ResourceCo Material Solutions Pty Ltd v Victoria

The High Court will hear a constitutional matter on whether reg 26(3) of the Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) is contrary to the freedom of interstate trade and commerce protected by s 92 of the Australian Constitution and therefore invalid. Regulation 26(3) prohibits the interstate transport of certain kinds of industrial waste unless the interstate facility has better environmental protection standards than a facility licensed under the Environment Protection Act 1970 (Vic) or it is exempt from the licensing requirement. The plaintiffs are two waste management companies located in Victoria and South Australia. The second defendant, the Victorian Environmental Protection Authority, refused the first plaintiff’s application for approval to transport contaminate soil from Victoria to the second plaintiff’s waste treatment facility on the basis that the EPA was not satisfied that the environmental standards at that facility were better than a facility licensed under the Act to receive the waste, as required by reg 26(3). The plaintiffs now contend that the protectionist effect can be inferred from the discriminatory burden that reg 26(3) places on interstate trade, that in assessing whether the objects of the regulation are protectionist the Court must examine the actual motivating objects of the regulation (and not ex post facto justifications for it), and finally that it is inconsistent with s 92 for a State attempts to limit interstate transport of a good for the purpose of securing levies imposed by the State’s laws.

High Court Judgment
High Court Documents ResourceCo
Full Court Hearing
Directions Hearings [2016] HCATrans 164  22 July 2016
[2016] HCATrans 153 7 July 2016

[2016] HCATrans 124 25 May 2016
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.