Bills Digest No. 4 2001-02
Environmental Legislation Amendment Bill (No.2) 2001
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Environmental Legislation Amendment
Bill (No.2) 2001
Date Introduced: 28 June 2001
House: Senate
Portfolio: Environment and Heritage
Commencement: Various dates, but the major parts
of the Bill commence either on Royal Assent or 28 days after Royal
Assent.
The major purposes of the Bill are:
- To partially close a loophole in the Hazardous Waste
(Regulation of Exports and Imports) Act 1989 by making it an
offence to sell hazardous waste to foreign companies under certain
circumstances, and
- Introduce into the Fuel Quality Standards Act 2000
specific provisions allowing the use of evidentiary certificates in
prosecutions under the Act and also for regulations to be made to
deal with handling and analysis of fuel samples.
Regulating imports and exports of
hazardous waste
The Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and their Disposal came
into international force in 1992. It establishes an international
framework to control hazardous wastes being shipped from one
country to another. Parties to the Convention must not trade in
hazardous wastes with non-Parties except where this is done under
other formal agreements, providing this does not reduce the level
of environmental protection afforded by the
Convention(1). The Basel Convention also requires
parties to prevent contraventions and prosecute illegal movements
of hazardous wastes.
The Hazardous Waste (Regulation of Exports
and Imports) Act 1989 establishes a regulatory regime to
implement Australia's obligations under the Convention. Generally
speaking, the export or import of hazardous waste, as defined by
the Act, can only take place where a permit or other form of
authorisation is issued. The Act only allows the responsible
Minister to issue a permit in certain circumstances. Except in
exceptional circumstances, no export permit can be issued by the
Minister where the purpose of the export is the 'final disposal' of
the waste at an overseas location.
As the Act currently stands, the major offence
provisions focus on the act of importing or exporting hazardous
waste without the appropriate authorisation. It is not an offence
to sell hazardous waste per se, even in the knowledge that sale
will possibly lead to an unauthorised export. This loophole was
highlighted following an incident in September 1997, when hazardous
waste in the form of computer scrap was exported from Sydney to
Hong Kong in contravention of the Act. Commenting on the incident,
the Environment Australia 1997-98 annual report states that:
The Australian Federal police investigated a
breach of section 40 of the Act...The Director of Public
prosecutions decided not to proceed with a prosecution, given that
the likely exporter of the material had no presence in
Australia.(2)
Item 10 in Schedule 1 of the
Bill introduces a new offence that focuses on the circumstances of
the sale of hazardous waste rather than the act of export. See the
main provisions section of this digest for further commentary on
item 10.
Fuel quality standards
The Fuel Quality Standards Act 2000 is
designed to assist the national move towards higher transport fuel
quality standards and reflects an international trend aimed at
reducing air pollution and improving engine efficiency. The Act
includes offences such as supplying fuel that does not meet the
relevant standard(3) or altering fuel unless authorised
to do so. Inspectors may enter and search premises and take fuel
samples for the purposes of either monitoring compliance with the
Act or seeking evidence of a breach of the Act. However, the Act
does not prescribe any way of handling or analysing fuel samples,
nor have any regulations been made in this regard.
Schedule 1 - Amendment of the
Hazardous Waste (Regulation of Exports and Imports) Act
1989
Items 1 and 2
amend the definition of hazardous waste in existing section 4. The
new definition allows for the incorporation into the Act of the
substances listed Annexes VIII and IX to the Basel Convention.
These Annexes were added to the Convention in 1999.
Item 3 repeals existing
subsection 13(2) and replaces it with a new
version. Section 13 allows for regulations to be made to implement
arrangements made under so-called 'article 11' agreements related
to the Basel Convention such as the Waigani Convention, but
requires that these regulations must not commence before the
article 11 agreement. Item 3 will allow regulation
commencement dates to be expressed in terms of article 11
commencement rather than specific calendar dates. This has the
advantage that where the commencement of an article 11 agreement is
delayed for some reason, there will be no need to amend the
regulations.
Item 4 inserts new
subsection 34(4). If a person unlawfully imports hazardous
waste, section 34 allows the responsible Commonwealth Minister to
order the person to deal with the waste in a specified way, such as
re-exporting the waste. The new subsection simply clarifies that
the Minister may require the provision of information on dealing
with the waste as part of the section 34 order. While not specified
in the Bill, presumably this would include information such as how
the waste will be re-exported.
Item 5 inserts new
subsection 35(4). This mirrors item 4,
but covers orders in relation to an unlawful export of hazardous
waste.
Item 6 inserts new
subsection 35A(4). This mirrors item 4,
but covers orders in relation to the unlawful import of hazardous
waste as part of a transit operation.
Item 7 inserts new
subsection 38(5). This mirrors item 4,
but covers orders in relation to where a person has lawfully
exported hazardous waste but for whatever reason the waste cannot
be dealt with in accordance with the export permit or section 34
order and as a result the Minister may agree to make an order that
it be re-imported.
Item 8 inserts new
sections 38A and 38B. New section
38A provides that any Part 3 order (such as to re-export
in situations mentioned in item 4) must provide for a reasonable
time for compliance 'having regard to the circumstances'.
New subsection 38B(1) provides that a failure to
comply with a section 34, 35 or 35A order to deal with waste is
punishable by imprisonment up to 2 years in the case of an
individual or 2500 penalty units ($275 000) in the case of a
corporation. Where the failure is one of not supplying information
required by the Minister under items 4-7, the fine
is only 30 penalty units ($3300).
Item 9 inserts a new heading
for Part 4 of the Act. The new heading includes the word 'sale' to
reflect to proposed insertion of item 10 into the
Act.
Item 10 inserts new
section 40AA that creates the offence of unlawful sale of
hazardous waste. A person is guilty of the new offence if all four
of the following elements are proved:
- the person sells hazardous waste to a body corporate
incorporated outside Australia (whether the sale occurs within or
outside Australia)
- the body corporate does not have a registered office or a
principal office in Australia
- the person sells the waste knowing, or being reckless as to
whether, the waste is to be exported by the body corporate,
and
- an export permit authorising the export of the waste is not in
force when the sale occurs.
It would not be an offence to sell waste to a
private individual, nor to a foreign corporation with a registered
Australian office. Thus in relation to this second circumstance,
the Parliamentary Secretary's second reading speech which states
that the Bill(4)
[make] it an offence to sell hazardous waste to
a foreign company unless an export permit is in place.
is not strictly correct if the foreign
corporation in question has an office in Australia.
While obviously the presence of an Australian
office provides a more solid jurisdictional footing for Australian
authorities to pursue a prosecution against the foreign
corporation, there is no guarantee the corporation would have any
significant assets in Australia upon which a fine could be levied.
Under section 40B of the Act, corporate executive officers can be
held criminally liable for unlawful exporting of hazardous waste,
although these officers would presumably have to be
Australian-based if jurisdictional problems are not to arise.
It is also curious why someone selling hazardous
waste in the possible knowledge that sale could lead to an
unauthorised export should escape prosecution merely because they
sold the waste to either a private individual or to a foreign
corporation with a registered Australian office. Such loopholes do
not seem to have much relevance to a persons moral culpability if
they have failed to take reasonable steps to verify that a permit
authorising the export of the waste is not in force when the sale
occurs.
Items 11-13 are consequential
amendments on item 10. Items
11-12 provide that the existing liability provisions for
corporate executive officers extend to new section
40AA offences. Item 13 allows injunctions
to be granted in relation to actual or apprehended breaches of new
section 40AA
Schedule 2 - Other Amendments
Items 2-13 amend the Fuel
Quality Standards Act 2000.
More specifically, items 2-3
and 8-13 replace 'Administrative Review Tribunal'
with 'Administrative Appeals Tribunal'. However, new
subsection 2(3) of the Bill means that these changes will
only apply if the Administrative Review Tribunal Act
2001(5) fails to come into force before this
Bill.
Item 7 inserts new
sections 58A and 58B.
New subsections 58A(1)-(2)
provide that regulations may prescribe procedures dealing with
samples of fuel or any other 'evidential material', including that
testing may be done by persons other than inspectors appointed
under the Act.
New subsections 58A(3)-(5)
allow for flexibility in how closely various procedures prescribed
by regulations under 58A(1) must be followed. Specifically,
regulations may allow that substantial compliance, rather than
strict compliance, is adequate for some so-called 'routine'
procedures. This type of provision has precedent in for example,
section 13 of the Australian Sports Drug Agency Act 1990,
which deals with drug-testing samples. Note that regulations cannot
allow the lower standard of compliance to apply to procedures for
ensuring that a sample is not interfered with by anyone who is not
authorised to do so: new subsection 58A(4). If the
relevant standard of compliance is not followed in relation to a
sample, any new section 58B evidentiary
certificate relating to the sample is 'of no effect' - ie of no
evidentiary value.
New section 58B provides for
the production of 'evidentiary certificates' by persons or
laboratories accredited by regulations. Such types of certificates,
which are admissible as prima facie evidence of the content of
samples etc, seem to be a fairly common device in recent
legislation in which the nature of a substance must be generally be
proved in order to gain a conviction, eg the Petroleum Excise
Amendment (Measures to Address Evasion) Act 2000. The standard
conditions applying to such certificates are contained in the
new subsections 58B(4)-(7): the certificate will
only be admitted if a copy is given to the defendant or their legal
representative 14 days before the certificate is tendered as
evidence in proceedings, the person signing off on the certificate
may also be required by the defendant to attend the court hearing
into the offence and be cross-examined on the evidence contained in
the certificate, evidence can be given in support or rebuttal of a
certificate and any such evidence must be considered on its
merits.
See comments on item 10 of Schedule 1 in the
main provisions section.
- For example, the South Pacific Waigani Convention, which is
likely to come into force around 2002.
- Environment Australia, 1997-98 annual report, p.
210.
- The first standards introduced under the Act come into force on
1 January 2002.
- Senator the Hon Ian Campbell, Senate Debates, 28 June
2001 p. 25316.
- The Act has yet to be passed by Parliament.
Angus Martyn
23 July 2001
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ISSN 1328-8091
© Commonwealth of Australia 2000
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