Bills Digest 81 1995-96
Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 1996
WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments.
This Digest was available from 17 May 1996
CONTENTS
Date introduced:1 May 1996
House: Senate
Portfolio: Environment, Sport and Territories
Commencement: On a day fixed by Proclamation or six months
and a day after the date of Royal Assent, whichever is first..
The Bill amends the Hazardous Waste (Regulation of Exports and Imports)
Act 1989 ('the Principal Act') to:
- give effect to the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal (the Basel Convention)
and
- expand the meaning of a 'person aggrieved' under the Administrative
Decisions (Judicial Review) Act 1977 (the ADJR Act) for the purpose
of judicial review of decisions made under the Act.
The Principal Act, which regulates the movement of hazardous wastes
into and out of Australia, was Australia's response to the Basel Convention.
The Basel Convention was adopted in Basel, Switzerland, on 22 March 1989
and Australia acceded to it on 5 February 1992. The Basel Convention entered
into force in March 1990.
This Bill replaces one of the same name introduced by the former government
on 29 June 1995. The earlier Bill was amended substantially but failed
to pass prior to the dissolution of Parliament. This Bill reflects the
amended version of the earlier Bill. The earlier Bill contained provisions
that would have allowed environmental groups "standing" to challenge
government decisions under the Principal Act.
1. Hazardous Waste
The management of hazardous wastes is one of the environmental issues
with which the international community has been concerned. Some 325-375
million tonnes of hazardous waste are generated annually which in turn
leads to storage, handling, transport and disposal problems of the hazardous
waste. In the past, the problem was often addressed by exporting the hazardous
waste to a developing country although this has been criticised by the
environmental community as being tantamount to 'eco-dumping'. Many developing
countries do not have the technology and/or the facilities to process
the waste in an environmentally safe manner. For example, Australia does
not have the facilities to deal with the wastes generated in the process
of making hexachlorobenzene, polychlorinated biphenyls (PCBs) and dioxins.
These are found in plastics, pesticides, refrigerants, fire-extinguishers
and solvents etc(1).
In an article published in the Environmental and Planning Law Journal
(December 1990), Zada Lipman states that in Australia, three methods have
been used to dispose of hazardous waste (pp288-289):
- landfill;
- storage; and
- export.
Lipman notes:
Disposal of wastes through landfill has led to the pollution of surface
and groundwaters, to land contamination, and consequential exposure
of entire communities to the dangerous effects of highly toxic chemicals.
Many industrialised countries have adopted the short-sighted method
of solving their domestic problem by exporting toxic wastes to Third
World countries (p283).
The Second Reading Speech (p2) states:
The Basel Convention is the primary international instrument under
which trace in hazardous waste is controlled. It is the set of rules
for this trace on which Australia and the many other countries which
are parties to the Convention have agreed. As virtually all of Australia's
trading partners are either parties to the Convention or parties to
similar sets of rules established by the OECD, it is in Australia's
trade interests, as well as within our international obligations, to
abide by these rules.
Definition of hazardous waste
'Hazardous waste' is defined in Article 1 of the Basel Convention to
be those wastes listed in Annex I (unless they do not possess certain
characteristics listed in Annex III) and includes:
- Waste streams: for example, hospital and pharmaceutical waste, waste
from the use of organic solvents and waste containing polychlorinated
biphenyls (PCBs);
- Wastes having as constituents certain products such as arsenic, mercury,
lead, inorganic cyanides, asbestos and acidic solutions.
Radioactive waste and waste from the normal operation of a ship are
not regulated by the Basel Convention.
2. The Basel Convention
The Basel Convention obliges contracting parties to establish measures
to regulate the:
- transboundary movement of hazardous waste;
- disposal of waste; and
- reduction of the generation of hazardous waste.
The Transboundary movement of hazardous waste
Article 4(1) provides that contracting parties cannot export hazardous
wastes to nations that have banned the import of such waste. Further,
an exporting State shall only permit export of hazardous waste if the
importing State has first consented in writing to the specific import
(the principle of 'prior informed consent' - Article 6). Under Article
6, notification and consent of the importing States, as well as any transit
States, are required.
Article 4(2) also obliges the exporting State to take steps to ensure
that the importing State manages the waste in an environmentally sound
manner.
Article 4(5) prohibits the export or import of hazardous waste to or
from a non-contracting State. Parties and non-parties may, however, enter
into agreements for the transboundary movement of hazardous waste providing
such agreements do not derogate from the environmental standards required
by the Convention (article 11).
Article 4(6) bans the export of hazardous waste to Antarctica.
Article 4(7) requires Parties to allow only authorised persons to transport
and disposal of hazardous waste.
Disposal of waste
Article 4(2)(b) requires State parties to ensure that adequate disposal
facilities are available for the environmentally sound management of hazardous
waste.
Article 8 imposes a duty on exporting States to re-import hazardous
waste if it cannot be disposed of in an environmentally sound manner by
the importing State.
Reducing the generation of hazardous waste
Article 4(2)(a) obliges State parties to establish measures to ensure
that the generation of hazardous waste is reduced to a minimum.
Ban of exports for recycling from OECD to non-OECD countries
In March 1994, at the second conference of contracting States to the
Convention it was agreed that the export of hazardous waste from OECD
States to non-OECD States for final disposal would be prohibited immediately.
It was also agreed to end the export of such waste from OECD States to
non-OECD States for recycling by December 1997. This agreement was called
the 'Ban Decision'. Australia was one of the countries that initially
argued against the Ban Decision but ended up agreeing to it. In September
1995, during a further conference of all contracting States, a number
of amendments were made to the Ban Decision prior to its adoption and
incorporation in the Basel Convention. These amendments were:
- The abolition of "OECD" and "non-OECD" terminology.
Instead of using this terminology two lists of countries were prepared.
The first list deals with States (including Australia) that are banned
from exporting hazardous waste to States on the second list. The second
list comprises the States that are likely to be "importers"
of hazardous waste.
- There was considerable debate about the definition of 'hazardous waste'
and the rationale for excluding some wastes when others were included.
A number of States are reputedly still dissatisfied with the uncertainty
of the definition and may refuse to ratify the Ban Decision until the
definition is clarified.
- An exception was made for Article 11 arrangements. These can be bilateral,
multilateral or regional arrangements for the environmentally sound
management of hazardous wastes. Under the March 1994 decision they were
excluded.
Australia's primary opposition to the Ban Decision was that it prohibited
the export of hazardous waste to a "non-OECD" country for the
purposes of recycling. Australia argued that this was not a good environmental
practice as 'recycling' was of benefit to the environment and banning
the export for the purpose or recycling was nonsensical. The counter-argument
to this is that some of the "non-OECD" countries are not equipped
to recycle the hazardous waste and consequently exporting to them is tantamount
to 'eco-dumping'.
The September 1995 Ban Decision has not entered into force yet. In order
to enter into force it must be ratified by 3/4 of the parties to the original
Basel Convention and then it will only be binding on those State parties
who have ratified it.
3. Standing Provisions
In order to challenge a decision of the Commonwealth in the courts,
an applicant must have standing to sue. Under the Administrative Decisions
(Judicial Review) Act 1977 (the ADJR Act) a 'person who is aggrieved'
by a decision to which the Act applies may seek review from the Administrative
Appeals Tribunal on certain specified grounds. A 'person aggrieved by
a decision' is defined in section 3(4) as including:
- a person whose interests are adversely affected by the decision;
- a person whose interests would be adversely affected if a decision
were/were not made in accordance with the report or recommendation;
- a person whose interests are or would be adversely affected by conduct/failure
that has been/is being/is proposed to be/is engaged in for the purpose
of making a decision.
The ADJR Act came into operation on 1 October 1980, and since then the
meaning of the term 'a person aggrieved', has been addressed in numerous
cases. The cases indicate that the term should not be given a narrow interpretation.
For example, Ellicott J said in Tooheys Ltd v Minister for Business
and Consumer Affairs 36 ALR 64 at 79:
The words "a person who is aggrieved" should not, in my view,
be given a narrow construction. They should not, therefore, be confined
to persons who can establish that they have a legal interest at stake
in the making of the decision....This does not mean that any member
of the public can seek an order of review. I am satisfied, however,
that it at least covers a person who can show a grievance which will
be suffered as a result of the decision complained of beyond that which
he or she has as an ordinary member of the public. In many cases that
grievance will be shown because the decision directly affects his or
her existing or future legal rights. In some cases, however, the effect
may be less direct. It may affect him or her in the conduct of a business
or may, as I think is the case here, affect his or her rights against
third parties.
The Second Reading Speech (p6) states that 'Standing under the Administrative
Decisions (Judicial Review) Act 1977 has been extended by providing
standing for Australian organisations and associations which have matters
which relate to the Act as part of their object or purpose.'
The question of standing for environmental groups has been discussed
in a number of cases. One of the earliest decisions was that of the Australian
Conservation Foundation Incorporated v Commonwealth of Australia
and Others (1979) 28 ALR 257. The ACF were attempting to challenge
a decision of the Minister that a resort and tourist development in Farnborough
(QLD) could go ahead. The decision was made before any final environmental
impact statement was made. The majority held that the ACF did not have
the requisite locus standi to institute the proceedings. Their
only interest in the decision was a concern for the environment and a
mere belief or concern, no matter how genuinely held, does not give rise
to the standing required to sue:
A belief, however strongly felt, that the law generally, or a particular
law, should be observed, or that conduct of a particular kind should
be prevented, does not suffice to give its possessor locus standi.
In two recent unreported cases Justice Sackville held that environmental
groups did have the requisite standing. These are the cases Tasmanian
Conservation Trust v Minister for Resources (unreported FC
No NG536) and North Coast Environment Council v Minister for
Resources (1994) (unreported FC No NG614). Sackville J based this
on the following factors:
- both groups were peak environmental organisations for their regions;
- both were recognised by the federal Government as significant and
responsible environmental organisations (ie received financial assistance
on a regular basis/met with the Government regularly);
- Both were recognised by their respective State Governments and were
represented on advisory committees for environmental issues;
- both had made submissions to government bodies on forestry management
and conservation values in general;
- the Tasmanian Conservation Trust had a substantial number of members
(and resources) and was involved in research and advisory activities
on forestry/woodchipping issues.
These factors were sufficient, in Sackville's opinion, to give the environmental
groups standing. Generally speaking though, lack of standing has been
a problem to environmental groups wishing to challenge government decisions.
The Bill includes the third set of standing provisions put before Parliament.
The original provisions were restricted in the amended versions (now contained
in the Bill), a move which has drawn criticism from the environmental
movement. For example, Greenpeace's national liaison officer Mr Ian Fry
stated:
The provisions would make it extremely difficult for organisations
to establish standing. In particular, overseas groups which could well
be affected by shipment of hazardous waste from Australia would be unable
to acquire standing in Australia.(2)
Schedule 1, Item 3 amends section 3 of the Principal Act to make
it clear that the aim of the Act is to give effect to the Basel Convention.
Items 3-26 amend definitions in the Principal Act to make them
consistent with the Basel Convention.
Item 27 inserts provisions in section 4 that deal with the export
and transit of hazardous waste to or through foreign countries.
Proposed section 4A extends the meaning of hazardous waste to include
waste classified by other countries (who are also parties to the Basel
Convention) as hazardous waste.
The proposed section 4B deals with transit proposals for hazardous waste
being imported into Australia (other than for disposal) or exported out
of Australia and sets out when the Minister may declare a movement of
hazardous waste to be a transit proposal.
The proposed section 4C implements Article 11 arrangements which are
those agreements (between States who are parties to the Basel Convention)
whereby hazardous waste is exported to another country to be processed
in an environmentally sound manner, by obliging the Minister to declare
the arrangement to be an Article 11 arrangement. The proposed sections
4F and 4G also apply to Article 11 arrangements and set out when a certain
product is classified as hazardous waste and when it is not.
With respect to the environmentally sound management of hazardous waste,
the proposed section 4E establishes that 'all practicable steps' will
be taken to manage waste in a manner that will 'protect human health and
the environment'.
Items 32 to 40 deal with applications for import, export and
transit permits. Amendments to section 12 will allow an applicant to make
one application for two or more imports as long as they are carried out
within a 12 month period and concern the same type of waste from the same
place. The amended section 13 will allow two or more export proposals
to be amalgamated.
Article 11 arrangements will attract special procedures under proposed
sections 13D and 13E. Before granting the permit the Minister must be
satisfied that the proposal is consistent with the requirements of Article
11 and that the consent of the other country (the importing, exporting
or transit country) has been obtained.
The proposed section 13F prohibits the Minister from granting a permit
where he or she is satisfied that it could see hazardous waste being taken
to Antarctica.
Items 41-79 concern applications for Basel permits for the export,
import and transit of hazardous waste. There are time-limits on Ministerial
action taken in response to an application and factors that the Minister
must consider before granting a permit. For example, Item 60 inserts
new section 17A which provides that when considering an application for
a transit permit the Minister must take into account at least the following:
- whether there is a significant risk of injury or damage to human beings
or to the environment;
- the applicant's financial viability and previous record in relation
to environmental matters;
- whether the applicant has appropriate insurance.
Item 63 restricts export permits for final disposal of hazardous
waste to cases where there are exceptional circumstances, unless this
is inconsistent with the environmentally sound management of the hazardous
waste. Proposed subsection 18A(4) lists the factors that the Minister
must have regard to.
Items 80-94 provide for the revocation, surrender and variation
of Basel permits.
Items 105-115 concern orders that the Minister may make and penalties
that may be imposed when the Act is contravened. For example, the proposed
section 40B imposes liability on the executive officers of bodies corporate,
if they knew or were reckless as to the likelihood of a contravention
occurring, were in a position to influence the conduct of the body corporate
and failed to take all reasonable steps to prevent the contravention.
The maximum punishment is imprisonment for 2 years.
New subsection 40B(6) defines an executive officer, in relation to a
body corporate, as 'a person, by whatever name called and whether or not
a director of the body, who is concerned in, or takes part in, the management
of the body.'
Item 115 inserts a new Part 5A which allows the Minister to make
arrangements, with appropriate consultation and co-operation with the
States, for things such as:
- discouraging the unlawful import or export of hazardous waste;
- collecting statistics for imports and exports of hazardous waste;
- encouraging the reduction of the generation of hazardous waste;
- developing adequate disposal facilities; and
- encouraging managers of hazardous waste to prevent/reduce pollution
and/or adverse consequences to human health and the environment arising
out of the dealing with hazardous waste.
Item 120 inserts section 58A which extends standing of individuals
and organisations to seek judicial review of decisions made under the
Act. New subsection 58A(3) provides that 'an organisation or association
(whether incorporated or not) is taken to be a person aggrieved by the
decision if:
- it is incorporated or was otherwise established in Australia; and
- at any time during the 2 year period before the decision was engaged
(in Australia) in research into hazardous waste, pollution arising from
the disposal of hazardous waste or protection of human beings or the
environment from the harmful effects of hazardous waste; and
- its objects or purposes included either research into hazardous waste,
pollution arising from the disposal of hazardous waste or protection
of human beings or the environment from the harmful effects of hazardous
waste.
New section 58A also extends standing to individuals who, in the two
year prior to the decision, have been engaged in activities or research
of the above kind.
Item 120 also inserts new section 58B which provides that the
Minister may issue, following consultation with the Hazardous Waste Technical
Group, a certificate stating that a specified substance is , or is not,
hazardous waste. The Minister may similarly issue a certificate stating
that certain conduct is, or is not, environmentally sound management of
hazardous waste (new section 58C).
Item 120 further inserts new section 58E which requires the Minister
to establish a Hazardous Waste Technical Group comprising persons with
expertise in the scientific, technical, social, economic, environmental,
public health and public safety aspects of hazardous waste management.
(1) Lipman, Z. The Convention on the Control of Transboundary Movements
and Disposal of Hazardous Wastes and Australia's Waste Management Strategy
(December 1990) Environmental and Planning Law Journal, 283-293
at 284.
(2) AAP report of 1 December 1995.
Susan Downing Ph. 06 277 2784
17 May 1996
Bills Digest Service
Parliamentary Research Service
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ISSN 1323-9032
Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library, 1996.
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Last updated: 17 May 1996
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