Memo of Advice

Dear Andrew,
Regarding your dilemma concerning paying the $1,000.00 fine or defending the charge in court, I believe that you will be better off paying the fine, as opposed to the high likelihood that if you go to court, you may be fined an even greater amount – a fine not exceeding $5,000.00. The situation is currently not in your favor and it would be difficult to swing the jury to your side.
On the 1st December 2010, you collected and drove a truckload of contaminated soil from Melville and parked it there overnight. Although you intended to drive it away to a remote waste dump the next day, you were in breach of section three of the Contamination Avoidance Act due to the fact that the toxic waste was in the vicinity of the Swan River. A municipal inspector discovered your breach of the law and made a report to the Police, which subsequently led to charges being brought upon you. The facts of the case in dispute are namely whether or not leaving the toxic waste near the river overnight is considered storing, and whether you were really in breach of the Act. The fact that you were carrying toxic waste that might cause harm to the surroundings or compromise water resources is indisputable. Even more so because the offence was committed near the Swan River, to make matters worse, you did not own a permit for it as well.
Since this issue took place in Welshpool, which is in Western Australia, the Contamination Avoidance Act applies. In addition, since this bill was passed on 30th July 2009, it is also applicable to your case as the incident took place on 1st December 2010. Under Section 3 of the Act, “Storage of toxic materials prohibited – A person shall not store or permit the storage of toxic materials within five kilometers of a river or river bed without first obtaining a permit from the Minister.” Pertaining to your case, the relevant information are as follows. Under Section 1, the objective of this Act is primarily to protect the water resources of Western Australia and to prevent unnecessary contamination of the environment. Under Section 2, for further clarification on the definitions of the words in the Act, “Minister” refers to the Minister of Environmental Affairs. While “toxic materials” refer to any contaminated materials or substances known to cause harm to animals or plants. Under Section 4, it is stated that applying for a permit on the prescribed form at least three weeks before the storage of contaminated waste is mandatory. Under Section 5, in summary, it states that any conduct in contravention of this Act would be liable to a fine not exceeding $5,000.00.
It is arguable that the definition of “storage” is ambiguous as it is not clearly stated in the Act. A definition taken from the Oxford Dictionary, “storage” refers to “the action or method of storing something for future use”. It does not specify a given timeframe or any special circumstance that would deem an act of simply placing any object in a given location as “storage” or vice versa. Therefore, it is questionable that leaving the toxic waste overnight could be considered as storage. In addition, “future use” is ambiguous as well. Your original intention was to dump the waste, as opposed to “using” it for future purposes. Therefore, this point is disputable as well.

In spite of the ambiguity of the definitions in the Act, there is overwhelming evidence against your case. The Swan River is three kilometers from the haulage company’s yard, which is within the five kilometers area stated in the Act. This makes you liable under Section three of the Contamination Avoidance Act. In the event that you had obtained a special permit to leave the toxic waste there, you would not be liable for the offence. But the fact is you did not have one, which does not help your case at all.

Finally, referencing from an extract of the Minister’s Second Reading Speech “…the Contamination Avoidance Act will ensure that there is no risk at all of contamination to our precious waterways due to toxic material being left in any circumstances within the prescribed areas.” The very fact that the Minister mentioned “in any circumstances”, whether you left the toxic waste overnight or just a few minutes does not matter. You would still be in breach of the Act, and be prosecuted nonetheless. This extract is enough to overturn any arguments that we would be able to come up with.
In conclusion, although you intended to move the contaminated soil the next day, the municipal inspector discovered the soil before you could move it, which makes that argument void. Again, although we can dispute the fact that the Contamination Avoidance Act is not clear about “storage”, and that leaving the truck overnight does not equate to “storing” it there, it is not strong enough an argument in face of the overpowering evidence. These include the fact that the contaminated soil was parked within the location radius of the Swan River as stated in Section three of the Contamination Act and that you did not own a permit which allowed you to do so. Also, the Minister made his stand clear that, under no circumstances, he would risk contamination of Western Australia’s precious waterways. This has convinced me beyond any reasonable doubt that should you attempt to defend the charge in court, you would have a high likelihood of being liable to pay more than the original fine of $1,000.00. I therefore urge you to heed my advice and pay the fine.