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
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..
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.
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)
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.
(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.
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.
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the public.
ISSN 1323-9032
Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1996.
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