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House: Senate

Portfolio: Environment, Sport and Territories

Commencement: On a day fixed by Proclamation or on a day six months after Royal Assent whichever is the sooner.

+=5"> 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.

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+=5"> Background

1. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention)

The Basel Convention was adopted in Basel, Switzerland, on 22 March 1989, and Australia acceded to it on 5 February 1992. There are over 60 parties to the Convention including, for example, Indonesia, the Philippines, Malaysia, Japan and China. In a Press Release issued on 3 March 1995, the Minister for Environment, Sport and Territories, Senator John Faulkner, said that 'existing Commonwealth legislation fails to meet our obligations under the Basel Convention.'

The Convention is a response to the growing concern over the disposal of hazardous wastes. 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 (pp 288- 289):

landfill (this has led to problems for both human health and the environment);

storage (an out of sight, out of mind solution); and

export.

Further, 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 (p 283).

The Second Reading Speech (p 1) states:

The Basel Convention is the primary international instrument under which trade in hazardous waste is controlled. It is the set of rules for this trade on which Australia and the rest of the world 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, Australia cannot participate in this trade unless it accepts these rules.

Definition of hazardous waste

'Hazardous waste' is defined in Article 1 of the 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 or 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 Convention.

The 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.

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, 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 dispose 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. These agreements are known as the 'Ban Decision'.

The Second Reading Speech (p 6) states that Australia has not yet decided its position on the Ban Decision:

It has been Australian Government policy for some time, however, that the export of wastes for final disposal to developing countries is not acceptable practice and that policy is now reflected in the Bill.

The Department of Industry, Science and Technology (Media Release, 230:95, 6 July 1995) stated that the Bureau of Industry Economics report on the Implications of a ban on exports of used lead acid batteries suggested that the ban would lead to a decline in the recycling of used lead acid batteries. The report also warned that the 'number of used batteries going into landfill or being illegally dumped in Australia could substantially increase as a result of the Basel ban.'

2. Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act)

In order to challenge a decision of the Commonwealth in the courts an applicant must have standing to sue. Under the ADJR Act a 'person who is aggrieved by a decision to which (the) Act applies' may seek review from the Court on certain specified grounds. A 'person aggrieved by a decision' is defined in section 3(4) as a 'person whose interests are adversely affected by the 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. As Ellicott J said in Tooheys Ltd v Minister for Business and Consumer Affairs 36 ALR 64 at p 79:

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 ... affect his or her rights against third parties.

As the Second Reading Speech (p 5) notes, the Bill extends standing 'by providing standing for organisations and associations which have matters which relate to the decision under the Act as part of their object or purpose.'

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+=5"> Main Provisions

Schedule 1, Item 2 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- 27 amend definitions in the Act to make them consistent with the Basel Convention.

Items 33 - 84 concern applications for export, import and transit permits.

For example, Item 61 inserts new section 17A which provides for the grant of a transit permit. Under new subsection 17A(2) the Minister must grant such a permit if the Minister is satisfied that the transit proposals will not pose a significant threat to humans or the environment and that the applicant is a suitable person to be granted a transit permit. The Minister must not grant a transit permit if the Minister is satisfied hazardous waste would be brought into Antarctica [new subsection 17A(5)].

Items 85 - 98 provide for the revocation, surrender and variation of Basel permits.

Items 106 - 118 concern orders that the Minister may make and penalties that may be imposed when the Act is contravened.

Item 118, for example, inserts new sections 40A and 40B. These sections increase the liability for illegal trafficking in hazardous waste and make executive officers of corporations liable for contravention of certain provisions. The Second Reading Speech (p 5) states that 'liability for executive officers of companies is an important step in ensuring compliance with the Act.'

New subsection 40B(1) provides that an executive officer will be guilty of an offence if a body corporate contravenes certain provisions in the principal Act (eg section 40A - a person must not bring hazardous waste into Australia in the course of carrying out a transit proposal without a transit permit), and the executive officer knew the contravention would occur and he or she could influence the conduct of the body, and he or she failed to take reasonable steps to prevent the contravention. The offence is punishable by imprisonment for up to five years.

New subsection 40B(4) 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 131 inserts section 58A which extends standing of organisations to seek judicial review of decisions made under the Act. New subsection 58A(2) provides that 'an organisation or association of persons (whether incorporated or not) is taken to be a person aggrieved by the decision if the decision relates to a matter included in the objects or purposes of the organisation or association.'

Item 131 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).

Max Spry (06 2772477)

Bills Digest Service 21 July 1995

Parliamentary Research Service

This Digest does not have any legal status. Other sources should be consulted to

determine whether this Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

Commonwealth of Australia 1995

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