Introductory Info

Date introduced: 18 March 2021
House: House of Representatives
Portfolio: Agriculture, Water and the Environment
Commencement: Sections 1 to 3 of the Bill will commence on Royal Assent.

Purpose of the Bill

The purpose of the Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021 (the Bill) is to amend the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Hazardous Waste Act) to:

• implement recent amendments to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the Basel Convention) that seek to strengthen transboundary controls on unsorted plastic wastes and plastic wastes containing hazardous substances and thereby ensure Australia’s compliance with its international obligations[1]
• strengthen the compliance and enforcement regime of the Act by adopting the standard suite of provisions under the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) [2] and thus more effectively manage the transboundary movement of hazardous waste and
• improve administrative efficiency by reducing complexity of the Act and removing the existing consultation mechanism (that is, the Hazardous Waste Technical Group) and replacing it with a more flexible and less formal consultation mechanism.[3]

Structure of the Bill

The Bill makes amendments in five schedules.

Schedule 1 — Hazardous Waste: implements a broader definition of ‘hazardous waste’ in the Hazardous Waste Act that strengthens international control of unsorted plastic wastes and plastic wastes containing hazardous substances as agreed at the 14th meeting of the Conference of Parties to the Basel Convention on 11 May 2019.[4]

Schedule 2 — Regulatory Powers: aims to strengthen the compliance and enforcement regime of the Hazardous Waste Act by repealing current provisions providing for regulatory regimes within the Act, and adopting relevant provisions of the Regulatory Powers Act. This modifies the operation of the enforcement regime, with the proposed regime containing additional ‘monitoring and investigation powers, new audit powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions’.[5]

Schedule 3 amends the Hazardous Waste Act to set out requirements relating to record keeping, information gathering, the requirement to produce documents or information in accordance with a notice, and information sharing (consisting of a number of statutory authorisations for the use and disclosure of ‘relevant information’).[6] It also creates a strict liability offence if a person fails to comply with the requirement to make and retain records under Regulations.

Schedule 4 either amends or replaces the enforcement provision of the Act, including the offence provisions and ministerial orders.[7] Penalties will be increased, and there is the addition of strict liability offences and civil penalty provisions to complement the existing fault-based offences. Changes to enforcement provisions are intended to enhance deterrence in relation to non‑compliant behaviour which poses the risk of significant ‘harm [to] human health and the environment and [may] result in breach of Australia’s international obligations’.[8]

Schedule 5 makes a number of miscellaneous amendments to the Act to reduce its administrative complexity, including the removal of the Hazardous Waste Technical Group and its replacement with a mandatory consultation mechanism that is more flexible and covers a wider range of expertise.[9]

Background

The Basel Convention developed in response to growing international concern about the growth of hazardous waste and western countries’ excessive dumping of hazardous waste in developing nations during the 1970s and 1980s (and the discovery of deposits of toxic wastes imported) where those countries lacked the appropriate infrastructure and regulations to properly handle such waste.[10] This was found to be causing or risked causing soil and groundwater pollution, human morbidity and significant environmental damage.[11]

Object and principles

The overarching objective of the Basel Convention is to protect human health and the environment against adverse effects resulting from the generation, management, transboundary movements and disposal of substances classified as ‘hazardous’ or certain ‘other’ waste.[12] In pursuing this objective, the Convention establishes a global regime for the control of transboundary movements of hazardous wastes and other wastes, and imposes obligations on Parties to:

• minimise the generation of ‘hazardous’ or certain ‘other’ wastes[13]
• promote the environmentally sound management of hazardous wastes, wherever the place of disposal[14]
• ensure adequate safe disposal facilities[15]
• restrict transboundary movements of hazardous wastes except where it is done in accordance with the principles of environmentally sound management[16]
• have a regulatory system apply to cases where transboundary movements are permissible including:
  • prohibiting the export (or import) of hazardous wastes or other wastes to (or from) a party or non-signatory state if 'there is reason to believe that the waste in question will not be managed in an environmentally sound manner'[17]
  • prohibiting export of waste unless the state of import has given its prior informed consent in writing, to the specific import[18]
  • communicating information about proposed international movements to the states concerned by means of a notification form, as this will allow them to evaluate the effects of hazardous waste or other wastes on human health and the environment[19]
  • that transport of relevant waste must be accompanied by a specific authorisation and corresponding information documents; and must comply with 'generally accepted and recognised international rules' and 'relevant internationally recognised practices'[20]prevent and punish illegal traffic of such wastes.[21]

Additional conditions can be required by individual States.[22]

Overall, the Basel Convention's waste management approach is informed by the principle of ‘generator responsibility’ or 'principle of proximity', which establishes that as far as possible, waste should be disposed of in the State where it is produced.[23] Also underpinning its framework is reliance on the principle of environmentally sound waste management.[24]

Thus, under the Basel Convention, the following wastes are subject to transboundary movement as hazardous wastes:

• wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III[26] and
• wastes that are not covered under the above but are defined as, or are, hazardous wastes by the domestic legislation of the party of export, import or transit[27]
• waste that belongs to any category contained in Annex II that is subject for transboundary movement will be identified as ‘other wastes’ for the purposes of the Convention.[28]

Arising from Annexes I and III, the Technical Working Group (TWG) of the Basel Convention has produced two lists of wastes: Annex VIII (classified as hazardous wastes under the Basel Convention) and Annex IX (non-hazardous wastes, that is, outside the scope of the Convention unless they are contaminated by constituents rendering them hazardous or are regulated by national legislation as hazardous wastes).

Recent Basel Convention Plastic Waste Amendments

As mentioned, the annexes to the Basel Convention provide the basis for determining the types of wastes that fall within the scope of the Convention. The Fourteenth Meeting of the Conference of the Parties to the Basel Convention (COP-14, 29 April–10 May 2019) adopted amendments to three Annexes to the Convention (II, VIII and IX ) with the objectives of enhancing the control of the transboundary movements of unsorted plastic waste and plastic waste containing hazardous substances and clarifying the scope of the Convention as it applies to such waste.[29]

An end to unregulated transfers of mixed (often municipal) plastic wastes

The plastic waste amendments mean that end-of-life plastic waste, both homogenous and mixed streams, will now be regulated under the Convention (subject to some exemptions) and their transboundary transfer will either be:

• prohibited as ‘hazardous’ (new Annex VIII entry A3210) or
• controlled by domestic regulators through disclosure/prior informed consent requirements from transit and importing countries as ‘other wastes’ (Annex II entry Y48).

Other wastes and the exemption test

Plastic waste exempted from controls are defined in new Annex IX entry B3011

As of 1 January 2021, only plastic wastes listed in B3011 (unmixed and not contaminated and destined for recycling), are not subject to the Basel Convention’s prior informed consent procedure and other controls.

Prior to the amendments, the code for non-hazardous plastic wastes was B3010 in Annex IX.

The Amendments re-evaluated the listing of non-hazardous plastic waste B3010 to narrow its scope significantly. This new listing renumbered as B3011 requires non-hazardous plastic shipments to meet several criteria including: they must satisfy the exemption test, that is, be sorted, mostly halogen-free, ‘almost free from contamination’ of any kind, to be destined only for an R3 disposal operation (recycling/reclamation of organic substances which are not used as solvents[30]) and not to incineration, landfill, or waste-to-energy operations.

Examples of plastic waste exempted from controls includes:

- mixes of polypropylene (PP), polyethylene (PE) and polyethylene terephthalate (PET) destined for recycling, almost free from contamination;

- shipments of a single type of non-halogenated plastic wastes destined for recycling, almost free from contamination.

Two sets of plastic wastes that were already exempted from trade controls under the Basel Convention are included in entry B3011 on an interim basis until their reconsideration at the 15th Conference of Parties to the Basel Convention in 2021 (COP15).[31] These are:

- all thermoset plastics (“cured resins and condensation products”)

- five fluorinated polymers: perfluoroethylene/propylene (FEP), tetrafluoroethyleneperfluoroalkyl vinyl ether (PFA), tetrafluoroethylene-perfluoromethyl vinyl ether (MFA), polyvinyl fluoride (PVF) and polyvinylidene fluoride (PVDF).[32]

It is likely that most of the post-consumer plastic wastes will fall into the Convention’s ‘other wastes’ category—which are subject to controlled mechanisms such as shipment-specific prior informed consent requirements—or they will be subject to an exemption.

In relation to the meaning of almost free from contamination the report of the COP-14 states that ‘international and national specifications may offer a point of reference’.[33] The Secretariat of the Basel Convention has yet to issue relevant guidance, but it would seem that plastics mixed with paper, metals or glass, as well as products containing both plastics and other ‘waste’ materials such as some electronics, would likely be ‘other wastes’ where they are not otherwise hazardous.

Waste-burning loophole?

While these amendments to the Basel Convention are a welcome development, they have raised the issue of how the new rules will treat fuels derived from plastic waste (that is, plastic waste that is pre-processed and exported as ‘alternative fuel’ for burning).[34] Concern has been raised that this creates a potential loophole. In this regard it is notable that:

… [t]his pre-processed waste, which usually includes a significant plastic fraction, comes under several labels and acronyms: ‘refuse-derived fuel’, ‘solid recovered fuel’ … However, these waste-based fuels are still wastes that clearly fall within the scope of the Basel Convention, and trade controls apply.[35]

As at the time of writing, the Department of Agriculture, Water and the Environment (the Department) does not seem to have put out a policy position on this issue.

OECD countries update rules on international shipping of plastic waste

In 2020 OECD member countries (which includes Australia) agreed to update the rules on the export of hazardous plastic waste for recycling in line with international changes so that advance consent from destination countries will be required ahead of shipping.[36]

The OECD Regulations apply to all trade in waste destined for recovery operations between the OECD’s 37 member countries. According to the OECD:

The OECD rules enable member countries to trade waste for recycling in an environmentally‑sound and economically efficient way. Allowing waste to be treated in countries with a cost advantage in sorting or recycling can help to boost global recycling rates and strengthen secondary plastics markets. The OECD rules also provide a framework for waste trade from or to any OECD member that is not a Party to the Basel Convention, such as the United States.[37]

The update to the OECD Regulations means hazardous plastic wastes will be subject to the OECD’s “Amber” control procedure, whereby shipment is dependent on an advance consent procedure, but for non-hazardous plastic waste, each OECD country retains its right to control the waste in question in line with domestic and international law.[38]

Wastes exported outside the OECD area, whether for recovery or final disposal, do not benefit from this simplified control procedure. Rather, according to the OECD:

… the transboundary movement of such wastes is likely to be covered by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the Basel Convention), to which 187 countries are currently party. The two international agreements are however closely interlinked, and the waste categorisations under the OECD Decision are harmonised with the waste lists in the annexes to the Basel Convention.[39]

Implementation of Australia’s obligations under the Basel Convention

The Basel Convention is implemented in Australia through the Hazardous Waste Act and associated Regulations, and is overseen by the Commonwealth Department of Agriculture, Water and the Environment (the Department).

According to the Department’s website the main purpose of the Hazardous Waste Act is to:

… regulate the export, import and transit of hazardous waste to ensure that hazardous waste is dealt with appropriately so that human beings and the environment, both within and outside Australia, are protected from the harmful effects of the waste.[40]

The Hazardous Waste Act provides that the term ‘hazardous waste’ in the Act includes wastes covered by paragraph 1(a) of the Article 1 of the Basel Convention (see paragraph (b) of the definition of hazardous waste in the Act, section 4).

The Act requires that a permit be obtained before hazardous waste is exported from Australia or imported into Australia.[41] A waste is hazardous for the purposes of the Act if it is listed as hazardous in the Basel Convention or in the Organisation for Economic Cooperation and Development (OECD) Regulations.[42]

In 2019–20, the Minister (or their delegate) granted 33 permits, and one permit was refused.[43] All notices relating to permit applications and decisions are published on the Department’s website.[44]

The Australian Government has banned exports of hazardous waste for final disposal (such as incineration or landfill) except in exceptional circumstances. Hazardous waste materials are permitted to be exported/imported for recycling or reclamation (known as ‘recovery’) provided certain conditions are met.[45]

The Department works with Australian Border Force to prevent illegal exports of hazardous waste. In 2019–20, the Department received five referrals from the Australian Border Force or another federal, state or territory agency. At 30 June 2020 there were eight matters under active investigation.[46]

Hazardous waste shipments may only take place between countries which are Parties to the Basel Convention, except where a specific arrangement exists with a non-Party under Article 11 of the Basel Convention (this Article encapsulates bilateral, multilateral and regional agreements).[47] An Article 11 arrangement is implemented in Australia through either the OECD Regulations or the Waigani Convention Regulations.[48]

A regulation impact statement was not required for the Bill

The Office of Best Practice Regulation (OBPR) assessed that the proposed amendments in the Bill ‘did not meet the threshold for requiring preparation of a Regulation Impact Statement (RIS)’. OBPR’s advice was based on earlier advice from the Department (to the OBPR) that it ‘did not anticipate any (or only minor) changes in regulatory burdens on business’.[49]

Committee consideration

Senate Environment and Communications Legislation Committee

On 18 March 2021, the Bill was referred to the Senate Environment and Communications Legislation Committee for inquiry and report. Details of the inquiry can be found at the inquiry webpage. The Committee tabled its report on 5 May 2021, concluding that the Bill would ensure Australia’s compliance with previously agreed international obligations, and recommended that it be passed.[50] However, the Committee acknowledged the concerns raised with respect to consistency of rules and Regulations, clarity of definitions and any potential domestic implications.

The Committee received five submissions which expressed support for the Bill, in recognition that it would enable Australia to fulfill its international obligations, though the strength of the support for the Bill varied according to particular concerns.[51] Those submissions are discussed in the section dealing with major interest groups.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills reported on the Bill on 21 April 2021.[52] The Scrutiny of Bills Committee raised two particular concerns with the Bill: significant matters in delegated legislation and retrospective application.

Significant matters in delegated legislation

The Bill provides for delegated legislation to be made under the Hazardous Waste Act in relation to certain matters. The Committee identified a few of these matters as being significant matters and stated that significant matters should generally be included in primary legislation unless a sound justification for the use of delegated legislation is provided.[53] Accordingly, the Committee requested the Minister’s detailed advice on:

• why it is necessary and appropriate for delegated legislation to be used for:
  • the conduct of audits and the process to be followed after an audit has been completed (item 18 of Schedule 2)
  • record-keeping obligations, where a failure to comply with the obligations will be a strict liability offence (proposed subsection 41D(1) of the Hazardous Waste Act, as inserted by item 2 of Schedule 3 of the Bill)
  • matters about which the Minister must give notice to export and transit countries (proposed subsection 16A(1) of the Hazardous Waste Act, as inserted by item 26 of Schedule 5 of the Bill)
  • the grounds on which a permit may be revoked or varied (proposed paragraph 24(1)(e) of the Hazardous Waste Act, as inserted by item 28 of Schedule 5; and proposed paragraph 26H(1)(d) as inserted by item 29 of Schedule 5 of the Bill) and
• ‘whether the bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.’[54]

In response to the Scrutiny of Bills Committee’s concerns, the Minister advised as follows:

Conduct of audit and process to be followed after an audit has been completed

The proposed amendments provide high level guidance in relation to matters that may be included in the Regulations. Over time, audits may need to change to appropriately match and keep pace with the regulatory environment in which they operate. The ability to prescribe changes in Regulations offers the necessary flexibility for the compliance framework to maintain pace with an evolving regulatory environment.[55]

Record keeping

Providing the details of record keeping in Regulations rather than the Bill would allow flexibility to prescribe specific record keeping requirements to ensure that a variety of records can be kept in a variety of forms and for specific requirements, to be updated with changes in technology. The Basel Convention permits:

… Australia to enter into agreements with other countries to control movements of hazardous waste … Agreements entered into … may have different obligations to the Basel Convention and therefore it is important that requirements for record keeping are sufficiently flexible to adapt to such arrangements as they are agreed or varied.[56]

Notification of relevant competent authorities

Item 26 would not delegate any additional matters to delegated legislation than is currently the case under the Act. Existing subsection 15A{3) [sic] of the Act already allows the regulations to prescribe and allow the notification of such information. Item 26 does not seek to vary such matters but rather seeks to re-draft existing provisions to allow them to be more easily understood.[57]

Grounds for revocation and variation of a Basel permit

It is important to allow additional grounds to be able to be prescribed in the regulations, in order to ensure that the requirements to vary or revoke a permit can be adapted to quickly respond to:

• unexpected circumstances or potential harm that may damage Australia's international relations
• changes to Australia's international obligations concerning the import, export and transit of hazardous waste.[58]

The administrative flexibility and ability to address a wide range of matters that relate to a permit and prescribe different grounds for different kinds of permit is seen as necessary and appropriate in navigating an evolving environmental and human health concerns.[59]

Provision of high-level guidance in the Bill

In relation to the Scrutiny Committee’s inquiry as to whether the Bill can be amended to include at least high-level guidance regarding the above matters on the face of the primary legislation, the Minister advised that ‘it is expected the regulations will be required to adapt to changing circumstances in the hazardous waste regulatory regime, both domestically and internationally’.[60] The Minister considered that in light of the matters discussed above, particularly the level of guidance included in the Act and the need for flexibility to accommodate changing international obligations, ‘it is not appropriate to include further high-level guidance in the bill’.[61]

Retrospective application

Item 34 of Schedule 5 inserts proposed subsection 33(4) into the Hazardous Waste Act, which empowers the Minister to publish a list of certain compliance-related matters, namely offences committed, orders given, and the name of the affected persons. Subitem 35(3) would have the effect that the amendments made by item 34 would allow the publishing of an offence against the Act for which a person is convicted, whether or not the conviction occurred before, on or after the commencement of the Bill. [emphasis added].

The Scrutiny of Bills Committee stated that ‘where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought.’[62] The Explanatory Memorandum provided the deterrent rationale for publishing these matters. However, the Scrutiny of Bills Committee considered the Explanatory Memorandum insufficient on this issue, as it did not specifically state 'why it is necessary or appropriate to publish particulars of offences committed or orders given before commencement of the bill’.[63] [emphasis added].

Accordingly, the Committee requested advice from the Minister around the necessity and appropriateness of ‘apply[ing] the power to publish compliance related matters to offences committed, and orders given, before the commencement of the bill’ and, as a result of this retrospectivity, ‘whether there may be any subsequent detrimental effect on individuals’.[64]

In response to the Scrutiny of Bills Committee’s concerns, the Minister advised:

In order to achieve the intended deterrent effect, it is necessary and appropriate that the power to publish non-compliance be able to be used in respect of offences that were committed before the commencement of the Bill. Such offences and orders may relate to ongoing investigations and environmental clean ups and, in the case of offences, convictions that are not secured until after the Bill has commenced due to the length of the criminal process. As such, confining the power to only allow the publication of non-compliance that itself occurs after the commencement of the Bill would reduce the deterrent effect … Publishing a person's non-compliance with the Act would not, of itself, create any additional legal consequences on the person … In respect of convictions for offences, such information is already publicly available. [65]

The Scrutiny Committee thanked the Minister for her response and asked for the key information provided in relation to both issues discussed above to be included in the Explanatory Memorandum to the Bill.[66]

Policy position of non-government parties/independents

No comments on this Bill from non-government parties or independents were apparent at the time of writing this Bills Digest regarding the specific measures proposed by the Bill.

Position of major interest groups

The Australian Packaging Covenant Organisation (APCO) is a not-for-profit organisation established to administer the Australian Packaging Covenant on behalf of the Federal, state and territory governments, and its industry signatories. The Covenant aims to reduce the harmful impact of packaging on the Australian environment.[67] APCO reports to ministers annually on the delivery of the Covenant through the National Environment Protection Council. As at 7 March 2021, APCO had 1,545 members representing around 150 different industry sectors across the packaging supply chain.[68]

APCO expressed its support for the Bill in its current form and welcomed the Government’s ‘continuing commitment to improving waste management in Australia’ through implementation of amendments to the Basel Convention which seek to strengthen transboundary controls on unsorted plastic wastes and plastic wastes containing hazardous substances. APCO was also supportive of the amendments designed to strengthen the compliance and enforcement provisions of the Hazardous Waste Act, recognising their importance in maintaining public confidence in the recycling system.[69]

The Vinyl Council of Australia (Vinyl Council) expressed support for policies and investment to support a circular economy and as part of this, the:

… control and management of contaminated and co-mingled plastic wastes so as to encourage much needed investment in greater sorting and reprocessing locally of plastic packaging, and to minimise plastic leakage to the environment.[70]

However, the Vinyl Council raised particular concerns in relation to the Bill in so far as it implements the Basel Convention’s new category B3011 under Annex IX. This is because:

… the exemptions under Annex IX, B3011 to certain categories of plastics from the PIC [prior informed consent] procedure - that is, “Scrap plastic of non-halogenated polymers and co-polymers” - appears largely to exempt from the PIC procedure the commonly used polymers that dominate littering and marine plastic pollution.[71]

Whereas, plastics such as PVC or vinyl are not similarly exempted from the prior informed consent procedure even though their uses mean that it is ‘not at significant risk of littering and leakage into the environment’.[72] The Vinyl Council argued that this approach:

… is likely to disincentivize existing and future product stewardship arrangements by local distributors, by adding complexity to the export of clean, recovered PVC waste recovered in take-back product stewardship initiatives to their original manufacturing bases overseas.[73]

E-Cycle Solutions Pty Ltd, a co-regulator of the National Television and Computer Recycling Scheme, raised similar concerns, stating that the ‘hard ban’ on the export of plastics from 1 July ‘will see the majority of the recycled plastics go into landfill as there is no current alternative use for such a small volume of unique plastics’.[74] It stated that, among other things:

Australia does not have a current process enabling the hybrid plastic ABS/PC/PS to be broken down into single polymers. The overseas specialists do this cost effectively and utilise it to manufacture finished goods.[75]

The Vinyl Council noted that the Recycling and Waste Reduction (Export—Waste Plastic) Rules 2021 (made under the Recycling and Waste Reduction Act 2020 (Cth)) regulate the exportation of waste plastic. The Vinyl Council stressed the importance of a consistent approach between the regulations under the Hazardous Waste Act and the Recycling and Waste Reduction Act.[76]

The Western Australian Local Government Association expressed similar concerns and also called for the Rules to transparently support a contingency planning process to determine potential end markets, should one or more processing plants be impacted by natural disaster or other situation that makes it inoperable. It also suggested that the Minister should be provided with the ability to issue exemptions for the export of plastic in certain circumstances.[77]

Financial implications

According to the Explanatory Memorandum, ‘the Bill would have no financial impact on the Australian Government Budget’.[78]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[79]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comments on the Bill.[80]

Key issues and provisions

Schedule 1—Hazardous waste

Item 1 of Schedule 1 to the Bill amends the current definition hazardous waste in section 4 of the Hazardous Waste Act to give effect to the Plastic Waste Amendment to the Basel Convention by adding a new paragraph (e) with reference to plastic wastes, including mixtures of such wastes, covered by Annex II to the Convention. As previously mentioned, Annex II to the Basel Convention lists categories of wastes requiring special consideration (‘other wastes’) which means that these now become subject to transboundary movement controls/regulation.

Item 2 further amends the current definition of hazardous waste in section 4 of the Act by excluding radioactive wastes from the definition of hazardous waste, consistent with the definition in the Basel Convention. This is because radioactive wastes are subject to other international control systems or international instruments.[81]

Schedule 2—Regulatory powers

The amendments in Schedule 2 aim to strengthen the compliance and enforcement regime of the Hazardous Waste Act by repealing current provisions providing for regulatory regimes within the Act. The Bill adopts relevant provisions of the Regulatory Powers Act (with some modifications) and inserts new audit powers.

Proposed section 43 of the Hazardous Waste Act, at item 18 of Schedule 2, would trigger the standard monitoring powers in Part 2 of the Regulatory Powers Act. The adoption of general monitoring powers set out in Part 2 of the Regulatory Powers Act would allow an inspector to, among other things:

•    search premises, measure or test anything on the premises
•    take photographs or make copies of documents; take necessary equipment onto the premises
•    ask persons on the premises questions and request the production of documents
•    operate electronic equipment and
•    secure electronic evidence for twenty-four hours to obtain expert assistance.[82]

Proposed section 45 of the Hazardous Waste Act, at item 18 of Schedule 2, would trigger the standard investigation powers in Part 3 of the Regulatory Powers Act. These powers are able to be exercised for the purpose of investigating compliance with the offence and civil penalty provisions in the Act and Regulations, or an offence against the Crimes Act or Criminal Code that relates to the Act or Regulations (proposed subsection 45(1)). These powers would permit an authorised person to enter a premises to exercise investigation powers if they suspect on reasonable grounds that there is evidential material on the premises.[83] However, they can only do so with the consent of the occupier or under an investigation warrant.[84] Once on the premises, the powers that may be exercised include:

• searching the premises and anything on the premises for evidential material
• seizing evidential material (if entry is under an investigation warrant)
• inspecting, examining, measuring or conducting tests on evidential material
• taking photos or videos of the premises or evidential material and
• operating electronic equipment.[85]

The proposed regime would also consist of additional monitoring and investigation powers which go beyond the standard provisions of the Regulatory Powers Act. These powers include:

• the power to test and analyse a sample of waste at a searchable place[86]
• the power to secure (or secure things on or in) premises, vessels, vehicles or aircraft[87] and
• the power to use reasonable force against things.[88]

The Explanatory Memorandum states that the additional ‘powers are appropriate because it may be necessary to secure things and premises, and to take and test samples of things, in order to facilitate compliance with the Act.’[89]

Proposed section 47 of the Hazardous Waste Act, at item 18 of Schedule 2, makes amendments to provide for additional monitoring and investigation powers that deal with the specific issues that arise where regulatory powers need to be exercised on, or in relation to, a searchable place which is movable, such as a vessel, vehicle or aircraft. These powers include the power to stop and search, and control the movement of, a vessel, vehicle or aircraft. However, these powers would only be available if an authorised person has reasonable grounds for suspecting that there is hazardous waste that is to be, or has been, imported, exported or the subject of a transit proposal in or on an Australian vessel or Australian aircraft, or a vessel or aircraft that is within Australian jurisdiction.[90]

Proposed section 48 of the Hazardous Waste Act, sets out further monitoring and investigation powers that apply if an authorised person has reasonable grounds for suspecting that a person intends to import or export hazardous waste, is importing or exporting hazardous waste, or has imported or exported hazardous waste. In these circumstances, the authorised person may require the person to produce, or to produce evidence of the existence and contents of, a Basel permit or special permit authorising the import or export.[91]

Proposed sections 50 to 55 of the Hazardous Waste Act empower inspectors to conduct audits in relation to export and import permits, transit permits and proposals, ministerial orders, and other specified activities. The Explanatory Memorandum states that ‘auditing will be an important compliance tool to assess a person's compliance with permit and record-keeping requirements, among other things under the Act.’[92]

The regime also includes enforcement provisions through the use of civil penalties,[93] infringement notices,[94] enforceable undertakings[95] and injunctions.[96]

Schedule 3—Record keeping, information and confidentiality

Schedule 3 imposes new requirements for persons regulated under the Act to keep records and to provide information or documents on request, setting out the conditions to be met for sharing information with certain government entities. The Explanatory Memorandum states that these amendments will:

… assist with compliance and enforcement under the Act, and with ensuring that information obtained by Commonwealth officials under the Act will [be] used or disclosed for appropriate authorised purposes.[97]

And will:

… ensure that those who are regulated under the Act are held accountable for their acts or omissions.[98]

Requirement to make and retain records

Proposed subsection 41D(1) of the Hazardous Waste Act, at item 2 of Schedule 3 provides for the making of Regulations to specify permit holders, holders of OECD transit waivers and persons to which ministerial orders have been issued will be required to keep records.

Without limiting the scope of the Regulations, proposed subsection 41D(2) provides that they may specify, among other things: the types of records that are required to be made and retained, the form in which records must be retained, and the period for which records must be retained.

Proposed subsections 41D(3) and (4) provide that a person contravenes the section, and commits a strict liability offence, if they fail to make or retain a record where they are required to do so under the regulations. They will be subject to a maximum penalty of 30 penalty units ($6,660).[99] Proposed subsection 41D(5) is a civil penalty provision, which provides that a person is liable to a maximum civil penalty of 240 penalty unit points ($53,280) if the person contravenes proposed subsection 41D(3).

Requirement to give information or produce documents

New information gathering powers will allow the Department to investigate contraventions of the Act, regardless of whether the alleged offenders are permit holder. Currently, the Act only enables the department to request information from permit holders.

Proposed subsection 41E(1) empowers the Secretary, by written notice, to require a person to give a specified inspector or entrusted person specified documents or information, which the Secretary reasonably believes the person is capable of giving for the purposes of investigating or preventing a contravention of a provision of the Act or Regulations.[100] Proposed subsection 41E(5) provides that a person commits an offence of strict liability if the person contravenes this requirement and is subject to a maximum penalty of 30 penalty units ($6,660).[101] Proposed subsection 41E(6) provides that a person is liable to a maximum civil penalty of 240 penalty units points ($53,280) if the person does not comply with the Secretary’s notice.

Authorised uses and disclosures of relevant information

Proposed section 41G enables the Minister to disclose relevant information to a Commonwealth entity if the Minister is satisfied the disclosure is for the purposes of assisting the entity to perform its functions or exercise its powers.

Proposed section 41H enables the Minister to disclose relevant information to a state or territory government body if each of the following conditions are met:

• the Minister reasonably believes the disclosure is necessary for the purposes of performing his or her functions or powers under the Act, or for the purposes of administering a state or territory law
• the relevant state or territory government body has given an undertaking only to use or disclose that information consistently with a relevant agreement between the Commonwealth and the state or territory and
• the Minister is satisfied that the information will only be used or disclosed in accordance with such an agreement.

Proposed 41J allows the Minister to disclose relevant information to a Commonwealth, state or territory government body, the Australian Federal Police (AFP) or state or territory police, if:

• the Minister reasonably believes the disclosure is necessary for the enforcement of a criminal law or a law imposing a pecuniary penalty (such as a civil penalty provision), or for the protection of the public revenue and
• the relevant body’s functions include that enforcement or protection.

The Minister may also disclose relevant information if the Minister reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to human health or the environment.[102]

Unauthorised use or disclosure of protected information – official of a Commonwealth entity

Proposed subsection 41W(1) creates a general prohibition for a person who is (or has been) an official of a Commonwealth entity, and who obtained protected information in that capacity when the information was disclosed to their entity under proposed section 41G, to use or disclose the information other than for the purpose for which it was disclosed to the entity. Proposed subsection 41W(2) provides that a person who contravenes the prohibition in subsection 41W(1) would be committing a fault-based offence. The maximum penalty for the offence would be two years imprisonment, or 180 penalty units ($39,960), or both.

Schedule 4—Offence and civil penalty provisions

The proposed amendments in Schedule 4 are intended to streamline and reduce complexity of the operation of the Hazardous Waste Act. In addition to replacing some of the enforcement provisions, the penalties are increased so as to make them proportionate to the offences committed, and better serve as a deterrent consistent with Australia’s obligations under the Basel Convention, thereby making offence provisions more fit for purpose.[103]

Regulation of import, export, transit and sale of hazardous waste

Item 4 of Schedule 4 proposes to insert a new Part 2A (Regulation of import, export, transit and sale of hazardous waste) into the Hazardous Waste Act, which sets out the offence and civil penalty provisions relating to the prohibitions included below (other than those offences and civil penalty provisions that relate to contravention of Ministerial orders and transporting substances through a transit country without approval and are covered by items 17 and 20 of Schedule 4, which amends Part 3 of the Hazardous Waste Act).

The prohibitions covered include:

• export, import or transit of hazardous waste without a permit or, where relevant, a notification that a transit permit is not required [104]
• export, import or transit of hazardous waste that is not in accordance with the permit or the permit conditions [105]
• export, import or transit of hazardous waste without a permit or, where relevant, a notification that a transit permit is not required, which results in injury or damage (or is likely to result in injury and damage) to humans or the environment[106]
• export, import or transit of hazardous waste that is not in accordance with the permit or the permit conditions, which results in injury or damage (or is likely to result in injury and damage) to humans or the environment [107]
• transporting a notifiable substance through a transit country without approval[108]
• sale of hazardous waste in certain circumstances[109]
• failure to deal with hazardous waste in accordance with a Ministerial order: item 17 repeals sections 38A and 38B and replaces them with proposed sections 38A to 38H. Proposed section 38G deals with orders to remedy or mitigate damage if an order under section 38 (to deal with waste in a certain way) is not complied with, and the non-compliance injures or damages, or is likely to injure or damage, human beings or the environment.[110] Proposed subsection 38G(2) provides that person who fails to comply with such an order, contravenes proposed subsection 38G(1) and commits a fault-based offence, the maximum penalty for which would be eight years imprisonment or 500 penalty units ($111,000), or both. A body corporate would be liable for five times this amount as a maximum penalty.[111] Proposed subsection 38G(4) provides a strict liability offence with a maximum penalty of 60 penalty units for the same conduct[112]
• failure to provide information by a specified time and in a specified manner in accordance with a Ministerial order.[113] Proposed subsection 38H(2) provides that a person who contravenes the prohibition in proposed subsection 38H(1) would be committing an offence of strict liability with a maximum penalty of 30 penalty units. Proposed subsection 38H(3) creates a mirroring civil penalty provision with a maximum penalty of 240 penalty units.

Each prohibition has a fault-based offence, a strict liability offence, and a civil penalty attached and representing an escalating range of sanctions based on, and proportionate to, the severity of the circumstances. This also provides the Commonwealth with flexibility and to better target non-compliance.

Schedule 5—Other amendments

Part 6—New consultation mechanism

Hazardous Waste Technical Group

The current consultation mechanism to declare hazardous wastes relies on a fixed team of experts that comprise the Hazardous Waste Technical Group. Each member is chosen by the Minister, having regard to the person’s expertise in, or experience of, matters relevant to:

• the scientific and/or technical aspects of the management of hazardous waste
• the social and/or economic aspects of the management of hazardous waste
• the environmental aspects of the management of hazardous waste or
• the public health and public safety aspects of the management of hazardous waste.[114]

Under existing arrangements, the Minister may determine:

• the manner in which the Hazardous Waste Technical Group is to perform its functions and
• the procedure to be followed at or in relation to meetings of the Group, including (but not limited to) the number of members of the Group who are to constitute a quorum, the selection of a member of the Group to preside at meetings, and the manner in which questions arising at a meeting of the Group are to be decided.[115]

Role of the Hazardous Waste Technical Group—Evidentiary certificates

Currently, section 58B(1) of the Hazardous Waste Act provides that the Minister may issue a written certificate (referred to as an evidentiary certificate) stating that a specified substance or object is, or is not, in specified circumstances, hazardous waste:

1. for the purposes of the Act or
2. for the purposes of the application of the Act to a specified matter.

Currently, section 58C(1) provides that the Minister may issue a written certificate (also referred to as an evidentiary certificate) stating that engaging in, or failing to engage, in specified conduct in relation to a specified hazardous waste is, or is not, environmentally sound management of that hazardous waste for the purpose of the Act.

The Minister is required to consult the Hazardous Waste Technical Group before issuing these evidentiary certificates.[116] The certificates must be published in the Gazette.[117]

Role of the Hazardous Waste Technical Group—definition of hazardous waste

Section 4 of the Hazardous Waste Act provides that hazardous waste means:

1. waste prescribed by the regulations, where the waste has any of the characteristics mentioned in Annex III to the Basel Convention; or
2. wastes covered by paragraph 1(a) of Article 1 of the Basel Convention; or
3. household waste; or
4. residues arising from the incineration of household waste;
   but does not include wastes covered by paragraph 4 of Article 1 of the Basel Convention.

Before Regulations are made for the purposes of paragraph (a) of this definition, the Minister is required to consult the Hazardous Waste Technical Group (section 58D). The Minister may also consult other persons.

Requirement for Consultation with Hazardous Waste Technical Group

The Department explains the role of the Hazardous Waste Technical Group in these processes as follows:

Before issuing certificates under 58B and 58C; and before regulations are made for the purpose of paragraph (a) of the definition of hazardous waste in Section 4 as required by Section 58D, the Minister must convene a meeting of the Hazardous Waste Technical Group; and consult the members of the Group who are present at that meeting. In order to assist in these consultations, the Hazardous Waste Technical Group may be called upon:

• To advise on technical issues associated with the operation and interpretation of the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
• To advise on technical issues associated with Australia's international obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the Basel Convention), and any agreements or arrangements of the kind mentioned in Article 11 of the Basel Convention (Sections 58B & 58C).
• To advise on whether materials referred to the Technical Group come within the ambit of the Basel Convention definition of hazardous waste (Section 58B).
• To develop a process to determine whether a given material is a ‘waste’ and if it is a waste whether it is ‘hazardous’. The Technical Group will pay particular attention to the hazard to human health and the environment posed by certain types of wastes, for instance identifying levels of contamination by hazardous constituents in a waste which render it hazardous (Sections 58B & 58D).

…

• To advise on the meaning of "environmentally sound management" of hazardous waste. This task will involve examining the transport, recovery and final disposal of hazardous wastes and, in particular, will involve assessing different waste recycling and management technologies. As with the characterisation of hazardous wastes, sound technical criteria need to be developed to enable import and export proposals to be assessed (Section 58C).
• To advise about the availability, the technical and economic feasibility, and environmental outcomes of domestic processes for the avoidance, minimisation and treatment of hazardous wastes proposed for export in accordance with the Basel Convention, and to advise on developments in waste avoidance and minimisation technologies (Section 58C).
• To advise about the environmental, occupational and public health and safety, social and economic implications of options proposed for the handling, processing and treatment of the hazardous waste and its residues, in Australia, in transit countries and in recipient countries when considering the export of hazardous waste in accordance with the Basel Convention (Section 58C).
• To contribute to the development of Australia's input on technical issues to international forums, including the OECD and Basel Convention (Section 58C).

The Group is comprised of eleven experts and generally meets monthly. The Group visit industrial facilities when necessary and invites presentations from industry on specific issues...[118]

Replacement of Hazard Waste Technical Group with new Consultation Mechanism

Items 37 to 40 remove references to the Hazardous Waste Technical Group and replace it with a new mandatory consultation mechanism. Item 40 repeals sections 58D and 58E and replaces them with proposed section 58D (Regulations defining hazardous waste—Minister must consult) which provides that, before Regulations are made for the purposes of paragraph (a) of the definition of ‘hazardous waste’ in section 4, the Minister must consult one or more of the following:

1. a person who the Minister considers has expertise or qualifications relevant to those regulations
2. an industry group
3. an environmental group
4. a State or Territory government body.

The Explanatory Memorandum states, among other things, that:

… the concept of the Hazardous Waste Technical Group is now out of date, and there are often instances where advice is required on a particular subject matter, but no member of the Hazardous Waste Technical Group has expertise in that particular subject matter.

…

The intention is to remove the concept of the Hazardous Waste Technical Group from the Act, and to replace it with a mandatory consultation mechanism that is more flexible and covers a wider, and more relevant, range of expertise. The new consultation mechanism would apply for the same decisions that the Minister is, under the current Act, required to consult with the Hazardous Waste Technical Group. Accordingly, there would be no lessening of consultation requirements.

It is intended that the results of this consultation would form part of the Minister’s recommendation to the Governor-General to make the proposed regulations. [119]

It is unclear as to why the existing Hazardous Waste Technical Group could not consult with and draw upon the external expertise where required, while maintaining the important accumulation of knowledge in relation to the technical issues associated with Australia's international obligations under the Basel Convention.