '[s]olid waste facility: premises ... on which solid waste produced on other premises is ... discharged onto land' (emphasis added). On the judge's unchallenged findings of fact, Eclipse's premises were premises on which material was accepted for the purpose of depositing waste materials, compacting the materials and then covering the materials. This process plainly more aptly describes a burial of the material, rather than discharging it 'onto' (upon)[220] the land. In this regard, the premises were, objectively, 'premises on which waste ... is accepted for burial' in accordance with category 63.

234 Ground 2, in effect, alleges error in relation to the proper construction of the words 'waste disposed of to landfill', as they appear in reg 10 and reg 11 of the Levy Regulations. Those words appear in the phrase 'waste subsequently disposed of to landfill' in reg 10(2)(a) and reg 11(1), and elsewhere in reg 9(2), reg 10(5), reg 10(7), reg 11(2), reg 11(4) and reg 14(2). Eclipse contends that (1) the material in question was not 'waste', and/or (2) it was not 'disposed of', and/or (3) it was not disposed of 'to landfill' within the meaning of the Levy Regulations.

235 It is convenient to deal with these points in reverse order. As to the third point, the term 'landfill' is used in the Waste Recovery Act (eg, sch 3 cl 15 - 'disposal to landfill or other waste facilities'), but is not defined in the Waste Recovery Act. Nor is the word 'landfill' defined in the EP Act - the meaning of the terms of which apply to the Waste Recovery Act unless a contrary intention appears in the Waste Recovery Act: s 3(2) of the Waste Recovery Act. Nor, insofar as it is relevant, is the word 'landfill' defined in the Levy Act. Accordingly, the word 'landfill' would bear its ordinary meaning in the Waste Recovery Act.[221] The word 'landfill' when used in the Levy Regulations would, consistently with the Waste Recovery Act, also bear its ordinary meaning.

236 As noted earlier, Eclipse contends (correctly) that the word 'landfill' in its ordinary meaning includes 'a disposal of waste material by burying it, especially as a method of filling in or re-claiming excavated pits'.[222] On the unchallenged findings of the judge, all of the material which went into the voids and was compacted went to 'landfill' on the ordinary meaning of that term. Eclipse's third point has no merit.

237 As to the second point, the words 'disposed of' must be read in the context of the phrase 'disposed of to landfill'. That phrase is to be read in the context of each of the regulations in which the phrase appears, and in the context of the Levy Regulations as a whole. The phrase 'disposed of to landfill', in its ordinary meaning in this context, invites attention to an objective assessment of what happened to the waste at the premises at which the waste was received. Relevantly, on the judge's findings, the relevant materials were put in the voids, compacted and covered with a layer of other material. The materials were compacted on the basis that they would be treated as permanent fill, and were therefore placed and compacted accordingly.[223] The result of the judge's findings is that the materials in question (1) went to landfill, (2) ceased to have any more useful function than landfill, and (3) were not otherwise withheld or retained for any purpose or used in any other way. In ordinary parlance, the material was gotten rid of (in the sense of done away with)[224] to landfill. Even in relation to the Abercrombie Drive Site in the period July to September 2014, the deposition and compaction of the materials, and the covering over of such materials, objectively meant that the materials were gotten rid of. A present intention, held at the time of deposition, that the materials might later be exhumed depending on future contingencies (such as future economic circumstances and whether and to what extent materials might be available to Eclipse in the future),[225] cannot affect an objective assessment of whether the materials were gotten rid of to landfill in the context of the Levy Regulations.

238 Eclipse contends that by using the Natural Earth Material as fill (being its natural and ordinary use) it re-used the material (ie, used it again),[226] or recycled the material (ie, prepared it for second use, often with adaptation or reconstruction),[227] and thereby did not dispose of the material to landfill. That submission cannot be accepted. Eclipse did not use the material again - it was not used in the first place, but was rather superfluous to use. Nor did Eclipse prepare it for second use, with or without adaptation or reconstruction. Moreover, even if it might be thought that Eclipse 're-used' the material, or 'recycled' the material, it only did so in the sense that it got rid of the material, ie, did away with the material, to landfill. On Eclipse's case, this was a beneficial use of the materials, as it contributed to the ultimate rehabilitation of the land, but it cannot be doubted that the material was, in ordinary parlance, disposed of to landfill.

239 As to the remediated acid sulfate soils, the finding was that if they were not suitable, or not wanted at the time for blended soils or final cover material, they were deposited and compacted in the voids.[228] They were leftover and superfluous materials with no use to Eclipse in its blended soils business. They had the character of 'waste' when disposed of to landfill. On the judge's findings, none of the materials deposited into voids and compacted underwent a transformation which resulted in a change of its character as waste when it was disposed of to landfill. Eclipse's submissions about the potential for waste material to be substantially transformed so that it is no longer waste, has no foundation in the facts as found.

241 As to the first point, the phrase 'waste subsequently disposed of to landfill' (emphasis added) in reg 10(2)(a) is to be understood in the context of the regulations as a whole, including reg 4(1)(a) which, relevantly, provides that the Levy Regulations apply to 'all waste received at landfill premises'. The regulations thus contemplate that of the 'waste' received, some of it may 'subsequently [be] disposed of to landfill'. That subset of 'waste' received does not cease to be 'waste' within the meaning of regs 10 and 11 merely because it is subsequently disposed of to landfill. Eclipse's contention effectively robs regs 10 and 11 of any meaningful operation.

242 Further, as the judge correctly observed:[229]

Regulation 10 provides for a specific and singular mechanism for the calculation by a surveyor of the volume of waste disposed of to landfill on the premises. That mechanism is a calculation based on a comparison of a survey of the premises at the end of the return period (a quarterly survey made under reg 10(5)) with the previous quarterly survey or, if there is none, by comparison with the baseline survey under reg 10(2). The quarterly survey must be conducted by the surveyor for the purpose of calculating the volume of waste disposed of to landfill during that return period. Regardless of the nature of material put into the ground, and regardless of the purpose for which it is put there, when material is put into the ground so as to raise the level of the ground, that will be reflected in the results of the comparison by the surveyor of the two surveys. In my view, the methodology for calculation prescribed by the Levy Regulations reveals an intention that any material that is put into the ground will, to the extent that it raises the level of the land, be 'waste disposed of to landfill'. The mechanism prescribed is not consistent with a construction of that phrase which requires an analysis of different materials put into the ground and buried to determine which of it is waste disposed of to landfill. The prescribed mechanism would not work if an analysis sensitive to the qualities and, from the licensee's perspective, utility of the various sorts of material that had been buried was required in order to determine the volume of waste disposed of to landfill.

243 Eclipse's contention that any difficulty in applying the mechanism for determining the volume of 'waste disposed of to landfill' assists its construction is misconceived. It is on only its construction that the difficulty emerges. There is no difficulty if its construction is not accepted.

244 Insofar as Eclipse's arguments as to statutory purpose and the case law apply to this ground, the observations made in relation to ground 1 have similar application here.

245 Finally, Eclipse's case on appeal is not advanced by its contentions that the concept of 'end-of-waste' is 'at play here', and that Ms Dowd (an environmental scientist) agreed in cross-examination that, amongst her profession, the 'end-of-waste' is a 'live issue'. Whatever may be the conceptual questions surrounding the subject matter of the legislation for environmental scientists, the task of the court is to seek to construe the legislation by conventional means in order to ascertain its meaning.

247 Eclipse said that ground 3 would not arise for determination if it failed on both grounds 1 and 2.[230] Accordingly, having regard to the conclusions reached in relation to grounds 1 and 2, ground 3 does not arise for consideration.

248 By ground 4, Eclipse contends that the levy was an excise and invalid as contrary to s 90 of the Constitution.

249 Section 90 of the Constitution provides, relevantly, that '[o]n the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive'.

250 His Honour said that there was no doubt that the levy is a tax.[231]

251 His Honour provided (with respect) a careful and detailed outline of the relevant principles by reference to authority.[232] In general terms, the parties to this appeal took no issue with his Honour's statement of the principles, and the focus of the debate was, in substance, on the application of the principles to the levy in this case.[233]

252 For present purposes, it is sufficient to refer to the following propositions outlined by the primary judge with reference to the cases cited by his Honour, with which there is no dispute:

(a) Duties of excise are taxes on a step in the production, manufacture, sale or distribution of goods, whether of foreign or domestic origin.[234]

(b) An excise duty includes a 'tax upon a commodity at any point in the course of distribution before it reaches the consumer'.[235]

(c) Section 90 serves the object of ensuring that the Commonwealth has 'real control of the taxation of commodities'.[236]

(d) In determining whether a State law imposes an excise duty, the court examines the effect of the law in and upon the facts and circumstances to which it relates; in other words, its practical operation, as well as its terms.[237]

(e) The nature and extent of the connection between a tax and a step in the dealing (by way of production, manufacture, sale or distribution) in a good or commodity must be assessed so as to determine whether the tax is in substance a tax on the relevant step.[238] This involves questions of degree in relation to which many factors may be relevant. Not all will be present in every case and factors may have different weight in different cases.[239]

(f) Relevant factors may include the 'indirectness' of the tax, its immediate entry into the cost of the goods, the proximity of the transaction it taxes to the relevant step in manufacture, production or distribution, and the form and content of the legislation that imposes it.[240]

(g) The nature and extent of the connection between the amount of the tax and any relevant step in the production or distribution of a good or commodity is a factor in determining whether the tax has the character of an excise.[241]

(h) While not decisive, the presence or absence of a proportionate relationship between a tax and the quantity or value of goods is a relevant and important factor in ascertaining whether the tax is an excise.[242]

(i) A tax on goods which is imposed at a point which is either preliminary or subsequent to actual manufacture or production, including a step in the acquisition of raw materials and a step in the distribution of the finished product, may be a duty of excise.[243]

(j) By their nature, taxes that are excises have a tendency to be reflected in the ultimate price of the relevant good or commodity. The extent to which that is so may be relevant to the characterisation process, but it is not decisive, and is not a criterion for the characterisation of an excise.[244]

(k) In the context of s 90 of the Constitution, the reference to goods as the subject of a tax is to be understood in its widest sense. An excise embraces a tax on commodities produced, as well as a tax on manufactured articles.[245]

(l) In determining whether particular objects are properly described as goods or commodities, it may be useful, although not determinative, to consider whether they are saleable.[246]

(m) 'Goods' is not a word of precise meaning, but in this context, it signifies articles of commerce or things which, even if not saleable or without any discernible sale value, may be the subject of trading or commercial transactions.[247]

(n) The effect of previous decisions of the High Court is that a tax on goods after they have reached the hands of consumers is not an excise.[248]

(o) A State tax that applies to a wide range of transactions may be an excise in its application to some of those transactions, notwithstanding that it is not an excise in its application to all of them.[249]

(p) A tax on land or on something that forms part of land is not an excise.[250]

253 The judge observed that Eclipse's contentions at trial were threefold:[251]

1. The materials that Eclipse ultimately used as fill constituted a 'valuable commodity' that is taxed when Eclipse uses it as fill.
2. In relation to the Abercrombie Road Site and the Wanneroo Road Site, the levy is a tax on a step in the production of valuable products (namely water-retentive soil and structural fill) (Products),[252] insofar as the levy applies to materials deposited in the voids that are, or may subsequently be, re-mined and used for the purpose of manufacturing those Products.
3. In relation to the Abercrombie Road Site only, the levy is a tax on the rehabilitation of the site, and site rehabilitation is a necessary step in the mining, sale and distribution of limestone and sand (Quarry Materials) that are mined from the site.

254 In relation to the first contention, the judge observed that Eclipse submitted that:[253]

(a) the fact that Eclipse is paid by the suppliers of the materials to take them, and the fact that the materials have the statutory character of waste, is not decisive;

(b) fill is a commodity and an article of commerce. It can be required by a developer of land, or someone engaged in construction, where the land surface needs to be built up or its composition and constitution changed;

(c) DER has published a guidance statement regulating the use of waste-derived materials that implicitly accepts that there is a commercial market for materials to be re-used as fill;

(d) the materials obtained by Eclipse and used as fill are commercially valuable to Eclipse to use to meet its obligations, contractually and under conditions of local government approvals, to fill and rehabilitate the voids at the Sites;

(e) as the Government Parties accept, but for the receipt by Eclipse of the materials from its suppliers, Eclipse would be obliged to purchase or accept free of charge suitable materials to be used as fill.

255 The judge observed that the following propositions were essential elements of Eclipse's first contention:[254]

(a) the materials received by Eclipse were a valuable commodity or article of commerce in Eclipse's hands, in respect of which the levy is a tax; and

(b) properly characterised, the levy is a tax on that commodity, and is not a tax on land or on something that forms part of the land.

256 In relation to the second contention, Eclipse submitted that the levy was an excise:[255]

(a) insofar as materials were deposited and compacted as a stockpile for future use in making Products; and

(b) insofar as materials deposited in the void were subsequently re-used for the purpose of making the Products.

257 In relation to Eclipse's third contention, Eclipse submitted:[256]

(b) The Quarry Materials would not be mined if the site was not going to be rehabilitated to an appropriate standard to permit its subsequent industrial use. Rehabilitation is required by the conditions of the Town of Kwinana's planning approval for the quarrying.

(c) The only suitable material that can economically be used as fill is the inert material acquired by Eclipse for that purpose.

(d) Filling the void is a necessary element of mining the Quarry Materials because:

(i) that was a condition of approval by the Town of Kwinana; and

(ii) after mining all of the Quarry Materials, Eclipse intends to subdivide the site for industrial use, and it should be inferred that, if Eclipse could not rehabilitate the site using inert material, Eclipse would not have quarried it.

(e) In order to extract maximum limestone and sand, it is necessary to fill the resultant void with lower value material than what was quarried; the void cannot be permitted to get too big. That shows the close temporal connection between the mining of the Quarry Materials and the filling of the void.

(f) There is a proportionate relationship between the amount of levy payable and the quantity of Quarry Materials because there is a direct proportionate relationship between the volume of materials quarried and the volume of fill required to rehabilitate the site.

(g) For these reasons, there is a direct connection between the depositing of fill in the void and the production of the Quarry Materials. The filling of the void with the inert material used by Eclipse is a necessary step in the mining of the Quarry Materials.

(h) Thus, in its practical operation in relation to Eclipse's Abercrombie Road Site, the levy is an excise.

258 In relation to Eclipse's first contention, the judge held that:

(a) there was very little evidence as to whether, during the Relevant Period, there was a market for the materials received by Eclipse at the sites, or whether any other party would have been willing to pay Eclipse for the materials it received;[257] and

(b) on the whole of the evidence, it had not been established that the materials received by Eclipse at the sites during the Relevant Period were saleable by it, and that this was a relevant, albeit not determinative, consideration.[258]

259 His Honour found that the substance of the transaction between the supplier of the waste materials and Eclipse was that Eclipse was paid a fee for its services in enabling the supplier to dispose of the waste materials.[259]

260 His Honour found that, in relation to sites where Eclipse was not the landowner of the site, Eclipse had not been paid by the landowner of the site to use the materials it received to fill the voids.[260]

261 In relation to the Wanneroo Road Site, his Honour found that Eclipse undertook contractual obligations to the original owner of the site to, in effect, fill and rehabilitate the relevant area of the site in accordance with certain requirements and in accordance with a management plan to be approved by the owner of the site. When the Western Australian Planning Commission (WAPC) subsequently became the owner of the site, Eclipse, in effect, agreed to fill the quarry utilising materials that met certain specified standards. These contractual obligations were part of the price Eclipse paid for its right to occupy that site, and to receive waste for a fee and conduct its operations there.[261]

262 The Abercrombie Road Site was originally owned by Eclipse and a related company. By 2012, it was wholly owned by the related company. Under a deed between Eclipse and the related company, Eclipse was obliged to progressively fill the void to stipulated standards. Eclipse's obligations under the local government approvals were, for the Abercrombie Road Site, conditions of the planning approvals for use by Eclipse of the site in the manner proposed by Eclipse. Eclipse did not have any obligation to do any specific amount of filling, or to complete the filling within a specified time.[262]

263 In relation to the Flynn Drive Site, Eclipse owned the site from before 1996 until at least February 2010. It was granted subdivision approval in February 2010. By December 2012, the site was owned by a related company. The filling of the void at the Flynn Drive Site was completed by 30 June 2009, and Eclipse owned the Flynn Drive Site during the period in which the void was filled. Eclipse's obligations under the local government approvals were, for the Flynn Drive Site, conditions of the subdivision approval which it held during 2008 to 2009, and obligations under the deed that it made with the City of Wanneroo. Again, Eclipse did not have any obligation in respect of the Flynn Drive Site to do any specific amount of filling, or to complete the filling within a specified time.[263]

The value that Eclipse derived from the materials it received and put into the voids was that they enabled Eclipse to fulfil its contractual obligations and obligations under local government approvals in order for it to conduct its activities on the Sites. I am not persuaded that the existence of that benefit for Eclipse renders the materials Eclipse received a valuable commodity or article of commerce, for the purposes of characterising the levy, in circumstances where:

(1) the materials were of no value to the parties supplying them; Eclipse was paid to take the materials;

(2) I am not satisfied that the materials were of value to anyone apart from Eclipse, or that Eclipse could have sold them to any other party;

(3) no party paid Eclipse to dispose of the materials to landfill by putting them in the voids; and

(4) Eclipse did not use (this part of) the received materials as an input into a product that it sold.

265 Further, the judge found that the levy properly characterised was a tax on something that formed part of the land, rather than a tax upon a good or commodity.[265] In that regard, his Honour considered that in form and substance, the levy was imposed only to the extent that waste was disposed of to landfill, and that no tax was imposed unless and until waste was disposed of to landfill. The levy can, accordingly, be seen as a tax on the filling of, or the building up of the level of, land through the burial of waste.[266]

266 His Honour also rejected Eclipse's contention that the materials that had been deposited and compacted in the voids had not become part of the land, but were deposited for the purpose of being available for re-mining. His Honour reiterated his earlier finding that no materials were deposited and compacted in the voids at the sites during the Relevant Period with the intention that they be available for re-mining, other than in relation to the Abercrombie Road Site for the period 1 July 2014 to 30 September 2014. In relation to the Abercrombie Road Site, his Honour found that even though the materials were intended to be available for re-mining, that did not overcome the conclusion that, on the objective facts, having put the materials into the ground and buried them, the materials became part of the land.[267]

267 In relation to Eclipse's second contention, the judge observed that his factual findings made in relation to Eclipse's intention to re-mine, and as to the mining that it conducted, largely (but not entirely) removed the factual premises underlying the contention. Based on those findings, his Honour did not accept that materials were deposited and compacted 'as a stockpile' for future use in making the Products.[268]

268 In relation to the Abercrombie Road Site, his Honour concluded that the levy did not operate as an excise in relation to the period 1 July 2014 to 30 September 2014, on the basis that (inter alia) there was not a sufficiently close relation between the levy and production of the Product to sustain a characterisation of the levy as, in substance, a tax on that production.[269]

269 The judge concluded that the transaction the subject of the levy was not proximate to the mining of the Quarry Materials.[270]

270 In substance, Eclipse's arguments are as follows. First,[271] the primary judge erred in failing to find that the relevant materials were a valuable commodity or article of commerce in the sense required in determining whether a tax is to be characterised as an excise. In that regard, Eclipse contends that the judge failed to give proper recognition to the breadth of the concept of a tax on goods or commodities, and did not have regard to the views expressed in Mutual Pools. In particular, Eclipse relies on the following observations of Mason CJ, Brennan and McHugh JJ:[272]

In the context of ss 55 and 90 of the Constitution, the reference to goods as the subject of the tax must be understood in its widest sense. An excise embraces a tax on commodities produced as well as a tax on manufactured articles, as the comprehensive discussion on the topic by Dixon J in Matthews v Chicory Marketing Board (Vict) so clearly demonstrates. In conformity with this understanding of the concept of excise, the word 'goods' is defined to include 'commodities'. In determining whether particular objects are properly described as 'goods' or 'commodities', it may be useful to consider whether they are saleable. Although many objects which are unsaleable are not properly described as 'goods' or 'commodities', some objects are properly so described even though they are not saleable. Hence the production by shorthand writers of transcripts was held not to amount to the production of goods because they were not brought into existence for sale as a commodity, but for the purpose of enabling employers to have the benefit of services given in the course of a skilled vocation. On the other hand, reinforced concrete piles manufactured under a bridge-building contract for incorporation into the structure of a particular bridge across a bay, though plainly not saleable on the market, were held to be manufactured articles, and thus goods, before they lost that character upon being incorporated into the structure and forming part of the realty. (footnotes omitted)

271 The last sentence in this passage is a reference to M R Hornibrook (Pty) Ltd v The Federal Commissioner of Taxation,[273] referred to below.

272 Eclipse also relies upon the following observations of Dawson, Toohey and Gaudron JJ in Mutual Pools:[274]

An excise duty is a tax upon goods. Of course, goods do not pay taxes. That means an excise duty is a tax upon persons in relation to goods. There is no need in this case to examine the precise relationship between a tax and goods which will be sufficient to constitute the tax a duty of excise. That is a vexed question and the present state of the authorities was recently examined by the Court in Philip Morris Ltd v Commissioner of Business Franchises (Vict). For the purposes of this case it is enough to recognise that an excise duty is 'a tax imposed "upon" or "in respect of" or "in relation to" goods'. 'Goods' is not a word of precise meaning but, in the context of excise duties, it signifies articles of commerce or things which, even if not saleable or without any discernible sale value, may be the subject of trading or commercial transactions. Under s 3(1) of the Sales Tax Assessment Act (No 1) 'goods' includes commodities. (footnotes omitted)

273 In what appears to be, in effect, 'particulars' of its first argument, Eclipse submits:

1. That waste usable as fill constitutes a 'product' or good is recognised by the DER.[275]
2. That material was used by Eclipse:

(i) to produce mulch and blended soils for sale or otherwise;

(ii) to 'produce suitable filling', or to produce 'fill'; and

(iii) for which it had a 'commercial purpose and use'.[276]

1. That there 'can' be a market for waste and, hence, waste 'can' be an article of commerce, or a good, or a product, as recognised by reg 20(c) of the Waste Recovery Regulations.[277]
2. At the Abercrombie Road Site there was a direct connection between the placing of material in the void and the production of the Quarry Materials (limestone and sand) and, hence, the filling of the void was a necessary step in the production of the Quarry Materials.[278]
3. That material placed in voids with the intention that it would be later extracted means that the fill deposited with that intention was an input to produce other products and, hence, a valuable commodity. Reference in this regard was made to the judge's finding with respect to the excavation of peat, and to re-mining in the period July - September 2014 at the Abercrombie Road Site.[279]

274 Secondly, Eclipse contends that the judge erred by taking into account the following considerations which were irrelevant to the question of whether the materials were a valuable commodity or article of commerce for the purposes of characterising the levy as an excise:[280]

(a) That the material was of no value to the suppliers and, in many cases, Eclipse was paid to take the material.

(b) That the material was of no value to anyone, apart from Eclipse. (Reference in this regard was made to M R Hornibrook.)

(c) That no party paid Eclipse to dispose of the materials to landfill by putting them into the voids. (Eclipse contends that the filling of the voids was done for valuable consideration pursuant to its contractual and planning obligations to fill the voids on the sites.)

275 In that regard, Eclipse (as noted in par 2(iii) of [273] above) contends, in effect, that even if it did not use fill as an input for a product, Eclipse still had a 'commercial purpose and use for the material'.

276 Thirdly, it is said by Eclipse that his Honour erred in treating the levy as a tax on land because:[281]

(a) in the Levy Act (s 4, s 5 and s 6), reference is made to a levy that is to be payable in respect of 'waste received' at disposal premises;

(b) the Levy Regulations do not impose the levy, but merely prescribe the method by which levy payable on 'waste received' at the premises is to be determined and calculated;

(c) the Levy Regulations do not transform a tax imposed on 'materials received' at a site into a tax on land merely because the tax is not quantified until a measurement is made of the materials received when disposed of to landfill;

(d) in Mutual Pools, Dawson, Toohey and Gaudron JJ emphasised that the tax in question in that case was not levied upon goods, but on a swimming pool when construction was complete;

(e) in M R Hornibrook, the piles were held to be goods, the sale of which attracted sales tax even though the property in the piles did not pass until they were driven into the seabed and became part of the structure, losing their character as goods; and

(f) the judge's decision cannot be reconciled with Matthews where the majority held that the levy imposed on growers, even though based on the area of land planted to chicory, was nevertheless an excise.

277 It is convenient at this point to refer to the particular cases on which Eclipse relies. In M R Hornibrook, the appellant (MRH) was a builder and contractor. It constructed a bridge under a contract with a company (highway company) which held a franchise for the erection of the bridge. The bridge was built on reinforced concrete piles, driven into the seabed. The concrete piles were manufactured by MRH specifically for this particular job. Concrete piles were not standardised or manufactured for sale anywhere in Australia. The concrete piles were not sold as piles by MRH to the highway company. There was, in fact, no sale of the piles by MRH to any person whereby that person became the owner of the piles before they lost their character as chattels and became part of the bridge. The question was whether the concrete piles were 'goods' within the meaning of the Sales Tax Assessment Act (No 1) 1930 - 1936 (Cth). Even though the relevant contract was not a contract for the sale of goods because there was no sale of the piles by MRH to any person, there was a deeming provision to the effect that a person was deemed to have sold goods if, in the performance of some contract under which they are entitled to receive valuable consideration, they supply 'goods the property in which ... passes ... to some other person'.[282] Latham CJ and Rich J held that the deeming provision applied. Latham CJ said:[283]

In my opinion the commissioner is right in his contention that this provision applies to the present case. The appellant company, in the performance of a contract for building a bridge under which contract it was entitled to receive and doubtless has received valuable consideration, has supplied goods, namely, reinforced concrete piles. Such piles are plainly manufactured articles. They are chattels. They were intended to be incorporated in a structure and were so incorporated. They lost their identity as goods in that structure. But this fact does not prevent the piles from being goods any more than it prevents bricks or stones or nuts and bolts from being goods. The fact that the goods were specially manufactured and designed for a particular purpose cannot be held to deprive them of the character of goods. (emphasis added)

278 In M R Hornibrook, Starke J (with whom Rich J also agreed on this point) held that the concrete piles were 'goods' within the meaning of the relevant statute on another basis. This was that the sales tax applied where 'goods' were manufactured in Australia by a taxpayer and 'applied to his own use'.[284] In relation to whether the piles were 'goods', Starke J said:[285]

In my opinion the piles constructed by the appellant for use in the bridge were goods manufactured or produced by it within the meaning of the Sales Tax Assessment Act. They were tangible articles produced by the application of physical labour or mechanical power and distinct from the ingredients composing them. The piles were in truth articles or goods specially made and supplied for the construction of the bridge as distinguished from services rendered. (emphasis added)

279 In Matthews, a Victorian statute provided for the appointment of marketing boards, which were authorised to make levies on producers. The Chicory Marketing Board, appointed under the Act, levied the producers of chicory at the rate of £1 per half acre of land planted with chicory. A majority of the High Court (Rich, Starke and Dixon JJ) held that it was a tax on the production of chicory, which was a commodity or good, and thus an excise. Rich J observed that 'planting chicory is an essential step in its production'.[286] Starke J reasoned to similar effect.[287] Dixon J said:[288]

The levy made by the Chicory Marketing Board is not ascertained by direct reference to the quantity or value of the chicory produced. It is imposed upon a producer, and presumably under the definition of that word he must actually obtain some chicory from the crop he has sown before he satisfies that description. But the basis of his assessment is not what he garners but what he plants. By calculating the levy upon the number of half acres which the producer plants with chicory the board makes it at least theoretically possible that owing to a failure of his crop the levy upon him has little or no relation to his actual production of chicory. But the basis adopted for the levy has a natural, although not a necessary, relation to the quantity of the commodity produced. Although many other factors go to the determination of the actual quantity of chicory produced, the area planted is, if not the chief, at all events a controlling element. By adopting area planted as the criterion of the amount of the levy upon each producer the board has taxed the production of the commodity as effectually as if it had selected, for instance, the weight of the chicory gathered in its raw state, the quantity treated or the gross returns. For it has placed upon an essential step in production, namely, planting, an impost computed quantitatively. There is no distinction of substance and scarcely any even of form between levying a tax upon the area planted and levying a tax upon the act of planting the area. The levy is directed to the normal case of a man reaping even as he sows. The fact that the tax would also fall upon a chicory farmer whose expectations are disappointed through some of the mischances of agriculture does not seem to me to make the levy any less a tax upon production. The natural or practical relations between manufacture or production and activities or conditions chosen as the tests or standards of liability to taxation depend, not upon logical definitions, but upon the actual course of industrial organisation and technique and of the productive arts.

If the word 'excise' received a meaning which confined its application to taxes the relation of which to the commodity concerned was of some narrow and strictly defined nature, as, for instance, by an arithmetical relation to quantity, it would not only miss the principle contained in the use of the word 'excise,' but it would expose the constitutional provision made by sec. 90 to evasion by easy subterfuges and the adoption of unreal distinctions. To be an excise the tax must be levied 'upon goods,' but those apparently simple words permit of much flexibility in application. The tax must bear a close relation to the production or manufacture, the sale or the consumption of goods and must be of such a nature as to affect them as the subjects of manufacture or production or as articles of commerce. (emphasis added)

280 Mutual Pools concerned the construction and application of s 55 of the Constitution. Section 55 required laws imposing duties of excise to deal only with excise. The plaintiff's business included the construction of swimming pools in situ. The relevant sales tax legislation purported to impose a tax on swimming pools constructed in situ. The plaintiff alleged that this was a tax on land, and contravened s 55 of the Constitution. The plaintiff's claim was upheld. In addition to the passages referred to earlier, Mason CJ, Brennan and McHugh JJ also said:[289]

The case is to be distinguished from M R Hornibrook where the tax was levied on the piles before they lost their character as goods upon being incorporated into the structure of the bridge. Unlike the piles, the swimming pool has no separate existence as goods, independent of the realty of which it forms part from its earliest beginnings. A swimming pool manufactured away from the site of its permanent installation would, like the piles in M R Hornibrook, stand in a different position. Further, for the purpose of ascertaining whether a tax is an excise, the conclusion that completed swimming pools constructed in situ are not 'goods' does not mean that some of the constituent elements of a completed swimming pool, such as tiles, may not be characterised as goods (although presently exempted from sales tax by the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), s 5 and Sched 1, Div XII). (emphasis added)

281 Eclipse's arguments in relation to this ground have been set out in [270] to [276] above.

282 In relation to Eclipse's first argument, there is no doubt that the judge was cognisant of the passages in Mutual Pools upon which Eclipse relies in this appeal. His Honour referred to them.[290] There is nothing in his Honour's reasons to indicate that his Honour misunderstood the passages or their significance.

283 In relation to the 'particulars' to Eclipse's first argument (see [273] above), the following observations may be made. As to the first particular, the DER document relied on by Eclipse is headed 'Material guideline: Clean fill'.[291] It gives a 'product specification' for 'clean fill'. It defines 'clean fill' as:

[M]aterial that will have no harmful effect on the environment and consists of rocks or soil, or a combination of rocks and soil, which is extracted in a raw, unaltered form and which has not previously been used, consumed or subject to processing of any kind.

284 The document provides that in order to meet the 'product specification' for 'clean fill' it must meet the above definition, as well as satisfy four other stipulated criteria. The document sets out how 'clean fill' may be 'generated' from certain waste material if, in effect, (1) the waste originates from specified sources, (2) it is subjected to certain checks both before and after receipt, (3) it is examined on site (including by spreading out the material over a sufficiently large area to enable a comprehensive visual and odour check to be undertaken) and (4) it is then stored in a manner that prevents it from being contaminated. It contemplates that 'clean fill' will be stockpiled, and may have an end use as fill. Eclipse has not shown how the 'clean fill' the subject of this document has any application to the particular waste materials which, on the judge's findings, it received and deposited into the voids at any of its sites (as to which, see [18] - [29] and [32] - [36] above). Further, even if 'clean fill' were itself a product which Eclipse buried on its sites, a levy on such buried material could not be said to be a tax in the production, manufacture, sale or distribution of a good. This point is discussed further below. The first particular does not assist Eclipse.

285 As to Eclipse's second particular, the following observations may be made. The materials which Eclipse used for the production of mulch and blended soils were not materials which were deposited into the voids and compacted.[292] Accordingly, those materials were not disposed of to landfill and the levy was not applicable to those materials. Nor, for that matter, were they even accepted for burial.[293] Further, on the unchallenged findings of fact, Eclipse did not, in any sense, 'produce' fill by disposing of waste to landfill. Whilst it used waste material as fill, it did not thereby 'produce' fill. Also, there is nothing in the judge's primary findings of fact which would warrant the inference that the materials in respect of which the levy is imposed were (in the language of Dawson, Toohey and Gaudron JJ in Mutual Pools) 'articles of commerce' or 'things' which 'may be the subject of trading or commercial transactions'.[294] Whilst Eclipse had a commercial use for the material it deposited into the voids, its usefulness was that it could and would be buried as landfill. Nothing in that use by Eclipse indicates that the material deposited in the voids and compacted and covered over, was a thing (let alone an 'article of commerce') which was, or was capable of being, the 'subject of trading or commercial transactions'.

286 Eclipse's contention that it used the material in the performance of its contractual and planning obligations to fill the voids on the sites, does not alter that conclusion. The judge's findings of fact in that regard are set out in [261] - [264] above. The material was, as a matter of fact, used by Eclipse in the performance of its obligations, but the material itself was not the 'subject' of any trading or commercial transaction. The second particular does not assist Eclipse.

287 As to the third particular, even if there 'can' be a market for waste and waste 'can' be an article of commerce, or good, or product, the unchallenged findings are to the effect that there was no cogent evidence that there was a market for the particular types of waste materials buried by Eclipse, or that these materials were saleable. The third particular does not assist Eclipse.

288 The fourth particular alleges that at the Abercrombie Road Site, there was a direct connection between the placing of materials in the void and the production of the Quarry Materials (limestone and sand) and, hence, the filling of the void was a necessary step in the production of the Quarry Materials. As to that particular, it is pertinent to recall the following unchallenged findings of fact made by the judge.

289 The filling of the voids by Eclipse occurred in the following overall setting:

(a) the filling of the void with waste on the Abercrombie Road Site was proposed by Eclipse and was not imposed by the Town of Kwinana;[295]

(b) when planning approval was initially granted, the Town of Kwinana did not require that filling of the land take place, or that filling of the land with waste be carried out;[296]

(c) Eclipse had not demonstrated that there was no practical alternative to using waste as fill to rehabilitate the site following the mining of the Quarry Materials;[297]

(d) when Eclipse initially sought planning approval, it would have been open to the Town of Kwinana to approve alternative sequential uses for the quarry that did not involve a landfill and were consistent with the rural zoning of the land, and those alternative sequential uses could have been approved by the Town of Kwinana if a request for a rezoning amendment had been successful and finalised;[298] and

(e) during the Relevant Period, third party contractors extracted Quarry Materials from the Abercrombie Road Site and sold or used some of them for their own purposes.[299]

290 In relation to whether and to what extent there was any economic connection between the filling of the voids by Eclipse and the production of the Quarry Materials at the Abercrombie Road Site, the judge found:[300]

(a) there was no evidence that the waste levy had been factored into the price of the Quarry Materials;

(b) moreover, Eclipse's records indicated that the total revenue at the Abercrombie Road Site from July 2008 to May 2012 from suppliers of the materials received by Eclipse was in the order of 100 times Eclipse's income from the sale of Quarry Materials during the Relevant Period; and

(c) any tendency for the levy to affect prices charged by Eclipse would seem to lie in the price to be charged by Eclipse for materials it received, and not in the price at which Quarry Materials were sold.

291 In relation to whether there was a temporal connection between the filling of the voids by Eclipse and the production of Quarry Materials at the Abercrombie Road Site, the judge found that:[301]

(a) At the Abercrombie Road Site, Eclipse is not under any obligation to fill the void at any particular rate.

(b) It is uncertain when the rehabilitation of the area mined during the Relevant Period will occur and it may be years away.

(c) It is unclear on the evidence when the mining occurred of the area that was filled during the Relevant Period. Some quarrying had occurred before Eclipse took possession of the site.

(d) There is no reason to suppose that filling of an area occurred soon after that area had been mined.

292 In the context of those findings, his Honour said:[302]

The transaction the subject of the levy is not proximate to the mining of the Quarry Materials. There is no necessary or close temporal connection between the mining of the Quarry Materials and the filling of the site, the latter being the conduct that attracts the levy ...

In support of its submission that there is a close temporal connection between the mining of Quarry Materials and the filling of land, Eclipse points to Mr Delroy's evidence that 'the void is never allowed to get too big ... in case something goes wrong and you are left with a huge hole that you can't fill'. That evidence was given in relation to re-mining of materials deposited and compacted in the void, not in relation to the mining by Eclipse of Quarry Materials. In any event, the effect of that generalised statement is that, if an unidentified limit is reached, the need to ensure that the void is not too big may constrain the extent of mining. That evidence does not satisfy me that there is a close temporal connection between the mining of the Quarry Materials and the filling of the void. For the reasons already given, I am not satisfied that there is any such close connection. (footnotes omitted)

293 Eclipse has not demonstrated any error in the judge's reasoning referred to above. Even if there were some element of logic in Eclipse's submissions on this point, the argument is, on the facts, abstracted from commercial reality. As Dixon J observed in Matthews:[303]

The natural or practical relations between manufacture or production and activities or conditions chosen as the tests or standards of liability to taxation depend, not upon logical definitions, but upon the actual course of industrial organisation and technique and of the productive arts.

294 By the fifth particular of its first argument, Eclipse alleges that material placed in voids with the intention that it would be later extracted, indicates that this material was an input to produce products, and, hence, the material was a valuable commodity. His Honour dealt with this argument in relation to Eclipse's second contention at trial. His Honour's findings of fact with respect to re-mining in general, and the use of peat in particular, are set out in [38] - [42] above. The only site where there was any relevant intention to re-mine was the Abercrombie Road Site in the period 1 July 2014 to 30 September 2014. In that regard, his Honour said:[304]

[I]n determining whether a tax is an excise, it is necessary to assess the nature and extent of the connection between the tax and the relevant step in the manufacture, production or distribution of the goods, in order to determine whether it is, in substance, a tax on that step. Factors relevant to that assessment may include the indirectness of the tax, its immediate entry into the cost of the goods, the proximity of the transaction it taxes to the relevant step in manufacture, production or distribution, and the form and content of the legislation imposing it.

None of these factors support the characterisation of the levy in its application to the Products as an excise. There is no evidence to suggest that the levy enters into the cost of the Products, directly or indirectly. Nor is there any natural tendency for that to occur. The transaction taxed by the levy is not proximate to the production of the Products. What is taxed by the levy is the disposal of waste to landfill. Nothing in the form or content of the levy regime favours its characterisation as an excise in relation to the Products.

To be an excise, a tax must bear a close relation to the production of goods. In this case, there is not a sufficiently close relation between the levy and the production of the Products to sustain a characterisation of the levy as, in substance, a tax on that production. When waste is disposed of to landfill, by definition it is not then being used to make Products. When the materials were put into the ground, that reflected Eclipse's decision that, from its perspective, that was the most efficient and productive use of them at that time. The materials were compacted on the basis that they would be 'treated as permanent fill and therefore placed and compacted accordingly'. Compacted materials may or may not be re-mined, depending on later economic circumstances and the materials available to Eclipse at later times. The existence of that possibility does not sustain a conclusion that the levy bears a close connection to the production of Products that may or may not, at some uncertain subsequent time, be produced from materials disposed of to landfill during the return period in question. The disposal of materials to landfill in these circumstances is not an essential or natural step in the production of the Products from that material.

There is no proportionate relationship between the amount of the levy and the amount or value of any of the Products. Nor is there any 'natural' connection between them. The position is quite the opposite. The levy only applies to what has been disposed of to landfill. By definition, in dealing with materials in that way, Eclipse decided that it did not then propose to use them to make Products, but rather to add them to the void. Waste received and not put in the void, but used to produce Products, is not disposed of to landfill and so is not subject to the levy.

Eclipse submits that there is a proportionality between the levy and the Products in that the amount of levy payable is directly related to the volume of materials available in the void, in the nature of a stockpile, for potential future production of Products. I do not accept that this is the right way to assess the nature and extent of the relationship between a tax and the goods a step in the production of which is said to be burdened by the tax. The enquiry is directed to the connection, if any, between the amount of levy payable and the quantity or value of the Products. There is no connection between the amount of levy payable and the quantity or value of any Products made during a given return period. Any connection is founded on what might happen in the future, not on what has happened during the return period in which the levy becomes payable.

Moreover, if and when Eclipse later decided to remove some material to use it to produce a relevant product, subject to a qualification, in the return period in which that occurred Eclipse would be given a credit in respect of that 'cutting' from the void. The qualification is that if during a return period, there was a net cut from a site, the return would be shown as zero, not a negative figure. Consequently, no credit would be given for re-mining if and to the extent it produced a net negative figure during the return period. During the Relevant Period, there was no return period for Abercrombie Road or Wanneroo Road in which there was a net cut. (footnotes omitted) (emphasis added)

295 Eclipse has not established any error in the judge's reasoning referred to above. Nor has it challenged the findings of fact italicised in the preceding quote. Again, Eclipse's observations do not accord with the commercial reality of the facts as found. The observations of Dixon J in Matthews, referred to in [293] above, apply equally to this point. The fifth particular does not assist Eclipse.

296 Nor does Eclipse's second argument have merit. Mutual Pools is authority for the proposition that, in this context, it may be useful, although not determinative, to consider whether the things described as goods or commodities, are saleable.[305] Each of the considerations which Eclipse alleges is irrelevant, is relevant to that question. Further, for the reasons given earlier, Eclipse's contractual and planning obligations provide no basis for characterising the materials buried by Eclipse as 'goods' within the meaning of s 90 of the Constitution.

297 Eclipse's third argument, in substance, is to the effect that the levy is imposed 'on materials received'[306] at the landfill premises, and not on waste disposed of to landfill. Eclipse contends, in effect, that as a matter of form and substance, the levy is imposed on all material received at landfill premises, and that the Levy Regulations thereby impose a tax on waste received, by measuring the quantity of waste disposed of to landfill, when the waste is disposed. That is not correct.

298 Section 4(1) of the Levy Act does not in terms authorise a levy 'on' materials received at disposal premises. Section 4(1) empowers the Governor to prescribe an amount by way of levy 'in respect of' waste received at disposal premises. The phrase 'in respect of' gathers meaning from the context in which it appears;[307] nevertheless the phrase has a 'wide meaning'[308] and is of 'broad import'.[309] The scope of the power in s 4(1) and its intended operation is elaborated on in s 4(2) of the Levy Act. Section 4(2)(a) provides that the regulations may provide that the amount by way of levy is to be payable in all cases, in all cases subject to specified exceptions, or in any specified case or class of case. Section 4(2)(c) provides that the regulations may provide for the levy to be calculated on such basis, and in accordance with such factors, as are specified. The effect of s 5 of the Levy Act is that if an 'amount by way of levy' is prescribed pursuant to s 4, that levy is imposed.

299 Whilst the Levy Regulations apply (subject to the specified exemption) to 'all waste received at landfill premises',[310] the amount by way of levy that is payable is calculated under reg 12 in relation to category 63 landfill premises by reference to the volume of waste received which is 'disposed of to landfill': reg 12(1) read with, in particular, reg 10(2), reg 10(5), reg 10(7), reg 10(8), and reg 11(1), reg 11(2) and reg 11(4). Regulation 5(1)(b) provides for an exemption to be granted by the CEO to a licensee for waste received at a licensed landfill in any return period that is 'not disposed of to landfill but is collected and stored at a licensed landfill for reuse, reprocessing, recycling or use in energy recovery' (emphasis added).

300 Accordingly, on the proper construction of the Levy Regulations and the Levy Act, Eclipse's contention to the effect that the levy is imposed on all materials received at disposal premises, is incorrect. The levy is, in form and substance, imposed on waste received at landfill premises which is disposed of to landfill.

301 Eclipse sought to support its submission with the following suggested analogy:[311]

[S]uppose the State imposed a tax on all limestone (goods) delivered to building sites, and by regulation provided that the quantity of such limestone (and hence the tax) will be determined by measurement of limestone footings and walls, when constructed. The tax is not a 'land tax', but a tax on goods, even though the calculation of the tax is made when the building is constructed. The limestone is then part of the land; but the tax was imposed on the goods, before they became annexed. (original emphasis)

302 The analogy suggested by Eclipse is no analogy at all. There is no equivalence between the limestone blocks delivered for use on building sites and the waste material received at Eclipse's sites for burial. Also, unlike the limestone blocks in the suggested analogy, the levy here is not imposed on all waste delivered to (or received at) the prescribed premises. By s 5 of the Levy Act, where 'an amount by way of levy is prescribed ... that levy is imposed'. The amount by way of levy that is prescribed is payable only on the volume of waste received which is disposed of to landfill. It is not to the point to say that a tax on goods delivered may be calculated by reference to the extent to which the goods are applied or used (as in the limestone example), if there is no tax on goods delivered in the first place.

303 As noted earlier, Mutual Pools does not assist Eclipse in this aspect of its argument. M R Hornibrook held that the concrete piles were manufactured articles and thereby 'goods', and did not lose their character as goods merely because there was no sale prior to their incorporation into the bridge structure which formed part of the realty. The tax in that case was on the manufactured article prior to its supply or distribution to a third party. In this case, the levy does not apply to a manufactured article. The materials which were received and sent to landfill were not, on the judge's findings, shown to be a valuable commodity or article of commerce.[312] Further, even if the materials received at landfill premises could be characterised as 'goods', on the judge's findings of fact, referred to in [266] - [267] and [289] - [292] above, Eclipse has not established that the levy was a tax in the production, manufacture, sale or distribution of a good.

304 Nor is the judge's decision contrary to the decision in Matthews. The tax in Matthews was a tax on the planting of chicory. Chicory was a commodity and the planting of chicory was an essential step in the production of that commodity. Here, there is no commodity, no step in production, and no production, and, in any event, no tax on a commodity, or on a step in production, or on production.

305 Also, for the reasons given earlier, Circelli is of no assistance to Eclipse.

[1] Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62.

[9] Grounds of appeal, WB 15 - 16; respondents written submissions, par 1; WB 53.

[10] As defined in s 4(1) of the Planning and Development Act 2005 (WA); primary decision [15].

[17] Primary decision [296] - [306].

[18] Primary decision [265] - [266], [296].

[21] Primary decision [54] - [55], [112] - [130].

[40] Primary decision [38], [67], [97], [202] - [205], [348], [603], [635] - [640].

[41] Primary decision [267], [277], [289].

[42] Primary decision [268] - [269].

[43] Primary decision [278] - [283].

[44] Primary decision [290] - [293]. Note, [290] contains a typographical error. It refers to 11 June 2009, whereas it should refer to 1 June 2009.

[54] Primary decision [239] - [240], [771].

[61] Primary decision [225] - [228].

[63] Primary decision [230], [234].

[64] Primary decision [231] - [234].

[68] Primary decision [156(a)(i), (b), (c)], [163(c)], [167].

[70] Primary decision [47(a)], [168], [170] - [172].

[74] Primary decision [439], [441].

[75] Primary decision [523]; note that the final judgment was for $12,630,808.80 by way of levy plus penalties.

[77] Primary decision [514] - [518].

[81] Primary decision [526] - [532].

[82] Primary decision [555] - [559].

[84] Primary decision [629], [637].

[89] Primary decision [634] - [640].

[92] Primary decision [238] - [240], [771].

[93] Primary decision [244] - [247], [257].

[96] Primary decision [644] - [645].

[97] Primary decision [646] - [650].

[98] Primary decision [651] - [654].

[99] Primary decision [655] - [658].

[100] Primary decision [659], [661].

[103] Primary decision [662] - [663].

[105] Primary decision [667] - [674].

[107] The following summary is, in general terms, taken from the judge's outline of the relevant parts of the legislation. The Government Parties accepted the judge's summary of the relevant legislative provisions as correct, and Eclipse did not challenge this summary in its grounds of appeal.

[108] See s 4(1) of the Levy Act; s 96 and s 102 of the Waste Recovery Act and sch 3 of the Waste Recovery Act.

[112] Waste Recovery Regulations, reg 18(3).

[113] Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, [63].

[115] See, for example, primary decision [307].

[116] Primary decision [501] - [509].

[117] Primary decision [579] - [582].

[120] Appellant's written submissions, par 15; WB 21.

[121] Primary decision [560], [568].

[122] Appellant's written submissions, pars 76 - 77; WB 39.

[123] Appellant's written submissions, par 6; WB 19. Reference was made to a folder of 'Hansard Extracts' in relation to second reading speeches, with respect to the Environmental Protection Amendment Bill 1997 and Environmental Protection Landfill (Levy) Bill 1997; explanatory notes for the Waste Avoidance and Resource Recovery Bill 2007 and the Waste Avoidance and Resource Recovery Levy Bill 2007; and second reading speeches with respect to each of the latter bills.

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

[127] Environment Protection Authority v N (1992) 26 NSWLR 352.

[129] Appellant's written submissions, par 17; WB 22 - 23.

[130] Bighorn (Municipal District No 8) v Bow Valley Waste Management Commission (2013) ABQB 723.

[131] Appellant's written submissions, par 20; WB 23 - 24.

[132] Appellant's written submissions, par 26; WB 26.

[133] Appellant's written submissions, par 26.2; WB 26.

[134] Appellant's written submissions, par 27; WB 26 - 27.

[136] Appellant's written submissions, par 35; WB 29.

[137] Appellant's written submissions, par 38; WB 29 - 30.

[138] Appellant's written submissions, par 40; WB 30.

[139] Appellant's written submissions, par 51; WB 32 - 33.

[140] Appellant's written submissions, par 52; WB 33.

[141] Appellant's written submissions, pars 69(a) - (g).

[142] Corporation of the City of Adelaide v Circelli [2017] SASCFC 12.

[143] Wood v Adelaide Resource Recovery Pty Ltd [2017] SASCFC 13.

[151] City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 [47].

[152] Director General of Department of Transport v McKenzie [2016] WASCA 147 [45] - [48].

[153] Re Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351, 364 - 365.

[154] Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31; (1996) 187 CLR 310, 329 - 330.

[155] Coverdale v West Coast Council [2016] HCA 15; (2016) 214 LGERA 160 [37].

[156] Primary decision [556]; Macquarie Online Dictionary.

[158] Primary decision [591], [596] - [598].

[160] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [38], [65].

[161] Interpretation Act 1984 (WA) s 44(1).

[162] cf generally Wright v TIL Services Pty Ltd (1956) 56 SR (NSW) 413, 421 - 422; Dainford Limited v Smith [1985] HCA 23; (1985) 155 CLR 342; Interpretation Act s 43(8) .

[165] Appellant's written submissions, par 62; WB 35.

[166] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726; Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64] - [65]; Howell v Macquarie University [2008] NSWCA 26 [55].

[169] Interpretation Act s 44(1).

[170] Similarly, the EP Regulations which applied in relation to waste received at licensed landfills prior to 1 July 2008 also provided, in effect, that 'waste' included 'uncontaminated soil or other clean fill': EP Regulations, reg 22, 23(1)(a). (Eclipse applied for and obtained such exemptions on 10 June 2008: primary decision [330(b)].)

[177] Primary decision [238] - [239], [771].

[180] cf News Limited v South Sydney District Rugby League Football Club Limited [2003] HCA 45; (2003) 215 CLR 563 [18].

[183] Appellant's written submissions, par 26.2; WB 26.

[184] Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389.

[185] Master Education Services Pty Limited v Ketchell [2008] HCA 38; (2008) 236 CLR 101 [19].

[186] Appellant's reply, par 11; WB 85.

[187] As to Eclipse's sequential land use, see primary decision [61].

[190] Appellant's written submissions, par 20; WB 23.

[191] K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited [1985] HCA 48; (1985) 157 CLR 309, 315 - 319; Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 [57].

[192] IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12.

[193] Municipal Officers' Association of Australia v Lancaster [1981] FCA 151; (1981) 54 FLR 129, 153.

[194] The judge found that in this industry, transport costs are a significant factor: primary decision [733].

[195] Waste Recovery Act s 5(1)(c)(iii).

[196] For example, s 5(1)(a) of the Waste Recovery Act.

[197] Interpretation Act s 44(1).

[200] Bighorn [89] - [90], [97(g)].

[201] Bighorn [62] - [65], [86] - [87].

[202] Commissioners for Her Majesty's Revenue and Customs v Waste Recycling Group Limited [2008] EWCA Civ 849.

[203] Commissioners for Her Majesty's Revenue and Customs [33] - [34].

[204] Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332 [20]; Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162; (2010) 176 LGERA 31 [80] - [96], affirmed on appeal, Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; (2013) 84 NSWLR 688; Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; (2013) 84 NSWLR 679 [26] - [34]; Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [No 5] [2013] NSWLEC 68 [196] - [197].

[205] Carter Holt Harvey Ltd v North Shore City Council [2007] NZCA 420; [2008] 1 NZLR 744.

[206] Carter Holt Harvey Ltd [19], [35].

[207] Carter Holt Harvey Ltd [36].

[219] Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 [33].

[220] Macquarie Online Dictionary definition of 'onto'.

[221] There being no contrary indication: Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629, 647.

[222] Oxford Dictionary definition referred to by Eclipse in its submissions at par 26.2.

[224] To get rid of something in its ordinary meaning is to 'do away with' it: Macquarie Online Dictionary.

[226] Macquarie Online Dictionary definition of 're-use'.

[227] Macquarie Online Dictionary definition of 'recycle'.

[230] Appellant's written submissions, pars 76 - 77; WB 39.

[232] Primary decision [692] - [719].

[233] Although in two respects, mentioned later in these reasons, Eclipse criticised his Honour's approach by reference to authority. In substance the criticism is of the judge's appreciation of the significance of the principles to the case in hand, rather than assertion of error in the statement of the principles.

[234] Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, 490, 499.

[235] Parton v Milk Board (Victoria) [1949] HCA 67; (1949) 80 CLR 229, 260.

[236] Ha (495), citing Dixon J in Parton (260).

[237] Ha (498); Queensland Nickel Pty Ltd v Commonwealth of Australia [2015] HCA 12; (2015) 255 CLR 252 [53].

[238] Philip Morris Limited v The Commissioner of Business Franchises (Victoria) [1989] HCA 38; (1989) 167 CLR 399, 435 - 436, citing Barwick CJ in Anderson's Proprietary Limited v The State of Victoria [1964] HCA 77; (1964) 111 CLR 353, 365.

[239] Anderson's (365); Hematite Petroleum Proprietary Limited v The State of Victoria [1983] HCA 23; (1983) 151 CLR 599, 633, 658 - 659, 666; Gosford Meats Proprietary Limited v The State of New South Wales [1985] HCA 5; (1985) 155 CLR 368, 384.

[241] Matthews v Chicory Marketing Board (Victoria) [1938] HCA 38; (1938) 60 CLR 263.

[244] Parton (259); Anderson's (365); Dennis Hotels Proprietary Limited v The State of Victoria [1960] HCA 10; (1960) 104 CLR 529, 583, 585, 590; Logan Downs Proprietary Limited v The State of Queensland [1977] HCA 3; (1977) 137 CLR 59, 76.

[245] Mutual Pools & Staff Pty Limited v The Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 4; (1992) 173 CLR 450, 454, citing Matthews (293 - 303).

[248] Commissioner for Australian Capital Territory Revenue v Kithock Pty Ltd [2000] FCA 1098; (2000) 102 FCR 42 [21] - [31].

[251] Primary decision [687] - [689].

[261] Primary decision [736] - [737], [744].

[262] Primary decision [741], [744(2)], [745].

[263] Primary decision [738] - [740], [744(1)], [745].

[266] Primary decision [758] - [760].

[267] Primary decision [762] - [764].

[268] Primary decision [771] - [772].

[269] Primary decision [774] - [780].

[270] Primary decision [798] - [799].

[271] Appellant's written submissions, pars 85 - 103; WB 41 - 45.

[273] M R Hornibrook (Pty) Ltd v The Federal Commissioner of Taxation [1939] HCA 29; (1939) 62 CLR 272.

[275] Appellant's written submissions, par 89; WB 41.

[276] Appellant's written submissions, pars 93 - 96, 103; WB 42 - 45.

[277] Appellant's written submissions, par 90; WB 41 - 42.

[278] Appellant's written submissions, par 94; WB 42.

[279] Appellant's written submissions, par 98; WB 43.

[280] Appellant's written submissions, pars 100 - 102; WB 43 - 44.

[281] Appellant's written submissions, pars 105 - 113; WB 45 - 46.

[282] M R Hornibrook (278 - 279).

[290] Primary decision [709] - [710].

[295] Primary decision [788] - [790].

[299] Primary decision [63], [65].

[302] Primary decision [798] - [799].

[304] Primary decision [775] - [780].

[306] Appellant's written submissions, par 109; WB 45.

[307] The Workers' Compensation Board of Queensland v Technical Products Proprietary Limited [1988] HCA 49; (1988) 165 CLR 642, 653 - 654.

[308] The Workers' Compensation Board of Queensland (653); Technical Products Pty Limited v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45, 47.

[309] O'Grady v The Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356, 374 - 375.

[311] Appellant's written submissions, par 110; WB 45 - 46.