Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Environment and Communications Legislation Committee—Senate Standing—Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021 [Provisions]—Report, dated May 2021


Download PDF Download PDF

The Senate

Environment and Communications Legislation Committee

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

May 2021

© Commonwealth of Australia 2021

ISBN 978-1-76093-222-0

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License.

The details of this licence are available on the Creative Commons website: https://creativecommons.org/licenses/by-nc-nd/4.0/.

Printed by the Senate Printing Unit, Parliament House, Canberra.

iii

Members

Chair Senator the Hon David Fawcett LP, SA

Deputy Chair Senator Sarah Hanson-Young AG, SA

Members Senator Nita Green ALP, QLD

Senator Catryna Bilyk ALP, TAS

Senator Sam McMahon CLP, NT

Senator David Van LP, VIC

Substitute Members Senator Anne Urquhart (3 May 2021) ALP, TAS

Secretariat Sophie Dunstone, Inquiry Secretary Montana Byers, Parliamentary Graduate Brooke Gay, Administrative Officer

PO Box 6100 Phone: 02 6277 3526

Parliament House Fax: 02 6277 5818

Canberra ACT 2600 Email: ec.sen@aph.gov.au

v

Contents

Members ............................................................................................................................................. iii

Abbreviations ................................................................................................................................... vii

Recommendation ............................................................................................................................... ix

Chapter 1—Report .............................................................................................................................. 1

Appendix 1—Submissions and additional information ........................................................... 11

vii

Abbreviations

APCO Australian Packaging Covenant Organisation EM Explanatory Memorandum NCTRS National TV & Computer Recycling Scheme PIC Prior Informed Consent

VCA Vinyl Council Australia WALGA Western Australian Local Government Association

ix

Recommendation

Recommendation 1

1.50 The committee recommends that the bill be passed.

1

Chapter 1 Report

1.1 On 18 March 2021, the Senate referred the provisions of the Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021 (the bill) to the Senate Environment and Communications Legislation Committee (the committee) for inquiry and report by 5 May 2021.1

Conduct of the inquiry 1.2 In accordance with usual practice, the committee advertised the inquiry on its website and wrote to relevant individuals and organisations inviting submissions by 7 April 2021.

1.3 The committee received five submissions which are listed at Appendix 1 of this report. All submissions are available at: www.aph.gov.au/senate_ec.

1.4 The committee did not conduct a public hearing, however, it did put a number of written questions on notice to the Department of Agriculture, Water and the Environment (the department).

1.5 The committee thanks all submitters for their participation in the inquiry.

Scope of the report 1.6 This report outlines the purpose and provisions of the bill and provides a brief background to the introduction of the bill. This report also examines the principal issues raised by stakeholders and concludes with the committee’s

view and recommendation.

Background to the bill 1.7 The Hazardous Waste (Regulations of Exports and Imports) Act 1989 (Hazardous Waste Act) was passed in 1989 following Australia’s agreement to the Basel Convention on the Control of Transboundary Movements of Hazardous

Wastes and their Disposal (the Convention). The Convention officially entered into force in 1992.2

1.8 The primary aim of the Convention and the subsequent obligations of countries party to it include to:

 minimise generation of hazardous waste;  ensure adequate disposal facilities are available;

1 Journals of the Senate, No. 94, 18 March 2021, pp. 3331.

2 Department of Agriculture, Water and the Environment, International hazardous waste conventions,

https://www.environment.gov.au/protection/hazardous-waste/conventions (accessed 7 April 2021).

2

 control and reduce international movements of hazardous waste;  ensure environmentally sound management of wastes; and  prevent and punish illegal traffic.

1.9 As stated by the Department of Agriculture, Water and the Environment (the department):

Under the Basel Convention, the export, import and transit of hazardous wastes requires the prior informed consent (PIC) of all countries involved in the movement before it can proceed. Consent is only provided if it demonstrated that the waste will be transported and processed in an environmentally sound way.3

1.10 Australia is also a signatory to the Waigani Convention of 2001 (the Convention to Ban the Importation into Forum Island Countries of Hazardous Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region).4

1.11 According to the department:

The main effect of this Convention is to ban the import of all hazardous and radioactive wastes into South Pacific Forum Island Countries. It also enables Australia to receive hazardous wastes exported from South Pacific Forum Island countries which are not Parties to the Basel Convention.5

Plastic waste amendments 1.12 In 2019, the parties to the Basel Convention met and officially adopted amendments that enhanced the control of international movements of unsorted plastic waste, and clearly clarified the scope of plastic wastes that

would be deemed ‘hazardous’.6

1.13 The new entries of the Convention came into effect from 1 January 2021.7

Purpose of the bill 1.14 The bill was introduced into the House of Representatives on 18 March 2021 by the Minister for the Environment, the Hon Sussan Ley MP. In her second reading speech, the minister explained that the purpose of this bill is to:

3 Department of Agriculture, Water and the Environment, Submission 4, p. 3.

4 Department of Agriculture, Water and the Environment, International hazardous waste conventions,

https://www.environment.gov.au/protection/hazardous-waste/conventions (accessed 16 April 2021).

5 Department of Agriculture, Water and the Environment, International hazardous waste conventions,

https://www.environment.gov.au/protection/hazardous-waste/conventions (accessed 16 April 2021).

6 United Nations Environment Program, Conference of the Parties to the Basel Convention on the Control

of Transboundary Movements of Hazardous Wastes and Their Disposal - Fourteenth meeting, May 2019, p. 13.

7 Department of Agriculture, Water and the Environment, Submission 4, p. 3.

3

align our laws with our international commitments, but more importantly, take responsibility for our waste and make sure it is managed in a way that doesn't harm human health or the environment.8

1.15 The minister also stated that whilst the Hazardous Waste Act had been in place for a number of years, the bill would improve both the efficiency and effectiveness of the Act.9

1.16 As outlined in the explanatory memorandum, the bill contains five schedules:

 Schedule 1 would amend the Hazardous Waste Act to align the existing legislation with international commitments that emerged from the 2019 Conference of Parties to the Basel Convention. Schedule 1 would also align the definition of ‘hazardous waste’ so that it is consistent with the Convention.

 Schedule 2 would repeal current provisions providing for regulatory regimes within the Hazardous Waste Act, and instead trigger the standard provisions of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act).

 Schedule 3 would amend the Hazardous Waste Act to clearly set out the requirements that relate to record keeping, the requirement to produce documents or information in accordance with a notice, as well as information sharing.

 Schedule 4 would amend and replace the enforcement provisions of the Hazardous Waste Act in an effort to streamline and reduce the complexity of the provisions. The bill would also increase some penalties as well as introduce strict liability offences and civil penalty provisions to act as a deterrent to non-compliant behaviour.

 Schedule 5 would make a number of amendments to the Hazardous Waste Act on topics including Australian waters, commenting on permit applications and the granting, revoking or varying of Basel Permits. Section 5 would also make consequential amendments to the Environment Protection and Biodiversity Conservation Act 1999.10

1.17 Primarily, the bill aims to effectively regulate the export, import and transit of hazardous waste to ensure it is managed in an environmentally sound manner in order to minimise the harmful effects of hazardous waste.

8 The Hon Sussan Ley, Minister for the Environment, House of Representatives Hansard, 18 March

2021, p. 1.

9 The Hon Sussan Ley, Minister for the Environment, House of Representatives Hansard, 18 March

2021, p. 1

10 Explanatory Memorandum, pp. 6-7, 9, 41, 57, 105.

4

Consideration by other parliamentary committees 1.18 The bill was considered by both the Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) and the Parliamentary Joint Committee on Human Rights.

1.19 The Parliamentary Joint Committee on Human Rights had no comments on the bill.11

Senate Standing Committee for the Scrutiny of Bills 1.20 The scrutiny committee raised the following concerns:

 The bill provides for delegated legislation made under the Hazardous Waste Act; however, the scrutiny committee noted that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.12 The scrutiny committee considered that the following matters should be within the primary legislation:

− the conduct of audits and the process to be followed after an audit has been completed; − record-keeping obligations, where a failure to comply with the obligations will be a strict liability offence; − matters about which the minister must give notice to export and transit

countries; and − the grounds on which a permit may be revoked or varied.13

 Whether it is necessary and appropriate within the bill to ‘apply the power to publish compliance related matters to offences committed, and orders given, before the commencement of the bill’ and, as a result of this retrospectivity, whether there may be any subsequent detrimental effect on individuals. 14

1.21 The scrutiny committee has requested the minister’s response to these concerns.15

1.22 At the time of presenting this report, the response from the minister had not been published.

11 Parliamentary Joint Committee on Human Rights, Report 4 of 2021, 31 March 2021, p. 6.

12 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2021, 21 April 2021, p. 21.

13 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2021, 21 April 2021, p. 21.

14 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2021, 21 April 2021, p. 23.

15 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2021, 21 April 2021, pp. 21-23.

5

Key themes raised in evidence 1.23 All submissions to the inquiry demonstrated support for the bill and its intentions. Despite this, the committee recognised a number of key issues submitted to the inquiry by participants. These included:

 whether this bill would align with the Recycling and Waste Reduction Act 2020 (Recycling and Waste Reduction Act) and its subsequent rules and regulations;

 whether the bill sufficiently differentiates between the types of waste; and  potential domestic implications of the bill.

Support for the bill 1.24 Evidence received by the committee expressed a general support for the bill, as many submissions recognised that the bill would fulfill Australia’s international obligations and provides the legislative mechanisms to ratify

what the Australian government had already agreed to as part of the Basel Convention.

1.25 The Australian Packaging Covenant Organisation (APCO) submitted its support for the bill:

In particular, we welcome the Government’s intention to implement amendments to the Basel Convention to strengthen transboundary controls on unsorted plastic wastes and plastic wastes containing hazardous substances, and to strengthen the compliance and enforcement provisions of the Hazardous Waste Act. We support the Bill in its current form, and strongly encourage the Government to appropriately resource their implementation and ongoing administration.16

1.26 Further, APCO emphasised that once the bill had passed, ‘effective compliance and enforcement’ would be paramount to ensure efforts by industry stakeholders would not be ‘diminished by unscrupulous operates’.17

1.27 Similarly, the Vinyl Council of Australia (VCA) submitted:

The Vinyl Council and its members support the control and management of contaminated and co-mingled plastic wastes so as to encourage much needed investment in greater sorting and reprocessing locally of plastic packaging, and to minimise plastic leakage to the environment.18

Consistency with the Recycling and Waste Reduction Act 2020 1.28 In March 2020, Australian, state and territory governments, and the Australian Local Government Association agreed to regulate the export of waste,

16 Australian Packaging Covenant Organisation (APCO), Submission 2, p. 2.

17 Australian Packaging Covenant Organisation (APCO), Submission 2, p. 2.

18 Vinyl Council of Australia, Submission 3, p. 2.

6

including plastic.19 As such, the Recycling and Waste Reduction Act came into effect on 15 December 2020.

1.29 The Recycling and Waste Reduction Act enables the creation of the Recycling and Waste Reduction (Export - Waste Plastic) Rules 2021 (Waste Plastic Rules), which will operate as an instrument of the Act and will regulate the exportation of waste plastic.

1.30 In February 2021, the department initiated consultation through a technical discussion paper and sought further external consultation on an exposure draft of the Waste Plastic Rules from early March 2021. This consultation concluded on 1 April 2021 and the rules are set to commence on 1 July 2021.20 At the time of this inquiry, the final version of the rules had not been released.

1.31 Several participants raised the need for there to be a consistent approach between the bill and the incoming Waste Plastic Rules.21 As stated by the Western Australian Local Government Association:

The Association is making this submission to ensure the interaction between the Bill and the Recycling and Waste Reduction Act 2020 (the Act) are fully considered and any potential contradictions or duplications [are] avoided, in particular Waste Plastics.22

1.32 VCA similarly noted that it was ‘important there is a consistent approach between these two regulations’, thus allowing stakeholders and regulators the ability to comply with the set standards.23

1.33 In its submission, the department recognised the importance of aligning the ‘management of waste plastics under the Recycling and Waste Reduction Act with the requirements of the Hazardous Waste Act’, as amended by the bill in order to ‘minimise disruption’ to the industry.24

1.34 In response to concerns raised by stakeholders, the department advised that there is ongoing consultation with the industry into the Plastic Waste Rules, and noted that the regulation will operate ‘in tandem with the regulation of

19 Department of Agriculture, Water and the Environment, Transition to regulating waste exports,

https://www.environment.gov.au/protection/waste/exports/transition (accessed 8 April 2021).

20 Department of Agriculture, Water and the Environment, Exposure Draft Recycling and Waste

Reduction (Export - Waste Plastic) Rules 2021 https://haveyoursay.awe.gov.au/exposure-draft-export-waste-plastic-rules-2021 (accessed 8 April 2021).

21 Vinyl Council of Australia, Submission 3, p. 4; Western Australian Local Government Association

(WAGLA), Submission 1, p. 1; APCO, Submission 2, p. 2.

22 WAGLA, Submission 1, p. 1.

23 Vinyl Council of Australia, Submission 3, p. 4.

24 Department of Agriculture, Water and Environment, Submission 4, p. 7.

7

hazardous waste places’ under the Hazardous Waste Act.25 The department stated that ‘this will help to ensure the export of plastic waste from Australia does not harm human health or the environment’.26

1.35 Further, the department stated that it was ‘working to harmonise the two schemes to the extent possible to minimise disruption to industry’.27

Differentiating between ‘hazardous’ and ‘other’ waste 1.36 The existing Hazardous Waste Act and the proposed provisions of the bill differ from the Basel Convention as they do not list ‘hazardous wastes’ and ‘other wastes’ separately. The EM explains that this was for ‘simplicity’ as

‘both hazardous wastes and other wastes under the Basel Convention are subject to the similar transboundary movement controls’.28

1.37 In its submission, VCA raised concerns that by not differentiating between the terms, the bill would negatively impact future investment in waste:

If the Act fails to make this distinction between hazardous and other wastes, it may unfairly cause some plastic wastes to be categorized as ‘hazardous’ by stakeholders when they are in fact, not. This outcome would not aid the investment in the circular economy for plastics in Australia and we therefore strongly encourage the Act to include wording that differentiates ‘hazardous’ wastes and ‘other’ wastes.29

1.38 In response to these concerns, the department reiterated that this was because ‘the control procedures for hazardous and other wastes under the Basel Convention and the Act are essentially the same’. Further:

As hazardous and other wastes are both subject to prior informed consent controls, there is little value distinguishing the two types of wastes in the Bill. Doing so could create confusion for exporters and importers and increase regulatory burden without any environmental benefit.30

Domestic implications 1.39 Some evidence raised concerns with regard to the potential domestic implications.

25 Department of Agriculture, Water and the Environment, answers to question on notice, 13 April

2021 (received 19 April 2021), p. 3.

26 Department of Agriculture, Water and the Environment, answers to question on notice, 13 April

2021 (received 19 April 2021), p. 3.

27 Department of Agriculture, Water and the Environment, answers to question on notice, 13 April

2021 (received 19 April 2021), p. 3.

28 Explanatory Memorandum, p. 8.

29 Vinyl Council of Australia, Submission 3, p. 3.

30 Department of Agriculture, Water and the Environment, answers to question on notice, 13 April

2021 (received 19 April 2021), p. 2.

8

1.40 The VCA submitted its concerns that ‘Australia has not yet developed adequate, local commercial-scale recovery, sorting and recycling solutions’, this bill must not ‘impede product stewardship and effective recycling solutions’.31 The alternative, in VCA’s view, may be to send plastic wastes to local landfill.32

1.41 E-Cycle Solutions, a co-regulator of the National TV & Computer Recycling Scheme (NTCRS), highlighted similar concerns. It was suggested that a ‘hard ban’ on plastic exportation of NTCRS materials would result in the product going into domestic landfill.33

1.42 In addition to the environmental impact, E-Cycle solutions noted that the ‘hard ban on plastics from 1st July 2021 will incur significant additional cost through cost of transport to landfill and landfill fees’.34

1.43 In response to concerns about the impact on the waste plastic industry, the department stated that the ‘amendments outlined in the bill are not expected to have an impact on industry’.35 Specifically:

The additional regulatory and compliance powers introduced through the Bill will ensure broader compliance with the Hazardous Waste Act. This will mean that industry participants who do the right thing are not disadvantaged.36

1.44 The department also responded to concerns that pertained to the potential environmental impact of the bill:

The Australian Government is tackling problem plastics at a domestic level through a range of initiatives. This has included the endorsement of the 2025 National Packaging Targets, a phase out of microbeads and driving agreement by all Australian governments on the National Waste Police 2018 and the National Waste Policy Action Plan 2019.

The National Waste Policy Action Plan 2019 takes a whole-of-lifecycle approach to the plastic challenge, including product design, increasing Australia’s recycling capacity, stimulating demand for recycled content, and preventing plastics from leaking into the environment. The plan sets

31 Vinyl Council of Australia, Submission 3, p. 4.

32 Vinyl Council of Australia, Submission 3, p. 4.

33 E-Cycle Solutions, Submission 5, p. 4.

34 E-Cycle Solutions, Submission 5, p. 2.

35 Department of Agriculture, Water and the Environment, answers to question on notice, 13 April

2021 (received 19 April 2021), p. 4.

36 Department of Agriculture, Water and the Environment, answers to question on notice, 13 April

2021 (received 19 April 2021), p. 4.

9

the direction for priority action on waste management and recycling in Australia until 2030.37

1.45 The department stated its expectation that the amendments within this bill would not ‘impact on current or future product stewardship arrangements’.38

Committee view 1.46 The committee notes that the bill would ensure Australia’s compliance with previously agreed international obligations.

1.47 The committee recognises that the evidence submitted to the inquiry expresses broad support for the bill. The committee also recognises the consultation conducted by the department with industry, business and environmental stakeholders, and encourages continued improvement in the efficiency and effectiveness of environmental regulations.

1.48 The committee acknowledges the concerns raised with respect to consistency of rules and regulations, clarity of definitions and any potential domestic implications. The committee recognises the responses provided by the department and thanks the department for this clarification.

1.49 The committee recommends that the bill be passed.

Recommendation 1

1.50 The committee recommends that the bill be passed.

Senator the Hon David Fawcett Chair

37 Department of Agriculture, Water and the Environment, answers to question on notice, 13 April

2021 (received 19 April 2021), p. 4.

38 Department of Agriculture, Water and the Environment, answers to question on notice, 13 April

2021 (received 19 April 2021), p. 2.

11

Appendix 1

Submissions and additional information

Submissions 1 Western Australian Local Government Association 2 Australian Packaging Covenant Organisation (APCO) 3 Vinyl Council of Australia 4 Department of Agriculture, Water and the Environment 5 E-Cycle Solutions

Answers to Question on Notice 1 Answers to written questions on notice from the Department of Agriculture, Water and the Environment, received 19 April 2021. 2 Answers to written questions on notice from the Department of Agriculture,

Water and the Environment, received 28 April 2021.