Bills Digest 81 1995-96 Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 1996


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WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 17 May 1996

CONTENTS

Passage History

Date introduced:1 May 1996
House: Senate
Portfolio: Environment, Sport and Territories
Commencement: On a day fixed by Proclamation or six months and a day after the date of Royal Assent, whichever is first..

Purpose

The Bill amends the Hazardous Waste (Regulation of Exports and Imports) Act 1989 ('the Principal Act') to:

  • give effect to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention) and
  • expand the meaning of a 'person aggrieved' under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) for the purpose of judicial review of decisions made under the Act.

Background

The Principal Act, which regulates the movement of hazardous wastes into and out of Australia, was Australia's response to the Basel Convention. The Basel Convention was adopted in Basel, Switzerland, on 22 March 1989 and Australia acceded to it on 5 February 1992. The Basel Convention entered into force in March 1990.

This Bill replaces one of the same name introduced by the former government on 29 June 1995. The earlier Bill was amended substantially but failed to pass prior to the dissolution of Parliament. This Bill reflects the amended version of the earlier Bill. The earlier Bill contained provisions that would have allowed environmental groups "standing" to challenge government decisions under the Principal Act.

1. Hazardous Waste

The management of hazardous wastes is one of the environmental issues with which the international community has been concerned. Some 325-375 million tonnes of hazardous waste are generated annually which in turn leads to storage, handling, transport and disposal problems of the hazardous waste. In the past, the problem was often addressed by exporting the hazardous waste to a developing country although this has been criticised by the environmental community as being tantamount to 'eco-dumping'. Many developing countries do not have the technology and/or the facilities to process the waste in an environmentally safe manner. For example, Australia does not have the facilities to deal with the wastes generated in the process of making hexachlorobenzene, polychlorinated biphenyls (PCBs) and dioxins. These are found in plastics, pesticides, refrigerants, fire-extinguishers and solvents etc(1).

In an article published in the Environmental and Planning Law Journal (December 1990), Zada Lipman states that in Australia, three methods have been used to dispose of hazardous waste (pp288-289):

  • landfill;
  • storage; and
  • export.

Lipman notes:

Disposal of wastes through landfill has led to the pollution of surface and groundwaters, to land contamination, and consequential exposure of entire communities to the dangerous effects of highly toxic chemicals. Many industrialised countries have adopted the short-sighted method of solving their domestic problem by exporting toxic wastes to Third World countries (p283).

The Second Reading Speech (p2) states:

The Basel Convention is the primary international instrument under which trace in hazardous waste is controlled. It is the set of rules for this trace on which Australia and the many other countries which are parties to the Convention have agreed. As virtually all of Australia's trading partners are either parties to the Convention or parties to similar sets of rules established by the OECD, it is in Australia's trade interests, as well as within our international obligations, to abide by these rules.

Definition of hazardous waste

'Hazardous waste' is defined in Article 1 of the Basel Convention to be those wastes listed in Annex I (unless they do not possess certain characteristics listed in Annex III) and includes:

  • Waste streams: for example, hospital and pharmaceutical waste, waste from the use of organic solvents and waste containing polychlorinated biphenyls (PCBs);
  • Wastes having as constituents certain products such as arsenic, mercury, lead, inorganic cyanides, asbestos and acidic solutions.

Radioactive waste and waste from the normal operation of a ship are not regulated by the Basel Convention.

2. The Basel Convention

The Basel Convention obliges contracting parties to establish measures to regulate the:

  • transboundary movement of hazardous waste;
  • disposal of waste; and
  • reduction of the generation of hazardous waste.

The Transboundary movement of hazardous waste

Article 4(1) provides that contracting parties cannot export hazardous wastes to nations that have banned the import of such waste. Further, an exporting State shall only permit export of hazardous waste if the importing State has first consented in writing to the specific import (the principle of 'prior informed consent' - Article 6). Under Article 6, notification and consent of the importing States, as well as any transit States, are required.

Article 4(2) also obliges the exporting State to take steps to ensure that the importing State manages the waste in an environmentally sound manner.

Article 4(5) prohibits the export or import of hazardous waste to or from a non-contracting State. Parties and non-parties may, however, enter into agreements for the transboundary movement of hazardous waste providing such agreements do not derogate from the environmental standards required by the Convention (article 11).

Article 4(6) bans the export of hazardous waste to Antarctica.

Article 4(7) requires Parties to allow only authorised persons to transport and disposal of hazardous waste.

Disposal of waste

Article 4(2)(b) requires State parties to ensure that adequate disposal facilities are available for the environmentally sound management of hazardous waste.

Article 8 imposes a duty on exporting States to re-import hazardous waste if it cannot be disposed of in an environmentally sound manner by the importing State.

Reducing the generation of hazardous waste

Article 4(2)(a) obliges State parties to establish measures to ensure that the generation of hazardous waste is reduced to a minimum.

Ban of exports for recycling from OECD to non-OECD countries

In March 1994, at the second conference of contracting States to the Convention it was agreed that the export of hazardous waste from OECD States to non-OECD States for final disposal would be prohibited immediately. It was also agreed to end the export of such waste from OECD States to non-OECD States for recycling by December 1997. This agreement was called the 'Ban Decision'. Australia was one of the countries that initially argued against the Ban Decision but ended up agreeing to it. In September 1995, during a further conference of all contracting States, a number of amendments were made to the Ban Decision prior to its adoption and incorporation in the Basel Convention. These amendments were:

  • The abolition of "OECD" and "non-OECD" terminology. Instead of using this terminology two lists of countries were prepared. The first list deals with States (including Australia) that are banned from exporting hazardous waste to States on the second list. The second list comprises the States that are likely to be "importers" of hazardous waste.
  • There was considerable debate about the definition of 'hazardous waste' and the rationale for excluding some wastes when others were included. A number of States are reputedly still dissatisfied with the uncertainty of the definition and may refuse to ratify the Ban Decision until the definition is clarified.
  • An exception was made for Article 11 arrangements. These can be bilateral, multilateral or regional arrangements for the environmentally sound management of hazardous wastes. Under the March 1994 decision they were excluded.

Australia's primary opposition to the Ban Decision was that it prohibited the export of hazardous waste to a "non-OECD" country for the purposes of recycling. Australia argued that this was not a good environmental practice as 'recycling' was of benefit to the environment and banning the export for the purpose or recycling was nonsensical. The counter-argument to this is that some of the "non-OECD" countries are not equipped to recycle the hazardous waste and consequently exporting to them is tantamount to 'eco-dumping'.

The September 1995 Ban Decision has not entered into force yet. In order to enter into force it must be ratified by 3/4 of the parties to the original Basel Convention and then it will only be binding on those State parties who have ratified it.

3. Standing Provisions

In order to challenge a decision of the Commonwealth in the courts, an applicant must have standing to sue. Under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) a 'person who is aggrieved' by a decision to which the Act applies may seek review from the Administrative Appeals Tribunal on certain specified grounds. A 'person aggrieved by a decision' is defined in section 3(4) as including:

  • a person whose interests are adversely affected by the decision;
  • a person whose interests would be adversely affected if a decision were/were not made in accordance with the report or recommendation;
  • a person whose interests are or would be adversely affected by conduct/failure that has been/is being/is proposed to be/is engaged in for the purpose of making a decision.

The ADJR Act came into operation on 1 October 1980, and since then the meaning of the term 'a person aggrieved', has been addressed in numerous cases. The cases indicate that the term should not be given a narrow interpretation. For example, Ellicott J said in Tooheys Ltd v Minister for Business and Consumer Affairs 36 ALR 64 at 79:

The words "a person who is aggrieved" should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision....This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties.

The Second Reading Speech (p6) states that 'Standing under the Administrative Decisions (Judicial Review) Act 1977 has been extended by providing standing for Australian organisations and associations which have matters which relate to the Act as part of their object or purpose.'

The question of standing for environmental groups has been discussed in a number of cases. One of the earliest decisions was that of the Australian Conservation Foundation Incorporated v Commonwealth of Australia and Others (1979) 28 ALR 257. The ACF were attempting to challenge a decision of the Minister that a resort and tourist development in Farnborough (QLD) could go ahead. The decision was made before any final environmental impact statement was made. The majority held that the ACF did not have the requisite locus standi to institute the proceedings. Their only interest in the decision was a concern for the environment and a mere belief or concern, no matter how genuinely held, does not give rise to the standing required to sue:

A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.

In two recent unreported cases Justice Sackville held that environmental groups did have the requisite standing. These are the cases Tasmanian Conservation Trust v Minister for Resources (unreported FC No NG536) and North Coast Environment Council v Minister for Resources (1994) (unreported FC No NG614). Sackville J based this on the following factors:

  • both groups were peak environmental organisations for their regions;
  • both were recognised by the federal Government as significant and responsible environmental organisations (ie received financial assistance on a regular basis/met with the Government regularly);
  • Both were recognised by their respective State Governments and were represented on advisory committees for environmental issues;
  • both had made submissions to government bodies on forestry management and conservation values in general;
  • the Tasmanian Conservation Trust had a substantial number of members (and resources) and was involved in research and advisory activities on forestry/woodchipping issues.

These factors were sufficient, in Sackville's opinion, to give the environmental groups standing. Generally speaking though, lack of standing has been a problem to environmental groups wishing to challenge government decisions. The Bill includes the third set of standing provisions put before Parliament. The original provisions were restricted in the amended versions (now contained in the Bill), a move which has drawn criticism from the environmental movement. For example, Greenpeace's national liaison officer Mr Ian Fry stated:

The provisions would make it extremely difficult for organisations to establish standing. In particular, overseas groups which could well be affected by shipment of hazardous waste from Australia would be unable to acquire standing in Australia.(2)

Main provisions

Schedule 1, Item 3 amends section 3 of the Principal Act to make it clear that the aim of the Act is to give effect to the Basel Convention.

Items 3-26 amend definitions in the Principal Act to make them consistent with the Basel Convention.

Item 27 inserts provisions in section 4 that deal with the export and transit of hazardous waste to or through foreign countries.

Proposed section 4A extends the meaning of hazardous waste to include waste classified by other countries (who are also parties to the Basel Convention) as hazardous waste.

The proposed section 4B deals with transit proposals for hazardous waste being imported into Australia (other than for disposal) or exported out of Australia and sets out when the Minister may declare a movement of hazardous waste to be a transit proposal.

The proposed section 4C implements Article 11 arrangements which are those agreements (between States who are parties to the Basel Convention) whereby hazardous waste is exported to another country to be processed in an environmentally sound manner, by obliging the Minister to declare the arrangement to be an Article 11 arrangement. The proposed sections 4F and 4G also apply to Article 11 arrangements and set out when a certain product is classified as hazardous waste and when it is not.

With respect to the environmentally sound management of hazardous waste, the proposed section 4E establishes that 'all practicable steps' will be taken to manage waste in a manner that will 'protect human health and the environment'.

Items 32 to 40 deal with applications for import, export and transit permits. Amendments to section 12 will allow an applicant to make one application for two or more imports as long as they are carried out within a 12 month period and concern the same type of waste from the same place. The amended section 13 will allow two or more export proposals to be amalgamated.

Article 11 arrangements will attract special procedures under proposed sections 13D and 13E. Before granting the permit the Minister must be satisfied that the proposal is consistent with the requirements of Article 11 and that the consent of the other country (the importing, exporting or transit country) has been obtained.

The proposed section 13F prohibits the Minister from granting a permit where he or she is satisfied that it could see hazardous waste being taken to Antarctica.

Items 41-79 concern applications for Basel permits for the export, import and transit of hazardous waste. There are time-limits on Ministerial action taken in response to an application and factors that the Minister must consider before granting a permit. For example, Item 60 inserts new section 17A which provides that when considering an application for a transit permit the Minister must take into account at least the following:

  • whether there is a significant risk of injury or damage to human beings or to the environment;
  • the applicant's financial viability and previous record in relation to environmental matters;
  • whether the applicant has appropriate insurance.

Item 63 restricts export permits for final disposal of hazardous waste to cases where there are exceptional circumstances, unless this is inconsistent with the environmentally sound management of the hazardous waste. Proposed subsection 18A(4) lists the factors that the Minister must have regard to.

Items 80-94 provide for the revocation, surrender and variation of Basel permits.

Items 105-115 concern orders that the Minister may make and penalties that may be imposed when the Act is contravened. For example, the proposed section 40B imposes liability on the executive officers of bodies corporate, if they knew or were reckless as to the likelihood of a contravention occurring, were in a position to influence the conduct of the body corporate and failed to take all reasonable steps to prevent the contravention. The maximum punishment is imprisonment for 2 years.

New subsection 40B(6) defines an executive officer, in relation to a body corporate, as 'a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.'

Item 115 inserts a new Part 5A which allows the Minister to make arrangements, with appropriate consultation and co-operation with the States, for things such as:

  • discouraging the unlawful import or export of hazardous waste;
  • collecting statistics for imports and exports of hazardous waste;
  • encouraging the reduction of the generation of hazardous waste;
  • developing adequate disposal facilities; and
  • encouraging managers of hazardous waste to prevent/reduce pollution and/or adverse consequences to human health and the environment arising out of the dealing with hazardous waste.

Item 120 inserts section 58A which extends standing of individuals and organisations to seek judicial review of decisions made under the Act. New subsection 58A(3) provides that 'an organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision if:

  • it is incorporated or was otherwise established in Australia; and
  • at any time during the 2 year period before the decision was engaged (in Australia) in research into hazardous waste, pollution arising from the disposal of hazardous waste or protection of human beings or the environment from the harmful effects of hazardous waste; and
  • its objects or purposes included either research into hazardous waste, pollution arising from the disposal of hazardous waste or protection of human beings or the environment from the harmful effects of hazardous waste.

New section 58A also extends standing to individuals who, in the two year prior to the decision, have been engaged in activities or research of the above kind.

Item 120 also inserts new section 58B which provides that the Minister may issue, following consultation with the Hazardous Waste Technical Group, a certificate stating that a specified substance is , or is not, hazardous waste. The Minister may similarly issue a certificate stating that certain conduct is, or is not, environmentally sound management of hazardous waste (new section 58C).

Item 120 further inserts new section 58E which requires the Minister to establish a Hazardous Waste Technical Group comprising persons with expertise in the scientific, technical, social, economic, environmental, public health and public safety aspects of hazardous waste management.

Endnotes

(1) Lipman, Z. The Convention on the Control of Transboundary Movements and Disposal of Hazardous Wastes and Australia's Waste Management Strategy (December 1990) Environmental and Planning Law Journal, 283-293 at 284.

(2) AAP report of 1 December 1995.

Contact Officer and Copyright Details

Susan Downing Ph. 06 277 2784
17 May 1996
Bills Digest Service
Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9032
Commonwealth of Australia 1996

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Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 17 May 1996



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