Introduction
3.1
This Chapter examines the Minamata Convention on Mercury (the Convention), signed in Kumamoto on 10 October 2013. It was tabled in the Parliament on 15 June 2021.
Background
Mercury
3.2
Mercury, a chemical of global concern, is a toxic pollutant released into the environment primarily through human (anthropogenic) activities. It has the capacity for long-range atmospheric transport, persists in the environment once introduced, bioaccumulates in ecosystems, and has significant effects on human health and the environment. Exposure can harm the immune system, brain, heart, kidneys and lungs; acute or chronic exposure can be fatal. There is no known safe exposure level for mercury in humans.
3.3
Mercury has historically been used in measuring devices (such as barometers, thermometers, sphygmomanometers), switches, relays, some fluorescent light bulbs, batteries, cosmetics, pesticides, biocides, pharmaceuticals, jewellery and dental amalgam. It has been used in the production of chlorine and sodium hydroxide, polyvinyl chloride (PVC), and polyurethane elastomers. It can be a by-product of raw material refining and production processes including oil and gas refining, and non-ferrous metal production. Coal-fired power stations and coal-fired industrial boilers also emit mercury.
3.4
When released through human activities, mercury can become airborne and travel far from the point of origin. It may travel across continents, before being dispersed widely, primarily through rainfall, onto land, and into lakes, streams and oceans. It can be taken up by soils, water and plants and slowly released back into the atmosphere. It can enter the food chain. Direct mercury exposure for humans most commonly occurs through the consumption of fish and seafood. Mercury can also leak from landfill sites and mining sites.
3.5
Mercury is never destroyed and transitions into various forms as it cycles through the environment. Given its capacity to travel far from its point source, the Department of Agriculture, Water and the Environment (the Department/DAWE) stated ‘it is highly likely that Australians are being affected by mercury pollution from overseas’.
The Convention
3.6
The objective of the Convention is to create a global regime that will protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds. The Convention opened for signature on 10 October 2013 and entered into force generally on 16 August 2017. It would not enter into force for Australia unless ratified.
3.7
The Convention is named after the seaside city of Minamata in Japan. In the 1950s, an industrial company was found to have released untreated mercury waste into the adjoining saltwater bay for decades. The mercury contaminated the fish and shellfish stocks, and caused the death and poisoning of thousands of local residents. The environmental and public health catastrophe led to improved Japanese regulations and to the establishment of the Minamata Convention on Mercury.
3.8
The Convention recognises mercury pollution is at such a scale it cannot be managed or reduced by one country alone—as much as 9,000 tonnes are released each year. The Convention provides a multilateral platform for global action by committing:
… Parties to address the lifecycle of mercury from its entry into the economy (via mining or international trade); uses in products; releases and emissions from industrial processes; through to waste management and storage.
3.9
The Convention encompasses measures to control the supply and trade of mercury; limit emissions and releases of mercury; and address the environmentally sound interim storage of mercury, and contaminated sites. The Convention recognises countries have different capacities and includes measures to mobilise financial resources for implementation in developing countries. There are provisions to ensure accountability, and to evaluate the overall effectiveness of the Convention.
3.10
As at 6 July 2021, 132 countries and regional organisations had ratified the Convention.
Mercury use, emissions and releases in Australia
3.11
According to the NIA, primary mercury mining does not currently occur in Australia, and there is no significant artisanal and small-scale gold mining. However, mercury is emitted to air, land and water from a number of sources including: copper, silver, lead and zinc smelting and refining; alumina production; fossil fuel electricity generation; gold ore mining; iron smelting and steel manufacturing; petroleum refining and petroleum fuel manufacturing; sewerage and drainage; waste treatment and disposal services; and oil and gas extraction.
3.12
Mercury is also released through the disposal of damaged fluorescent and low-energy lamps, leaking mercury-contaminated thermometers and batteries, and amalgam from dental practices.
3.13
In 2018-19, excluding the use of Shirtan, Australia emitted and released approximately 10 tonnes of mercury, according to the National Pollutant Inventory. Run-off from sugar cane treated with Shirtan, a mercury-containing fungicide, was estimated to have released an additional 4.3 tonnes of mercury into the environment in 2017-18. The Department confirmed Shirtan had been ‘quite a big sticking point’ in Australia’s ratification of the Convention, and its deregistration in 2020 ‘was quite a milestone’.
3.14
Australia’s mercury emissions are less than 0.5 per cent of global emissions from industrial sources, and releases of mercury to land and water comprise less than one per cent of global releases. However, while relatively small on a global scale, Australia’s industrial mercury emissions are higher than the world per capita average.
3.15
According to the Regulation Impact Statement (RIS), ratification of the Convention would fill gaps in the existing domestic regulatory framework for mercury. Australia’s current controls of mercury cover some, but not all, aspects of the mercury life cycle. For instance:
regulation of mercury occurs under general pollution control measures, and not all regulatory frameworks contain specific mercury controls or policies;
there are gaps in the regulation of mercury exports and imports; and
there would be a requirement to tighten the regulation of mercury-added products that are sources of mercury pollution if not used or disposed of in an environmentally sound manner.
3.16
The regulation of mercury is shared by state, territory, and Federal governments in Australia. The Federal Government has responsibility to regulate mercury under various laws, including:
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention), which requires the Government to control the import and export of hazardous waste;
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, which requires the Government to ensure the export of listed chemicals occurs only with the written consent from a designated authority in a receiving country;
existing customs, agricultural and veterinary chemicals, and therapeutic goods legislation that controls mercury and mercury compounds for some uses, and mercury-added products;
the Australian Inventory of Industrial Chemicals that regulates the import and manufacture of industrial chemicals in Australia; and
the Agricultural and Veterinary Chemicals (Administration) Act 1992 that regulates the use of certain mercury-containing agricultural or veterinary chemical products.
3.17
States and territories are responsible for managing and regulating a number of activities including: mining; manufacturing; mercury storage, waste management, and management of contaminated land; and activities producing mercury emissions to air and releases to land and water (coal-fired power stations, smelting, cement clinker production, waste incineration).
Reasons for Australia to take the proposed treaty action
3.18
A number of reasons to ratify the Convention were put forward by submitters, the Department, and the NIA, including:
the need for global action and for Australia to be seen as a responsible global citizen demonstrating leadership in the region;
providing certainty and decreasing the regulatory burden for business and industry;
participating in regulation-making and shaping future decision making under the Convention;
to obtain benefits accruing from scientific research; and
public health improvements.
Global action and responsible global citizenship
3.19
The NIA discussed the need for global action and the reputational implications for Australia:
collective global action is the most effective way to protect Australians from the harmful effects of mercury pollution, including protecting the health and resilience of Australia’s natural systems and the health and wellbeing of Australians themselves; and
ratification would demonstrate Australia’s commitment to protecting human health and the environment from mercury pollution, support continued international momentum, and contribute to Australia’s efforts to support a more resilient Indo-Pacific.
3.20
Demonstrating responsible global citizenship was an issue that attracted some comment. Professor Emeritus Peter Nelson suggested ratification would ‘ensure Australia participates productively as a responsible global citizen in international affairs and as a responsible trading partner …’
3.21
The RIS acknowledged Australia is ‘increasingly set apart from like-minded countries and key trading partners …’ including the United States, European Union, Japan, China, Indonesia, and India. Thirty of the thirty-seven Organisation for Economic Co-operation and Development (OECD) countries have ratified the Convention. Consequently, a key policy objective of the proposal to ratify the Convention is to ‘continue Australia’s role as an engaged and responsible global trading partner’.
Support from business and industry
3.22
While the Department’s cost benefit analysis identified provisions in the Convention that would potentially impact business and industry, business and industry groups that made submissions to the inquiry supported ratification, including the Minerals Council of Australia, the Australian Dental Association, and the Cement Industry Federation.
3.23
Successive rounds of public and targeted consultations undertaken by the Department since 2010 have confirmed there is broad support for ratification from business and industry groups. According to the Department, these consultations have not identified any significant risks or disadvantages from ratification.
3.24
Rather, it was suggested ratification would provide business and industry with sought after certainty around mercury controls in Australia and alignment with trading partners. Australia’s access to essential mercury-containing products would be assured as international controls on uses of mercury increase over time and these products become difficult for non-Parties to obtain.
3.25
Not only would ratification protect Australia’s ability to import and export permitted mercury-added products, the Committee was advised it would make the process for imports and exports easier. Non-Parties like Australia are required to provide additional assurances when importing or exporting mercury.
3.26
The Department told the Committee:
Industry is already seeing the effects of global phase-outs and is keen for certainty to inform business investment decisions. Joining the network of parties will harmonise Australia's trade obligations and processes with key trading partners. This will decrease regulatory burden for Australian businesses, as gaining party status will remove those administrative barriers to trade and ensure we can continue to access essential goods.
Participating in regulation-making and future decisions
3.27
Key aspects of the Convention’s implementation, and thus its impact on domestic regulations, are determined by guidance materials and definitions. Although the Convention has been negotiated, some foundational guidance materials and definitions are yet to be established and adopted by the Conference of Parties. Some guidance materials are also subject to revision and updating over time.
3.28
For instance, the Convention provides in several places for the development of guidance on how certain provisions can be satisfied, including: best available techniques and best environmental practices for emissions; the criteria Parties may develop for identifying sources covered within a specified source category; and managing contaminated sites. The Convention also provides for revisions to lists of products or manufacturing processes that are subject to phase-out and phase-down requirements.
3.29
Guidance materials would affect the way mercury is regulated in Australia, including any future techniques and environmental practices required of mercury-emitting industries. As a non-Party, Australia cannot contribute to their formulation or influence other aspects of the Convention. Because Australia has not ratified the Convention, it cannot fully engage with the scientific and technical bodies, cannot vote on decisions regarding future global controls, and cannot guide or influence future directions.
3.30
This fact was emphasised by a number of submitters including the Minerals Council of Australia, Environmental Justice Australia, Dr Henrick Selin and Professor Noelle Eckley Selin, and Professor Emeritus Peter Nelson.
3.31
In evidence to the Committee, the Department confirmed:
Should Australia ratify and become a party to the convention, it would have a seat at the table and be well placed to influence future decisions relating to the convention, as it has done for related conventions, including the Basel, Stockholm and Rotterdam conventions.
Benefits from and for mercury science
3.32
The Convention promotes multilateral engagement to tackle challenging problems which, according the RIS, fosters exchanges of knowledge and experience. As a non-Party, Australia cannot benefit from being kept up to date on key scientific developments and emerging issues.
3.33
Not only would ratification bring Australia’s management of mercury emissions and pollution in line with international best practice, according to Mercury Australia, it would provide opportunities for Australian mercury researchers.
3.34
Submitters advised that Australia is home to internationally recognised mercury researchers, who would be well positioned to offer sound scientific advice to governments, industry, and other stakeholders. In partnership with the Australian Government, these researchers could play a prominent role in international implementation processes, ‘providing a needed voice by focussing on mercury issues important to the Southern Hemisphere’.
3.35
Mercury Australia stated research to date on the cycle of mercury between atmospheric, terrestrial and aquatic systems had been focused in the Northern Hemisphere:
In contrast, our understanding of the biogeochemical cycle of mercury in the Southern Hemisphere (SH) and tropics is very poor, particularly for Australasia. Australia is the country best positioned economically to lead mercury research in the SH. Prioritising research in this area will provide stakeholders in Australia and internationally with the necessary tools to take action. As a party to the Minamata Convention, Australian expertise will also play a prominent role in international implementation processes, providing a needed voice by focusing on mercury issues important to the Southern Hemisphere.
Public health benefits
3.36
Drawing upon a ‘benefit transfer methodology,’ the RIS estimated the most likely impact of mercury emissions on human health amounted to $5,273 per kilogram of mercury. Referencing 2018–19 emissions, this amounted to an approximate human health cost to the economy of $52.7 million per year.
3.37
Doctors for the Environment Australia was of the view if the mercury emitted by the use of Shirtan and the cardiovascular effects of mercury toxicity were included, the annual cost to Australia would be $406 million—making ratification even more attractive.
3.38
The RIS predicted ratification would provide the additional benefit of safeguarding Australians against future international increases in mercury emissions and releases. Health benefits would be expected to accrue over time as mercury containing products were no longer imported, and mercury in Australia’s waste streams would be reduced. Reductions in mercury would not come through a reduction in Australian emissions (the reduction would be low to zero), but from a reduction in the import and disposal of mercury-containing products.
Obligations
3.39
The following discussion highlights key provisions of the Convention. The Convention contains 35 articles and 5 annexes. Significantly, it contains measures to:
control the supply and trade of mercury;
limit emissions and releases of mercury;
address the environmentally sound interim storage of mercury and mercury wastes, and contaminated sites;
establish a mechanism to financially assist developing countries meet their obligations under the Convention; and
encourage capacity-building, technical assistance, and technology transfer.
3.40
The annexes deal with:
Annex A—mercury-added products subject to, and excluded from, phase-out requirements or phase-down measures;
Annex B—requirements to phase out certain manufacturing process in which mercury or mercury compounds are used; and to restrict the use of mercury or mercury compounds in certain mercury using processes;
Annex C—requirements for national action plans for artisanal and small-scale gold mining;
Annex D—list of point sources of emissions of mercury and mercury compounds to the atmosphere; and
Annex E—arbitration and conciliation procedures.
Exemptions
3.41
Annex A and Annex B list a number of products and manufacturing processes subject to phase-out requirements. Under Article 6, any state or regional economic integration organisation can register for one or more exemptions from the phase-out dates listed in these annexes. Exemptions can be for a maximum of five years after the relevant phase-out date, and can only be extended once per product per phase-out date. No exemption can be in effect any time after 10 years after the phase-out date. Australia’s stated intention to apply for an exemption for the import of High Pressure Mercury Vapour (HPMV) lamps is discussed below.
Excluded mercury-added products
3.42
Annex A excludes the following mercury-added products from phase-out or phase-down requirements:
products essential for civil protection and military uses;
products for research, calibration of instrumentation, for use as reference standard;
where no feasible mercury-free alternative for replacement is available, switches and relays, cold cathode fluorescent lamps and external electrode fluorescent lamps for electronic displays, and measuring devices;
products used in traditional or religious practices; and
vaccines containing thiomersal as preservatives.
Provisions to control the supply and trade of mercury
Mercury supply sources and trade
3.43
Parties to the Convention agree to:
not allow new primary mercury mining and to phase out within 15 years any such mining that was occurring on or before the date of entry into force of the Convention (16 August 2017);
limitations on the use of mercury obtained from any existing mining, and its disposal; and
not allow the export of mercury, except in accordance with a strict international consent regime, which is subject to reporting requirements.
Mercury-added products
3.44
Parties agree to take appropriate measures to prevent the manufacture, import or export of mercury-added products listed in Part I of Annex A after the phase-out date, except where an exclusion is specified or a Party has registered an exemption. Items in Part I of Annex A include certain: batteries, switches and relays, fluorescent lamps, HPMV lamps, cosmetics, pesticides/biocides/topical antiseptics, and non-electronic measuring devices such as barometers, thermometers and hygrometers.
3.45
Parties agree to take measures to phase down the use of mercury-added products in Part II of Annex A—currently, dental amalgam. Parties are required to take two or more measures from a list of nine measures, which includes: taking action to promote dental health; setting national objectives to minimise the use of dental amalgam; promoting research and development of alternative materials; encouraging professional organisations and dental schools to educate and train on the use of mercury-free dental restoration alternatives; encouraging insurance policies and programmes that favour the use of alternatives; and promoting the use of best environmental practices in dental facilities to reduce releases of mercury.
3.46
Parties are also required to discourage the manufacture and distribution in commerce of mercury-added products not covered by any known use of mercury-added products prior to the Convention coming into force, unless environmental or health benefits can be demonstrated.
3.47
Parties can submit a proposal for listing of additional mercury-added products in Annex A, and the Convention provides for the Conference of Parties to review Annex A no later than five years after the date of entry into force of the Convention (16 August 2017).
Provisions dealing with manufacturing, emissions and releases
Manufacturing
3.48
Annex B lists a number of manufacturing processes that use mercury or mercury compounds. The Convention requires Parties to take appropriate measures to prevent the use of mercury or mercury compounds in the following manufacturing processes: chlor-alkali production (by 2015), and acetaldehyde production in which mercury or mercury compounds are used as a catalyst (by 2018). Parties are required to take measures to restrict the use of mercury or mercury compounds in vinyl chloride monomer production, sodium or potassium methylate or ethylate; and the production of polyurethane using mercury containing catalysts.
3.49
Where a Party has facilities that use mercury or mercury compounds in manufacturing processes (listed in Annex B), they must take measures to address emissions and releases of mercury or mercury compounds from the facilities, and report on these facilities and measures. Mercury or mercury compounds cannot be used in a facility that did not exist prior to the entry into force of the Convention for use in manufacturing processes listed in Annex B. There are no exemptions for such facilities.
3.50
Parties are required to discourage the development of any facility using any manufacturing process in which mercury or mercury compounds are intentionally used that did not exist prior to the Convention coming into force, except where it can be demonstrated, to the satisfaction of the Conference of Parties, that the manufacturing process provides significant environmental and health benefits, and that there are no technically and economically feasible mercury-free alternatives available providing such benefits.
3.51
Parties can submit a proposal to amend Annex B to list a manufacturing process in which mercury or mercury compounds are used. The Conference of Parties, no later than five years after the date of entry into force of the Convention, is required to review and may consider amendments to Annex B.
Emissions
3.52
The Convention requires the control, and where feasible, the reduction of emissions of mercury and mercury compounds to the atmosphere from point sources specified in Annex D. Annex D specifies the following point sources of emissions of mercury and mercury compounds into the atmosphere:
coal-fired industrial boilers;
smelting and roasting processes used in the production of non-ferrous metals (lead, zinc, cooper, industrial gold);
waste incineration facilities; and
cement clinker production facilities.
3.53
A Party may prepare a national plan setting out the measures it will take to control emissions and expected targets, goals and outcomes. This is submitted to the Conference of Parties. The objective is for Parties to achieve reasonable progress in reducing emissions over time and Parties are required to report information on the measures taken and the effectiveness of those measures.
3.54
For existing sources, Parties are required to implement one or more of a number of specified measures. What measures are taken depends on national circumstances, and the economic and technical feasibility and affordability of the measures. The measures must be taken as soon as practicable, but no more than 10 years after the date of entry into force of the Convention for the Party. The measures are:
a quantified goal for controlling and, where feasible, reducing emissions from relevant sources;
emission limit values for controlling and, where feasible, reducing emissions from relevant sources;
the use of best available techniques and best environmental practices to control emissions from relevant sources;
a multi-pollutant control strategy that would deliver co-benefits for control of mercury emissions;
alternative measures to reduce emissions from relevant sources.
3.55
Specific requirements apply to ‘new sources’ of those point sources listed in Annex D, the construction or substantial modification of which commenced at least one year after the date of:
the entry into force of the Convention for the Party concerned; or
the entry into force for the Party concerned of an amendment to Annex D.
3.56
For new sources or substantially modified industrial facilities, Parties must require the use of best available techniques and the best environmental practices (also known as BAT and BEP) to control and, where feasible, reduce emissions, as soon as practicable but no later than five years after the date of entry into force of the Convention for that Party.
3.57
The Conference of the Parties has issued guidance on the application of best available techniques and best environmental practices for the specified types of facilities, and is required to keep this guidance under review and updated as appropriate.
Releases
3.58
Releases of mercury to land and water from relevant point sources are dealt with in Article 9. Relevant source means ‘any significant anthropogenic point source of release as identified by a Party that is not addressed in other provisions of the Convention’. Parties must:
identify relevant point source categories;
take measures to control releases, including one or more of the measures specified; and
establish and maintain an inventory of releases from relevant sources.
3.59
Measures to control releases of mercury must include one or more of:
use of best available techniques and best environmental practices;
a multi-pollutant control strategy that delivers co-benefits for control of mercury releases;
alternative measures to reduce releases.
Storage, waste, and contaminated sites
3.60
Parties are required to take measures to ensure the interim storage of mercury and mercury compounds intended for a use allowed under the Convention, is undertaken in an environmentally sound manner, taking into account any guidelines adopted by the Conference of Parties. These guidelines may take into account any relevant guidelines developed under the Basel Convention.
3.61
The Convention requires Parties to take appropriate measures to manage mercury waste in an environmentally sound manner, taking into account guidelines developed under the Basel Convention or in accordance with requirements adopted by the Conference of the Parties. Mercury waste may only be recovered, recycled or directly re-used for a use allowed under the Convention or for environmentally sound disposal. Parties to the Basel Convention are not permitted to transport mercury waste across international boundaries except for the purpose of environmentally sound disposal; and where the Basel Convention does not apply, Parties must take account of relevant international rules, standards, and guidelines.
3.62
With regard to contaminated sites, Parties are required to endeavour to develop appropriate strategies for identifying and assessing sites contaminated by mercury or mercury compounds. Any actions to reduce the risks posed by such sites is to be performed in an environmentally sound manner incorporating, where appropriate, an assessment of the risks to human health and the environment from the mercury or mercury compounds contained in the sites. The Conference of Parties is required to adopt guidance on managing contaminated sites, including appropriate methods and approaches.
Financing, assistance and cooperation
3.63
The Convention requires Parties to provide, within their capabilities, resources to finance the national activities implemented under the Convention, in accordance with national policies, priorities, plans and programmes. Resources can include domestic funding through relevant policies, development strategies and national budgets; bilateral and multilateral sources; and private sector involvement.
3.64
Efforts to reduce mercury in the environment must be global. The Convention recognises the limited resources of developing countries, small island developing states and least developed countries, and defines a ‘Mechanism’ for the provision of adequate, predictable and timely financial resources. The Mechanism includes: the Global Environment Facility (GEF) Trust Fund, and a specific international programme to support capacity-building and technical assistance. The operation of the Mechanism is subject to various levels of guidance and agreement from the Conference of Parties.
3.65
The Convention also contains provisions to promote capacity-building, technical assistance, and technology transfer to developing countries Parties—within the capabilities of developed country Parties and other Parties.
3.66
Parties are required to facilitate the exchange of scientific, technical, legal, and epidemiological information; to promote public awareness and education on a range of topics; and cooperate in research, development and monitoring.
Implementation and compliance
3.67
The Convention establishes a ‘mechanism’, including a Committee as a subsidiary body of the Conference of Parties, to promote the implementation of, and review compliance with, all provisions of the Convention. The Convention provides for the Committee to have 15 members, nominated by Parties and elected by the Conference of Parties, with due consideration to equitable geographical representation based on the five regions of the United Nations.
Reporting
3.68
Parties are required to report to the Conference of Parties, through the secretariat, on measures taken to implement the provisions of the Convention and their effectiveness; and possible challenges in meeting the objectives of the Convention.
3.69
In particular, reports must include certain detail pertaining to:
mercury supply sources and trade;
manufacturing processes in which mercury or mercury compounds are used;
artisanal and small-scale gold mining;
Implementation
Existing legislation and policy frameworks
3.70
The Committee was told by the Department that Australia has existing and robust legislative and policy frameworks to protect the community from toxic chemicals, including mercury. As a consequence:
… ratification will have negligible regulatory or financial impacts on Australia. The obligations can be met through existing legislative frameworks at the Commonwealth and state and territory levels, meaning that it's not necessary to create a new regulatory framework. Minor amendments to subordinate legislation across all jurisdictions will bring us into compliance with treaty obligations.
3.71
The Department assured the Committee no legislative changes would be required in either the Commonwealth or at state or territory level—the changes would be made through delegated legislation or policy frameworks. Amendments to existing regulatory frameworks that were foreshadowed included:
changes at a federal level to implement Convention obligations for the import and export of mercury, and the import, manufacture and export of certain mercury-containing products;
adjustments to the application of state and territory legislation relating to mining, manufacturing processes, pollution control, storage and waste management, and management of contaminated sites; and
a range of administration, information, reporting and planning requirements.
3.72
Federal changes would need to be completed prior to Australia depositing its instrument of ratification in accordance with Australia’s treaty-making process.
3.73
According to the RIS, the Government has been working with state and territory governments on implementing the Convention, and it is expected states and territories would amend existing legislative frameworks should the Convention be ratified. Subsequent licencing, compliance monitoring, investigations, and prosecutions for breaches of relevant regulatory measures would be carried out under each jurisdiction’s legislation.
3.74
The Government indicated it is working with states and territories to put into place the National Standard for the Environmental Risk Management of Industrial Chemicals, which would establish management controls for the full life cycles of chemicals of concern, including mercury.
3.75
The NIA stated should Australia pursue ratification, extensive consultation with Commonwealth, state and territory authorities confirmed Australia would be able to meet the Convention’s obligations.
3.76
The Department confirmed to the Committee it was intending to have the necessary changes implemented across all jurisdictions to be in a position to sign the instrument of ratification in early 2022. The Convention would enter into force for Australia three months after ratification.
Exemption for the lighting sector
3.77
The RIS identified that the lighting sector would be the only sector affected by ratification. In Australia, HPMV lamps are used on industrial and commercial sites (21.3 per cent of existing HPMV lamps); residential roads (73.1 per cent of existing HPMV lamps); and other roads. There remain approximately 500,000 HPMV streetlights installed across Australia, with the significant proportion in Queensland and Western Australia.
3.78
Under the Convention, Parties are required to prevent the manufacture, import or export of HPMV lamps for general lighting purposes after 2020. However, Parties may register for an exemption to the phase-out date. This must be accompanied by a statement explaining the need for the exemption.
3.79
Ratifying the Convention would not affect Australia’s ability to continue operating existing HPMV lamps to the end of their operating life.
3.80
The lighting sector has been replacing HPMV lamps with light-emitting diodes (LEDs) for some time and ratification would require bringing forward the capital expenditure of the final stages of the transition by two years. At present value, approximately $7.5 million in expenditure would be brought forward by two years, but this would be offset by a present value benefit of approximately $17.3 million in energy savings and $4.4 million in carbon savings.
3.81
Based on advice received from industry, the RIS recommended Australia should seek a three-year exemption (to 31 December 2023) for the import of HPMV lamps for general lighting purposes to provide additional time for owners and operators of HPMV streetlights to upgrade or find suitable alternatives. Under ratification with a three-year exemption, the RIS estimated the phase out would be completed by 2026, rather than 2028 as initially intended by industry. The NIA confirmed Australia would seek the exemption.
3.82
If Australia ratifies the Convention and does not seek an exemption, it would be prohibited from importing HPMV lamps from the point the Convention would enter into force for Australia—suggested by the Department to be around March 2022.
3.83
Australia would be the only developed, and only OECD, country seeking an exemption to allow the continued importation of HPMV lamps. Other countries have sought exemptions for HPMV lamps to 2025, including Botswana, China, Eswatini (Swaziland), Ghana, India, Iran, Lesotho, Madagascar, and Thailand.
Concerns with the lighting sector exemption
3.84
During the inquiry, the Committee expressed concern with the proposed HPMV lamp exemption. The Committee heard because LEDs are cheaper to operate and consume less power, phasing out HPMV lamps faster than otherwise planned would save money in recurrent expenditure and reduce carbon dioxide emissions.
3.85
The Committee was told the ownership of streetlights varies across Australia. Local governments or state agencies generally own the streetlights and pay the power bills; the streetlights themselves are operated by the electricity distribution networks. According to the Department, ‘it can take several years to negotiate and implement an upgrade between parties’.
3.86
The Department confirmed energy companies from Queensland and Western Australia sought an exemption during consultations on ratification of the Convention in 2016–17 and 2020. During the 2016–17 consultation, Energex and Ergon Energy (subsidiaries of Energy Queensland) stated preventing the import of HPMV lamps would have a significant financial impact that Energy Queensland was not able to bear.
3.87
Western Australia and Queensland operators in 2020, according to the Department, called for a longer transition to allow for better planning. The extended transition, according to these operators, would provide more time to import sufficient HPMV lamps to maintain streetlights until they are transitioned to LEDs. The operators claimed that without a longer transition there could be a rush to stockpile HPMV lamps that may result in poor planning and over-stocking. This would likely lead to more HPMV lamps needing to be disposed of at the end of life.
3.88
Other jurisdictions, according to the Department, were generally well-placed to comply with obligations under the Convention.
3.89
The Department informed the Committee that during the 2017–18 consultations, the Lighting Council was supportive of a phase out of HPMV lamp imports by 2020. The Council revised its position during the 2020 consultations to support the three-year exemption, stating asset owners and operators required ‘market certainty and adequate forewarning to plan, budget and implement LED upgrades’.
3.90
The Department re-iterated HPMV lamps are becoming increasingly difficult and expensive to source. The RIS noted the price had almost tripled in recent years. The Department anticipated streetlight operators would be motivated to transition earlier.
3.91
Nevertheless, the Department stated providing an exemption to 2023 ‘would strike a balance between the up-front replacement costs incurred sooner for operators, and the energy savings gained by transitioning at the earliest practicable time’.
3.92
The Department’s cost benefit analysis, however, did not consider the impact on the environment of mercury that would enter the waste stream from the disposal of HPMV lamps that would continue to be imported under the exemption.
3.93
The Department does not have data on the volume of HPMV lamps used for street lighting that are recycled, though there is a voluntary product stewardship arrangement that seeks to increase the national recycling rate of waste mercury-containing lamps. The Department does not know how many HPMV lamps are sent to landfill and contributing to mercury in the waste stream.
Costs
3.94
The Department undertook a cost-benefit analysis of ratification versus non-ratification over a 20 year period. It found many of the potential impacts identified would result in zero cost and zero benefits—largely due to the existing high standard of environmental regulation in Australia. Over 20 years, the Department estimated ratification would deliver a net benefit to Australians of $5.9 million.
3.95
Ratification was assessed to have a benefit:cost ratio of 1.4—for every $1 invested in reducing or controlling mercury pollution, the Australian community would be expected to receive a return of $1.40.
Existing regulation is broadly in alignment with the Convention
3.96
According to the Department, Australian governments have historically been active in reducing the risk of exposure to mercury, such that ‘Australia is already broadly in alignment with many of the obligations … so ratification will have a minimal impact on most industries’. For instance:
primary mercury mining no longer occurs in Australia;
mercury-using manufacturing processes prohibited by the Convention are not conducted in Australia;
Australia is a Party to the Basel Convention, aspects of which are incorporated into the Convention; and
the pollution control measures under which a range of existing facilities (coal-fired power stations and boilers, non-ferrous metal smelting, waste incineration, cement clinker production) operate are similar to those specified in the Convention, and new facilities of these types use the Convention’s guidance on ‘best available techniques’ and ‘best environmental practices’.
3.97
Further, government regulatory and policy measures, and voluntary actions by industry have reduced mercury use and industrial emissions of mercury, including:
the maximum mercury content for certain fluorescent lights is lower than that required by the Convention;
the replacement of the gold roasting facility at Kalgoorlie Consolidated Mines that significantly reduced Australia’s mercury emissions; and
the establishment of two new mercury waste treatment facilities in Western Australia, improving Australia’s capacity to manage mercury-contaminated materials.
3.98
The RIS estimated there would be no additional cost to industry for the construction of new facilities or substantial modification of existing facilities as emissions controls are in alignment with the obligations of the Convention. However, as the RIS acknowledged, the ultimate cost to industry would depend on whether a reduction in mercury emissions would be required—either for existing sources or new sources. The Department did not expect this to occur.
Views of submitters
3.99
Ratification was supported by submitters to the inquiry—with many citing there would be no significant regulatory burden on industry or the community.
3.100
Some submitters who supported ratification, however, had reservations—specifically the cement industry, and some within the dental industry who disputed the zero cost prediction.
Cement production
3.101
Although supportive of ratification, the Cement Industry Federation called for integrated cement manufacturers to be excluded from any national plan to reduce mercury emissions as the industry would be able to demonstrate Australian cement clinker emissions meet existing regulatory standards.
3.102
The Cement Industry Federation stated the RIS finding that there would be no cost to the cement industry was contingent on there being no new plants scheduled to be built in the short-medium term, and that existing measures would be sufficient to meet Australia’s obligations under the Convention. It stated there were questions about how ‘substantial modifications’ would be defined in Australia as this has potential cost implications for existing plants.
3.103
The RIS acknowledged that while the definition of ‘substantial modification’ (which Australia would be able to define under Article 8.2(d) of the Convention) required clarification, it was likely there would be no impact on existing facilities.
3.104
With regard to the requirement under Article 8 for particular measures to reduce emissions, the Cement Industry Federation did not support:
the use of best available techniques and best environmental practices; or
multi-pollutant control strategies.
3.105
According to the Cement Industry Federation, these measures would likely result in significant additional costs to the industry. Instead, the Federation identified ‘emission limit values’ as the preferred measure for controlling and ‘where feasible, reducing emissions’. Without this, the Cement Industry Federation stated ratification would not have minimal impact on existing facilities.
Dental industry
3.106
Submitters from the dental industry recognised the harm to the environment that could be caused by mercury, however, there was some difference of opinion on how quickly a phase down or phase out should occur. Submissions uniformly noted the declining trend in the use of mercury, and the Australian Dental Association pointed out emissions from mercury use in dentistry were strictly controlled through clear protocols and practices, including the use of amalgam separators and an organised waste management process.
3.107
Mr Tan Nguyen, the co-convenor of the Public Health Association of Australia Oral Health Special Interest Group and member of the Dental Board of Australia, was of the view the use of dental amalgam in contemporary dentistry as a restorative filling material was no longer appropriate: ‘it is … a dental material that does not meet the standard of evidence-based dental practice’.
3.108
SDI, though supportive of the phase down in the Convention, sought the continuing use of dental amalgam until ‘true alternatives can be developed’. SDI, which supplies dental amalgam in Australia and internationally, identified a number of benefits of amalgam fillings including their relatively low cost; ease of placement; and longevity.
3.109
The Australian Dental Association noted that Australia already exceeded the requirements of the Convention relating to the phase down of dental amalgam use. It stated many of the requirements related to the promotion of oral health as a preventive measure reducing the need for restorations. The NIA also made this point.
3.110
The Australian Dental Association, though, disputed the $0 figure for dentistry in meeting the obligations of the Convention. It stated that at the level of individual dentists, the cost of purchasing equipment ‘would be an impost’. The Association called for subsidies and/or tax write-offs to support business decisions. Given the use of dental amalgam has been in strong decline, it is not clear how many dental surgeries have yet to purchase equipment to provide for alternative materials—and this is not estimated in the submission.
Conclusion
3.111
The Committee agrees with the Department that there is a ‘very compelling argument for ratification of the treaty’.
3.112
Aside from contributing to the reduction of a chemical to which there can be no safe level of exposure, the Committee is of the view many additional benefits would accrue from ratification. Australia would demonstrate responsible global citizenship and leadership in the Indo-Pacific region. Ratification would provide certainty for business and reduce the burden of regulation that is created by the fact Australia has yet to ratify the Convention.
3.113
Importantly, ratification would provide Australia with the opportunity to influence the future course of global mercury regulation. Australia would obtain the ability to participate in and engage with scientific and technical bodies, vote on decisions, and contribute to the formulation and revision of guidance materials.
3.114
Australia would also benefit from being kept informed of key scientific developments and emerging issues. Australian researchers would have a greater opportunity to contribute to growing scientific knowledge of mercury science. Quite aside from these factors, the public health improvements that would occur consequent of a reduction in global mercury emissions are significant.
3.115
The Convention was signed in 2013, entered into force in 2017, and as at July 2021 had been ratified by 132 countries. Mindful that Australia has already been slow to join the party, the Committee considers the proposal to seek an exemption to allow the continued importation of HPMV lamps into Australia beyond ratification to be ill-considered.
3.116
The industry requirement for such an exemption has not been apparent, in submissions received and in witness testimony. The Committee notes that it received no submissions arguing for such an exemption, and that no witnesses sought to appear before the Committee to make the case for such an exemption. The Committee further notes that no state or territory jurisdiction raised this as an issue. This suggests that the constituency for such an exemption is highly limited, if it exists at all.
3.117
It is also clear from evidence that the transition away from HPMV lamps is already well underway, for both commercial and environmental reasons. Alternatives are cheaper to run and produce lower emissions. HPMV lamps are becoming increasingly difficult to source and are increasing in price.
3.118
The Committee notes that no other OECD or developed country has sought an exemption of the sort Australia is proposing. To seek such an exemption would put Australia in very odd company, alongside less-developed countries with poorer environmental stewardship credentials, such as Iran, Madagascar, China and Ghana.
3.119
Given the importation ban on HPMV lamps under the Convention would not come into force until three months after Australia has ratified the treaty, the Committee considers this to be ample time for industry to plan for the transition and accumulate the necessary replacement inventory. The case for a further extension beyond this period has not been convincingly made, and must be weighed against the reputational damage to Australia’s environmental stewardship credentials that seeking such an exemption would incur.
3.120
The Committee acknowledges the views expressed by some submitters about the use of dental amalgam and notes the advice of the Department that Australia is already in compliance with the Convention in this matter.
3.121
The Committee also notes concerns expressed by the cement industry and refers to the Department’s assurance that existing regulation is broadly in alignment with the Convention and the definition adopted by Australia for ‘substantial modifications’ would appropriately balance industry concerns with the intent of the Convention.
3.122
The Committee supports the Minamata Convention on Mercury and recommends that binding treaty action be taken.
3.123
The Committee recommends the Government reassess the need to seek an exemption to allow for the continued importation of High Pressure Mercury Vapour (HPMV) lamps into Australia, considering such an exemption to be reputationally damaging and of limited practical benefit.