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Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021

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2019 - 2020 - 2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS) AMENDMENT BILL 2021

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by the authority of the Minister for the Environment,

the Hon Sussan Ley MP)



HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS) AMENDMENT BILL 2021

GENERAL OUTLINE

The Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021 (the Bill) would make amendments the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act) to implement Australia’s international obligations in relation to plastic wastes, bring the regulatory powers under the Act into line with contemporary Commonwealth legislation, and improve the administrative efficiency of the Act.

The Act implements Australia’s obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal (Basel Convention), an international treaty for the control of the movement of hazardous waste from one country to another and its disposal. The Act regulates the export, import and transit of hazardous waste to ensure it is managed in an environmentally sound manner to minimise harmful effects of hazardous waste on humans and the environment.  

The amendments to the Act proposed by the Bill include:

Meet Australia’s international obligations

a.        implement amendments to the Basel Convention to strengthen transboundary controls on unsorted plastic wastes and plastic wastes containing hazardous substances and ensure Australia’s compliance with international obligations.

Align with other Commonwealth regulatory provisions as appropriate

b.       trigger the Regulatory Powers (Standard Provisions) Act 2014 to adopt standardised Commonwealth regulatory powers and best practice regulation with minor modifications.

 

c.        improve the compliance and enforcement framework under the Act by:

 

                                i.             refining existing criminal offences and introducing new strict liability offences and civil penalty provisions to cover non-compliance relating to the export, import and transit of hazardous waste;

 

                              ii.             increasing the penalties for offences relating to the export, import and transit of hazardous waste and introducing new aggravated offences where the non-compliance results, or is likely to result, in injury or damage to human beings or the environment;

 

                            iii.             introducing new information sharing provisions to authorise sharing of information across the Commonwealth and state and territory governments where appropriate; and

 

                            iv.             introducing recordkeeping requirements, information gathering powers, mechanisms to protect, use and disclose information, and audit powers to ensure compliance with the Act.

 

Improve administrative efficiency

d.       replace the Hazardous Waste Technical Group with a requirement to consult with persons with appropriate expertise; and

 

e.        streamline and reduce the complexity of the Act while ensuring the standard of environmental and human health protection remains high.

 

FINANCIAL IMPACT STATEMENT

The Bill would have no financial impact on the Australian Government Budget.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The  Bill i s compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

The full statement of compatibility with human rights is attached to this explanatory memorandum ( Attachment A ).

 



 

LIST OF ABBREVIATIONS

The following abbreviations and terms are used in this Explanatory Memorandum:

Act

Hazardous Waste (Regulation of Exports and Imports) Act 1989

Acts Interpretation Act

Acts Interpretation Act 1901

Basel Convention

Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal [1992] ATS 7, as amended and in force for Australia from time to time

Bill

Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021

Crimes Act

Crimes Act 1914

Criminal Code

Criminal Code Act 1995

Commonwealth Guide to Framing Offences

Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers 2011

EPBC Act

Environment Protection and Biodiversity Conservation Act 1999

Legislation Act

Legislation Act 2003

OECD Decision

OECD Decision C(2001)107, being Revision of Decision C(92)39/FINAL on the control of transboundary movement of wastes destined for recovery operations, made on 14 June 2001 by the Council of the Organisation for Economic Cooperation and Development

OECD Regulations

Hazardous Waste (Regulation of Export and Import) (OECD Decision) Regulations 1996

PGPA Act

Public Governance, Performance and Accountability Act 2013

Privacy Act

Privacy Act 1988

Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014

Scrutiny of Bills Committee 6 th Report

Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation

 



 

HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS) AMENDMENT BILL 2021

NOTES ON CLAUSES



Clause 1 - Short title

1.       Clause 1 would provide that the Bill may be cited as the Hazardous Waste (Regulation of Exports and Imports) Amendment Act 2021.

 

Clause 2 - Commencement

 

2.       Clause 2 would provide that sections 1 to 3 of the Bill commence the day after the Bill receives the Royal Assent.

 

3.       Clause 2 would also have the effect that Schedules 1, 2, 3 and 5, and Parts 1 and 2 of Schedule 4 would commence on the earlier of a single day set by Proclamation or six months after the Bill receives the Royal Assent. These provisions would contain the substantive amendments to the Act.

 

4.       Part 3 of Schedule 4 would commence on the later of the date that the rest of the Schedules commence, and the date immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021 .

 

Clause 3 - Schedules

 

5.       Clause 3 would provide that the legislation that is specified to be amended or repealed as set out in the Schedules has effect according to the terms of the relevant Schedule .

 

6.       Each of the Schedules in the Bill would amend the Act in the manner specified in the relevant Schedule.

SCHEDULE 1 - HAZARDOUS WASTE

 

General Outline

7.       The regulatory regime prescribed by the Act, including the requirement to obtain an export, import or transit permit, only applies to hazardous waste as defined by section 4 of the Act (unless an extended definition applies). The term hazardous waste is defined with reference to the scope of the Basel Convention, in order to implement Australia’s obligations under that international agreement.

8.       The annexes to the Basel Convention provide the basis for determining the types of waste that fall within the scope of the Convention. The transboundary movement of these wastes are subject to prior informed consent from transit and importing countries.

9.       On 11 May 2019, the 14th meeting of the Conference of Parties to the Basel Convention adopted by consensus to amend certain annexes to the Basel Convention in order to strengthen international control of unsorted plastic wastes and plastic wastes containing hazardous substances (the Decision). These Convention amendments made by the Decision entered into force on 1 January 2021.

10.   The amendments made by Schedule 1 to the Bill (item 1) would implement these changes and ensure Australia’s compliance with the Basel Convention.

11.   The amendments made by Schedule 1 to the Bill (item 2) would also rectify an inconsistency in the current definition of hazardous waste in section 4 of the Act by excluding radioactive wastes from that definition, consistent with the Basel Convention.

Details of the amendment

 

Item 1

 

12.   Section 4 of the Act currently defines hazardous waste as:

a)       waste prescribed by the regulations, where the waste has any of the characteristics mentioned in Annex III to the Basel Convention; or

 

b)       wastes covered by paragraph 1(a) of Article 1 of the Basel Convention; or

 

c)       household waste; or

 

d)      residues arising from the incineration of household wastes,

but does not include wastes covered by paragraph 4 of Article 1 of the Basel Convention.

13.   On 11 May 2019 the Conference of the Parties to the Basel Convention made the decision (the Decision) to amend the Basel Convention to:

 

·          add to Annex II of the Convention: a new waste code representing ‘plastic wastes, including mixtures of such wastes’ other than specified categories of plastic waste (being the categories that will be added to Annex IX of the Convention under paragraph 4 of the Decision);

 

·          add to Annex VIII of the Convention: ‘plastic waste, including mixtures of such waste, containing or contaminated with Annex I constituents, to an extent that it exhibits an Annex III characteristic;

 

·          provide that entry B3010 in Annex IX to the Convention is only effective until 31 December 2020;

 

·          Add a new entry, B3011, to Annex IX to the Convention that would provide for specified types of plastic waste. This new entry will include certain plastic wastes and certain mixtures of plastic waste that are destined for recycling in an environmentally sound manner and almost free of contamination and other types of wastes.

 

14.   The amendments mean that these types of plastics will now fall within the scope of the Convention.

15.   Annex II to the Basel Convention lists categories of wastes requiring special consideration which are within the scope of the Convention even if they do not otherwise fall within the Basel Convention definition of hazardous waste. This means that Annex II wastes are also subject to similar transboundary movement controls under the Basel Convention. The Decision adds a new waste code representing ‘plastic wastes, including mixtures of such wastes’ to Annex II to the Basel Convention.

 

16.   Unlike the Basel Convention, the Act does not list ‘hazardous wastes’ and ‘other wastes’ separately. Rather, the Act includes these ‘other wastes’ in the definition of hazardous waste in section 4 (currently under paragraphs (c) and (d)). This is for simplicity, given that both hazardous wastes and other wastes under the Basel Convention are subject to the similar transboundary movement controls.

17.   Item 1 would amend the definition of hazardous waste in section 4 of the Act to add a new paragraph (e). New paragraph (e) would cover plastic wastes, including mixtures of such wastes, covered by Annex II to the Basel Convention.

 

18.   This item would implement paragraph 1 of the Decision (as described above) by ensuring the same transboundary movement controls under the Act also apply to these types of plastic wastes. It is intended that this item would assist in reducing the amount of plastic waste entering the environment through the minimisation and environmentally sound management of plastic waste, as well as the effective control of its transboundary movement.

 

19.   Amendments to the Act are not required to implement paragraphs 2 to 4 of the Decision (as described above). It is intended that regulation amendments will be made to implement paragraph 3 and 4 of the Decision.

 

Item 2

 

20.   Item 2 would amend the definition of hazardous waste in section 4 to exclude wastes covered by paragraph 3 of Article 1 of the Basel Convention from that definition.

 

21.   Paragraphs 3 and 4 of Article 1 of the Basel Convention excludes two types of waste that are subject to other international control systems or international instruments from the scope of the Convention: radioactive materials (paragraph 3) and wastes derived from the normal operation of a ship (paragraph 4). This means that for the purposes of the Basel Convention, neither radioactive waste nor wastes derived from the operation of a ship are considered ‘hazardous waste’.

 

22.   While wastes covered by paragraph 4 of Article 1 of the Basel Convention are currently excluded from the definition of hazardous waste in section 4 of the Act, wastes covered by paragraph 3 of Article 1 of the Basel Convention are not.

 

23.   This item would rectify this inconsistency and have the effect of excluding radioactive wastes from the definition of hazardous waste for the purpose of the Act, in addition to wastes derived from the normal operation of a ship.

SCHEDULE 2 - REGULATORY POWERS



General Outline

24.   Schedule 2 would amend the compliance and enforcement regime of the Act by adopting the standard suite of provisions under the Regulatory Powers Act and inserting new audit powers. The new regulatory regime would consist of monitoring and investigation powers, audit powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions. A comprehensive compliance and enforcement framework would enable Australia to more effectively manage the transboundary movement of hazardous waste to ensure human beings and the environment, both within and outside Australia, are protected from the harmful effects of hazardous waste and that Australia’s obligations under the Basel Convention are complied with.

25.   Triggering the standard provisions of the Regulatory Powers Act would also provide a consistent framework, streamline Commonwealth regulatory powers and increase legal certainty for businesses and individuals who are subject to the Act.

 

26.   This Schedule would also make modifications to the operation of the Regulatory Powers Act in order to retain existing powers in the Act, and to provide for a number of additional powers to ensure a robust compliance and enforcement scheme. These modifications would ensure that the regulatory powers in the Act are appropriately adapted to effective regulation in the context of non-compliance in relation to the import, export or transit of hazardous waste, consistent with Australia’s international obligations under the Basel Convention.

Comparison of Provisions

27.   The below table identifies the corresponding provisions of the Regulatory Powers Act for the sections of the Act that would be repealed by this Schedule. As set out below, existing powers in the Act would be either retained by, or aligned with, standard provisions in the Regulatory Powers Act or by modifications to standard provisions of the Regulatory Powers Act. New powers are listed as gains .

Provision

Current provision in the Hazardous Waste Act

Provision as amended by this Schedule

Applicable provision (Regulatory Powers Act)

Monitoring powers

Part 5

 

Part 2-Monitoring

Identity cards

43

Aligned

35

Proof of authority

44

Aligned

25(6), 26(b), 35(6)

Power to control movement of vessels and aircraft etc.

45

Retained through modification to the operation of the Regulatory Powers Act

N/A

Entry and search of searchable places - monitoring compliance

46(1)

46(2)

Retained

18

Power to stop and detain a vessel, aircraft or vehicle

46(3)

Retained through modification to the operation of the Regulatory Powers Act

N/A

Power to search any part of place or premises and anything on premises

48(1)(a)

Retained

19(a)

 

Power to examine or observe any activity conducted on the premises

N/A

Gained

19(b)

Power to inspect, examine, take measurements, conduct tests (including by taking samples) concerning any structure, plant, substance or other thing on premises

48(1)(b)

Retained through modification to the operation of the Regulatory Powers Act

19(c)

Power to make any still or moving images or recording of premises or anything on premises

N/A

Gained

19(d)

Power to inspect any documents on premises

N/A

Gained

19(e)

Power to take extracts and copies from documents

48(1)(c)

Retained

19(f)

Power to take such equipment onto premises as required for purposes of exercising powers

48(1)(f)

Retained

19(g)

Power to ask questions and seek production of documents

48(1)(d)

48(1)(e)

48(3)

48(3A)

Aligned

24

 

Monitoring warrants

49

Aligned

32

Operating electronic equipment

N/A

Gained

20

Securing electronic equipment to obtain expert assistance

N/A

Gained

21

Securing evidence of the contravention

N/A

Gained

22

Persons assisting authorised persons

N/A

Gained

23

Obligations and incidental powers of authorised persons

N/A

Gained

Division 3 (sections 25 - 29)                             

Occupier’s rights and responsibilities

N/A

Gained

Division 4 (sections 30-31) 

Extension of periods in which things secured

N/A

Gained

33

Powers of issuing officers

N/A

Gained

34

Investigation powers

Part 5

 

Part 3-Investigation

Identity cards

43

Aligned

76

Proof of authority

44

Aligned

76(6), 55(6), 56(b)

Entering premises by consent or under warrant

47(1)

47(3)

Retained

48

Powers to seize evidence

47(2)(a)

Retained

49(b)(ii)

Keeping or return of seized things

47(2)(b)

Aligned

66

Copy or access to seized documents

47(2)(c)

Aligned

64

Receipts for seized things

N/A

Gained

65

Issuing officer may permit a thing to be retained

N/A

Gained

67

Disposal of seized things

N/A

Gained

68

Compensation for acquisition of property

N/A

Gained

69

Seizure of other evidence (including for other offences) when under warrant

47(4)

Retained

52

Power to stop and detain vessel, aircraft or vehicle

47(5)

Retained through modification to the operation of the Regulatory Powers Act

N/A

Power to search any part of place or premises and anything on premises

48(1)(a)

Retained

49(a), 49(b)(i)

Power to inspect, examine, take measures, conduct tests concerning any structure, plant, substance or other thing in or on place

48(1)(b)

Retained through modification to the operation of the Regulatory Powers Act

49(c)

Power to take extracts and copies from documents

48(1)(c)

Aligned

49(b)(ii), 49(d)

Power to ask questions and seek production of books, records and documents

48(1)(d), 48(1)(e), 48(3), 48(4)

Aligned

54(2), 54(3), 54(4), 54(5), 47(1)

Reasonable excuse for failing to comply

48(3A)

Aligned

47(1), 54(4)

Power to take such equipment onto premises as required for purposes of exercising powers

48(1)(f)

Retained

49(e)

No exercise of powers unless entry by consent or by warrant

48(2)

Retained

48(2)

Power to operate electronic equipment

N/A

Gained

50

Power to secure electronic equipment to obtain expert assistance

N/A

Gained

51

Persons assisting authorised persons

N/A

Gained

53

Obligations and incidental powers of authorised persons

N/A

Gained

Division 3 (sections 55 - 61)

Occupier’s rights and responsibilities

N/A

Gained

Division 4 (sections 62 - 63)

Offence related warrants

50

Aligned

70

Offence related warrants by telephone

51

Retained

71, 72

Offence relating to warrants by telephone, fax etc

N/A

Gained

73

Extension of periods in which things secured

N/A

Gained

74

Powers of issuing officers

N/A

Gained

75

Civil penalty provisions

N/A

Gained

Part 4-Civil Penalty Provisions

Infringement notices

N/A

Gained

Part 5-Infringement Notices

Enforceable undertakings

N/A

Gained

Part 6-Enforceable Undertakings

Injunctions

41

 

Part 7-Injunctions

Grant restraining injunctions

41(1)

Retained

121(1)

Grant performance injunctions

41(2)

Retained

121(2)

Grant of interim restraining injunctions

41(3)

Retained

122(1)(a)

Grant of interim performance injunctions

N/A

Gained

122(1)(b)

Discharging or varying injunctions

41(4)

Retained

123

Certain limits on granting injunctions do not apply - restraining injunctions

41(5)

Retained through modification to the operation of the Regulatory Powers Act

124(1)

Certain limits on granting injunctions do not apply - performance injunctions

41(6)

Retained through modification to the operation of the Regulatory Powers Act

124(2)

No undertakings as to damages

41(7)

Retained

122(2)

Other powers of a relevant court unaffected

41(8)

Retained

125

Relevant court

41(9)

Retained

120

 

Details on the amendments

Part 1 - Amendments

Item 1 - section 4

28.   Item 1 would amend section 4 of the Act to insert a number of new definitions that are used in this Schedule. As the definition of this Act in section 4 includes the regulations, the definitions inserted by this item would also apply to regulations made under the Act. 

 

29.   This item would also include some ‘signpost’ definitions that refer readers to where in the Act the terms are substantively defined, including if the term is defined in the Regulatory Powers Act.

Item 2

30.   Item 2 would amend section 4 to repeal the definition of identify card and substitute a new definition that defines identity card , in relation to an inspector, as an identity card issued to an inspector under section 35 or 76 of the Regulatory Powers Act to the extent that either of those sections applies in relation to a provision of the Act.

Item 3

31.   Item 3 would amend section 4 of the Act to repeal the definition of offence against a provision of Part 4 . This definition is no longer needed due to amendments in Schedule 2 to this Bill.

Item 4

32.   Item 4 would amend section 4 of the Act to repeal the definition of offence against this Act as this definition is no longer needed. This definition is no longer needed due to amendments in Schedule 2 to this Bill.

Item 5

33.   Item 5 would amend section 4 of the Act to insert a definition of the Regulatory Powers Act, a relevant person , and the Secretary .

Item 6

34.   Item 6 would amend section 4 of the Act to repeal the definition of within Australian jurisdiction as this definition is no longer needed. An equivalent definition of Australian jurisdiction would be inserted by item 1 of this Schedule.

Item 7

35.   Item 7 would repeal section 8 of the Act as it is no longer necessary due to the amendments in Schedule 4 to this Bill.

Item 8

36.   Item 8 would amend the heading of section 9 to omit “of Act”. This would reflect the amendment made by item 9.

Item 9

37.   Item 9 would amend section 9 of the Act to include a reference to the Regulatory Powers Act. This item would be required as a consequence of items 18 and 20 of this Schedule, which trigger the Regulatory Powers Act to apply to the Act.

 

38.   This item would ensure that the operation of the Regulatory Powers Act, to the extent that it applies in relation to a provision of the Act, extends to every external Territory of Australia, along with the Act.

Item 10

39.   Item 10 would amend the Act to insert new sections 9A and 9B. New sections 9A and 9B would clarify that the Act is intended to operate extraterritorially and is intended to regulate activities outside of Australia. 

 

40.   This item would seek to clarify the operation of the Act, rather than changing its current operation. It is already the case that the Minister may, for example, grant an export permit under the Act which specifies a range of particulars and imposes conditions which purport to operate extraterritorially. These may include specifying the transit ports the hazardous waste must pass through on its way to the destination port, and the disposal facility and methods in the destination country that are required to be used.

Section 9A - Extraterritorial operation

41.   New subsection 9A(1) would provide that, subject to the remainder of section 9A, the Act, and the Regulatory Powers Act as it relates to the Act, extends to acts, omissions, matters and things outside of the Australian jurisdiction. The note following subsection 9A(1) explains that some searchable places will be outside the Australian jurisdiction.

 

42.   New subsection 9A(2) limits the application of the Act, and the Regulatory Powers Act as it relates to the Act, outside Australian jurisdiction to relevant Australian entities. This is to ensure compliance with Australia’s obligations under international law. Subsection 9A(6) would define an Australian entity as an Australian citizen or resident, a body corporate established under an Australian law, an Australian aircraft or an Australian vessel.

 

43.   New subsection 9A(3) would clarify that the Act, and the Regulatory Powers Act as it relates to the Act, applies to all persons and all searchable places within the Australian jurisdiction (such as premises, aircraft, vessels and vehicles), including foreign persons and foreign owned or occupied searchable places. Subsection 9A(6) would define a foreign person as a person other than an Australian citizen or resident, or body corporate established under Australian law. Australian jurisdiction would be defined as Australia or Australian waters, including over Australia or Australian waters (see amendments made by item 1 of this Schedule).

 

44.   New subsections 9A(4) would clarify that subsection 9A has effect subject to Australia’s international obligations and any Commonwealth law giving effect to such obligations. New subsection 9A(5) would further clarify that the exercise of a power under the Act, or the Regulatory Power Act as it relates to the Act, in a foreign country would require the consent of that country, if such consent is required under international law (including requirements under any international agreement binding of Australia).

Section 9B - Geographical application of offences

45.   New section 9B would have the effect of clarifying that the standard geographical jurisdiction in the Criminal Code does not apply in relation to an offence under the Act. The geographical jurisdiction of offences under the Act would instead be governed by new section 9A. This is reflected in the note following new section 9B.

Item 11

46.   Item 11 would amend section 10A of the Act to add the words ‘and Division 14’ to reflect an update to the Criminal Code.

Item 12

47.   Item 12 would amend subsection 17(2) of the Act to omit the reference to subsections ‘(4) or (5)’ and substitute a reference to subsections ‘(4), (5) or (5A)’. The amendment made by this item is consequential to the amendment made by item 13.

Item 13

48.   Item 13 would amend section 17 of the Act to insert new subsection 17(5A). New subsection 17(5A) would permit the Minister to refuse to grant a Basel import or export permit if the applicant has previously failed to provide, or arranged to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit.

 

49.   Item 13 would also insert two notes after new subsection 17(5A). The first note would explain to readers that the requirement to provide an auditor with assistance that is reasonably necessary for the conduct of an audit is in new section 54 (see amendments made by item 18 of this Schedule). The second note would explain that the relevant audit may not be in relation to a permit, as the requirement imposed by new section 54 would apply to any audit of operations covered by a permit, a ministerial order, a notification given under new section 33G that no transit permit is required, or other prescribed operations.

 

50.   In addition to the power to revoke a permit or notification for non-compliance with the requirement in new section 54, the potential for a future permit to be refused is an important administrative consequence to ensure compliance with audit provisions under the Act.

Item 14

51.   Item 14 would amend section 17A of the Act to insert new subsection 17A(4). New subsection 17A(4) would permit the Minister to refuse to grant a Basel transit permit if the applicant has previously failed to provide, or arranged to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit.

 

52.   Item 14 would also insert two notes after new subsection 17A(4). The first note would explain to readers that the requirement to provide an auditor with assistance that is reasonably necessary for the conduct of an audit is in new section 54 (see amendments made by item 18 of this Schedule). The second note would explain that the relevant audit may not be in relation to a permit, as the requirement imposed by new section 54 would apply to an any audit of operations covered by a permit, a ministerial order, a notification given under new section 33G that no transit permit is required, or other prescribed operations.

 

53.   In addition to the power to revoke a permit or notification for non-compliance with the requirement in new section 54, the potential for a future permit to be refused is an important administrative consequence to ensure compliance with audit provisions under the Act.

Item 15

54.   Item 15 would amend the Act to repeal section 41. Existing section 41 deals with injunctions. This section would no longer be necessary as item 20 of this Schedule would amend the Act to apply the standard injunction provisions in Part 7 of the Regulatory Powers Act.

 

55.   The comparison table provided above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Act that are repealed by this item.

Item 16

56.   Item 16 would amend the Act to repeal the existing heading to Part 5 and substitute the new heading “Part 5 - Compliance powers”. This new heading would more accurately describe the provisions in this Part.

Item 17

57.   Item 17 would amend the Act to insert the new heading “Division 1 - Inspectors” before section 42.

Item 18

58.   Item 18 would amend the Act to insert a new Division 2 into Part 5.

 

59.   The new Division 2 (new sections 43 to 55) would outline the powers of inspectors, who are appointed by the Minister under section 42 of the Act. This item would trigger Parts 2 and 3 of the Regulatory Powers Act and insert additional monitoring and investigation powers to provide a comprehensive compliance regime for the Act. This item would also provide inspectors with audit powers which will be an important compliance tool in ensuring the compliance of persons with permits, orders, notifications and requirements under the Act.

Subdivision A - Monitoring and investigation powers

Section 43 - Monitoring powers

60.   New section 43 would trigger the standard monitoring powers in Part 2 of the Regulatory Powers Act. The note following new subsection 43(1) would explain that Part 2 of the Regulatory Powers Act creates a framework for monitoring compliance with the Act. This would include powers of entry and inspection.

 

61.   Subsections 43(1) and (2) would have the combined effect that the monitoring powers triggered under Part 2 of the Regulatory Powers Act would be able to be exercised for the purpose of:

 

·          monitoring compliance with provisions in the Act and offence provisions of the Crimes Act or the Criminal Code; and

 

·          determining whether information given in compliance, or purported compliance with those provisions is correct.

 

62.   Paragraph 43(3)(a) would provide that, for the purposes of Part 2 of the Regulatory Powers Act, there are no related provisions.

 

63.   Paragraphs 43(3)(b) and 43(4)(a) would have the combined effect that, for the purposes of Part 2 of the Regulatory Powers Act, an inspector (appointed under section 42 of the Act) is both an authorised applicant and an authorised person. This means that an inspector would be able to exercise the monitoring powers set out in Part 2 of the Regulatory Powers Act.

 

64.   An officer of Customs would also be an authorised person in relation to new sections 48 and 49 (see below) and information given in compliance or purported compliance with either of those sections (paragraph 43(4)(b)). This is appropriate as these powers may involve requiring the production of permits or orders from persons located on a vessel that has been stopped or detained.

 

65.   Paragraphs 43(3)(c), (d) and (e) would provide, respectively, that for the purposes of Part 2 of the Regulatory Powers Act, an issuing officer is a magistrate, the Secretary is the relevant chief executive, and the Court (defined in section 4 of the Act as the Federal Court of Australia) is the relevant court.

 

66.   Unlike the exercise of investigation powers, inspectors would not need to suspect on reasonable grounds that there may be material on the premises related to a contravention of an offence or civil penalty provision before exercising relevant monitoring powers. However, an inspector would need to have either the consent of the occupier or a monitoring warrant to enter premises to exercise the monitoring powers under Part 2 of the Regulatory Powers Act (subsection 18(2) of the Regulatory Powers Act).

 

67.   The general monitoring powers set out in Part 2 of the Regulatory Powers Act would also permit an inspector to, among other things:

 

·          search premises, measure or test anything on the premises; photograph things 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; 

 

·          secure electronic evidence for 24 hours in order to obtain expert assistance.

 

68.   New subsection 43(5) would have the effect that an inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act as it applies to the Act.

 

69.   It is necessary to allow other persons to assist inspectors to exercise powers or perform functions under Part 2 of the Regulatory Powers Act (as it applies to the Act) because there may be circumstances where no other inspector is available to assist, or because special skills are required for the assistance needed (for example, locksmiths). Subsection 43(5) would not impose specific training requirements for a person assisting an inspector, as the relevant expertise required would differ depending on purpose of the assistance. However, under paragraph 23(1)(a) of the Regulatory Powers Act, a person exercising monitoring powers may only be assisted by another person if it is necessary and reasonable to do so. In addition, a person assisting an inspector would be subject to any directions given by the inspector under paragraph 23(2)(d) of the Regulatory Powers Act and a power exercised by a person assisting an inspector would be taken to have been exercised by the inspector in accordance with subsection 23(3) of the Regulatory Powers Act. The inspector would have direct responsibility and oversight of the powers exercised and functions performed under Part 2 of the Regulatory Powers Act (as it applies to this Act).

Section 44 - Modification of monitoring powers

70.   New section 44 would provide for additional monitoring powers beyond those provided for under Part 2 of the Regulatory Powers Act and modify the operation of some of the provisions in Part 2 of the Regulatory Powers Act as it applies to the Act. These additional powers and modifications are necessary to retain existing powers in the Act and ensure the effective operation of the Regulatory Powers Act, as it applies to the Act.

 

71.   Consistent with new section 43, the additional monitoring powers in new section 44 would be able to be exercised for the purpose of:

 

·          monitoring compliance with provisions in the Act and offence provisions of the Crimes Act and the Criminal Code; and

 

·          determining whether information given in compliance, or purported compliance with those provisions is correct.

 

72.   Subsection 44(2) would provide for the following additional monitoring powers:

 

·          the power to sample any thing on a searchable place entered under Part 2 of the Regulatory Powers Act;

 

·          the power to remove, test and analyse such samples;

 

·          the power to secure a searchable place entered under Part 2 of the Regulatory Powers Act; and

 

·          the power to secure things on a searchable place entered under Part 2 of the Regulatory Powers Act for the purpose of testing or analysing those things.

 

73.   These additional monitoring 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. For example, if a permit allowed for the export of a certain type of hazardous waste, testing and analysing a sample of waste may be necessary to confirm that the waste for export was the type of hazardous waste allowed under the permit.

 

74.   Subsection 44(2) would also clarify that the powers set out at new sections 47, 48 and 49 are also additional monitoring powers. These provisions are described in detail below.

 

75.   New subsections 44(3) to 44(8) would modify powers in Part 2 of the Regulatory Powers Act for the purposes of their application to the Act.

 

76.   Subsection 44(3) would have the effect that references in Part 2 of the Regulatory Powers Act to ‘premises’ should be taken, to the extent that the Regulatory Powers Act applies to the Act, to be a reference to a searchable place as defined in section 4 of the Act. This is necessary because the Act uses the concept of a searchable place rather than premises. A searchable place is defined in section 4 as meaning premises in Australia, an aircraft, vehicle or vessel within Australian jurisdiction, an Australian aircraft, an Australian platform or an Australian vessel.

 

77.   Subsection 44(4) would have the effect that references in Part 2 of the Regulatory Powers Act to ‘occupier’ should be taken, to the extent that the Regulatory Powers Act applies to the Act, to be a reference to a relevant authority as defined in section 4 of the Act. This is necessary because the Act uses the concept of a relevant authority rather than premises. A relevant authority is defined in section 4 as meaning the occupier of the premises (for premises in Australia) and the person in command or control, or who appears to be in command or control, of the place (for all other places). This broader concept is necessary because searchable places include moveable things such as Australian aircraft and vessels.

 

78.   Subsection 44(5) would have the effect that if an authorised person is authorised under section 18 of the Regulatory Powers Act to enter a searchable place that is a vessel, aircraft or vehicle, the monitoring powers under Part 2 of the Act are taken to include the power to stop and detain the vessel, aircraft or vehicle for the purposes of entering the vessel, aircraft or vehicle to exercise the monitoring powers. This is a necessary practical modification to take account of the need to exercise monitoring powers on searchable places that are moveable .

 

79.   Subsection 44(6) would have the effect that the requirement in paragraph 26(b) of the Regulatory Powers Act for an authorised person to show their identity card before entering premises under a monitoring warrant does not apply if the authorised person reasonably believes that showing their identity card before entering a searchable place is not practicable in the circumstances. However, the authorised person would be required to show their identity card as soon as practicable to the relevant authority of the searchable place or another person who apparently represents the relevant authority of the searchable place (subsection 44(7)). This is a necessary practical modification to take account of the need to exercise monitoring powers on searchable places that are moveable and that may need to be stopped and detained quickly.

 

80.   Subsection 44(8) would have the effect that an authorised person, or a person assisting an authorised person, when executing a monitoring warrant, may use necessary and reasonable force against things. This would ensure that inspectors can take the necessary measures to monitor compliance with the Act and takes into consideration the special requirements that may be needed for effective monitoring. An example of where use of force may be necessary is opening locked cabinets to access records relating to the transboundary movement of hazardous waste, or opening locked containers of hazardous waste that is proposed to be exported or that has been imported (in order to ascertain whether an permit is being, or has been, complied with). This clause does not authorise the use of force against a person in executing a monitoring warrant.

 

81.   As is the case for the general monitoring powers in Part 2 of the Regulatory Powers Act, the additional monitoring powers in section 44 would only be able to be exercised with the consent of the occupier or under a monitoring warrant.

Section 45 - Investigation powers

82.   New section 45 would trigger the standard investigation powers in Part 3 of the Regulatory Powers Act. The note following new subsection 45(1) would explain that Part 3 of the Regulatory Powers create a framework for investigating compliance with the Act.

 

83.   The investigation powers triggered under Part 3 of the Regulatory Powers Act would be able to be exercised for the purpose of investigating compliance with the offence and civil penalty provisions in the Act or an offence against the Crimes Act or Criminal Code that relates to the Act (subsection 45(1)).

 

84.   Paragraph 45(2)(a) would provide that, for the purposes of Part 3 of the Regulatory Powers Act, there are no related provisions.

 

85.   Paragraphs 45(2)(b) and 45(3)(a) would have the combined effect that, for the purposes of Part 3 of the Regulatory Powers Act, an inspector (appointed under section 42 of the Act) is both an authorised applicant and an authorised person. This means that an inspector would be able to exercise the investigation powers set out in Part 3 of the Regulatory Powers Act.

 

86.   An officer of Customs would also be an authorised person in relation to evidential material that relates to either new sections 48 or 49 (see below) (paragraph 45(3)(b)). This is appropriate as these powers may involve requiring the production of permits or orders from persons located on a vessel that has been stopped or detained.

 

87.   Paragraphs 45(2)(c), (d) and (e) would provide, respectively, that for the purposes of Part 3 of the Regulatory Powers Act, an issuing officer is a magistrate, the Secretary is the relevant chief executive, and the Court (defined in section 4 of the Act as the Federal Court of Australia) is the relevant court.

 

88.   The investigation powers triggered under Part 3 of the Regulatory Powers Act would allow an authorised person to enter a premise to exercise investigation powers if they suspect on reasonable grounds that there is evidential material on the premises (subsection 48(1) of the Regulatory Powers Act). However, they can only do so with the consent of the occupier or under an investigation warrant (subsection 48(2) of the Regulatory Powers Act).

 

89.   The investigation powers set out in Part 3 of the Regulatory Powers Act would also permit an authorised person to, among other things:

 

·          search the premises and seize evidential material;

·          inspect, test and copy evidential material;

·          take necessary equipment onto the premises;

·          ask persons on the premises questions and request the production of documents;

 

·          operate electronic equipment found on the premises and secure electronic evidence for 24 hours in order to obtain expert assistance.

90.   These investigation powers would allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Act. This will support better environmental outcomes and assist in ensuring compliance with Australia’s obligations under the Basel Convention.

 

91.   New subsection 45(4) would have the effect that an inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act as it applies to the Act.

 

92.   It is necessary to allow other persons to assist inspectors to exercise powers or perform functions under Part 3 of the Regulatory Powers Act (as it applies to the Act) because there may be circumstances where no other inspector is available to assist, or because special skills are required for the assistance needed (for example, locksmiths). Subsection 45(4) would not impose specific training requirements for a person assisting an inspector, as the relevant expertise required would differ depending on purpose of the assistance. However, under paragraph 53(1)(a) of the Regulatory Powers Act, a person exercising investigation powers may only be assisted by another person if it is necessary and reasonable to do so. In addition, a person assisting an inspector would be subject to any directions given by the inspector under paragraph 53(2)(d) of the Regulatory Powers Act and a power exercised by a person assisting an inspector would be taken to have been exercised by the inspector in accordance with subsection 53(3) of the Regulatory Powers Act. The inspector would have direct responsibility and oversight of the powers exercised and functions performed under Part 3 of the Regulatory Powers Act (as it applies to this Act).

Section 46 - Modifications of investigation powers

93.   New section 46 would provide for additional investigation powers beyond those provided for under Part 3 of the Regulatory Powers Act and modify the operation of some of the provisions in Part 3 of the Regulatory Powers Act as it applies to the Act. These additional powers and modifications are necessary to retain existing powers in the Act and also to ensure the effective operation of the Regulatory Powers Act, as it applies to the Act.

 

94.   Consistent with new section 45, the additional investigation powers in new section 46 would be able to be exercised for the purpose of investigating compliance with the offence and civil penalty provisions in the Act or an offence against the Crimes Act or Criminal Code that relates to the Act (subsection 46(1)).

 

95.   Subsection 46(2) would provide for the following additional investigation powers:

 

·          the power to sample any thing on a searchable place entered under Part 3 of the Regulatory Powers Act;

 

·          the power to remove, test and analyse such samples;

 

·          the power to secure a searchable place entered under Part 3 of the Regulatory Powers Act; and

 

·          the power to secure things on a searchable place entered under Part 3 of the Regulatory Powers Act for the purpose of sampling, testing or analysing those things.

 

96.   These additional investigation 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. For example, if a permit allowed for the export of a certain type of hazardous waste, testing and analysing a sample of waste may be necessary to confirm that the waste for export was the type of hazardous waste allowed under the permit .

 

97.   Subsection 46(2) would also clarify that the powers set out at new sections 47, 48 and 49 are also additional investigation powers. These provisions are described in detail below.

 

98.   New subsections 46(3) to 46(6) would modify powers in Part 3 of the Regulatory Powers Act for the purposes of their application to the Act.

 

99.   Subsection 46(3) would have the effect that references in Part 3 of the Regulatory Powers Act to ‘premises’ should be taken, to the extent that the Regulatory Powers Act applies to the Act, to be a reference to a searchable place as defined in section 4 of the Act. This is necessary because the Act uses the concept of a searchable place rather than premises. A searchable place is defined in section 4 as meaning premises in Australia, an aircraft, vehicle or vessel within Australian jurisdiction, an Australian aircraft, an Australian platform or an Australian vessel.

 

100.           Subsection 46(4) would have the effect that references in Part 3 of the Regulatory Powers Act to ‘occupier’ should be taken, to the extent that the Regulatory Powers Act applies to the Act, to be a reference to a relevant authority as defined in section 4 of the Act. This is necessary because the Act uses the concept of a relevant authority rather than premises. A relevant authority is defined in section 4 as meaning the occupier of the premises (for premises in Australia) and the person in command or control, or who appears to be in command or control, of the place (for all other places). This broader concept is necessary because searchable places include moveable things such as Australian aircraft and vessels.

 

101.           Subsection 46(5) would have the effect that if an authorised person is authorised under section 48 of the Regulatory Powers Act to enter a searchable place that is a vessel, aircraft or vehicle, the investigation powers under Part 3 of the Act are taken to include the power to stop and detain the vessel, aircraft or vehicle for the purposes of entering the vessel, aircraft or vehicle to exercise the investigation powers. This is a necessary practical modification to take account of the need to exercise investigation powers on searchable places that are moveable.

 

102.           Subsection 46(6) would have the effect that an authorised person, or a person assisting an authorised person, when executing an investigation warrant, may use necessary and reasonable force against things. This would ensure that inspectors can take the necessary measures to investigate compliance with the Act and takes into consideration the special requirements that may be needed for effective investigation. An example of where use of force may be necessary is opening locked cabinets to access records relating to the transboundary movement of hazardous waste, or opening locked containers of hazardous waste that is proposed to be exported or that has been imported (in order to ascertain whether a permit is being, or has been, complied with). This clause does not authorise the use of force against a person in executing an investigation warrant.

 

103.           As is the case for the general investigation powers in Part 3 of the Regulatory Powers Act, the additional investigation powers in section 46 would only be able to be exercised with the consent of the occupier or under an investigation warrant.

Section 47 - Additional monitoring and investigation powers - control of movement of vessels and aircraft etc

104.           New section 47 would provide for an additional monitoring and investigation power (for the purposes of Parts 2 and 3 of the Regulatory Powers Act) that replicates the content of existing section 45 of the Act. Section 45 of the Act would be repealed by item 19 of this Schedule.

 

105.           It is appropriate for this existing power in the Act to be retained because it deals with the specific issues that arise where regulatory powers need to be exercised on, or in relation to, a searchable place that is moveable, such as vessel or aircraft.  

 

106.           New section 47 would apply 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 (subsection 47(1)).

 

107.           Under subsections 47(2) and (3), the authorised person may require the person in command or control (or who appears to be in command and control) to do one or more of the following:

 

·          ensure the vessel or aircraft does not remain within, or does not come within, Australian jurisdiction;

 

·          ensure the vessel or aircraft is brought to a specified place or airport that is a safe and practicable place to bring the vessel or land the aircraft;

 

·          ensure the vessel or aircraft remains at a specified place or aircraft until an authorised person permits the vessel or aircraft to leave;

 

·          arrange for goods being carried on the vessel or aircraft to be unloaded;

 

·          ensure that the goods being carried on the vessel or aircraft are not unloaded until an authorised person permits their unloading.

 

108.           Subsection 47(4) would clarify that an authorised person may communicate a requirement under new section 47 by means of an international signal code or any other internationally recognised means of communication with a vessel or aircraft (as the case may be).

 

109.           Subsections 47(5) and (7) would have the combined effect that a person who fails to comply with a requirement under new section 47 will commit a strict liability offence. The maximum penalty for the strict liability offence would be 30 penalty units.

 

110.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty unit of 30 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person who is required comply with a requirement in section 47 fails to do so;

 

·          it is necessary to ensure the integrity of the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not comply with a requirement given by an authorised person under this section is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt would require significant and difficult to obtain indirect and circumstantial evidence;

 

·          if an aircraft or vessel is suspected of containing hazardous waste that is proposed to be, or that has been, imported or exported, it is imperative that such goods are able to be inspected for compliance with the Act. Ensuring that the import and export of hazardous waste have been appropriately assessed under the Act is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Import or export proposals that have not been assessed may, if undertaken, result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

111.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

112.           New subsection 47(8) establishes a mirror civil penalty provision which would be contravened in circumstances where a person is subject to a requirement under new section 47 and does not comply with that requirement. The maximum penalty is 240 penalty units.

 

113.           The combination of a strict liability offence and civil penalty provision would provide an adequate deterrent from failing to comply with a requirement under section 47, which could undermine the compliance and enforcement mechanisms in the Act. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty).

 

114.           Subsection 47(6) would clarify that it is a defence to both the strict liability offence and civil penalty provision if complying with the requirement would have endangered the person or any other person . The note after subsection 47(6) would explain that the defendant bears an evidential burden in relation to showing that complying with the requirement would have endangered the person or any other person . This is because section 13.3 of Schedule 1 to the Criminal Code and section 96 of the Regulatory Powers Act provide that if a defendant wishes to rely on an exception to, respectively, an offence or a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person . Consistent with this, it is appropriate to reverse the evidential burden of proof in this matter, as the reason why a person has not complied with a requirement in section 47 (including whether complying with the requirement would have endangered the person or any other person) is a matter that is peculiarly within the knowledge of that person.

Section 48 - Additional monitoring and investigation powers - production of permits and orders for import or export

115.           New section 48 would provide for an additional monitoring and investigation power (for the purposes of Parts 2 and 3 of the Regulatory Powers Act) that replicates the content of existing section 52 of the Act. Section 52 of the Act would be repealed by item 19 of this Schedule.

 

116.           New section 48 would 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 such 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, or a ministerial order made under section 34, 35, 35A or 38 authorising or requiring the import or export (subsection 48(2)).

 

117.           New subsections 48(3) and (4) would have the combined effect that a person will commit a strict liability offence if the person is subject to a requirement under subsection 48(2) to produce, or to produce evidence and content of, a Basel or special permit or a ministerial order, and the person fails to comply with the requirement. The maximum penalty for the offence is 30 penalty units for individuals or 150 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act). This prohibition is not intended to override the privilege against self-incrimination.

 

118.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty unit of 30 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person who is required to produce, or to produce evidence and content of, a Basel or special permit, or a ministerial order, and fails to do so;

 

·          it is necessary to ensure the integrity of the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not comply with a requirement to produce a relevant permit or order is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt would require significant and difficult to obtain indirect and circumstantial evidence;

 

·          ensuring that the import and export of hazardous waste have been appropriately assessed under the Act is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Import or export proposals that have not been assessed may, if undertaken, result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

119.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

120.           New subsection 48(5) establishes a mirror civil penalty provision which would be contravened in circumstances where a person is subject to a requirement under subsection 48(2) and does not comply with that requirement. The maximum penalty is 240 penalty units.

 

121.           The combination of a strict liability offence and civil penalty provision would provide an adequate deterrent from failing to comply with a requirement to produce, or produce evidence of the existence and contents of, a Basel or special permit ministerial order authorising or requiring the import or export, which could undermine the compliance and enforcement mechanisms in the Act. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty).

Section 49 - Additional monitoring and investigation powers - production of transit permits

122.           New section 49 would provide for an additional monitoring and investigation power (for the purposes of Parts 2 and 3 of the Regulatory Powers Act) that replicates the content of existing section 52A of the Act. Section 52A of the Act would be repealed by item 19 of this Schedule.

 

123.           New section 49 would apply if an authorised person has reasonable grounds for suspecting that a person intends to carry out a transit proposal, is carrying out a transit proposal or has carried out a transit proposal. In such circumstances, the authorised person may require the person to produce, or to produce evidence of the existence and contents of:

 

·           a transit permit authorising the carrying out of the transit proposal; or

 

·          a notification given under subsection 33G(1) that the person does not require a transit permit for the transit proposal (subsection 49(2)).

 

124.           New subsections 49(3) and (4) would have the combined effect that a person will commit a strict liability offence if the person is subject to a requirement under subsection 49(2) to produce, or to produce evidence of the existence and contents of, a transit permit or notification, and the person fails to comply with the requirement.  The maximum penalty for the offence is 30 penalty units for individuals or 150 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act). This prohibition is not intended to override the privilege against self-incrimination.

 

125.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty unit of 30 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person who is required to produce, or to produce evidence and content of, a transit permit or notification, fails to do so;

 

·          it is necessary to ensure the integrity of the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not comply with a requirement to produce, or to produce evidence and content of, a transit permit or notification is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt would require significant and difficult to obtain indirect and circumstantial evidence;

 

·          ensuring transit proposals of hazardous waste have been appropriately assessed under the Act is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Transit proposals that have not been assessed may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

126.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

127.           New subsection 49(5) would establish a mirror civil penalty provision which would be contravened in circumstances where a person is subject to a requirement under subsection 49(2) and does not comply with that requirement. The maximum penalty is 240 penalty units.

 

128.           The combination of a strict liability offence and civil penalty provision would provide an adequate deterrent for failing to comply with a requirement to produce, or produce evidence of the existence and contents of, a transit permit or notification, which could undermine the compliance and enforcement mechanisms in the Act. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty).

Subdivision B - Audit Powers

129.           New sections 50, 51, 52, 53, 54 and 55 would allow inspectors to conduct audits in relation to import, export and transit proposals, ministerial orders made under Part 3 of the Act and other prescribed activities. Auditing will be an important compliance tool to assess a person’s compliance with, among other things, permit and record-keeping requirements under the Act.

Section 50 - Audits

130.           New section 50 would provide for audits to be undertaken by inspectors.

 

131.           Subsection 50(1) would set out the scope of audits that may be undertaken under the Act. The Secretary would be able to, in writing, require an audit to be conducted of any of the following:

 

·          operations purportedly covered by an import proposal that is or was covered by an import permit;

 

·          operations purportedly covered by an export proposal that is or was covered by an export permit;

 

·          operations purportedly covered by a transit proposal that is or was covered by a transit permit;

 

·          operations that are or were covered by a ministerial order made under Part 3;

 

·          operations that are or were purportedly covered by a notification under subsection 33G(1) (concerning exemptions from the requirement to obtain a transit permit for certain movements of hazardous waste between OECD countries for recovery operations);

 

·          operations that are or were carried out, or proposed to be carried out, in any other circumstances prescribed by the regulations.

 

132.           Subsection 50(2) would set out the matters to which an audit under new section 50 may relate. These are:

 

·          whether the operations are covered by a permit, order or notification as required;

 

·          whether the operations are complying with, have complied with, or will comply with the permit, order or notification (including any permit conditions);

 

·           whether the operations are complying with, have complied with, or will comply with the Act, or any requirement made under the Act;

 

·          for audits relating to notifications - whether the operations would likely result in the Minister still being satisfied of the criteria in subsection 33G(1) (concerning exemptions from the requirement to obtain a transit permit for certain movements of hazardous waste between OECD countries for recovery operations);

 

·          whether the operations are complying, have complied with, or will comply with, any other matters relating to the operation of the Act that is prescribed by the regulations.

 

133.           Subsection 50(3) would make it clear that an audit may deal with anything that is reasonably necessary for the effective conduct of the audit, or anything that is incidental to the matter to which the audit relates.

 

134.           Subsection 50(4) would require an audit to be conducted by an inspector. An inspector is a person appointed under section 42 of the Act.

Section 51 - Single audit or program of audits may be required

135.           New section 51 would clarify that the Secretary may require a single audit or a program of audits in relation to a specified matter. This would provide flexibility to assist with ongoing compliance matters.

 

136.           A note following new section 51 would inform readers that, if the Secretary has required a program of audits to be conducted in relation to a matter, the Secretary may also require additional audits to be conducted in relation to the matter. It would direct readers to subsection 33(1) of the Acts Interpretation Act.

Section 52 - Relevant person for an audit

137.           New section 52 would set out who is the relevant person for an audit. This will be relevant to new sections 53 (conduct of the audit) and 54 (relevant person must provide the auditor (an inspector) with assistance that is reasonably necessary for the conduct of the audit).

 

138.            The relevant person would be:

 

·          for audits relating to a permit - the holder of the permit;

 

·          for audits of operations relating to a ministerial order - the person who is the subject of the order;

 

·          for audits of operations relating to a notification under subsection 33G(1) (concerning transit proposals between OECD countries for recovery operations that do not require a permit) - the person notified;

 

·          for audits of operations prescribed by the regulations - the person who proposed to carry out, is carrying out, or has carried out, the operations.

Section 53 - Conduct of audit

139.           New subsection 53 would set out the requirements for the conduct of an audit.

 

140.           Subsection 53(1) would permit the Secretary to require an audit without notice. Surprise audits are an important tool to assess compliance with the Act.

 

141.           Subsection 53(2) would require an auditor (an inspector), before starting to conduct an audit, to give the relevant person for the audit a description of the scope of the audit.

 

142.           Subsection 53(3) would allow the regulations to make provision for and in relation to other matters relating to the conduct of an audit, and the process to be followed after an audit has been completed.

 

143.           Subsection 53(4) would provide a non-exhaustive list of matters that may be covered under regulations made for the purpose of subsection 53(3). These matters are:

 

·          information that must be provided to the relevant person for the audit before the audit, during the audit or after the audit is completed; and

 

·          requirements for, and in relation to, reports to be provided in relation to an audit.

Section 54 - Relevant person for an audit must provide assistance

144.           New section 54 would require the relevant person for an audit to provide the auditor (an inspector) with assistance that is reasonably necessary for the conduct of the audit. This is necessary to ensure that the audit is able to be conducted efficiently and effectively.

 

145.           The relevant person for an audit would be defined in new section 52.

 

146.           Subsection 54(2) would clarify that, without limiting subsection 54(1), providing assistance that is reasonably necessary includes complying with any request under new subsection 55(1) for the audit. It is not, however, intended that this requirement should override the common law privilege against self-incrimination.

 

147.           Failure to comply with the requirement to provide the auditor with assistance that is reasonably necessary for the conduct of the audit would be a ground to revoke the person’s permit (or the notification given under subsection 33G(1) that the person does not require a permit). This is reflected in the note after section 54. It would also be a reason to refuse to grant a permit or notification to the person in the future (see amendments made by items 13 and 14 of this Schedule.

Section 55 - Powers of auditors

148.           New section 55 would set out the powers of auditors (who must be an inspector) under the Act.

 

149.           Subsection 55(1) would have the effect that an auditor may request a person who the auditor reasonably believes has information or documents that are relevant to the audit to answer questions, provide information in writing or produce the documents. It is not, however, intended that this requirement should override the common law privilege against self-incrimination.

 

150.           The note following subsection 55(1) would explain that a person may commit an offence or be liable for a civil penalty if the person provides false or misleading information (see sections 137.1 and 137.2 of the Criminal Code).

 

151.           Subsection 55(2) would clarify that the auditor has the power to make copies of, or take extracts from, a document or record produced in an audit.

Item 19

152.           Item 19 would amend the Act to repeal sections 43 to 56. These provisions are no longer needed because their content would be covered by the Regulatory Powers Act provisions and modifications described above. The comparison table provided above identifies the corresponding provisions of the Regulatory Powers Act for the provisions of the Act that are repealed by this item.

Item 20

153.           Item 20 would amend the Act to insert a new Part 5AA (sections 56AA, 56AB, 56AC and 56AD). New Part 5AA would provide for enforcement powers by triggering Parts 4 (civil penalty provisions), 5 (infringement notices), 6 (enforceable undertakings) and 7 (injunctions) of the Regulatory Powers Act. This would provide a comprehensive enforcement regime for the Act.

Division 1 - Civil penalty provisions

Section 56AA - Civil penalty provisions

154.           New section 56AA would trigger the standard provisions of Part 4 of the Regulatory Powers Act.

 

155.           Part 4 of the Regulatory Powers Act creates a framework for allowing the civil penalty provisions of the Act to be enforced by obtaining an order for a person to pay a pecuniary penalty. This would be explained by the note following new subsection 56AA(1).

 

156.           New subsection 56AA(2) would provide that the Secretary is the authorised applicant for the purposes of Part 4 of the Regulatory Powers Act. This means it is the Secretary who would be able to apply to a court for an order for a person to pay a civil penalty in relation to a contravention of the Act.

 

157.           New subsection 56AA(3) would provide that the Court is a relevant court in relation to the civil penalty provisions of this Act. The Court is defined in section 4 of the Act as the Federal Court of Australia.

Division 2 - Infringement Notices

Section 56AB - Infringement notices

158.           New section 56AB would trigger the standard provisions of Part 5 of the Regulatory Powers Act.

 

159.           Part 5 of the Regulatory Powers Act creates a framework under which infringement notices can be issued for specified contraventions against the Act. This would be explained by the note following new subsection 56AB(1). Infringement notices are appropriate to provide an alternative means of managing high-volume, low-penalty contraventions. They do not constitute more than an allegation of contravention and provide an administrative means of disposing of a matter.

 

160.           New subsection 56AB(1) would provide that all strict liability offences in the Act would be subject to the infringement notice scheme in Part 5 of the Regulatory Powers Act. Strict liability offences are appropriate to have an infringement notice scheme attached as they do not contain proof of a fault element or state of mind.

 

161.           A person who is given an infringement notice may choose to pay an amount as an alternative to having court proceedings brought against them for contravention against the Act. The infringement notice amount is one fifth of the maximum penalty for the contravention.

 

162.           New subsection 56AB(2) would provide that an inspector is the infringement officer for the purposes of Part 5 of the Regulatory Powers Act.

 

163.           New subsection 56AB(3) would provide that the Secretary is the relevant chief executive for the purposes of Part 5 of the Regulatory Powers Act.

Division 3 - Enforceable undertakings

Section 56AC - Enforceable undertakings

164.           New section 56AC would trigger the standard provisions of Part 6 of the Regulatory Powers Act for all provisions of the Act.

 

165.           Triggering Part 6 of the Regulatory Powers Act would allow an enforceable undertaking to be sought, agreed to, and enforced in relation to provisions of the Act. This would be explained by the note following new subsection 56AC(1). An enforceable undertaking is a written undertaking agreed to by a person to, for example, take a specified action, that can be enforced in the relevant court.

 

166.           New subsection 56AC(2) would provide that the Secretary is the authorised person for the purposes of Part 6 of the Regulatory Powers Act. This means it is the Secretary who can seek an enforceable undertaking under Part 6 in relation to a provision of the Act.

 

167.           New subsection 56AC(3) would provide that the Court is a relevant court in relation to the provisions of the Act that are subject to Part 6 of the Regulatory Powers Act (being all provisions of the Act). The Court is defined in section 4 of the Act as the Federal Court of Australia.



 

Division 4 - Injunctions

Section 56AD - Injunctions

168.           New section 56AD would trigger the standard provisions of Part 7 of the Regulatory Powers Act for all provisions of the Act.

 

169.           Triggering Part 7 of the Regulatory Powers Act would allow an injunction to be sought to enforce the provisions of the Act. This would be explained by the note following new subsection 56AD(1). An injunction (including an interim injunction) is a court order that may be used to restrain a person from contravening a provision of the Act or to compel compliance with a provision of the Act.

 

170.           New subsections 56AD(2) to (6) would set out who is an authorised person for the purposes of Part 7 of the Regulatory Powers Act. An authorised person can seek an injunction under Part 7 in relation to a provision of the Act.

 

171.           Under new subsection 56AD(2), the Secretary is an authorised person for the purposes of Part 7 of the Regulatory Powers Act for all the provisions of the Act. This means the Secretary can seek an injunction from the Court in relation to any provision of the Act.

 

172.           New subsection 56AD(2) to (6) would have the effect that certain other persons are also authorised persons for the purposes of Part 7 of the Regulatory Powers Act - but only in relation to conduct or proposed conduct in contravention of the Act, or a refusal or failure to do a thing that was, is or would be a contravention of a provision of the Act. Such persons are:

 

·          persons whose interests have, are or will be affected by the conduct, proposed conduct, refusal or failure; or

 

·          persons who meet the criteria set out in subsections (4), (5) or (6). These persons are Australian citizens, corporations, or unincorporated associations or organisations that have demonstrated an interest in activities broadly related to hazardous waste and the protection of human beings and the environment in the 2 years immediately prior to applying for the injunction. Such persons broadly correspond to the persons who have standing to seek judicial review of decisions under the Act because of section 58A. Allowing such persons to seek an injunction in relation to a contravention of the Act is consistent with the Act’s existing provision for extended standing.

 

173.           New subsection 56AD(7) is a consequential amendment to subsections 56AD(6). It would have the effect of modifying subsections 119(1) and (2) of the Regulatory Powers Act so that a reference to a ‘person’ in those provisions includes a reference to an unincorporated association or organisation. This is necessary because unincorporated associations and organisations are not legal persons.

 

174.           New subsection 56AD(8) would clarify that the hazardous waste-related activities referred to in subsections (4), (5) or (6) must have either been carried on within Australian jurisdiction, or relate to the effects of hazardous waste of Australian origin on human beings or the environment outside Australian jurisdiction.

 

175.           New subsection 56AD(9) would clarify that, for the purposes of interpreting the term hazardous waste in subsections 56AD(4), (5) or (6), sections 4A, 4F or 4G should be ignored. Sections 4A, 4F and 4G allow the definition of hazardous waste to be extended in certain circumstances, such as where a waste is classified as a hazardous waste by a foreign country.

 

176.           New subsection 56AD(10) would provide that the Court is a relevant court in relation to the provisions of the Act that are subject to Part 7 of the Regulatory Powers Act (being all provisions of the Act). The Court is defined in section 4 of the Act as the Federal Court of Australia

 

177.           New subsections 56AD(11) and (12) would have the combined effect of modifying paragraphs 124(1)(c) and 124(2)(c) of the Regulatory Powers Act so that the power of a relevant court to grant a restraining or performance injunction may be exercised whether or not there is a significant risk of injury or damage to an individual or the environment if the person engages in conduct of that kind (for restraining injunctions) or if the person refuses or fails to do the thing (for performance injunctions). This modification is necessary to ensure that the injunction powers in the existing Act are not lost or reduced.

Items 21

178.           Item 21 would amend subsection 59(1) to omit “an offence against this Act” and substitute with “a designated offence” to better reflect current drafting practices. The definition of a designated offence would be inserted by item 35.

Item 22

179.           Item 22 would amend subsection 59(1) to omit “particular conduct” and substitute “a particular act or omission” to better reflect current drafting practices.

Item 23

180.           Item 23 would amend paragraph 59(1)(a) to omit “conduct was engaged in” and substitute “act or omission was done” to better reflect current drafting practices.

Item 24

181.           Item 24 would amend subsection 59(2) to omit “Any conduct engaged in” and substitute “Any act or omission done” to better reflect current drafting practices.

Item 25

182.           Item 25 would amend from subsection 59(2) to omit “an offence against this Act” and substitute “a designated offence” to better reflect current drafting practices. The definition of a designated offence would be inserted by item 35.

Item 26

183.           Item 26 would amend subsection 59(2) to omit “engaged in also” and substitute “done also” to better reflect current drafting practices.

Item 27

184.           Item 27 would amend subsection 59(2) to omit “the conduct” and substitute “the act or omission” to better reflect current drafting practices.

Item 28

185.           Item 28 would amend subsection 59(3) to omit “an offence against this Act” and substitute “a designated offence” to better reflect current drafting practices. The definition of a designated offence would be inserted by item 35.

Item 29

186.           Item 29 would amend subsection 59(3) to omit “particular conduct” and substitute “a particular act or omission” to better reflect current drafting practices.

Item 30

187.           Item 30 would amend paragraph 59(3)(a) to omit “conduct was engaged in” and substitute “act or omission was done” to better reflect current drafting practices.

Item 31

188.           Item 31 would amend subsection 59(4) to omit “Any conduct engaged in” and substitute “Any act or omission done” to better reflect current drafting practices.

Item 32

189.           Item 32 would amend subsection 59(4) to omit “an offence against this Act” and substitute “a designated offence” to better reflect current drafting practices. The definition of a designated offence would be inserted by item 35.

Item 33

190.           Item 33 would amend subsection 59(4) to omit “engaged in also” and substitute “done also” to better reflect current drafting practices.

Item 34

191.           Item 34 would amend subsection 59(4) to omit “the conduct” and substitute “the act or omission” to better reflect current drafting practices.

Item 35

192.           Item 35 would amend subsection 59(8) by repealing and substituting that subsection with a definition of designated offence . This item is necessary as a consequence of items 21, 25, 28 and 32 which use the term designated offence .

 

193.           This item would define designated offence as one or more of the following:

 

·          an offence against the Act;

 

·          an offence against section 6 of the Crimes Act to the extent that it relates to an offence against this Act; and

 

·          an offence against section 11.1, 11.4 or 11.5 of the Criminal Code to the extent that it relates to an offence against this Act.  

Item 36

194.           Item 36 would amend the Act to insert a new section 60A. New section 60A would allow the Secretary to delegate their functions or powers under the Act, or the Regulatory Powers Act to the extent that it applies to the Act, to a Senior Executive Service employee (SES), or acting SES employee, in the Department.

 

195.           This power is necessary because the Bill would amend the Act to vest powers in the Secretary for the first time (the existing Act only vests powers in the Minister). The powers that would be vested in the Secretary, rather than the Minister, relate to compliance and enforcement matters. For this reason, it is appropriate that delegation be limited to the Departmental officials at, or acting at, SES level.

 

196.           In performing functions or exercising powers, delegates must comply with any directions of the Secretary to ensure that powers exercised by delegates are exercised appropriately and consistently (new subsection 60A(3)).

 

197.           As an additional safeguard to ensure the appropriate and reasonable use of delegations, the giving of delegations and the exercise of delegated powers are also subject to fraud control procedures, risk management processes and other protocols. These are designed to ensure delegated decision-making is made at the appropriate level and in a transparent and accountable manner.

Part 2 - Application and saving provisions

Item 37

198.           Item 37 would set out a number of definitions for terms that are used in items 38 to 41.

Item 38

199.           Item 38 is an application provision that would have the effect that identity cards that were issued under section 43 of the Act and are in force immediately before the commencement of the Bill, continue in force after the Bill commences and are taken to be an identity card issued under section 35 or 76 of the Regulatory Powers Act.

Item 39

200.           Item 39 is an application provision that relates to the monitoring and enforcement powers in Parts 2 and 3 of the Regulatory Powers Act. 

 

201.           Sub-items 39(1) and 39(2) would have the combined effect that:

 

·          the monitoring and investigation powers under the Regulatory Powers Act triggered by new sections 43 and 45 (see amendments made by item 18 of this Schedule); and

 

·          the additional monitoring powers and investigation powers listed in new sections 44 and 46 (see amendments made by item 18 of this Schedule);

will be able to be used to monitor compliance with the Act, determine whether information given in compliance (or purported compliance) with the Act is correct, and investigate suspected contraventions of the Act that occurred before, on or after the commencement of the Bill.

202.           Sub-item 39(3) would have the effect that Part 5 of the Act (other than sections 45, 52 and 52A) as it was immediately before the commencement of the Bill, continues to apply on and after that date in respect of:

 

·          applications for warrants that were made but not decided before that date;

 

·          warrants issued (or completed and signed) as a result of applications that were made before that date;

 

·          powers exercised, rights created, duties imposed, and things seized before that date as a result of entering or boarding a searchable place with consent or under a warrant issued under Part 5.

 

203.           The note following sub-item 39(3) refers the reader to section 7 of the Acts Interpretation Act in respect of the continued obligation to comply with a requirement made under subsection 45(2) or (3), 52(2) or 52A(2) that was made before the commencement of the Bill. This means that a request made under those sections before they are repealed, that has not been complied with before the relevant section is repealed, must still be complied with.

Item 40

204.           Item 40 is an application provision that would ensure that audits can be undertaken in respect of permits granted, orders made, and notifications given before, on or after the commencement of the Bill.

Item 41

205.           Item 41 is an application provision that would ensure that:

 

·          all injunctions sought on or after the commencement of the Bill would be sought under Part 7 of the Regulatory Powers Act, as it applies to this Act - whether or not the relevant contravention occurs before, on or after that date; and

 

·          any injunction application made prior to the commencement of the Bill and that has not been decided by that date, will continue to be assessed under section 41 of the Act, as it was immediately before that date.

SCHEDULE 3 - RECORD KEEPING, INFORMATION AND CONFIDENTIALITY



General outline

206.           Schedule 3 of the Bill would amend the Act to set out requirements relating to record keeping, the requirement to produce documents or information in accordance with a notice, and information sharing. These provisions would assist with compliance and enforcement under the Act, and with ensuring that information obtained by Commonwealth officials under the Act will used or disclosed for appropriate authorised purposes.

Details on the amendments

Part 1 - Amendments

Item 1

207.           Item 1 would amend section 4 of the Act (dealing with definitions) to include a number of key terms that are used in the provisions to be inserted by this Schedule. As the definition of this Act in section 4 of the Act includes the regulations, the definitions inserted by this item would also apply to regulations made under the Act

 

208.           Some key concepts in this Schedule would include entrusted person, relevant information and protected information .

 

209.           An entrusted person would be defined as the Minister, the Secretary, an APS employee of the Department or any other person employed in or engaged by the Department. The concept of an entrusted person is relevant to the information sharing provisions to be inserted by Schedule 3, as only an entrusted person will be able to use or disclose protected information under, or for the purposes of, the Act.

 

210.           Relevant information would be defined as information obtained by an entrusted person under, or in accordance with, the Act or the Regulatory Powers Act as it applies to the Act. This concept relates to the list of authorised uses and disclosures that would be included in the amendments made by item 2 of this Schedule (see new section 41G to 41U). The intention of defining relevant information broadly is to provide, for both officials and industry, certainty on the purposes for which that information, once collected, may be used or disclosed under the Act. It also means the Minister would not be required to make an assessment as to the commercial sensitivity of information collected under the Act, where he or she may not be in an appropriate position to do.

 

211.           Protected information would be a subset of relevant information. Protected information would be defined as information obtained by an entrusted person the disclosure of which could reasonably be expected to:

 

·          found an action by a person other than the Commonwealth for a breach of a duty of confidence;

 

·          prejudice the effective working of government;

 

·          prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences;

 

·          endanger a person’s life or physical safety;

 

·          prejudice the protection of public safety or the environment.

 

212.           The term protected information is relevant to the secrecy provision that would be included in the amendments made by item 2 of this Schedule (see new sections 41V and 41W). Use or disclosure of protected information without authorisation under the Act, another Commonwealth law, or a prescribed State or Territory law would be both an offence and breach of a civil penalty provision.

Item 2

213.           Item 2 would insert a new Part 4B into the Act, after Part 4A of the Act. The new Part 4B would set out requirements relating to record keeping, the requirement to give information or produce documents in accordance with a notice, and information sharing requirements.

Division 1 - Record keeping and information gathering

214.           Division 1 of Part 4B, as inserted by item 2 of Schedule 3, would include new sections 41D, 41E and 41F, which deal with record keeping and information gathering under the Act.

 

215.           The making and retaining of records is an important compliance mechanism to ensure that those who are regulated under the Act are held accountable for their acts or omissions. Records kept pursuant to requirements under the Act could be assessed through other compliance tools, such as audits or regulatory monitoring.

 

216.           Similarly, information gathering powers such as the power to require a person to produce information or documents for the purposes of investigating a suspected contravention of the Act is an important mechanism to ensure non-compliance with the Act is dealt with appropriately.

Section 41D - Requirement to make and retain records

217.           New subsection 41D(1) would allow the regulations to make provision for and in relation to requiring records to be made and retained by the following persons:

 

·          a person who holds an import permit, export permit or transit permit under the Act. This would include both the holders of Basel permits granted under the Act, and the holders of special permits granted under a set of Article 11 regulations (such as the OECD Regulations);

 

·          a person who has been notified under the new subsection 33G(1) of the Act (as inserted by Schedule 4 to the Bill) that a transit permit is not required for carrying out a transit proposal. Transit proposals for which a notification may be given under new subsection 33G(1) can only relate to the transboundary movement of hazardous waste between OECD countries for recovery operations, consistent with the OECD Decision;

 

·          A person who has been given a ministerial order under new Part 3 of the Act (as inserted by Schedule 4 to the Bill).

 

218.           New subsection 41D(2) would provide a non-exhaustive list of matters that regulations made for the purposes of subsection 41D(1) may cover, including:

 

·          the kind of records that must be made and retained;

 

·          the form in which records must be retained;

 

·          the period for which records must be retained.

 

219.           As this list is not intended to be exhaustive, the Governor-General may also make regulations for the purposes of new subsection 41D(1) on other relevant matters concerning the making and retaining of records.

 

220.           Providing the details of record-keeping requirements in regulations rather than the Bill would allow flexibility to prescribe specific record-keeping requirements for different regulatory regimes. For example, a permit holder may need to keep records relating to how they are complying with their permit, while the recipient of a notification under new subsection 33G(1) may need to keep records about matters that go to whether the notification should be revoked, such as whether the proposal is likely to cause significant harm to the environment. It is anticipated that most records required to be kept will be of the type that are likely to be made or retained in the normal course of business for those required to make and retain records, to minimise the imposition of additional regulatory obligations on industry.

 

221.           It is also intended that any regulations made for the purposes of section 41D would be sufficiently flexible to allow the required records to be kept in a variety of forms and specific requirements to be updated with changes in technology.

 

222.           New subsections 41D(3) and (4) would have the combined effect that a person will commit a strict liability offence if the person is required to make and retain records under regulations made for the purposes of subsection 41D(1), and the person fails to comply with the requirement.  The maximum penalty for the offence is 30 penalty units for individuals or 150 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act).

 

223.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty unit of 30 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person who is required to make or keep a record fails to do so. The regulations that would specify the record-keeping requirements will be a legislative instrument for the purposes of the Legislation Act and therefore available on the Federal Register of Legislation. The regulations would also be subject to Parliamentary scrutiny and disallowance processes through the ordinary operation of the Legislation Act;

 

·          it is necessary to ensure the integrity of the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not comply with record keeping requirements is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt would require significant and difficult to obtain indirect and circumstantial evidence.

 

224.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

225.           New subsection 41D(5) would establish a mirror civil penalty provision which would be contravened in circumstances where a person is subject to record keeping requirements under the regulations and does not comply with those requirements. The maximum penalty is 240 penalty units.

 

226.           The combination of a strict liability offence and civil penalty provision would provide an adequate deterrent from failing to comply with record-keeping requirements, which could undermine the compliance and enforcement mechanisms in the Act. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty).

Section 41E - Requirement to give information or produce documents

227.           New section 41E would allow the Secretary, by written notice, to require a person to give a specified inspector or entrusted person specified documents or information.

 

228.           The Secretary would only be able to exercise the power in section 41E to give a notice to a person if the criteria are met:

 

·          the notice must be given for the purpose of investigating or preventing a contravention of the Act; and

 

·          the Secretary must reasonably believe that the person is capable of giving the specified information or documents.

 

229.           A notice given under section 41E must relate to particular information or documents that are specified in the notice and must relate to a specific investigation of a contravention. It would not be able to be used to determine whether a person possessed incriminating documents, or to ensure that the person’s operations were in compliance with the Act. In such circumstances, it would be appropriate for the Secretary to instead use the audit powers in the Act (inserted by item 18 of Schedule 2 to this Bill) or the monitoring or investigation powers under the Regulatory Powers Act (applied to the Act by item 18 of Schedule 2 to this Bill).

 

230.           The documents or information must be given in the manner and within the timeframe specified in the notice. Subsection 41E(2) would require the period specified in the notice must be no less than 14 days after the notice is given. The notice must also set out the effect of subsection 41E(4) and of sections 137.1 and 137.2 of the Criminal Code (relating to providing false or misleading information or documents).

 

231.           New subsections 41E(4) and (5) would have the combined effect that a person would commit a strict liability offence if the person is given a notice under subsection 41E(1) and the person fails to comply with the notice.  The maximum penalty for the offence is 30 penalty units for individuals or 150 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act).

 

232.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty unit of 30 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person who is given a notice to produce information or documents fails to do so;

 

·          it is necessary to ensure the integrity of the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not comply with a notice to produce documents or information is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt would require significant and difficult to obtain indirect and circumstantial evidence.

 

·          The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

233.           New subsection 41E(6) would establish a mirror civil penalty provision which would be contravened in circumstances where a person is given a notice under subsection 41E(1) and does not comply with the notice. The maximum penalty is 240 penalty units.

 

234.           The combination of a strict liability offence and civil penalty provision would provide an adequate deterrent from failing to comply with a notice given under section 41E, which could undermine the compliance and enforcement mechanisms in the Act. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty).

Section 41F - Self-incrimination

235.           New section 41F relates to an individual providing information to the Minister in response to a notice given under new section 41E, where the information may tend to incriminate or expose that person to a criminal offence, or to a penalty.

 

236.           Subsection 41F(1) would provide that an individual is not excused from giving information, or producing a document, under section 41E on the basis that giving that information might tend to incriminate the individual in relation to an offence.

 

237.           Section 41F therefore has the effect of overriding the common law privilege against self-incrimination. The intention is to support the compliance and enforcement functions in the Act and better equip the Commonwealth with powers to ensure that Australia is able to properly comply with its international obligations under the Basel Convention. It also gives weight to the public and environmental benefit in limiting potential non-compliance with the Act, given the significant harm to the environment that may result from the transboundary movement of hazardous waste not being properly regulated.

 

238.           The note to subsection 41F(1) would clarify that a body corporate cannot claim the privilege against self-incrimination.

 

239.           The abrogation of the privilege against self-incrimination operates alongside subsection 41F(2), which would prevent the use of potentially self-incriminating information, or any other information, document or thing obtained as a direct or indirect consequence of giving the potentially self-incriminating information in all criminal proceedings except for those in relating to giving false information in the notice under section 41E. The inclusion of this immunity provision is consistent with the Commonwealth Guide to Framing Offences, which provides that ‘if the privilege against self-incrimination is overridden; the use of incriminating evidence should be constrained’.

 

240.           Subsection 41F(3) would have the effect that an individual is not excused from giving information, or producing a document, in response to a notice given under section 41E, on the basis that at general law, the person would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence), The note to subsection 41F(3) clarifies that a body corporate cannot claim the privilege against self-exposure to a penalty.

 

241.           Penalty privilege is the privilege against self-exposure to a civil or administrative penalty. It is a common law privilege that applies in the context of judicial proceedings and may be claimed by an individual to resist compulsion in the course of such proceedings. Subsection 41F(3) has the effect of overriding that privilege and ensures that compliance with a notice given under section 41E is mandatory. The privilege of self-exposure has been overridden to ensure the Commonwealth may access all relevant information to fully inform an investigation into suspected non-compliance with the Act, given both the significant harm to the environment that could ensue from such a breach, and the fact that such non-compliance may result in Australia being in breach of its international obligations.

Division 2 - Authorised uses and disclosures of relevant information

242.           Division 2 would deal with information sharing. It would set out a number of statutory authorisations for the use and disclosure of relevant information . These authorisations are divided into authorisations that apply to the Minister only (Subdivision A) and authorisations that apply to all entrusted persons (Subdivision B).

 

243.           The authorisations are reasonable, necessary and proportionate to because they are generally directed at the performance of functions and powers under legislation (including the Act), the enforcement of Australian laws, or are matters of public interest with a high threshold that must be met in order to rely on them (such as being necessary to prevent or lessen a serious threat to human health or the environment).

 

244.           It is not expected that relevant information would generally include personal information within the meaning of the Privacy Act. However, should that be the case, the circumstances set out in new Subdivisions A and B (new sections 41G to 41U) are intended to constitute an authorisation for the purposes of Australian Privacy Principle 6.2 (see Schedule 1 to the Privacy Act) and other relevant laws including common law and equitable protections for confidentiality (because the relevant clause will authorise the use or disclosure of the information by or under an Australian law).

 

245.           Subdivision C contains prohibitions applying to the unauthorised use or disclosure of the subset of relevant information that is protected information . An entrusted person would not be able to use or disclose protected information in those circumstances unless the use or disclosure is authorised by the Act, another Commonwealth law, or a prescribed State or Territory law.

 

246.           Use or disclosure in accordance with the statutory authorisations in Subdivisions A and B would therefore be a defence to the prohibitions in Subdivision C .

Subdivision A - Authorised uses and disclosures by Minister

247.           Subdivision A lists a number of statutory authorisations for the use or disclosure of relevant information where the power to use or disclose the information is vested in the Minister. This includes disclosure to Commonwealth, State or Territory government bodies, disclosure to law enforcement bodies, and disclosure to reduce a serious risk to human health or the environment.          

 

248.           It is appropriate that the power to disclose relevant information in these circumstances be vested in the Minister, rather than an entrusted person. This is because these authorisations either involve:

 

·          disclosure for the purpose of other another entity’s function or powers; or

 

·          involves a matter of public interest with a high bar to satisfy that are only likely to be applicable in exceptional circumstances.

Section 41G - Disclosure of relevant information to Commonwealth entities

249.           New section 41G would authorise the disclosure of relevant information to a Commonwealth entity if the Minister is satisfied that the disclosure is for the purposes of  assisting the entity to perform its functions or powers.

 

250.           Section 4 of the Act would define a Commonwealth entity as having the same meaning as in the PGPA Act being a Department of State, a Parliamentary Department, a listed entity or a body corporate established by a Commonwealth law (see amendments made by item 1 of this Schedule).

 

251.           For example, the Minister may decide to disclose relevant information to the Department of Home Affairs if satisfied that the particular information would assist in the administration of legislation under that portfolio, such as the Customs Act 1901 .

 

252.           Where relevant information that is also protected information is disclosed to another Commonwealth entity under new section 41G, new section 41W would have the effect that the recipient of that information would be prohibited from using that information other than for the purpose for which it was disclosed (see below). This ensures that protected information is not misused by officials in the Commonwealth entity to which it was disclosed.

Section 41H - Disclosure of relevant information to State or Territory government body

253.           New section 41H would authorise the Minister to disclose relevant information to states and territories in certain circumstances.

 

254.           The disclosure would need to be a State or Territory government body. A State or Territory government body would be defined in section 4 of the Act as a Department of State, an agency or an authority of a State or Territory (see amendments made by item 1 of Schedule 3).

 

255.           Relevant information would only be able to be disclosed under section 41H 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 administrating 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;

 

·          the Minister is satisfied that the information will only be used or disclosed in accordance with such an agreement.

 

256.           The purpose of this provision is to ensure that relevant information is able to be shared with State or Territory governments where it is necessary to do so to in order to properly perform functions and powers under the Act or under State or Territory law, while maintaining appropriate protections for that information. It is necessary to provide such protections via an agreement because of constitutional issues related to imposing offence provisions on State governments or government officials. 

Section 41J - Disclosure for the purposes of law enforcement

257.           New section 41J would authorise the disclosure of relevant information by the Minister to an enforcement body 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 enforcement body’s functions include that enforcement or protection.

 

258.           An enforcement body, for the purposes of section 41J, would include a Commonwealth entity, a State or Territory government body, the Australian Federal Police or State or Territory police force or service (see subsection 41J(2)).

 

259.           It is appropriate that the power to disclose relevant information in these circumstances be vested in the Minister, rather than an entrusted person. This is because the authorisation in new section 41J involves a matter of public interest, being the enforcement of Australian laws.

Section 41K - Disclosure to reduce serious risk to human health

260.           New section 41K would authorise the disclosure of relevant information by the Minister if he or she reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to human health.

 

261.           It is appropriate that the power to disclose relevant information in these circumstances be vested in the Minister, rather than an entrusted person. This is because the authorisation in section 41K involves a matter of public interest with a high bar to satisfy (the risk must be serious, and there must be a reasonable belief the disclosure is necessary to prevent or lessen the risk) and is likely to only be applicable in exceptional circumstances.

Section 41L - Disclosure to reduce serious risk to the environment

262.           New section 41L would authorise the disclosure of relevant information by the Minister if he or she reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to the environment.

 

263.           It is appropriate that the power to disclose relevant information in these circumstances be vested in the Minister, rather than an entrusted person. This is because the authorisation in section 41L involves a matter of public interest with a high bar to satisfy (the risk must be serious, and there must be a reasonable belief the disclosure is necessary to prevent or lessen the risk) and is likely to only be applicable in exceptional circumstances.

Subdivision B - Authorised uses and disclosures by entrusted person

264.           Subdivision B lists a number of statutory authorisations for the use or disclosure of relevant information by an entrusted person. As set out above, an entrusted person would be defined in section 4 of the Act, and would include the Minister, the Secretary, an APS employee of the Department and any other person employed or engaged by the Department.

Section 41M - Disclosure of the purposes of an Act

265.           New section 41M would authorise the use or disclosure of relevant information by an entrusted person for the purposes of:

 

·          the Act; or

 

·          another Act administered by the Minister.

 

266.           The purpose of this authorisation is to allow persons performing, or assisting in the performance of, powers and functions under the Act, or another Act administered by the Minister, to use and disclose relevant information as necessary for the performance of those powers and functions. This would help ensure effective and efficient administration of the Act or other relevant legislation in the Minister’s portfolio.

Section 41N - Publicly available information

267.           New section 41N would authorise the disclosure of relevant information by an entrusted person if the information has already lawfully been made public.

 

268.           This authorisation recognises that there is no justifiable reason to prevent the disclosure of information that is publicly available and therefore already accessible.

Section 41P - Person to whom information relates

269.           New section 41P would authorise the disclosure of relevant information by an entrusted person to the person to whom the information relates.

 

270.           This authorisation recognises that the interests of the person to whom relevant information relates will not be adversely affected by disclosure of the information to him or herself.

Section 41Q - Disclosure with consent

271.           New section 41Q would authorise the use or disclosure of relevant information by an entrusted person if the person to whose affairs the information relates has consented to the use or disclosure, and provided the use or disclosure is in accordance with the consent provided.

 

272.           This authorisation recognises that there is no justifiable reason to prevent the use or disclosure of information where the person concerned consents to the use or disclosure.

Section 41R - Person who provided information

273.           New section 41R would authorise the disclosure of relevant information by an entrusted person to the person who provided the information.

 

274.           This authorisation recognises that there is no justifiable reason to prevent the disclosure of information to the person who provided it in the first place, as that person will have already seen the information.

Section 41S - Summaries or statistics

275.           New section 41S would authorise the disclosure of summaries of relevant information or statistics derived from protected information if those summaries or statistics would not allow the identification of a person.

 

276.           This authorisation recognises that summaries and statistics that contain no identifying information are unlikely to cause harm to any person.

Section 41T - Disclosure to a court, tribunal etc.

277.           New section 41T would authorise the disclosure of relevant information by an entrusted person for the purposes of court proceedings, or proceedings of a tribunal, authority or person that has the power to require the answering of questions or the production of documents. Section 41T would also authorise the disclosure of relevant information by an entrusted person in accordance with a court order, or an order of such a tribunal, authority or person.

 

278.           This clause is not intended to have the effect of requiring an entrusted person to disclose relevant information to a court, tribunal, authority or person. Rather, its intent is to ensure that persons who are required or permitted to provide such information to a court, or to a tribunal, authority or person with the power to require or request the information, would not be committing an offence or the contravention of a civil penalty provision if they do so.

Section 41U - Use for the purposes of disclosure

279.           New section 41U is intended to remove any doubt that a person who discloses relevant information consistently with this Division is not committing an offence or the contravention of a civil penalty provision (under new sections 41V or 41W) in relation to the use of the protected information for such purposes.

Subdivision C - Offences

280.           Subdivision C would list offences and civil penalty provisions relevant pertaining to the unauthorised use or disclosure of protected information.

 

281.           As set out above, protected information would be defined in section 4 of the Act and would be a subset of relevant information where unauthorised use or disclosure of the information could reasonably be expected to lead to certain damaging consequences to Australia. As such, it is considered appropriate that the use or disclosure of protected information be strictly regulated.

 

282.           The prohibition in section 41V would apply to entrusted persons. The prohibition in section 41W would apply to officials of a Commonwealth entity to whom protected information was disclosed under section 41G and is intended to ensure that, so far as possible, protected information is not misused after it leaves the Department.

Section 41V - Unauthorised use or disclosure of protected information - entrusted person

283.           New subsection 41V(1) would set out a general prohibition on the use or disclosure of protected information by a person who is, or has been, an entrusted person and who obtained the protected information in his or her capacity as an entrusted person.

 

284.           New subsection 41V(2) would provide that the prohibition in subsection 41V(1) does not apply if the use or disclosure is authorised or required by the Act, another law of the Commonwealth, or a prescribed law of a State or Territory.

 

285.           The note to this subsection would explain that the defendant bears an evidential burden to show that the use or disclosure of information was authorised. The reversal of the burden of proof is justified in this instance, as the matter to be proved (that is, that the use of disclosure of protected information was authorised by a Commonwealth law or a prescribed State or Territory law) is a matter that would be peculiarly in the knowledge of the defendant. Further, there would be a number of authorised uses and disclosures set out in Division 2 of Part 4B of the Act (as inserted by this Schedule) and across Commonwealth law generally. In the event of a prosecution, it would be significantly more difficult and costly for the prosecution to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. Consequently, in order to effectively protect information under new section 41V, it is reasonable, necessary and proportionate to reverse the burden of proof and limit the right to the presumption of innocence.

 

286.             The authorised uses and disclosures in the Act would be set out in new sections 41G to 41U (see above). The authorised uses and disclosures in these clauses are reasonable, necessary and proportionate, because they are generally directed at the performance of functions and powers under legislation (including the Act), the enforcement of Australian laws, or are matters of public interest with a high threshold that must be met in order to rely on them (such as being necessary to prevent or lessen a serious threat to human health or the environment).

 

287.           New subsection 41V(3) would have the effect that a person who contravenes the prohibition in subsection 41V(1), and where the use or disclosure is not authorised or required by a Commonwealth law or a prescribed State or Territory law, would be committing a fault-based offence. The maximum penalty for the offence would be 2 years imprisonment or 180 penalty units, or both.

 

288.           New subsection 41V(4) would have the effect that a person who contravenes the prohibition in subsection 41V(1), and where the use or disclosure is not authorised or required by a Commonwealth law or a prescribed State or Territory law, would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

289.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if an entrusted person uses or discloses protected information and the use or disclosure is not authorised by a Commonwealth law or a prescribed State or Territory law;

 

·          offences relating to the unauthorised use or disclosure of protected information need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime, and to reduce the risk of the potentially damaging consequences of unauthorised use or disclosure of protected information;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently used or disclosed protected information without a relevant authorisation is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence.

 

·          the use of protected information would play an important role in informing the Minister in relation to those matters covered by the Act (particularly in relation to granting permit for the import, export or transit of hazardous waste), which is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. If protected information is used or disclosed without authorisation it may deter other persons from providing such information to the Commonwealth in the future;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

290.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

291.           New subsection 41V(5) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 41V(1) and where the use or disclosure is not authorised by a Commonwealth law or a prescribed State or Territory law. The maximum penalty would be 360 penalty units.

 

292.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from officials using or disclosing protected information without authorisation, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsection 41V(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Section 41W - Unauthorised use or disclosure of protected information - official of a Commonwealth entity

293.           New subsection 41W(1) would provide 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 new section 41G, to use or disclose the information other than for the purpose for which it was disclosed to the entity. This prohibition ensures that protected information disclosed to another Commonwealth entity under section 41G is not misused by an official of that entity.

 

294.           New subsection 41W(2) would have the effect 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 2 years imprisonment, or 180 penalty units, or both.

 

295.           New subsection 41W(3) would have the effect that a person who contravenes the prohibition in subsection 41W(1) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

296.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if an official of a Commonwealth entity uses or discloses protected information for a purpose other than the purpose that the information was disclosed to the entity under section 41G;

 

·          offences relating to the unauthorised disclosure of information need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently disclosed protected information for a particular purpose is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          the use of protected information would play an important role in informing the Minister in relation to those matters covered by the Act (particularly in relation to granting permit for the import, export or transit of hazardous waste), which is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. If protected information is used or disclosed without authorisation it may deter other persons from providing such information to the Commonwealth in the future;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

297.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

298.           New subsection 41W(4) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 41W(1). The maximum penalty would be 360 penalty units.

 

299.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from Commonwealth officials misusing protected information, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected that criminal proceedings would be brought for conduct that contravenes subsection 41W(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Part 2 - Application provisions

Item 3

300.           Item 3 is an application provision. It would have the effect that notices to produce information or documents under section 41E of the Act, as inserted by Schedule 3 may only be given on or after the commencement of the Bill, but can apply in relation to a suspected contravention of the Act that occurred either before or after the commencement of the Bill.

 

301.           The intention of this application provision is to clarify that the new information gathering powers to be inserted into the Act, including section 41E, should be able to be used, after the commencement of the Bill, to investigate potential contraventions of the Act that occurred prior to the Bill being amended. This is consistent with the application of monitoring and investigation powers being inserted into the Act by Schedule 2 to the Bill.

Item 4

302.           Item 4 is an application provision. It would have the effect that Division 2 of Part 4B of the Act (concerning permitted uses and disclosures of protected information), as inserted by Schedule 3, will regulate all uses and disclosures of relevant information on and after the commencement of the Bill. This is the case whether or not the particular information being used or disclosed had been obtained prior to, on or after the Bill being amended.

 

303.           The purpose of this application provision is to provide certainty for both industry and government officials concerning how relevant information (including the subset that is protected information) will be dealt with in the future.

SCHEDULE 4 - OFFENCE AND CIVIL PENALTY PROVISIONS



General outline

304.            Schedule 4 would amend the Act update and, in some cases, replace the enforcement provisions of the Act, including the offences provisions and ministerial orders. The purpose of these amendments is to streamline and reduce complexity and move to a more modern drafting style, as well as to increase the penalties and make the offence provisions more fit for purpose. It is intended that the enforcement provisions, as amended by this Schedule, will act as a deterrent to non-compliant behaviour that has the potential to significantly harm human health and the environment and result in breach of Australia’s international obligations. Schedule 4 would also add strict liability offences and civil penalty provisions to complement the existing fault-based offences to provide an escalating range of available sanctions.

Details on the amendments

Part 1 - Amendments

Item 1

305.           Item 1 would amend section 4 of the Act (dealing with definitions) to include a number of terms that are used in the provisions to be inserted by this Schedule. As the definition of this Act in section 4 of the Act includes the regulations, the definitions inserted by this item would also apply to regulations made under the Act.

 

306.           Some terms inserted into section 4 by this item are OECD country and recovery operation .

 

307.           OECD country would be defined as a country that is a member of the Organisation for Economic Cooperation and Development, under the Convention on the Organisation for Economic Cooperation and Development done at Paris on 14 December 1960. Recovery operations would be defined as an operation mentioned in Appendix 5.B to the OECD Decision, as in force from time to time. The OECD Decision is an international agreement entered into by OECD members and is amended from time to time, including to align with the Basel Convention. The note following the definition of OECD country explains that the OECD decision can be viewed on the OECD website.

Item 2

308.           Item 2 would amend the note following subsection 13A(1) of the Act to omit the reference to paragraph 40A(1)(b) and substitute a reference to new section 33G(1).

 

309.           The item is a consequential amendment to the amendments made by items 4 and 20 of this Schedule. New section 33G (and existing section 40A) relates to an exemption from the requirement to obtain a transit permit for certain movements of hazardous waste between OECD countries for recovery operations.

Item 3

310.           Item 3 would amend paragraphs 22(2C)(a) and (b) to omit the reference to subsection 37(2) and substitute a new reference to subsection 38B(2).

 

311.           This item is a consequential amendment to the amendments made by item 17 of this Schedule. New section 38B (and existing section 37) would have the effect that if a person does not comply with a ministerial order requiring the person to do something, the Minister may arrange for the thing to be done and the person who failed to comply with the order is liable to pay the Commonwealth an amount equal to the costs incurred.

Item 4

312.           Item 4 would amend the Act to insert a new Part 2A. New Part 2A would set out the offence and civil penalty provisions relating to importing and exporting hazardous waste, carrying out transit proposals of hazardous waste, and the sale of hazardous waste (other than those offences and civil penalty provisions that relate to contravention of ministerial orders and are covered by item 17 of this Schedule).

 

313.           New Part 2A would contain the following new sections:

 

·          33A (importing hazardous waste);

 

·          33B (importing hazardous waste - injury or damage to human beings or the environment);

 

·          33C (exporting hazardous waste);

 

·          33D (exporting hazardous waste - injury or damage to human beings or the environment);

 

·          33E (transit of hazardous waste);

 

·          33F (transit of hazardous waste to human beings or the environment);

 

·          33G (notice that transit permit is not required);

 

·          33H (sale of hazardous waste)

 

314.           New Part 2A is intended to replace existing sections 39, 40, 40A and 40AA, which are being repealed by item 19 of this Schedule. Part 2A would update the drafting of the offences in those provisions to improve clarity, reduce complexity and adopt modern drafting practices to improve readability. Part 2A would also add strict liability offences and civil penalties for the relevant contraventions (in addition to fault-based offences) and would increase the penalties to appropriate amounts to deter persons from contravening the Act.

Division 1 - Regulation of import of hazardous waste

Section 33A - Import of hazardous waste - basic contravention

315.           New section 33A would replace existing section 39 of the Act.

 

316.           New section 33A would create an offence and civil penalty provision dealing with the import of hazardous waste. There would be three separate contravention - new subsections 33A(1), 33A(2) and 33A(3).

 

317.           Subsection 33A(1) would prohibit a person from importing hazardous waste if:

 

·          the person does not have an import permit or transit permit authorising the import; or

 

·          the person has not been given a notification under subsection 33G(1) that they do not require a transit permit for the import; or

 

·          the import has not been authorised by a ministerial order.

 

318.           This would be the basic contravention for persons who import hazardous waste without a permit or other authorisation under the Act.

 

319.           Subsection 33A(2) would apply to persons who hold an import permit authorising the person to import hazardous waste. Such persons would be prohibited from importing hazardous waste other than in accordance with their permit. An example of when this contravention may be relevant is where a person alters their import proposal so that they import more hazardous waste than is authorised by their permit, arrive at a different port in Australia, or take a different route to Australia.

 

320.           Subsection 33A(3) would also apply to persons who hold an import permit authorising the person to import hazardous waste. Such persons would be prohibited from importing hazardous waste in a way that does not comply with one or more conditions that the permit is subject to (permit conditions).

 

321.           The first note following subsection 33A(1) would explain that a notification given under subsection 33G(1) (that a transit permit is not required) may be revoked (and cease to have effect) under subsection 33G(4)).

 

322.           The second note following subsection 33A(1), and the notes following subsections 33A(2) and (3) would explain that the physical elements of the offence in subsection 33A(4) are set out in these subsections.

 

323.           New subsection 33A(4) would have the effect that a person who contravenes the prohibition in any of subsections 33A(1), 33A(2) or 33A(3) would be committing a fault-based offence. The maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

324.           New subsection 33A(4) would have the effect that a person who contravenes the prohibition any of subsection 33A(1), 33A(2) or 33A(3) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

325.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person imports hazardous waste into Australia without authorisation, or other than in accordance with their permit or permit conditions ;

 

·          offences relating to the importing hazardous waste without authorisation, or breaching an import permit need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently imports hazardous waste into Australia without authorisation, or other than in accordance with their permit or permit conditions is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          the assessment of import proposals are a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. The import of hazardous waste without authorisation, or in breach of an import permit may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

326.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

327.           New subsection 33A(6) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in any of subsection 33A(1), 33A(2) or 33A(3). The maximum penalty would be 600 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

328.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from person importing hazardous waste without authorisation, or in breach of a permit, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsections 33A(1), 33A(2) or 33A(3) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

329.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of importing hazardous waste without authorisation, or in breach of a permit , which could in turn result in harm to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

330.           The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Section 33B - Import of hazardous waste - injury or damage to human beings or the environment

331.           New section 33B would create a new aggravated offence and civil penalty provision for the import of hazardous waste that would apply where the non-compliance results, or is likely to result, in injury or damage to human beings or the environment.

 

332.           As with new section 33A, new section 33B would contain three separate contraventions - new subsections 33B(1), 33B(2) and 33B(3).

 

333.           Subsection 33B(1) would prohibit a person from importing hazardous waste to Australia if:

 

·          the person does not have an import permit authorising the person to import the  hazardous waste to Australia; or

 

·          the person has not been given a notification under subsection 33G(1) that they do not require a transit permit for the import; or

 

·          the import has not been authorised by a ministerial order; and

 

·          the import, or the presence of the hazardous waste in Australia, injures or damages, or is likely to injure of damage, human beings or the environment.

 

334.           Subsection 33B(2) would apply to persons who hold an import permit authorising the person to import hazardous waste. Such persons would be prohibited from importing hazardous waste to Australia other than in accordance with their permit, where the import, or the presence of the hazardous waste in Australia, injures or damages, or is likely to injure or damage, human beings or the environment. An example of when this contravention may be relevant is where a person alters their import proposal so that they import more hazardous waste to Australia than is authorised by their permit, or take a different route to Australia, and this change results in, or is likely to result in, injury or damage to humans or the environment.

 

335.           Subsection 33B(3) would also apply to persons who hold an import permit authorising the person to import hazardous waste. Such persons would be prohibited from importing  hazardous waste to Australia in a way that does not comply with one or more conditions that the permit is subject to (whether before, during or after the import) where the non-compliance with the permit condition injures or damages, or is likely to injure or damage, human beings or the environment.

 

336.           The first note following subsection 33B(1) would explain that a notification given under subsection 33G(1) (that a transit permit is not required) may be revoked (cease to have effect) under subsection 33G(4).

 

337.           The second note after subsection 33B(1) and the notes following subsection 33B(2) and (3) would explain that the physical elements of the offence in subsection 33B(4) are set out in these subsections.

 

338.           New subsection 33B(4) would have the effect that a person who contravenes the prohibition in any of subsections 33B(1), 33B(2) or 33B(3) would be committing a fault-based offence. The maximum penalty for the offence would be 8 years imprisonment or 500 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

339.           New subsection 33B(5) would allow, in a trial for an offence against new subsection 33B(4), the trier of fact to find the defendant not guilty of that offence but guilty of the offence in subsection 33A(4), provided the defendant has been provided procedural fairness in relation to that finding. The purpose of this provision is to allow proceedings for the aggravated offence in section 33B to revert to the basic contravention in subsection 33A in the event that the aggravated circumstances - being that the conduct of the defendant injured or damaged, or is likely to injure or damage, human beings or the environment - cannot be proven beyond reasonable doubt.

 

340.           New subsection 33B(6) would have the effect that a person who contravenes the prohibition in any of subsections 33B(1), 33B(2) or 33B(3) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

341.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person imports hazardous waste to Australia without authorisation, or otherwise than in accordance with their permit or permit conditions, and the result is injury or damage, or likely injury or damage, to human beings or the environment;

 

·          offences relating to importing hazardous waste without authorisation, or breaching an import permit, particularly when injury or damage occurs or is likely to occur, need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently imported hazardous waste to Australia without authorisation, or otherwise than in accordance with their permit or permit conditions, causing or likely to cause injury or damage, is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          The assessment of import proposals is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. The carrying out of an import proposal for hazardous waste without authorisation, or in breach of a export permit, particularly where the result is injury or damage, or likely injury or damage, to human beings or the environment, may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

342.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

343.           New subsection 33B(7) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in any of subsections 33B(1), 33B(2) or 33B(3). The maximum penalty would be 1000 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

344.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from persons importing hazardous waste without authorisation, or in breach of a permit, where that conduct causes, or is likely to cause, injury or damage to human beings or the environment. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsections 33B(1), 33B(2) or 33B(3) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

345.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of importing hazardous waste without authorisation, or in breach of a permit , which in turn results, or is likely to result, in injury or damage to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

346.           The maximum civil penalty of 1000 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Division 2 - Regulation of export of hazardous waste

Section 33C - Export of hazardous waste - basic contravention

347.           New section 33C would replace existing section 40 of the Act.

 

348.           New section 33C would create an offence and civil penalty provision dealing with the export of hazardous waste. There would be three separate contravention - new subsections 33C(1), 33C(2) and 33C(3).

 

349.           Subsection 33C(1) would prohibit a person from exporting hazardous waste if:

 

·          the person does not have an export permit or transit permit authorising the export; or

 

·          the person has not been given a notification under subsection 33G(1) that they do not require a transit permit for the export; or

 

·          the export has not been authorised by a ministerial order.

 

350.           This would be the basic contravention for persons who export hazardous waste without a permit or other authorisation under the Act.

 

351.           Subsection 33C(2) would apply to persons who hold an export permit authorising the person to export hazardous waste from Australia. Such persons would be prohibited from exporting hazardous waste other than in accordance with their permit. An example of when this contravention may be relevant is where a person alters their export proposal so that they export more hazardous waste than is authorised by their permit, leave from a different port in Australia, or take a different route from Australia.

 

352.           Subsection 33C(3) would also apply to persons who hold an export permit authorising the person to export hazardous waste. Such persons would be prohibited from exporting hazardous waste in a way that does not comply with one or more conditions that the permit is subject to (permit conditions).

 

353.           The first note following subsection 33C(1) would explain that a notification given under subsection 33G(1) (that a transit permit is not required) may be revoked (and cease to have effect) under subsection 33G(4).

 

354.           The second note following subsection 33C(1), and the notes following subsection 33C(2) and (3) would explain that the physical elements of the offence in subsection 33C(4) are set out in these subsections.

 

355.           New subsection 33C(4) would have the effect that a person who contravenes the prohibition in any of subsections 33C(1), 33C(2) or 33C(3) would be committing a fault-based offence. The maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

356.           New subsection 33C(4) would have the effect that a person who contravenes the prohibition any of subsection 33C(1), 33C(2) or 33C(3) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

357.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person exports hazardous waste from Australia without authorisation, or otherwise than in accordance with their permit or permit conditions;

 

·          offences relating to the exporting hazardous waste without authorisation, or breaching an export permit need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently exported hazardous waste into Australia without authorisation, or other than in accordance with their permit or permit conditions is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          the assessment of export proposals is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. The export of hazardous waste without authorisation, or in breach of an export permit may result in significant environmental harm and could damage Australia’s international relations.

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

358.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

359.           New subsection 33C(6) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in any of subsection 33C(1), 33C(2) or 33C(3). The maximum penalty would be 600 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

360.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from person exporting hazardous waste without authorisation, or in breach of a permit, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsections 33C(1), 33C(2) or 33C(3) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

361.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of exporting hazardous waste without authorisation, or in breach of a permit , which could in turn result in harm to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

362.           The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Section 33D - Export of hazardous waste - injury or damage to human beings or the environment

363.           New section 33D would create a new aggravated offence and civil penalty provision for the export of hazardous waste that would apply where the non-compliance results, or is likely to result, in injury or damage to human beings or the environment.

 

364.           As with new section 33C, new section 33D would contain three separate contraventions - new subsections 33D(1), 33D(2) and 33D(3).

 

365.           Subsection 33D(1) would prohibit a person from exporting hazardous waste from Australia if:

 

·          the person does not have an export permit authorising the person to export the  hazardous waste from Australia; or

 

·          the person has not been given a notification under subsection 33G(1) that they do not require a transit permit for the export; or

 

·          the export has not been authorised by a ministerial order; and

 

·          the export, or the presence of the hazardous waste outside Australia after the export, injures or damages, or is likely to injure of damage, human beings or the environment.

 

366.           Subsection 33D(2) would apply to persons who hold an export permit authorising the person to export hazardous waste. Such persons would be prohibited from exporting hazardous waste from Australia other than in accordance with their permit where the export, or the presence of the hazardous waste outside Australia after the export, injures or damages, or is likely to injure or damage, human beings or the environment. An example of when this contravention may be relevant is where a person alters their export proposal so that they export more hazardous waste from Australia than is authorised by their permit, or take a different route from Australia, and this change results in, or is likely to result in injury or damage to humans or the environment.

 

367.           Subsection 33D(3) would also apply to persons who hold an export permit authorising the person to export hazardous waste. Such persons would be prohibited from exporting  hazardous waste from Australia in a way that does not comply with one or more conditions that the permit is subject to (whether before, during or after the export) where the non-compliance with the permit condition injures or damages, or is likely to injure or damage, human beings or the environment.

 

368.           The first note after subsection 33D(1) would explain that a notification given under subsection 33G(1) (that a transit permit is not required) may be revoked (cease to have effect) under subsection 33G(4).

 

369.           The second note following subsection 33D(1), and the notes following subsections 33D(2) and (3) explain that the physical elements of the offence in subsection 33D(4) are set out in these subsections.

 

370.           New subsection 33D(4) would have the effect that a person who contravenes the prohibition in any of subsections 33D(1), 33D(2) or 33D(3) would be committing a fault-based offence. The maximum penalty for the offence would be 8 years imprisonment or 500 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

371.           New subsection 33D(5) would allow, in a trial for an offence against new subsection 33D(4), the trier of fact to find the defendant not guilty of that offence but guilty of the offence in subsection 33C(4), provided the defendant has been provided procedural fairness in relation to that finding. The purpose of this provision is to allow proceedings for the aggravated offence in section 33D to revert to the basic contravention in subsection 33C in the event that the aggravated circumstances - being that the conduct of the defendant injured or damaged, or is likely to injure or damage, human beings or the environment - cannot be proven beyond reasonable doubt.

 

372.           New subsection 33D(6) would have the effect that a person who contravenes the prohibition in any of subsections 33D(1), 33D(2) or 33D(3) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

373.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person exports hazardous waste from Australia without authorisation, or otherwise than in accordance with their permit or permit conditions, and the result is injury or damage, or likely injury or damage, to human beings or the environment;

 

·          offences relating to exporting hazardous waste without authorisation, or breaching an export permit, particularly when injury or damage occurs or is likely to occur, need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently exported hazardous waste from Australia without authorisation, or otherwise than in accordance with their permit or permit conditions, causing or likely to cause injury or damage, is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence.

 

·          the assessment of export proposals is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. The carrying out of a export proposal for hazardous waste without authorisation, or in breach of a export permit, particularly where the result is injury or damage, or likely injury or damage, to human beings or the environment, may result in significant environmental harm and could damage Australia’s international relations.

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

374.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

375.           New subsection 33D(7) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in any of subsections 33D(1), 33D(2) or 33D(3). The maximum penalty would be 1000 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

376.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from persons exporting hazardous waste without authorisation, or in breach of a permit, where that conduct causes, or is likely to cause, injury or damage to human beings or the environment. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsections 33D(1), 33D(2) or 33D(3) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

377.           The size of the maximum penalty for both the fault offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of exporting hazardous waste without authorisation, or in breach of a permit , which in turn results, or is likely to result, in injury or damage to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

378.           The maximum civil penalty of 1000 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Division 3 - Regulation of transit of hazardous waste

Section 33E - Transit of hazardous waste - basic contravention

379.           New section 33E would replace existing section 40A of the Act.

 

380.           New section 33E would create an offence and civil penalty provision dealing with the transit of hazardous waste. There would be four separate contravention - new subsections 33E(1), 33E(2), 33E(3) and 33E(4).

 

381.           Subsection 33E(1) would prohibit a person from bringing hazardous waste into Australia in the course of carrying out a transit proposal if:

 

·          the person does not have a transit permit authorising the person to bring hazardous waste into Australia; or

 

·          the person has not been given a notification under subsection 33G(1) that they do not require a transit permit for the transit proposal.

 

382.           This would be the basic contravention for persons who bring hazardous waste into Australia in the course of carrying out a transit proposal without a permit or a transit notification under subsection 33G(1).

 

383.           Subsection 33E(2) would apply to persons who hold a transit permit authorising the person to bring hazardous waste into Australia. Such persons would be prohibited from bringing hazardous waste into Australia as part of a transit proposal other than in accordance with their permit. An example of when this contravention may be relevant is where a person alters their transit proposal so that they bring more hazardous waste into Australia than is authorised by their permit, or take a different route to Australia.

 

384.           Subsection 33E(3) would apply to persons who hold a transit permit authorising the person to export hazardous waste from Australia in the course of carrying out a transit proposal. Such persons would be prohibited from exporting hazardous waste from Australia otherwise than in accordance with their transit permit.

 

385.             Subsection 33E(4) would apply to persons who hold a transit permit authorising the person to bring hazardous waste into Australia in the course of carrying out a transit proposal. Such persons would be prohibited from carrying out their transit proposal in a way that does not comply with one or more conditions that the permit is subject to (permit conditions. The breach of the permit condition may occur before, during or after the waste is brought into Australia (including during the ensuing export of the waste from Australia).

 

386.           The note following subsection 33E(1) would explain that a notification given under subsection 33G(1) (that a transit permit is not required) can be revoked (cease to have effect) under subsection 33G(4).

 

387.           The second note following subsection 33E(1) and the notes following subsections 33E(2), (3) and (4) explain that the physical elements of the offence in subsection 33E(5) are set out in these subsections.

 

388.           New subsection 33E(5) would have the effect that a person who contravenes the prohibition in any of subsections 33E(1), 33E(2), 33E(3) or 33E(4) would be committing a fault-based offence. The maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

389.           New subsection 33E(6) would have the effect that a person who contravenes the prohibition in any of subsections 33E(1), 33E(2), 33E(3) or 33E(4) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

390.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person brings waste into Australia in the course of carrying out a transit proposal without authorisation, or carries out a transit proposal otherwise than in accordance with their permit or permit conditions;

 

·          offences relating to the carrying out a transit proposal for hazardous waste without authorisation, or breaching an transit permit need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently brought hazardous waste into Australia without authorisation, or carried out a transit proposal otherwise than in accordance with their permit or permit conditions is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          the assessment of transit proposals is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. The carrying out of a transit proposal for hazardous waste without authorisation, or in breach of a transit permit may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

391.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

392.           New subsection 33E(7) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in any of subsections 33E(1), 33E(2), 33E(3) or 33E(4). The maximum penalty would be 600 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

393.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from persons carrying out transit proposals without authorisation, or in breach of a permit, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsections 33E(1), 33E(2), 33E(3) or 33E(4) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

394.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of carrying out a transit proposal without authorisation, or in breach of a permit , which could in turn result in harm to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

395.           The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Section 33F - Transit of hazardous waste - injury or damage to human beings or the environment

396.           New section 33F would create a new aggravated offence and civil penalty provision for the transit of hazardous waste that would apply where the non-compliance results, or is likely to result, in injury or damage to human beings or the environment.

 

397.           As with new section 33E, new section 33F would contain four separate contraventions - new subsections 33F(1), 33F(2), 33F(3) and 33F(4).

 

398.           Subsection 33F(1) would prohibit a person from being hazardous waste into Australia in the course of carrying out a transit proposal if:

 

·          the person does not have a transit permit authorising the person to bring hazardous waste into Australia, and has not been given a notification under subsection 33G(1) that they do not require a transit permit for the transit proposal; and

 

·          the bringing of the hazardous waste into Australia, or the presence of the hazardous waste in Australia, injures or damages, or is likely to injure of damage, human beings or the environment.

 

399.           Subsection 33F(2) would apply to persons who hold an transit permit authorising the person to bring hazardous waste into Australia. Such persons would be prohibited from bringing hazardous waste into Australia other than in accordance with their permit where the bringing of the hazardous waste into Australia, or the presence of the hazardous waste in Australia, injures or damages, or is likely to injure or damage, human beings or the environment. An example of when this contravention may be relevant is where a person alters their transit proposal so that they bring more hazardous waste into Australia than is authorised by their permit, or take a different route to Australia, and this change results in, or is likely to result in injury or damage to humans or the environment.

 

400.           Subsection 33F(3) would apply to persons who hold an transit permit authorising the person to export hazardous waste from Australia in the course of carrying out a transit proposal. Such persons would be prohibited from exporting hazardous waste from Australia otherwise than in accordance with their transit proposal where the export, or the presence of the hazardous waste outside Australia after the export, injures or damages, or is likely to injure or damage, human beings or the environment.

 

401.           Subsection 33F(4) would apply to persons who hold a transit permit authorising the person to bring hazardous waste into Australia in the course of carrying out a transit proposal. Such persons would be prohibited from carrying out their transit proposal in a way that does not comply with one or more conditions that the permit is subject to where the non-compliance with the permit condition injures or damages, or is likely to injure or damage, human beings or the environment. The breach of the permit condition may occur before, during or after the waste is brought into Australia (including during the ensuing export of the waste from Australia).

 

402.           The first note following subsection 33F(1) would explain that a notification given under subsection 33G(1) (that a transit permit is not required) may be revoked (cease to have effect) under subsection 33G(4).

 

403.           The second note following subsection 33F(1) and the notes following subsections 33F(2), (3) and (4) explain that the physical elements of the offence in subsection 33F(5) are set out in these subsections.

 

404.           New subsection 33F(5) would have the effect that a person who contravenes the prohibition in any of subsections 33F(1), 33F(2), 33F(3) or 33F(4) would be committing a fault-based offence. The maximum penalty for the offence would be 8 years imprisonment or 500 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

405.           New subsection 33F(6) would allow, in a trial for an offence against new subsection 33F(5), the trier of fact to find the defendant not guilty of that offence but guilty of the offence in subsection 33E(5), provided the defendant has been provided procedural fairness in relation to that finding. The purpose of this provision is to allow proceedings for the aggravated offence in section 33F to revert to the basic contravention in subsection 33E in the event that the aggravated circumstances - being that the conduct of the defendant injured or damaged, or is likely to injure or damage, human beings or the environment - cannot be proven beyond reasonable doubt.

 

406.           New subsection 33F(7) would have the effect that a person who contravenes the prohibition in any of subsections 33F(1), 33F(2), 33F(3) or 33F(4) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

407.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person brings waste into Australia in the course of carrying out a transit proposal without authorisation, or carries out a transit proposal otherwise than in accordance with their permit or permit conditions, and the result is injury or damage, or likely injury or damage, to human beings or the environment;

 

·          offences relating to the carrying out a transit proposal for hazardous waste without authorisation, or breaching a transit permit, particularly when injury or damage occurs or is likely to occur, need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently brought hazardous waste into Australia without authorisation, or carried out a transit proposal otherwise than in accordance with their permit or permit conditions, causing or likely to cause injury or damage, is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          the assessment of transit proposals is a necessary part of ensuring that the Act remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. The carrying out of a transit proposal for hazardous waste without authorisation, or in breach of a transit permit, particularly where the result is injury or damage, or likely injury or damage, to human beings or the environment, may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

408.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

409.           New subsection 33F(8) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in any of subsections 33F(1), 33F(2), 33F(3) or 33F(4). The maximum penalty would be 1000 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

410.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from persons carrying out transit proposals without authorisation, or in breach of a permit, that causes, or is likely to cause, injury or damage to human beings or the environment. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsections 33F(1), 33F(2), 33F(3) or 33F(4) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

411.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of carrying out a transit proposal without authorisation, or in breach of a permit , which in turn results, or is likely to result, in injury or damage to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

412.           The maximum civil penalty of 1000 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Section 33G - Notice that transit permit not required

413.           New section 33G would replace existing paragraph 40A(1)(b) and deals with notifications for transit proposals concerning the movement of hazardous waste from one OECD country to another OECD country for recovery operations. Consistently with the OECD Decision, such movements are considered to be lower risk to the environment and therefore may not require a transit permit. 

 

414.           New subsection 33G would allow the Minister to notify a person, in writing, that the person does not require a transit permit for their transit proposal.

 

415.           The Minister would only be able to give a notification under subsection 33G(1) if they are satisfied that all of the following criteria are met:

 

·          carrying out the transit proposal is in connection with the movement of hazardous waste from an OECD country to another OECD country;

 

·          the hazardous waste is destined for recovery operations;

 

·          carrying out the transit proposal will not pose a significant risk of injury or damage to human beings or the environment;

 

·          any other matters prescribed by the regulations; and

 

·          any other matters the Minister considers relevant.

 

416.           Limiting transit notifications under new section 33G to those movements of hazardous waste destined for recovery operations would narrow the Minister’s power from existing paragraph 40A(1)(b). However, this limitation is consistent with Australia’s obligations under the OECD Decision, which only applies to the transboundary movement of hazardous waste between OECD countries for recovery operations.

 

417.           Subsection 33G(2) would allow the Minister, even if satisfied that the criteria in subsection 33G(1) are met, to decide not to grant a notification if the applicant has previously failed to provide, or arrange to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit.

 

418.           The first note after subsection 33G(2) would explain to readers that the requirement to provide an auditor with assistance that is reasonably necessary for the conduct of an audit is in new section 54 (see amendments made by item 18 of Schedule 2). The second note would explain that the relevant audit may not be in relation to a notification, as the requirement imposed by new section 54 would apply to an any audit of operations covered by a permit, a ministerial order, a notification given under new section 33G that no transit permit is required, or other prescribed operations.

 

419.           Subsection 33G(3) would require the Minister, as soon as practicable after giving a notification under subsection 33G(1), to cause particulars of the notification to be published on the Department’s website.

 

420.           Subsection 33G(4) would create a new power for the Minister to revoke a notification given under subsection 33G(1) if the Minister is no longer satisfied of the matters in that subsection, or if the person who received the notice is failing (or has failed) after the notice was given to provide, or arrange to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit.

 

421.           It is necessary to be able to revoke a notice if, for example, because of changing circumstances and risks, the Minister is no longer satisfied that carrying out the transit proposal will not pose a significant risk of injury or damage to human beings or the environment. However, the Minister would only be able to revoke a notification in respect of a transit proposal that has not yet begun (see subsection 33G(5)).

Division 4 - Regulation of the sale of hazardous waste

Section 33H - Regulation of the sale of hazardous waste

422.           New section 33H would replace existing section 40AA of the Act.

 

423.           New section 33H would contain two prohibitions relating to the sale of hazardous waste to corporations or other persons located outside Australia. The purpose of limiting sales of hazardous waste to such persons is to reduce the risk that the waste will be exported without a permit by a person who is located outside Australia and therefore is difficult to hold accountable.

 

424.           Subsection 33H(1) would prohibit a person from selling hazardous waste to a body corporate incorporated outside Australia (whether the sale occurs within or outside Australia) if the following circumstances are met:

 

·          the body corporate does not have a registered office in Australia or does not have a principal office, and at least one executive officer, in Australia; and

 

·          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.

 

425.           Subsection 33H(2) would more broadly prohibit a person from selling hazardous waste to a person outside Australia if:

 

·          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.

 

426.           The notes following subsection 33H(1) and (2) explain that the physical elements of the offence in subsection 33H(3) are set out in these subsections.

 

427.           Subsection 33H(3) would have the effect that a person who contravenes the prohibition in subsection 33H(1) or 33H(2) would be committing a fault-based offence. The maximum penalty for the offence would be 3 years imprisonment or 180 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

428.           New subsection 33H(4) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 33H(1) or 33H(2). The maximum penalty would be 360 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

429.           The combination of fault-based offence and civil penalty provision would provide an adequate deterrent from persons selling hazardous waste in the circumstances covered by section 33H, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsections 33H(1) or 33H(2) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

430.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of the conduct, which could result in harm to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

Item 5

431.           Item 5 would amend the Act to insert a new heading before section 34 titled ‘Division 1 - Ministerial orders’.  

Item 6

432.           Item 6 would amend the heading of section 34 of the Act to omit the words ‘where section 39 contravened’ and substitute ‘relating to the import of hazardous waste’.

 

433.           This item is a consequential amendment to the amendments made by items 4 and 19 of this Schedule.

Item 7

434.           Item 7 would amend section 34 of the Act to repeal existing subsections 34(1) and 34(2) and substitute a new subsections 34(1) and 34(2).

 

435.           New subsection 34(1) would provide that if a person contravenes one of the provisions set out in new subsection 34(2), the Minister may, in writing, order the person to deal with the waste in a specified way.

 

436.           New subsection 34(2) would list the provisions that, if contravened, would be grounds for a ministerial order to be made under subsection 34(1). These provisions are subsection 33A(1), 33A(2), 33A(3), 33B(1), 33B(2), 33B(3), 38F(1) and 38G(1).

 

437.           The effect of the amendment would be that if a person imports hazardous waste without a permit, or in contravention of a permit or a permit condition, in contravention of new sections 33A or 33B, the Minister may, in writing, order the person to deal with the waste in a specified way. The order may include a requirement to export the waste from Australia.

 

438.           In addition, if a person contravenes an order made under new sections 38F or 38G to import hazardous waste, the Minister may, in writing, order the person to deal with the waste in a specified way.

 

439.           The amendments made by item 7 would have the effect of expanding the current power to make ministerial orders to deal with unlawful imports by removing the requirement that an order can only be made in respect of hazardous waste that was imported in breach of a permit or permit conditions where the Minister is satisfied that the waste poses a significant risk of injury or damage to human beings or the environment. This change is appropriate as it recognises that non-compliance with a permit or permit condition may result in a breach of Australia’s international obligations under the Basel Convention. Allowing the Minister to make a ministerial order in respect of such hazardous waste would improve compliance with the requirements of a permit or permit conditions, which would ensure that waste is managed in a manner that protects human health and the environment, consistently with Australia’s international obligations.

Item 8

440.           Item 8 would amend subsection 34(3) of the Act to remove the reference to subsection 34(2).

 

441.           This item is a consequential amendment to the amendment made by item 7 and recognises that the power to make ministerial orders to deal with unlawful imports would be located in subsection 34(1) only.

Item 9

442.           Item 9 would amend the heading of section 35 of the Act to omit the words ‘where section 40 contravened’ and substitute ‘relating to the export of hazardous waste’.

 

443.           This item is a consequential amendment to the amendments made by items 4 and 19 of this Schedule.

Item 10

444.           Item 10 would amend section 35 of the Act to repeal existing subsections 35(1) and 35(2) and substitute a new subsection 35(1) and 35(2).

 

445.           New subsection 35(1) would provide that if a person contravenes one of the provisions set out in new subsection 35(2), the Minister may, in writing, order the person to deal with the waste in a specified way.

 

446.           New subsection 35(2) would list the provisions that, if contravened, would be grounds for a ministerial order to be made under subsection 35(1). These provisions are subsections 33C(1), 33C(2), 33C(3), 33D(1), 33D(2) and 33D(3).

 

447.           The effect of the amendment would be that if a person exports hazardous waste without a permit, or in contravention of a permit or a permit condition, in contravention of new sections 33C or 33D, the Minister may, in writing, order the person to deal with the waste in a specified way. The order may include a requirement to import the waste to Australia.

 

448.           The amendments made by item 10 would have the effect of expanding the current power to make ministerial orders to deal with unlawful exports by removing the requirement that an order can only be made in respect of hazardous waste that was exported in breach of a permit or permit conditions where the Minister is satisfied that the waste poses a significant risk of injury or damage to human beings or the environment. This change is appropriate as it recognises that non-compliance with a permit or permit condition may result in a breach of Australia’s international obligations under the Basel Convention. Allowing the Minister to make a ministerial order in respect of such hazardous waste would improve compliance with the requirements of a permit or permit conditions, which would ensure that waste is managed in a manner that protects human health and the environment, consistently with Australia’s international obligations.

Item 11

449.           Item 11 would amend subsection 35(3) of the Act to remove the reference to subsection 35(2).

 

450.           This item is a consequential amendment to the amendment made by item 10, and recognises that the power to make ministerial orders to deal with unlawful exports would be located in subsection 35(1) only.

Item 12

451.           Item 12 would amend the heading of section 35A of the Act to omit the words ‘where section 40A contravened’ and substitute ‘relating to the transit of hazardous waste’.

 

452.           This item is a consequential amendment to the amendments made by items 4 and 19 of this Schedule.

Item 13

453.           Item 13 would amend section 35A of the Act to repeal existing subsections 35A(1) and 35A(2) and substitute a new subsection 35A(1) and 35A(2).

 

454.           New subsection 35A(1) would provide that if a person contravenes one of the provisions set out in new subsection 35A(2), the Minister may, in writing, order the person to deal with the waste in a specified way.

 

455.           New subsection 35A(2) would list the provisions that, if contravened, would be grounds for a ministerial order to be made under subsection 35A(1). These provisions are subsections 33E(1), 33E(2), 33E(3), 33E(4), 33F(1), 33F(2), 33F(3) and 33F(4).

 

456.           The effect of the amendment would be that if, in the course of carrying out a transit proposal, a person brings hazardous waste into Australia waste, or exports hazardous waste from Australia, without a permit, or in contravention of a permit or a permit condition, in contravention of new sections 33E or 33F, the Minister may, in writing, order the person to deal with the waste in a specified way. The order may include a requirement to export the waste from Australia, or import the waste to Australia (as the case may be).

 

457.           The amendments made by item 13 would have the effect of expanding the current power to make ministerial orders to deal with the unlawful carrying out of a transit proposal by removing the requirement that an order can only be made in respect of hazardous waste that was brought into Australia, or exported from Australia, in breach of a permit or permit conditions where the Minister is satisfied that the waste poses a significant risk of injury or damage to human beings or the environment. This change is appropriate as it recognises that non-compliance with a permit or permit condition may result in a breach of Australia’s international obligations under the Basel Convention. Allowing the Minister to make a ministerial order in respect of such hazardous waste would improve compliance with the requirements of a permit or permit conditions, which would ensure that waste is managed in a manner that protects human health and the environment, consistently with Australia’s international obligations.

Item 14

458.           Item 14 would repeal existing subsection 35A(3) of the Act and substitute a new subsection 35A(2). The effect of the amendment is to clarify that a ministerial order under subsection 35A(1) includes the power to order the waste be exported, and to specify the timeframe in which requirements in the order must be complied with.

 

459.           This item is a consequential amendment to the amendment made by item 13.

Item 15

460.           Section 36 of the Act allows the Minister to order a person to take such steps as the Minister thinks necessary to remedy or mitigate damage if:

 

·          the person has contravened any of section 39, 40 or 40A (ie imported hazardous waste, exported hazardous waste or carried out a transit proposal in respect of hazardous waste, without a permit)

 

·          the Minister is satisfied that the contravention resulted in the waste causing significant injury or damage to human beings or the environment.

 

461.           The Minister cannot, however, order a person to pay compensation (subsection 36(2)).

 

462.           The power to make an order under section 36 is necessary to ensure that persons who contravene the Act and cause damage to humans or the environment are required to remedy or mitigate that damage, in addition to the specific consequences that may result from contravening the Act. This helps to ensure that the Act achieves its intended environmental outcomes.

 

463.           Item 15 would amend section 36 to repeal existing paragraph 36(1)(a) and substitute a new paragraph 36(1)(a). The purposes of this amendment would be to expand the contraventions of the Act for which a person may be ordered to remedy or mitigate any damage caused to human beings or the environment. This would reflect the updated prohibitions in new sections 33A, 33B, 33C and 33D, 33E and 33F. 

 

464.           Under section 36, as amended by item 15, the Minister would be able to order a person to take such steps as the Minister thinks necessary to remedy or mitigate damage if the person has contravened:

 

·          new subsections 33A(1), (2) and (3) - importing hazardous waste without a permit, importing hazardous waste not in accordance with a permit, importing hazardous waste not in compliance with a permit condition ;

 

·          new subsections 33B(1), (2) and (3) - importing hazardous waste without a permit causing injury or damage, importing hazardous waste not in accordance with a permit causing injury or damage, importing hazardous waste not in compliance with a permit condition causing injury or damage;

 

·          new subsections 33C(1), (2) and (3) - exporting hazardous waste without a permit, exporting hazardous waste not in accordance with a permit, exporting hazardous waste not in compliance with a permit condition;

 

·          new subsections 33D(1), (2) and (3) - exporting hazardous waste without a permit causing injury or damage, exporting hazardous waste not in accordance with a permit causing injury or damage, exporting hazardous waste not in compliance with a permit condition causing injury or damage;

 

·          new subsections 33E(1), (2) and (3) - carrying out a transit proposal for hazardous waste without a permit or notice, carrying out a transit proposal for hazardous waste not in accordance with a permit, carrying out a transit proposal for hazardous waste not in compliance with a permit condition;

 

·          new subsections 33F(1), (2) and (3) - carrying out a transit proposal for hazardous waste without a permit or notice causing injury or damage, carrying out a transit proposal for hazardous waste not in accordance with a permit causing injury or damage, carrying out a transit proposal for hazardous waste not in compliance with a permit condition causing injury or damage.

 

465.           The existing requirement that the Minister can only make an order under section 36 if satisfied that the contravention resulted in the waste causing significant injury or damage to human beings or the environment would still remain. This limitation is appropriate given the purpose of the order is to remedy or mitigate damage.

Item 16

466.           Item 16 would amend the Act to repeal existing section 37.

 

467.           This item is a consequential amendment to item 17, as the amendments made by that item transfer the content of existing section 37 to new section 38B.

Item 17

468.           Item 17 would amend Part 3 of the Act to repeal existing sections 38A and 38B and insert a new Division 2 dealing with the consequences of contravening a ministerial order made under section 34, 35, 35A or 38.

 

469.           Existing section 38A is being repealed because its requirements are already covered by the general administrative law requirement that the timeframe for requiring a person to do something must be reasonable. Existing section 38B is being repealed because it is being updated and replaced by new sections 38C amd 38D.

 

470.           The purpose of this new Division is to ensure that appropriate offence and civil penalty provisions apply to the contravention of orders, and that the Minister may also order a person to remedy or mitigate damage caused by the contravention.

 

471.           New Division 2 would contain new sections 38A, 38B, 38C, 38D, 38E, 38F, 38G, and 38H.

Section 38A - Orders to remedy or mitigate damage if order under section 34, 35, 35A or 38 not complied with

472.           New section 38A would create an equivalent power to section 36 of the Act, which would allow the Minister to order a person to take such steps as the Minister thinks necessary to remedy or mitigate damage if the person has contravened another ministerial order under section 34, 35, 35A or 38.

 

473.           Consistent with section 36:

 

·          the Minister would only be able to exercise the power under new section 38A if the Minister is satisfied that the contravention resulted in the waste causing significant injury or damage to human beings or the environment; and

 

·          the Minister would not be able to order the person to pay compensation.

 

474.           Providing a power for the Minister to make such an order is necessary to ensure that where the damage is caused by non-compliance with a ministerial order (rather than by the initial contravention of the Act), that damage can be the subject of mitigation or remediation order. This helps to ensure that the Act achieves its intended environmental outcomes.

 

475.           The note following subsection 38A(1) would explain that a requirement to deal with hazardous waste in a specified way can include the requirement to import or export the waste.

Section 38B - Minister may take action and recover costs if order under section 34, 35, 35A, 36, 38 or 38A not complied

476.           New subsection 38B(1) would provide that if the Minister makes an order under section 34, 35, 35A, 36, 38 or 38A requiring a person to do something, and that person does not do the thing as and when required by the order, the Minister may arrange for the thing to be done.

 

477.           New subsection 38B(2) would have the effect that if the Commonwealth incurred costs because the Minister exercised the power under subsection 38B(1), the person who failed to comply with the order is liable to pay the Commonwealth an amount equal to those costs. This amount may be recovered by the Commonwealth as a debt due to the Commonwealth in a court of competent jurisdiction.

 

478.           New section 38B is not a new power. Rather, it replicates existing section 37 of the Act, which would be repealed by item 16. However, new section 38B expands the scope of the power to cover failure to comply with ministerial orders made under section 38 and new section 38A. This is appropriate, as there is no ongoing justification for those ministerial orders to be treated differently from ministerial orders made under sections 34, 35, 35A or 36.

Section 38C - Failure to deal with waste in contravention of order under section 34, 35 or 35A - basic contravention

479.           New section 38C would create an offence and civil penalty provision that will apply to a person who has been given an order under new section 34, 35 or 35A requiring the person to deal with the waste in a specified way or by a specified time, and the person fails to comply with the order.

 

480.           New section 38C would not create a new prohibition. Rather it would replicate the existing prohibition in subsection 38B(1), while updating the drafting to reduce complexity and increase readability. New section 38C would also clarify the consequences of breaching the prohibition in subsection 38C(1), by expanding the range of available sanctions.

 

481.           New subsection 38C(2) would have the effect that a person who contravenes the prohibition in subsection 38C(1) would be committing a fault-based offence. The maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

482.           New subsection 38C(3) would have the effect that a person who contravenes the prohibition in subsection 38C(1) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

483.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if an entrusted person has been given an order under section 34, 35 or 35A and fails to comply with the order;

 

·          the person affected would have previously been put on notice of the contravention of the Act, due to the ministerial order having been made ;

 

·          offences relating to the non-compliance with ministerial orders need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence will be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently failed to comply with a ministerial order is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          ministerial orders play an important role in informing the Minister in relation to those matters covered by the Act (particularly in relation to granting permit for the import, export or transit of hazardous waste), which is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Given ministerial orders can only be made once a contravention of the Act has already occurred, non-compliance with ministerial orders may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question;

 

484.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

485.           New subsection 38C(4) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 38C(1). The maximum penalty would be 600 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act.

 

486.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from person not complying with ministerial orders, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsection 38C(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

487.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to comply with a ministerial order requiring hazardous waste be dealt with in a specified way or by a specified time, which could in turn result in harm to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

488.           The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

 

489.           The first note following subsection 38C(1) would explain that the physical elements of the fault based offence are set out in subsection 38C(1).

 

490.           The second note following subsection 38C(1) would explain that a requirement to deal with hazardous waste in a specified way may include the requirement to import or export the waste.

Section 38D - Failure to deal with waste in contravention of order under section 34. 35 or 35A - injury or damage to human beings or environment

491.           New section 38D would create an offence and civil penalty provision that will apply to a person who has been given an order under new section 34, 35 or 35A requiring the person to deal with the waste in a specified way or by a specified time, the person fails to comply with the order, and the non-compliance injures or damages human beings or the environment.

 

492.           New section 38D would be a new prohibition. It would only apply if non-compliance with ministerial order made under section 34, 35 or 35A results in injury or damage to human beings or the environment. Non-compliance with a ministerial order that does not result in injury or damage would contravene new section 38C instead.

 

493.           New subsection 38D(2) would have the effect that a person who contravenes the prohibition in subsection 38D(1) would be committing a fault-based offence. The maximum penalty for the offence would be 8 years imprisonment or 500 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

494.           New subsection 38D(3) would allow, in a trial for an offence against new subsection 38D(2), the trier of fact to find the defendant not guilty of that offence but guilty of the offence in subsection 38C(2), provided the defendant has been provided procedural fairness in relation to that finding. The purpose of this provision is to allow proceedings for the aggravated offence in section 38D to revert to the basic contravention in subsection 38C in the event that the aggravated circumstances - being that the conduct of the defendant injured or damaged, or is likely to injure or damage, human beings or the environment - cannot be proven beyond reasonable doubt.

 

495.           New subsection 38D(4) would have the effect that a person who contravenes the prohibition in subsection 38D(1) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

496.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if an entrusted person has been given an order under section 34, 35 or 35A, the person fails to comply with the order, and the non-compliance injures or damages human beings or the environment;

 

·          the person affected would have previously been put on notice of the contravention of the Act, due to the ministerial order having been made;

 

·          offences relating to the non-compliance with ministerial orders need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence will be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently failed to comply with a ministerial order is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          ministerial orders play an important role in informing the Minister in relation to those matters covered by the Act (particularly in relation to granting permit for the import, export or transit of hazardous waste), which is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Given ministerial orders can only be made once a contravention of the Act has already occurred, non-compliance with ministerial orders may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

497.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

498.           New subsection 38D(5) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 38D(1). The maximum penalty would be 1000 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

499.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from person not complying with ministerial orders, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsection 38D(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

500.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to comply with a ministerial order requiring hazardous waste be dealt with in a specified way or by a specified time, and that results in injury or damage to human beings or the environment. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

501.           The maximum civil penalty of 1000 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

 

502.           The first note following subsection 38D(1) would explain that the physical elements of the fault based offence are set out in subsection 38D(1).

 

503.           The second note following subsection 38D(1) would explain that a requirement to deal with hazardous waste in a specified way may include a requirement to import or export the waste.

Section 38E - Failure to deal with waste in contravention of order under section 36 or section 38A

504.           New section 38E would create an offence and civil penalty provision that will apply to a person who has been given an order under section 36 or new section 38A requiring the person to take steps to remedy or mitigate damage, and the person fails to comply with the order.

 

505.           New section 38E would create a new prohibition. It is appropriate that failure to comply with a ministerial order to remedy or mitigate damage be an offence and breach of a civil penalty provision; this will help to deter non-compliance with such orders which will, in turn, result in better environmental outcomes.

 

506.           New subsection 38E(2) would have the effect that a person who contravenes the prohibition in subsection 38E(1) would be committing a fault-based offence. The maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

507.           New subsection 38E(3) would have the effect that a person who contravenes the prohibition in subsection 38E(1) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

508.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if an entrusted person has been given an order under section 36 or 38A and fails to comply with the order;

 

·          the person affected would have previously been put on notice of the contravention of the Act, due to the ministerial order having been made;

 

·          offences relating to the non-compliance with ministerial orders need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently failed to comply with a ministerial order is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          ministerial orders play an important role in informing the Minister in relation to those matters covered by the Act (particularly in relation to granting permit for the import, export or transit of hazardous waste), which is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Given ministerial orders can only be made once a contravention of the Act has already occurred, non-compliance with ministerial orders may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected will be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

509.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

510.           New subsection 38E(4) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 38E(1). The maximum penalty would be 600 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

511.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from person not complying with ministerial orders, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsection 38E(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

512.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to comply with a ministerial order requiring the person to mitigate or remedy damage caused by their contravention of the Act, which could in turn result in serious harm to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

513.           The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

 

514.           The note following subsection 38E(1) would explain that the physical elements of the fault based offence are set out in subsection 38E(1).

Section 38F - Failure to deal with waste in contravention of order under section 38 - basic contravention

515.           New section 38F would create an offence and civil penalty provision that will apply to a person who has been given an order under new section 38 requiring the person to deal with hazardous waste in a specified way, and the person fails to comply with the order.

 

516.           New section 38F would create a new prohibition.  It is appropriate that failure to comply with a ministerial order given under be an offence and breach of a civil penalty provision; this will help to deter non-compliance with such orders which will, in turn, result in better environmental outcomes. It would also align the consequences for breach of all ministerial orders.

 

517.           New subsection 38F(2) would have the effect that a person who contravenes the prohibition in subsection 38F(1) would be committing a fault-based offence. The maximum penalty for the offence would be 5 years imprisonment or 300 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

518.           New subsection 38F(3) would have the effect that a person who contravenes the prohibition in subsection 38F(1) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

519.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if an entrusted person has been given an order under section 38 and fails to comply with the order;

 

·          offences relating to the non-compliance with ministerial orders need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently failed to comply with a ministerial order is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          ministerial orders play an important role in informing the Minister in relation to those matters covered by the Act (particularly in relation to granting permit for the import, export or transit of hazardous waste), which is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Given ministerial orders can only be made once a contravention of the Act has already occurred, non-compliance with ministerial orders may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

520.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

521.           New subsection 38F(4) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 38F(1). The maximum penalty would be 600 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act.

 

522.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from person not complying with ministerial orders, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsection 38F(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

523.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to comply with a ministerial order requiring hazardous waste be dealt with in a specified way or by a specified time, which could in turn result in harm to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Bael Convention which could damage Australia’s international relations.

 

524.           The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

 

525.           The first note following subsection 38F(1) would explain that the physical elements of the fault based offence are set out in subsection 38F(1).

 

526.           The second note following subsection 38F(1) would explain that a requirement to deal with hazardous waste in a specified way may include the requirement to import or export the waste.

Section 38G - Failure to deal with waste in contravention of order under section 38 - injury or damage to human beings or the environment

527.           New section 38G would create an offence and civil penalty provision that will apply to a person who has been given an order under new section 38 requiring the person to deal with the waste in a specified way, the person fails to comply with the order, and the non-compliance injures or damages, or is likely to damage, human beings or the environment.

 

528.           New section 38G would be a new prohibition. It would only apply if non-compliance with ministerial order made under section 38 results, or is likely to result, in injury or damage to human beings or the environment. Non-compliance with a ministerial order that does not, or is not likely to, result in injury or damage would contravene new section 38E instead.

 

529.           Including this new prohibition would also align with consequences for breach of all ministerial orders where the result is, or is likely to be, injury or damage that does not, or is not likely to, result in injury or damage.

 

530.           New subsection 38G(2) would have the effect that a person who contravenes the prohibition in subsection 38G(1) would be committing a fault-based offence. The maximum penalty for the offence would be 8 years imprisonment or 500 penalty units, or both. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act).

 

531.           New subsection 38G(3) would allow, in a trial for an offence against new subsection 38G(2), the trier of fact to find the defendant not guilty of that offence but guilty of the offence in subsection 38F(2), provided the defendant has been provided procedural fairness in relation to that finding. The purpose of this provision is to allow proceedings for the aggravated offence in section 38G to revert to the basic contravention in subsection 38F in the event that the aggravated circumstances - being that the conduct of the defendant injured or damaged, or is likely to injure or damage, human beings or the environment - cannot be proven beyond reasonable doubt.

 

532.           New subsection 38G(4) would have the effect that a person who contravenes the prohibition in subsection 38G(1) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

533.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6 th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if an entrusted person has been given an order under section 38, the person fails to comply with the order, and the non-compliance injures or damages human beings or the environment;

 

·          offences relating to the non-compliance with ministerial orders need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently failed to comply with a ministerial order is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence.

 

·          ministerial orders play an important role in informing the Minister in relation to those matters covered by the Act (particularly in relation to granting permit for the import, export or transit of hazardous waste), which is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Given ministerial orders can only be made once a contravention of the Act has already occurred, non-compliance with ministerial orders may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question;

 

534.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

535.           New subsection 38G(5) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 38G(1). The maximum penalty would be 1000 penalty units. A body corporate would be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).

 

536.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from person not complying with ministerial orders, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsection 38G(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

537.           The size of the maximum penalty for both the fault-based offence and the civil penalty provision is appropriate as a deterrent. It reflects the seriousness of failing to comply with a ministerial order requiring hazardous waste be dealt with in a specified way or by a specified time, and that results in injury or damage to human beings or the environment. Such conduct may undermine the integrity of the regulatory framework provided for by the Act. This conduct may also result in the breach of Australia’s obligations under the Basel Convention which could damage Australia’s international relations.

 

538.           The maximum civil penalty of 1000 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

 

539.           The first note following subsection 38G(1) would explain that the physical elements of the fault based offence are set out in subsection 38G(1).

 

540.           The second note following subsection 38G(1) would explain that a requirement to deal with hazardous waste in a specified way includes a requirement to import or export the waste.

Section 38H - Failure to give information in contravention of order under this Part

541.           Subsections 34(4), 35(4) and 35A(4) allow an order made by the Minister under section 34, 35 or 35A to also require the person to give the Minister specified information relating to the dealing with the waste. The person is required to provide the information by a specified time and in a specified manner.

 

542.           New section 38H would create an offence and civil penalty provision that will apply to a person who contravenes an order requiring the person to give the Minister specified information by a specified time and in a specified manner.

 

543.           New subsection 38H(2) would have the effect that a person who contravenes the prohibition in subsection 38H(1) would be committing an offence of strict liability with a maximum penalty of 30 penalty units.

 

544.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 30 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person is required, by an order under Part 3 of the Act, to give the Minister specified information by a specified time and in a specified manner, and fails to do so;

 

·          offences relating to the non-compliance with ministerial orders need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime, as well as to ensure compliance with Australia’s international obligations;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently did not provide the information required by a ministerial order is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence.

 

·          ensuring ministerial orders are complied with is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. Given ministerial orders can only be made once a contravention of the Act has already occurred, non-compliance with ministerial orders may result in significant environmental harm and could damage Australia’s international relations ;

 

·          the person affected would be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question;

 

545.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

546.           New subsection 38H(3) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 41A(1). The maximum penalty would be 240 penalty units.

 

547.           New section 38H would not create a new prohibition. Rather it would replicate the existing prohibition in subsection 38H(2), while updating the drafting to reduce complexity and increase readability. New section 38H would also clarify that the offence involved is a strict liability offence and insert a mirror civil penalty provision to expand the range of available sanctions . The combination of a strict liability offence and civil penalty provision would provide an adequate deterrent from failing to comply with ministerial orders, which could undermine the compliance and enforcement mechanisms in the Act. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty).

Item 18

548.           Item 18 would amend the Act to repeal the heading of Part 4, as Part 4 is being repealed.

 

549.           The content of the offences in Part 4 (relating to the regulation of the import, export, transit and sale of hazardous waste) are being updated and moved to new Part 2A (see amendments made by item 4 of this Schedule).

Item 19

550.           Item 19 would amend the Act to repeal sections 39, 40, 40A, 40AA and 40B.

 

551.           The content of the offences in these sections (relating to the regulation of the import, export, transit and sale of hazardous waste) are being updated and moved to new Part 2A (see amendments made by item 4 of this Schedule).

Item 20

552.           Section 41A of the Act makes it an offence for a person to export a substance or an object to a foreign country if:

 

·          the substance or object is transported through a third country on the way to its destination; and

 

·          the substance or object is not hazardous waste for the purposes of the Act, but is a notifiable substance in relation to the transit country (i.e. the Minister is satisfied the waste is a hazardous waste in the transit country under the law of that country, but not under this Act); and

 

·          the transportation had not been approved under section 41B.

 

553.           Section 41B sets out a mechanism for the Minister to approve, or refuse to approve, the transportation of a notifiable substance or object through a foreign country.

 

554.           Item 20 would repeal existing section 41A and substitute a new section 41A. The content of the prohibition in new section 41A would be the same as for existing section 41A. However, new section 41A would update the drafting of the provision to reduce complexity and would provide clarification as to the consequences of failing to comply with the prohibition.

 

555.           New subsections 41A(2) would have the effect that a person who contravenes the prohibition in subsection 41A(1), would be committing a fault-based offence. The maximum penalty for the offence would be imprisonment for 3 years or 180 penalty units, or both.

 

556.           New subsection 41A(3) would have the effect that a person who contravenes the prohibition in subsection 41A(1) would also be committing an offence of strict liability with a maximum penalty of 60 penalty units.

 

557.           Strict liability is proposed for this offence having regard to the Commonwealth Guide to Framing Offences and the Scrutiny of Bills Committee 6th Report. Consistent with these documents, strict liability is appropriate as:

 

·          the offence is not punishable by imprisonment;

 

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

 

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person transports a notifiable substance or object through a foreign country without approval;

 

·          offences relating to the transboundary movement of waste need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime, as well as to ensure compliance with Australia’s international obligations;

 

·          the offence would be subject to an infringement notice (see new section 56AB, as inserted by Schedule 2 to the Bill);

 

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently transported a notifiable substance or object through a foreign country without approval is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·          providing, and complying with, appropriate controls on the transboundary movement of notifiable substance is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to both implement Australia’s obligations under the Basel Convention and to realise its intended environmental benefits. If such substances or objects are transported through foreign countries without approval, it may result in significant environmental harm and could damage Australia’s international relations;

 

·          the person affected will be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

558.           The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code).

 

559.           New subsection 41A(4) would have the effect of establishing a mirror civil penalty provision which is contravened in circumstances where a person contravenes the prohibition in subsection 41A(1). The maximum penalty would be 360 penalty units.

 

560.           The combination of fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent from persons transporting notifiable substances or objects through foreign countries without approval, which has the potential to cause significant harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings would be brought for conduct that contravenes subsection 41A(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Item 21

561.           Section 57 of the Act lists the decisions that are subject to merits review in the Administrative Appeals Tribunal.

 

562.           Item 21 would amend section 57 of the Act to insert new paragraphs 57(ea) and (eb). New paragraphs 57(ea) and (eb) would have the effect that a decision whether to give a notice under subsection 33G(1), and a decision to revoke a notice under subsection 33G(4), is a reviewable decision.

 

563.           A notice under subsection 33G(1) can only be given in respect of the carrying out of a transit proposal in connection with the movement of hazardous waste from one OECD country to another OECD country for recovery operations, and has the effect that a transit permit is not required for the proposal.

 

564.           This item is consequential to the amendments made by item 4 of this Schedule and is consistent with Commonwealth policy that all administrative decisions made under an Act should be merits reviewable unless there is a strong reason a particular decision not to be subject to merits review.

Item 22

565.           Section 57 of the Act lists the decisions that are subject to merits review in the Administrative Appeals Tribunal.

 

566.           Existing paragraph 57(f) has the effect that decisions to issue a ministerial order under section 34, 35, 35A or 36 requiring a person to do things are reviewable decisions.

 

567.           Item 22 would amend paragraph 57(f) to include the decision to issue a ministerial order under new section 38A requiring a person to do things as a reviewable decision.

 

568.           This item is consequential to the amendments made by item 17 of this Schedule and is consistent with Commonwealth policy that all administrative decisions made under an Act should be merits reviewable unless there is a strong reason a particular decision not to be subject to merits review.



 

Item 23

569.           Item 23 would amend the Act to insert a new section 58F after existing section 58E.

 

570.           New section 58F would clarify that where a provision in the Act provides that a person contravening another provision of the Act (the conduct provision) commits an offence or civil penalty provision:

 

·          the reference to the contravention of an offence or civil penalty provision includes a reference to a contravention of the conduct provision. This is because the conduct provision will set out the relevant physical elements of the offence or civil penalty provision that is being referenced;

 

·          for the purposes of applying Chapter 2 of Schedule 1 to the Criminal Code, the physical elements of the offence are set out in the conduct provision.

 

571.           The note after new section 58F explains that Chapter 2 of Schedule 1 to the Criminal Code Act sets out general principles of criminal responsibility. This includes requiring all criminal offences to have physical elements and fault elements.

 

572.           The purpose of new section 58F is to make clear what constitutes the physical elements of offences under the Act.

Part 2 - Transitional and saving provisions

Item 24

573.           Item 24 is a saving provision that deals with contraventions occurring, and ministerial orders made, prior to the commencement of the Bill.

 

574.           Sub-item 24(1) would have the effect that the old law continues to apply, on and after the commencement of the Bill, in relation to:

 

·          a contravention of Part 4 of the old law occurring before that commencement; and

 

·          an order made under Part 3 of the old law before that commencement; and

 

·          an order made under Part 3 of the old law on an after that commencement, in relation to a contravention of Part 4 of the old law occurring before that commencement.

 

575.           The old law, for the purposes of this item, would mean the following parts of the Act, as it was immediately prior to the commencement of the Bill:

 

·          Part 3;

 

·          Part 4 (other than section 41);

 

·          Any other provision to the extent that it relates to Parts 3 or 4 (other than section 41 or Part 5) (sub-item 24(2)).

 

576.           The intent is that contraventions occurring prior to the Act being amended are dealt with under the Act as it was at the time of the contravention. This means that, for example:

 

·          if a person contravenes subsection 39(1) of the old law (import without a permit) before the commencement of the Bill, that person would be subject to (and could be prosecuted under) subsection 39(1) of the old law even after the Bill commences and that section is otherwise repealed. The Minister will also be able to make an order under section 34 of the old law on or after the commencement of the Bill, even though section 34 would be amended by the Bill. This, in turn, means that if the person does not comply with the section 34 order, the person will be subject to the offence provision in section 38B of the Act as it was immediately prior to the Bill commencing, whether the contravention of section 38B occurs before or after the commencement.

 

·          if the Minister made an order before the commencement under section 34 of the old law in relation to the contravention, that order will continue in force on and after the commencement of the Bill, but will still be governed by the Act as it was immediately prior to the Bill commencing. This, in turn, means that if the person does not comply with the section 34 order, the person will be subject to the offence provision in section 38B of the Act as it was immediately prior to the Bill commencing, whether the contravention of section 38B occurs before or after the commencement ;

 

·          if a person contravenes new subsection 33A(1) (import without a permit) on or after the commencement, that person will be subject to that offence provision as well as the amended Ministerial order provision (section 34 as amended) and amended contravention of order provisions (new sections 38A, 38B, 38C, 38D and existing section 36).

 

577.           The note after sub-item 24(1) explains that the amendments made by Part 1 of Schedule 4 apply in relation to contraventions of the Act occurring on or after the commencement of those amendments.

 

578.           The note after sub-item 24(2) refers the reader to the Part 2 of Schedule 2 for application and savings provisions dealing with monitoring powers, investigation powers, audit powers and injunctions and how those powers apply to contraventions occurring before the commencement of the Bill.

Item 25

579.           Item 24 is a transitional provision that deals with transit notifications given prior to the Act being amended.

 

580.           It would have the effect that a notification given under existing paragraph 40(1)(b) of the Act that a transit proposal does not require a transit permit, and that is in force immediately prior to the commencement of the Bill, continues in force and may be dealt with on and after that date as if it were a notice given under subsection 33G(1) of the Act.

 

581.           Item 25 is a savings provision that deals with contraventions that occurred, and ministerial orders that were given, prior to the Act being amended.

 

582.           It would have the effect that:

 

·          ministerial orders made in relation to contraventions of the Act that occurred prior to the Act being amended would need to comply the Act with existing sections 34, 35, 35A, 36 and 38; and

 

·          existing sections 37, 38B and 39(1)(3) continue to apply in relation to ministerial orders that were made prior to the Act being amended, or that relate to contraventions that occurred prior to the Act being amended.

Part 3 - Contingent Amendments

Item 26

583.           Item 26 is a contingent amendment. The purpose of this amendment is to remove the reference to Federal Circuit Court from new paragraph 38B(2)(b) and substitute a reference to the Federal Circuit and Family Court of Australia (Division 2). This will ensure that the reference is correct, up to date and consistent with the Federal Circuit and Family Court of Australia Act 2021 once it commences.

SCHEDULE 5 - OTHER AMENDMENTS



General outline

584.           Schedule 5 would make a number of amendments to the Act to streamline and reduce its complexity while clarifying its operations and still ensuring the standard of environmental protection remains high.

Details on the amendments

Part 1 - Australian waters

585.           Part 1 (items 1 to 3) would substitute new definitions of Australia and Australian waters into the Act following amendments to those terms in the Acts Interpretation Act. The amendments made by this Part do not change the policy intent of the Act in relation to either of these terms.

Item 1

586.           Item 1 would repeal the existing definition of Australia in section 4 of the Act and substitute a new definition of the term.

 

587.           The new definition would clarify that Australia , when used in a geographical sense for the purposes of the Act, includes the external territories but does not include Australian waters.

 

588.           This amendment is necessary to establish a clear contrary intention to the Acts Interpretation Act, which defines Australia to include the coastal sea, but not to include the external Territories.

 

589.           Australian waters would be defined in the Act to cover the same area as the coastal sea under the Acts Interpretation Act (see amendments made by item 2 of this Schedule). It is important that the term Australia not include Australian waters for the purposes of the Act, as the intention is that, consistent with Australia’s obligations under the Basel Convention, movements of hazardous waste through Australian waters that are not intended to land in Australia do not require a permit under the Act.

Item 2

590.           Item 2 would repeal the existing definition of Australian waters in section 4 of the Act and substitute a new definition of the term.

 

591.           The new definition would clarify that Australian waters, for the purposes of the Act, means the coastal sea of Australia and of each external Territory. This is consistent with Australia, for the purposes of the Act, including the external Territories.

 

592.           The new definition would further clarify that, for the purposes of the Act, the concepts of the coastal sea of Australia and the coastal sea of each external Territory have the same meaning as in section 15B of the Acts Interpretation Act. Under section 15B of the Acts Interpretation Act, the coastal sea of Australia or of an external Territory covers the territorial sea of Australia (or the relevant external Territory) and the sea on the landward side of the territorial sea, but not waters within the limits of any State or Territory. This definition reflects the existing definition of Australian waters in the Act. Accordingly, the purpose of this amendment is to update the terminology for consistency with the Acts Interpretation Act rather than to change any policy.

Item 3

593.           Item 3 would repeal the note after subsection 4B(1) and substitute a new note that explains that, for the purposes of the Act, Australia does not include Australian waters . This amendment is consequential to the amendment made by item 1.

Part 2 - Commenting on permit applications

594.           Part 2 (items 4 to 21) would amend the Act to insert a process for the public to comment on applications for Basel permits and special permits, applications to vary such permits, and notices to vary such applications. The Minister would be required to have regard to any relevant comments received when deciding whether to grant the permit or variation. This will result in increased transparency and ensure that the Minister has all relevant information before them when deciding whether to grant a Basel or special permit or variation. It will also formalise the existing comment process which occurs administratively.

Division 1 - Amendments

Item 4

595.           Item 4 would amend subsection 17(1) of the Act to omit the words ‘the Minister is satisfied’. These words would be inserted directly into paragraphs 17(1)(a), 17(1)(ba), 17(1)(c) and 17(1)(d) and subparagraphs 17(1)(b)(i) and (ii) (see amendments made by items 5, 7, 9 and 10 of this Schedule) and is a consequential amendment to the amendment made by item 11. There would be no change to the test for granting a Basel import or export permit.

Item 5

596.           Item 5 would amend paragraph 17(1)(a) of the Act to insert the words ‘the Minister is satisfied’ at the start of the paragraph. This item is a consequential amendment to the amendments made by items 4 and 11 and would not change the test for granting a Basel import or export permit.

Item 6

597.           Item 6 would amend paragraph 17(1)(b) of the Act to omit ‘if the permit sought is’ and substitute ‘in the case of’. This is a drafting style change only and would not change the test for granting a Basel import or export permit.

Item 7

598.           Item 7 would amend subparagraphs 17(1)(b)(i) and 17(1)(b)(ii) of the Act to insert the words ‘the Minister is satisfied’ at the start of each subparagraph. This item is a consequential amendment to the amendments made by items 4 and 11 and would not change the test for granting a Basel import or export permit.

Item 8

599.           Item 8 would amend paragraph 17(1)(ba) of the Act to omit ‘if the permit sought is’ and substitute ‘in the case of’. This is a drafting style change only and would not change the test for granting a Basel import or export permit.

Item 9

600.           Item 9 would amend paragraph 17(1)(ba) of the Act to insert the words ‘the Minister is satisfied’ at the start of the paragraph. This item is a consequential amendment to the amendments made by items 4 and 11 and would not change the test for granting a Basel import or export permit.

Item 10

601.           Item 10 would amend paragraphs 17(1)(c) and (d) of the Act to insert the words ‘the Minister is satisfied’ at the start of each paragraph. This item is a consequential amendment to the amendments made by items 4 and 11 and would not change the test for granting a Basel import or export permit.

Item 11

602.           Section 17 of the Act requires the Minister to grant a Basel import or export permit if satisfied of the matters in subsection 17(1), and where none of the grounds for refusal in subsections 17(2) to (8) are met. This includes being satisfied that dealing with the waste in accordance with the import proposal or export proposal would be consistent with the environmentally sound management of hazardous waste.

 

603.           Item 11 would amend section 17 of the Act to insert a new paragraph 17(1)(e). New paragraph 17(1)(e) would require the Minister to take into account any relevant public comments received in response to an invitation to comment on the permit application (or notice to vary the permit application) when deciding whether to grant the import or export permit. Item 17 of this Schedule would require such an invitation to be published at the same time as the particulars of the relevant application or notice are published.

 

604.           The Minister would also be required to take into account any relevant public comments received in response to an invitation to comment on an application to vary a Basel permit (or notice to vary such an application) when deciding whether to grant the variation (see amendments made by item 29 of this Schedule).

 

605.           It is intended that an equivalent amendment would also be made to each set of Article 11 Regulations (including the OECD Regulations) to ensure that the Minister is also required to take into account any relevant public comments received when deciding whether to grant or varying a special export or import permit.

Item 12

606.           Item 12 would amend subsection 17A(2) of the Act to omit the words ‘the Minister is satisfied’. These words would be inserted directly paragraphs 17A(2)(a), 17A(2)(b) and 17A(2)(c) (see amendments made by item 13 of this Schedule) and is a consequential amendment to the amendment made by item 14. There would be no change to the test for granting a Basel transit permit.

Item 13

607.           Item 13 would amend paragraphs 17A(2)(a) to (c) of the Act to insert the words ‘the Minister is satisfied’ at the start of each paragraph. This item is a consequential amendment to the amendments made by items 12 and 14 and would not change the test for granting a Basel transit permit.

Item 14

608.           Section 17A of the Act requires the Minister to grant a Basel transit permit if satisfied of the matters in subsection 17A(2), and where none of the grounds for refusal in subsections 17A(4) or (5) are met. This includes being satisfied that carrying out the transit proposal will not pose a significant risk of injury or damage to human beings or the environment.

 

609.           Item 14 would amend section 17A of the Act to insert a new paragraph 17A(2)(d). New paragraph 17A(2)(d) would require the Minister to take into account any relevant public comments received in response to an invitation to comment on the permit application (or notice to vary the permit application) when deciding whether to grant the transit permit. Item 17 of this Schedule would require such an invitation to be published at the same time as the particulars of the relevant application or notice are published.

 

610.           The Minister would also be required to take into account any relevant public comments received in response to an invitation to comment on an application to vary a Basel transit permit (or notice to vary such an application) when deciding whether to grant the variation (see amendments made by item 29 of this Schedule).

 

611.           It is intended that an equivalent amendment would also be made to the each set of Article 11 Regulations (including the OECD Regulations) to ensure that the Minister is also required to take into account any relevant public comments received when deciding whether to grant or varying a special transit permit.

Item 15

612.           Item 15 would amend section 33 of the Act to insert a heading before subsection 33(1). The heading would reflect that subsection 33(1) contains a requirement to publish information. This item would make no substantive change to the operation of the provision.

Item 16

613.           Item 16 would amend subsection 33(1) of the Act to omit the words ‘Subject to subsection (2), the’ and substitute ‘The’. This amendment is consequential to the amendment made by item 11. It is intended to update the drafting of the provision in line with modern drafting conventions and would not change the effect of the provision.

Item 17

614.           Subsection 33(1) of the Act requires the Minister to cause to be published certain particulars of applications, notices and decisions made under the Act. This includes a requirement to publish particulars of each application for a Basel or special permit or for a variation for a Basel or special permit, and each notice to vary such an application, that is received by the Minister (see paragraph 33(1)(a)).

 

615.           Item 17 would amend section 33 of the Act to insert a new paragraph 33(1)(a). New paragraph 33(1)(a) would have the effect that particulars of an application or notice that are published under paragraph 33(1)(a) would need to be accompanied by an invitation for members of the public to comment on the application or notice (as the case may be) within 15 business days.

 

616.           The Minister would be required to take any relevant comments received into account when deciding to grant the permit or variation (see amendments made by items 11, 14 and 29 of this Schedule).

 

617.           This process will formalise the existing administrative comment process and will ensure that the Minister has all relevant information before them when deciding to grant the permit or variation.

 

618.           Item 19 of this Schedule would amend the Act to set out circumstances where the requirement to publish an invitation seeking public comment does not apply.

Item 18

619.           Item 18 would amend section 33 of the Act to insert a heading for subsection 33(2). The heading would clarify that subsection 33(2) contains exceptions to the requirement to publish the particulars listed in subsection 33(1) in circumstances where publication would be contrary to the public interest.

 

620.           This amendment is necessary to clarify the drafting of exceptions to the publication requirement as items 20 and 32 both set out additional exceptions that do not relate to public interest matters.

Item 19

621.           Item 19 would omit the words ‘The Minister is not required to publish’ from subsection 33(2) and substitute the words ‘Subsection (1) does not apply to’. This amendment is intended to update the drafting of the provision in line with modern drafting conventions and would not change the effect of the provision.

Item 20

622.           Item 20 would amend section 33 of the Act to insert a new subsection 33(2A). New subsection 33(2A) would create an exception to the requirement to publish an invitation seeking public comment on a permit or variation application or a notice to vary such an application.

 

623.           Under new subsection 33(2A), an invitation seeking public comment would not be required to be published if the Minister is satisfied that the invitation would be inappropriate because of exceptional circumstances, or that it would not be in the public interest to publish the invitation. An invitation would also not be required to be published in relation to an application for a permit variation, or a notice to vary such an application, that is of a minor or technical nature.

Division 2 - Application provision

Item 21

624.           Item 21 is an application provision that has the effect that the amendments made by items 4 to 20 would apply in relation to:

 

·          an application for a Basel permit or a special permit, or

 

·          a notice to vary such an application,

that is received by the Minister on or after the commencement of the Bill.

Part 3 - Granting, revoking or varying Basel permits

625.           Part 3 of Schedule 5 (items 22 to 30) would amend the Act to clarify, streamline and simplify the requirements concerning:

 

·          the timeframe for granting Basel permits;

 

·          variation of Basel permits, including the timeframes for making variations;

 

·          revocation of Basel permits.

 

626.           The amendments in Part 3 are necessary as the existing drafting of the Act concerning these matters is outdated and unnecessarily complex, resulting in provisions that are difficult for readers to properly understand.

Division 1 - Amendments

Item 22

627.           Item 22 would amend section 4 of the Act to repeal the definition of application day , as this definition is no longer needed. This is because the term is being replaced by the new term decision day , as inserted by item 23 of this Schedule.

Item 23

628.           Item 23 would amend section 4 of the Act to insert a new definition of decision period .

 

629.           The decision period , in relation to a Basel permit application, would be the period referred to in new subsection 16(1), but as paused or extended as necessary under any of:

 

·          new section 15 (where further information is requested);

 

·          new section 16A (where a necessary consent has not been received);

 

·          new section 16B (where the Minister thinks it will take more than 60 days to decide whether to grant the permit and extends the decision period for another 60 days);

 

·          new section 16C (where the proposal is the subject of a referral under Part 11 of the EPBC Act); or

 

·          new section 16D (where the Minister and the applicant agree in writing to the extension).

 

630.           New section 15 would be inserted into the Act by item 24 of this Schedule, while new sections 16, 16A, 16B, 16C and 16D would be inserted into the Act by item 26 of this Schedule.

 

631.           The decision period, in relation to an application to vary a Basel permit, would be the period referred to in new subsection 26B(1), but as paused or extended as necessary under new Subdivision C of Division 4 of Part 2 of the Act.

 

632.           New Subdivision C would be inserted by item 29 of the schedule (see below) and contains the following provisions allowing for the decision period for a variation application to be paused or extended:

 

·          new section 26A (where further information is requested);

 

·          new section 26C (where a necessary consent has not been received);

 

·          new section 26D (where the Minister thinks it will take more than 60 days to decide whether to grant the variation and extends the decision period for another 60 days);

 

·          new section 26E (where the proposal is the subject of a referral under Part 11 of the EPBC Act); or

 

·          new section 26F (where the Minister and the applicant agree in writing to the extension).

 

633.           It is intended that equivalent amendments would be made to each set of Article 11 Regulations (including the OECD Regulations) to clarify the decision period for special permits.

Item 24

634.           Item 24 would amend the Act to repeal existing section 15 and substitute a new section 15.

 

635.           Section 15 would allow the Minister to request the applicant provide further information in relation to an application. The request must be made within 60 days of the Minister receiving the application.

 

636.           If the Minister requests additional information of an applicant under section 15, the decision period for the application would be paused until the request is complied with. If the request is not complied with in 60 days, the application is taken to be withdrawn.