DODD & DODD GROUP PTY LTD and MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES
[2010] AATA 957
•30 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 957
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1220
GENERAL ADMINISTRATIVE DIVISION ) Re: DODD & DODD GROUP PTY LTD
ApplicantAnd: MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER,
POPULATION AND COMMUNITIES
RespondentAnd: AUSTRALIAN REFINED ALLOYS PTY LTD
Joined PartyAnd: CLUB ASSIST PTY LTD
Joined PartyAnd: RENEWED METAL TECHNOLOGIES PTY LTD
Joined PartyAnd: HYDROMET CORPORATION LTD
Joined PartyDECISION
Tribunal Deputy President S D Hotop Date30 November 2010
PlacePerth
Decision The Tribunal affirms the decision under review. .............sgd S D Hotop..........
Deputy President
CATCHWORDS
ENVIRONMENT – hazardous waste – used lead acid batteries (ULABs) – application for special export permit to export ULABs to South Korea for recycling – Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal – ULABs can be disposed of safely and efficiently by using facilities in Australia – such disposal consistent with environmentally sound management of ULABs – desirable to use facilities in Australia for disposal of ULABs – ULABs should be disposed of by using facilities in Australia rather than exporting for disposal – application for special export permit refused – decision under review affirmed
Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth), s 3, s 13 and s 13C
Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996, reg 3 and reg 16
REASONS FOR DECISION
30 November 2010 Deputy President S D Hotop Introduction
1. Dodd & Dodd Group Pty Ltd (“the applicant”) has for many years conducted business operations in the scrap metal and recycling industry in Western Australia, including the collection of used lead acid batteries (“ULABs”) for recycling purposes.
2. The applicant had applied for, and been granted, a “special export permit” under the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (“OECD Regulations”) to export ULABs to South Korea for recycling in respect of each of the following 12-month periods:
· from 1 December 2006 to 30 November 2007;
· from 1 January 2008 to 31 December 2008;
· from 1 January 2009 to 31 December 2009.
3. On 28 July 2009 the applicant made a similar application for a “special export permit” under the OECD Regulations to export 4,000 tonnes of ULABs to South Korea for recycling in respect of the period from 1 January 2010 to 31 December 2010 but, on 1 March 2010, a delegate of the Minister for Environment Protection, Heritage and the Arts (now the Minister for Sustainability, Environment, Water, Population and Communities) (“the respondent”) decided to refuse to grant such permit to the applicant.
4. The applicant has applied to the Tribunal for review of the respondent’s decision of 1 March 2010.
5. Subsequently, the Tribunal received an application from each of Australian Refined Alloys Pty Ltd (“ARA”), Club Assist Pty Ltd (“Club Assist”), Renewed Metal Technologies Pty Ltd (“RMT”) and Hydromet Corporation Ltd (“Hydromet”) to be joined as a party to the proceeding, and the Tribunal so ordered under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).
The Relevant Legislative Framework
The Hazardous Waste (Regulation of Exports and Imports) Act 1989 (“the Act”)
6. The object and aims of the Act (as amended) are stated in s 3 as follows:
“ Object
(1)The object of this Act is to regulate the export, import and transit of hazardous waste to ensure that exported, imported or transited waste is managed in an environmentally sound manner so that human beings and the environment, both within and outside Australia, are protected from the harmful effects of the waste.
Aims
(2)The aims of this Act are:
(a)to give effect to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; and
(b)to give effect to agreements and arrangements of the kind mentioned in Article 11 of that Convention.”
7. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“Basel Convention”), a copy of which is set out in the Schedule to the Act, was ratified by Australia in February 1992. The Preamble to the Basel Convention includes the following paragraphs:
“ The Parties to this Convention,
…
Recognizing also the increasing desire for the prohibition of transboundary movements of hazardous wastes and their disposal in other States, especially developing countries,
Convinced that hazardous wastes and other wastes should, as far as is compatible with environmentally sound and efficient management, be disposed of in the State where they were generated,
…
Considering that enhanced control of transboundary movement of hazardous wastes and other wastes will act as an incentive for their environmentally sound management and for the reduction of the volume of such transboundary movement,
…
Aware also of the growing international concern about the need for stringent control of transboundary movement of hazardous wastes and other wastes, and of the need as far as possible to reduce such movement to a minimum,
…
HAVE AGREED AS FOLLOWS:
…”
8. Article 4 of the Basel Convention sets out the “general obligations” on Parties (including Australia and South Korea), including the following:
“ …
2. Each Party shall take the appropriate measures to:
(a)Ensure that the generation of hazardous wastes and other wastes within it is reduced to a minimum, taking into account social, technological and economic aspects;
(b)Ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes and other wastes, that shall be located, to the extent possible, within it, whatever the place of their disposal;
…
(d)Ensure that the transboundary movement of hazardous wastes and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes, and is conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement;
…
9.Parties shall take the appropriate measures to ensure that the transboundary movement of hazardous wastes and other wastes only be allowed if:
(a)The State of export does not have the technical capacity and the necessary facilities, capacity or suitable disposal sites in order to dispose of the wastes in question in an environmentally sound and efficient manner; or
(b)The wastes in question are required as a raw material for recycling or recovery industries in the State of import; or
(c)The transboundary movement in question is in accordance with other criteria to be decided by the Parties, provided those criteria do not differ from the objectives of this Convention.
…”
9. Article 11(1) permits Parties to “enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes … provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention.” Article 11(2) states:
“ …
The provisions of this Convention shall not affect transboundary movements which take place pursuant to such agreements provided that such agreements are compatible with the environmentally sound management of hazardous wastes and other wastes as required by this Convention.”
10. Pursuant to 13C(1) of the Act, regulations made under the Act may provide for the giving effect to an arrangement entered into by Australia pursuant to Article 11(1) of the Basel Convention. Australia has entered into three such arrangements, including (relevantly) “OECD Decision C (2001) 107” (“the OECD Decision”). The OECD Regulations were made under the Act and provide, for the purposes of s 13C(1) of the Act, for the giving effect to the OECD Decision (a copy of which is set out in Schedule 1 to the OECD Regulations).
11. Section 13(1) of the Act provides that a person proposing to export “hazardous waste” may apply to the Minister for a permit (including a “special permit” under the OECD Regulations) authorising the export of the waste.
The OECD Regulations
12. The object of the OECD Regulations is set out in reg 3 as follows:
“ The object of these Regulations is to make regulations for section 13C of the Act giving effect to the OECD Decision.”
13. Part 2 of the OECD Regulations deals with applications for special permits (including special export permits in relation to hazardous waste), and Part 3 deals with the grant of such permits. Division 1 of Part 3 (comprising regs 13–18) deals with special export permits. Regulation 16 provides:
“ 16 Grant of special export permit
(1)The Minister must not grant a special export permit authorising the export of hazardous waste unless the Minister is satisfied that:
(a) the application for the permit is permitted by regulation 9 to be made; and
(b) dealing with the hazardous waste concerned in accordance with the export proposal would be consistent with the environmentally sound management of the waste; and
(c) the competent authority of the importing country has given written consent to the movement of the waste; and
(d) the waste will undergo a recovery operation in the importing country at a recovery facility that is authorised to carry out recovery operations on waste of that type; and
(e) having regard to the OECD decision, Chapter II, Section D(1)(a) (concerning written contracts covering the movement of waste), it is appropriate to grant the permit; and
(f) the waste will be allowed to be transported through any foreign country through which the waste is proposed to be transported; and
(g) the waste will be transported in a way that is consistent with the environmentally sound management of the waste; and
(h) the applicant:
(i)is a suitable person to be granted the permit; and
(ii)has appropriate insurance.
(2)The Minister may refuse to grant the permit if the Minister considers that it is in the pubic interest to do so.
(3)The Minister may refuse to grant the permit if the Minister is satisfied that:
(a) there is another way in which the hazardous waste could appropriately be dealt with; and
(b) dealing with the waste in that way would not pose significant risk of injury or harm to people or the environment; and
(c) having regard to Australia’s international obligations, the waste should be dealt with in that way rather than according to the export proposal.
(4)The Minister may refuse to grant the permit if the Minister is satisfied that:
(a) the hazardous waste could be disposed of safely and efficiently by using a facility in Australia; and
(b) such a disposal would be consistent with the environmentally sound management of the waste; and
(c) having regard to the desirability of using facilities in Australia for the disposal of hazardous waste, the waste should be disposed of by using that facility rather than according to the export proposal.
…
(7)For subparagraph (1)(h)(i), the Minister must consider:
(a) the applicant’s financial viability; and
(b) the applicant’s previous record on environmental matters; and
(c) other relevant matters.”
The Evidence
14. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T61, pp 1–404) lodged with the Tribunal by the respondent in accordance with s 37 of the AAT Act;
· Exhibits 1–17 tendered by the parties; and
· the oral evidence of Wayne Richardson, Mark Thomas, Todd Vains and Wayne Allen.
The Evidence of the Witnesses
15. Each of the abovementioned witnesses affirmed the contents of a signed statement which had previously been filed and served in this proceeding. Each of those statements is set out below. It is unnecessary to refer in detail to the oral evidence of any of those witnesses.
Todd Vains
16. Mr Vains’ statement, dated 13 August 2010, is as follows:
“ 1. I am the General Manager of Australian Refined Alloys Pty Ltd (ARA).
2.Save where otherwise indicated, the content of this statement is made from my own knowledge and belief. Where I have relied on any information, I believe that information to be true and correct.
3.ARA has operated a ULAB recycling facility at Laverton North, Victoria since 1983. ARA also has facilities for the processing of ULABs at Alexandria near Sydney, NSW. However, ULABs sourced by ARA from Western Australia are predominantly processed at ARA’s Laverton North facility, and that is the facility that would be primarily responsible for the processing of any additional materials sourced from Western Australia.
4.Both ARA’s Laverton North facility and its Alexandria facility hold all licences required for their operation. These include, specifically:
(a)EPA Victoria Licence EA 5390 in respect of ARA’s Laverton North facility; and
(b)EPA NSW Environment Protection Licence number 1108 in respect of ARA’s Alexandria facility.
Details of these licences, together with other relevant approvals relating to the operations of ARA’s facilities were included in the evidence filed with the Tribunal by the Minister for Environment Protection, Heritage and the Arts (see document number T51).
5.ARA is a joint venture, 50% owned by the Belgian-based Nyrstar group and 50% owned by the United States-based Sims Metal Management group.
6.ARA has adopted the Environmental policy and the Safety and Health policies of the Nyrstar group, copies of which were submitted as part of ARA’s documentary evidence (see document numbers ARA2 and ARA3). These have been translated in practice into appropriate policies and procedures implemented on-site which are intended to minimise the potential risk of injury or harm to people and the environment.
7.ARA has a total installed capacity across both of its facilities to process approximately 65,000 tonnes of ULABs per annum through its smelting operations. At present both its Laverton North facility and Alexandria facility have capacity to process additional materials.
8.It is my belief that there would remain significant unutilised capacity for the processing of ULABs within Australia, notwithstanding the refusal of the export permit.
9.ULAB recycling is a low margin business, with a large proportion of the operating costs comprised of fixed costs. Consequently it requires recycling facilities to be run as close as practicable to full capacity to achieve economic efficiency. This ensures that there is a substantial commercial incentive for ULAB recyclers, including ARA, to do everything within their power to encourage the maximum volumes of ULAB collections within Australia in order to maximise the economic efficiency of their operations.
10.Although I acknowledge that the proposed export permit is for a relatively small proportion of the total volume of ULABs collected in Australia annually, a further consequence of the high fixed cost nature of ULAB recycling is that the redirection of those collected materials for processing off-shore, reducing the pool of materials available to the Australian recyclers, will have a significant detrimental impact to the efficiency of ARA’s operations.
11.ARA has, for the last three years, sourced an increasing proportion of its ULAB feedstock from Western Australia.
12.For the financial years ending 30 June 2008, 2009 and 2010, the proportion of ULABs processed by ARA which were sourced from Western Australia was 7.7%, 8.3% and 10.4% respectively.
13.ULABs sourced from Western Australia form a far larger proportion of the volumes processed at ARA’s Laverton North processing facility. For the same years, the proportion sourced from Western Australia processed at Laverton North were 15.4%, 15.1% and 17.5%.
14.This increase in the proportion of ULABs derived from Western Australia reflects a combination of the shorter transport distance to Laverton North for materials derived from Western Australia and increased competition for ULAB feedstock between the Australian ULAB recyclers.
15.ARA currently sources ULABs from Western Australia from four collection networks. Those are operated by Sims Metal Management Limited, Australian Scrap Batteries, Club Assist and Onesteel Recycling Pty Ltd. ARA has no exclusive arrangements with any of its suppliers which would prevent it from accepting ULABs from any other Western Australian source.
16.Club Assist is a party to the proceedings and can present its own evidence as to its collection network. From my own dealings with Sims Metal Management Limited, Australian Scrap Batteries and Onesteel Recycling and from information which they have provided to me I am aware that:
(a)Sims Metal Management Limited is the largest supplier to ARA of ULABs derived from Western Australia; it also owns 50% of ARA. Its Western Australian network collects ULAB and other ferrous and non-ferrous scrap and is comprised of the following and comprises (sic) approximately 100 employees and 35 trucks. It operates two collection yards in metropolitan Perth and three in regional and rural areas of Western Australia. ULABs collected by Sims Metal Management Limited in Western Australia are transported to Victoria using Victorian EPA approved transporters via rail from Perth to Melbourne in containers.
(b)Australian Scrap Batteries’ business in Western Australia is primarily focussed on the collection of ULABs. It comprises six employees, four trucks and operates a single collection yard in metropolitan Perth. Australian Scrap Batteries also use an accredited freight company to transport the ULABs it collects by rail to both Melbourne and Sydney.
(c)Onesteel Recycling operates two yards in Western Australia which collect ULABs as part of a broad scrap collection business and transports the collected ULABs from Western Australia to the east coast by rail for processing.
17.With regard to the safety and environmental issues associated with the transport of large volumes of ULABs from Western Australia to the east coast, I have reviewed the records of shipments received by ARA and have not been made aware of any record of a safety or environmental incident occurring in relation to the transport of materials to ARA from Western Australia to date.
18.Notwithstanding the absence of any incidents, ARA has supported the development of the Packaging Standard For Used Lead Acid Batteries published by the Australian Battery Recycling Initiative, a draft copy of which was provided as part of ARA’s submitted documentary evidence (see document ARA1).
19.That packaging standard is scheduled to be adopted by the Australian Battery Recycling Initiative imminently. On its publication, ARA will encourage compliance with the packaging standard by its suppliers and believes that that compliance will provide an effective method for minimising the risk of injury to any person and of environmental harm arising in relation to the transport of ULABs to Victoria from Western Australia.” (Exhibit 6)
[The Tribunal notes that documents “ARA1” , “ARA2” and “ARA3” referred to in Mr Vains’ statement are also in evidence.]
Wayne Richardson
17. Mr Richardson’s statement, dated 10 August 2010, is as follows:
“1. I am the Managing Director and CEO of Renewed Metal Technologies Pty Ltd (‘RMT’). I am also the President of the Australian Battery Recycling Initiative (‘ABRI’).
2.RMT was established in 2005. It is involved in the processing of used lead acid batteries (‘ULAB’), the recycling of the products derived therefrom (plastic and lead) and the refining and smelting of lead for sale as lead or lead alloys.
3.The RMT processing plant is situated at Bomen near Wagga Wagga, NSW. The plant has now been commissioned and can process 46,000 tonnes of ULAB per annum.
Collectors and Processors of ULABs in Australia
4.In Australia, the entities involved in recycling ULAB are primarily:
(a) Australian Refined Alloys Pty Ltd (‘ARA’), which operates processing plants in Alexandria (Sydney, NSW) and Laverton North (Melbourne, VIC);
(b) RMT;
(c) Hydromet Corporation Ltd (‘Hydromet’), which operates a ULAB processing plant at Unanderra (NSW);
(d) Exide Australia Pty Ltd (‘Exide’) which collects ULABs and scrap lead and until recently exported same to its smelting/refining facilities in New Zealand;
(e) Bat Rec, a ULAB collector in Wacol, QLD, which I understand is currently commissioning battery breaking capability;
(f) V Resource, which I understand is currently constructing a battery breaking facility in QLD.
5.The entities involved in the collection of ULABs are primarily:
(a) Orbitas;
(b) Sims;
(c) Onesteel;
(d) CMA;
(e) LexEnviro;
(f) Club Assist; and
(g) Dodd & Dodd.
Capacity to Process Domestic Arising of ULAB
6.Available information indicates that Australia generates approximately 90,000 to 110,000 tonnes of ULAB per annum making a credible market estimate of 100,000 tonnes per annum. …
7.Of the 100,000 tonnes or so ULAB (sic) generated each year in Australia, ARA consumes about 65%. Between its two plants, ARA has the capacity to break 104,000 tonnes of ULABs annually although it tends to only break batteries to meet the current capacity of its smelters. I understand that ARA’s smelting capacity is currently limited to 65,000 tonnes of ULABs annually.
8.I understand that Hydromet’s plan to enter into full lead recycling is well under way with its secondary smelter to be operational in 2010 – early 2011 (Hydromet Corporation Limited, half year results for 6 months ending December 2009).
9.Hydromet currently has capacity to recycle 36,000 tonnes of ULAB per annum at its battery breaking plant although it is not currently operating at full capacity. In 2009 Hydromet processed 20,000 tonnes of ULABs to produce lead scrap which it exported for smelting. I understand that Hydromet has plans to increase recycling to 3,000 tonnes per month in 2010. Hydromet’s new smelter will be capable of handling 36,000 tonnes of ULAB per annum.
10.Given the processing capacities of ARA (which is currently 65,000 tonnes of ULAB per annum), RMT (46,000 tonnes per annum) and Hydromet (which will amount to approximately 36,000 tonnes per annum) and without taking into account the processing capacity of other processing operations such (sic) Bat Rec and V Resources, it is my opinion that the current amount of ULABs available for processing in Australia (approximately 100,000 tonnes) falls well short of the domestic capacity for processing same (approximately 147,000 tonnes per annum).
Industry Initiatives to Minimise Harm from Hazardous Waste
11.ABRI is the only peak body representing participants in the battery recycling industry in Australia. Its members include, amongst others, RMT, ARA, Orbitas, Exide, Century Yuasa to name just a few. In consultation with its members, ABRI has developed packaging standards for the collection and carriage of ULAB in the domestic market. Due to the cocktail of sulphuric acid, lead and other chemicals in ULAB, they are classified as a hazardous waste. The packaging standard was drafted to ensure that all safety regulations pertaining to OH&S and transport of hazardous materials are met. Annexed and marked ‘WR1’ is a copy of ABRI’s packaging standards.” (Annexure omitted) (Exhibit 4)
Mark Thomas
18. Mr Thomas’ statement, dated 11 August 2010 (as amended), is as follows:
“ 1. I… am the National Sales Manager of Orbitas Pty Ltd (‘Orbitas’).
…
Collection of ULABs in WA and NT
3.Orbitas is involved in the collection in Australia of oil and used lead acid batteries (‘ULAB’) for on sale to entities such as Renewed Metal Technologies Pty Ltd (‘RMT’), Australian Refined Alloys Pty Ltd (‘ARA’) and Hydromet Corporation (‘Hydromet’). Orbitas has been operating in the Australian market for approximately 3 years.
4.Orbitas contracts with various retail and industrial outlets such as Century Yuasa Batteries and SuperCharge Batteries to collect ULAB. These outlets include auto retail stores, battery retailers, lead scrap aggregators and scrap dealers.
5.Approximately 18 months ago, Orbitas moved to expand its national network into WA and the NT. At that time, Dodd & Dodd had an established collection network for ULABs in WA. Orbitas had discussions with Dodd & Dodd in relation to acting as Orbitas’ agent for the collection of ULABs in WA; specifically to aggregate and supply ULABs in sufficient volumes and transport them from WA to NSW for processing by the major ULAB processing operations on the eastern seaboard, including ARA and RMT.
6.As a result of those discussions, Dodd & Dodd (via Chris Dodd, CEO) gave a verbal commitment to collect ULABs in WA and the NT for supply to Orbitas. Orbitas would, however, also continue collections in Darwin.
7.By late 2009, it became apparent that Dodd & Dodd were only supplying to Orbitas the ULABs collected by it on behalf of Orbitas. Annexed and marked ‘MT1’ is a table showing the ULABs purchased from Dodd & Dodd by Orbitas from May 2009 to early January 2010. The tonnage supplied by Dodd & Dodd to Orbitas over that 7 month period amounted to 199.68 tonnes. During discussions with Dodd & Dodd, they advised that it collected approximately 8,000 tonnes annually from WA and NT. I estimate that the annual available tonnage for collection in WA and NT is 10,000 – 12,000 tonnes.
…
9.Orbitas commenced expansion of its collections operations into WA and the NT in January 2010. It is now competing with Dodd & Dodd for the collection of ULABs in WA and NT in areas which include country (34%) and metropolitan (66%) areas.
…
Amount of ULABs collected in WA and NT by Orbitas
11.From January 2010 to June 2010 Orbitas collected 170.125 tonnes of ULAB from NT and 237.9 tonnes from WA.
12.The collection rate of ULABs in WA and NT is increasing. By December 2010, Orbitas hopes to achieve 20% of the market share for collection of ULABs in WA and NT. This amounts to approximately 2,800 tonnes per annum.
Collection procedures
13.All ULABs are stored by clients at their premises until sufficient volume is achieved (usually a standard pallet or roughly 1 tonne). The ULABs are secured on the pallets by the clients pursuant to packaging standards set by ABRI. Once a pallet is ready, the client advises Orbitas and Orbitas organises for the pallets to be transported by single and double trucks from WA and NT to battery processing plants in NSW. Orbitas does not store the ULABs.
14.All transport of the ULABs complied with relevant legislation governing transportation of hazardous materials.
15.There is a ready market for the on sale of ULABs to processing plants in NSW. Obviously, it is commercially viable for Orbitas to expand its collection networks into WA and NT to acquire ULABs in competition with Dodd & Dodd and to transport and on sell those ULABs to battery recyclers in NSW. There is a constant demand for the supply of ULABs arising in Australia which will increase as RMT comes on line.” (Annexure omitted) (Exhibit 5).
Wayne Allen
19. Mr Allen’s statement, dated 6 August 2010, is as follows:
“ …
Personal Details
...
3.I am currently the Vice President, Asia Pacific Operations for Club Assist Corporation Pty Ltd (Club Assist).
4.I have been employed by Club Assist since January 1997 and have held my current role since July 2005.
5.My role oversees the whole Australian and New Zealand operations within the Club Assist group which includes our three divisions being Batteries, AutoGlass & Auto Electrical.
Collection of Used Lead Acid Batteries
6.Club Assist is in the business of providing member services for motoring organisations worldwide.
7.The services that Club Assist provides include the provision of automotive lead acid batteries to its customers and their members and the collection of used automotive lead acid batteries (ULABS) from its customers and their members. As Vice President, Asia Pacific Operations I am familiar with the processes used by Club Assist to perform these services across Australia.
8.Club Assist delivers new automotive lead acid batteries to Auto Club customers and their members across Australia and has been doing so for some time.
9.When delivering new lead acid batteries to customers and their members Club Assist also collects the ULABS which are removed from their vehicle or members have collected.
10.These deliveries and collections are made by a range of delivery trucks.
11.Club Assist has been delivering new lead acid batteries and collecting ULABS in regional Western Australia and within the Perth metropolitan area in this way since about 1996.
12.I am not aware of any:
12.1 environmental issues that have arisen; or
12.2 incidents that have occurred with adverse environmental consequences;
during that time in connection with the collection of ULABS by Club Assist in Western Australia, including regional Western Australia, and their delivery to the Club Assist warehouse.
13.After collection, ULABS from Western Australia are transported to the Club Assist warehouse in Western Australia, which is now in Malaga.
14.Prior to November 2009, those ULABS were transported to recycling facilities in the eastern states of Australia as well as some volumes going offshore to New Zealand.
15.Those recycling facilities would purchase the ULABS from Club Assist.
16.Transportation of ULABS from Western Australia to the eastern states has been occurring since 1996.
17.I am not aware of any:
17.1 environmental issues that have arisen; or
17.2 incidents that have occurred with adverse environmental consequences;
during that time in connection with the transportation of the ULABS collected in Western Australia to the eastern states.
18.Since Club Assist started collecting ULABS in Australia it has always been able to reach arrangements with Australian recyclers for the sale of the ULABS that Club Assist has collected, including those collected in Western Australia.
19.Since Club Assist began collecting ULABS in Australia it has always been able to sell the ULABS that it has collected, including those collected in Western Australia, without the need to stockpile any of those ULABS.
RAC Contract
20.For a number of years, until 16 November 2009, Club Assist collected ULABS from RAC Motoring Pty Ltd (RAC) pursuant to a contract that Club Assist had with RAC.
21.From 16 November 2009 RAC ceased using Club Assist to provide this service.
22.I understand that RAC entered into an arrangement with Dodd & Dodd Group Pty Ltd to perform these services in about October 2009.
23.Since 16 November 2009 Club Assist has continued to collect ULABS in regional areas of Western Australia and in the Perth metropolitan area for other customers and their members.
24.However, the number of ULABS being collected by Club Assist in Western Australia since 16 November 2009 has dropped because Club Assist no longer collects ULABS from RAC.
25.RAC have a considerable volume of ULABS which they collect from members in the metropolitan area.
26.Due to the small volumes of ULABS that Club Assist is now collecting in Western Australia, Club Assist is now selling those ULABS to a local Western Australian scrap yard.
27.Over the past couple of years (and particularly in this calendar year), Club Assist has been able to obtain better prices for the ULABS it has collected in Australia.
28.I believe that this is due to there being greater capacity to manage ULABS and therefore increasing demand for ULABS in Australia over that time.” (Exhibit 7)
Additional Statements
20. The following signed statements, which had been filed and served in this proceeding, are also in evidence:
· Statement of Lesley Wilson (Club Assist), dated 6 August 2010 (Exhibit 8);
· Statement of Steven Williams (Club Assist), dated 6 August 2010 (Exhibit 9);
· Statement of Shamika Bulathsinhala (Club Assist), dated 5 August 2010 (Exhibit 10);
· Statement of Darren Nelson (ARA), dated 13 August 2010 (Exhibit 11); and
· Statement of Gregory Wrightson (Hydromet), dated 10 August 2010 (Exhibit 12).
None of those persons was required for cross-examination and each of the abovementioned statements was tendered in evidence by consent. Mr Wrightson’s statement is set out below. It is unnecessary to set out any of the other statements.
Gregory Wrightson
21. Mr Wrightson is the Managing Director of Hydromet. His statement is as follows:
“1. I have been a Director of the company since 1998 and have held the position of Managing Director since 2000.
2. I have been involved in the Used Lead Acid Battery (ULAB) recycling industry
since 2004 when the company first considered establishing a ULAB recycling
facility.
3.As Managing Director I have overseen the initial, planning phase, through to approval by relevant authorities, to building and commissioning of the battery breaking/recycling plant in October 2006.
4.The plant is approved to process 36,000 tonnes of ULABs per annum and is located at our Unanderra NSW facility.
5.I established the initial battery collection network for the company to support the processing plant and I am responsible for the marketing of products generated by the plant.
6.Hydromet maintains its own in-house ULAB collection function networking with major collectors and minor scrap dealers to provide feed for our ULAB recycling plant. The ULABs are sourced from these sources across Australia.
7.With respect to the direct impact of a permit to export 4,000 tpa of ULABs from Western Australia, loss of any quantity from the available ULAB arisings in Australia is not desirable.
8.Dodd’s argument that eastern states processors do not source batteries from WA due to its unique isolation, logistics and cost factors is not valid as Hydromet is already purchasing batteries from WA through its established supplier network
9.Hydromet’s ULAB collection breakdown for the twelve months ending June 2010 was 26,246 tonnes and split as follows:
· NSW 39.80%
· Queensland 36.00%
· Victoria 7.70%
· South Australia 9.40%
· Western Australia 6.70%
· ACT, Northern Territory, Tasmania 0.40%.
10.Over 52% of our routine ULAB collection in FY10 was derived from longer freight subsidised locations ie we are prepared to pay the additional cost to ensure process volumes are secured.
11.The existence of strong current competition for ULABs in Australia has seen recent pricing reach up to 30% to 32% of LME per tonne of batteries in April 2010 clearly demonstrating there is no justification for the export of ULABs.
12.Since commissioning the facility in October the company has developed its collection volume in line with a planned growth strategy aimed at meeting the approved operating level of 36,000 (sic) per annum by January 2011 to support the introduction of a secondary lead smelter at its Tomago NSW (sic).
13.Hydromet invested significant effort and funds to obtain approval to build the smelter in January 2009.
14.The smelter will process lead product recovered from the ULABs to produce 20,000 tonnes of lead metal per annum for sale either domestically or export.
15.Please refer to attached Collection Summary (Appendix No 1) for Hydromet’s ULAB collection history from FY2007 to FY2010 inclusive for detailed breakdown of quantities and origins of the ULABs.
16.Please also refer to attached objection sent to the DEHA in October 2009 lodging our objection to the Dodd’s export application. …” (Attachments omitted)
The Applicant’s Case
22. The applicant’s case is comprised of its Statement of Facts, Issues and Contentions (including Attachments A–E (Exhibit 1)) and:
· copy of Allianz Australia Insurance Ltd Certificate of Currency, dated 7 September 2010 (Exhibit 2);
· copy of a letter from Sadlier’s Transport Co (NSW Pty Ltd to the applicant, dated 1 October 2010, containing a quotation for the transportation of “controlled waste batteries” from Perth to destinations in New South Wales (Exhibit 3).
The applicant did not call any witnesses.
23. To the extent that it is necessary for it to do so, the Tribunal will refer to the applicant’s contentions and any supporting evidence in the analysis which follows.
Analysis
24. The function of the Tribunal is to decide, having regard to the whole of the evidence before it, whether a special export permit for the export of 4,000 tonnes of ULABs in the year 2010 should, or should not, be granted to the applicant under reg 16 of the OECD Regulations.
25. It is common ground that the Tribunal should be satisfied that all of the matters referred to in paras (a)–(h) of reg 16(1) are fulfilled in this case and, accordingly, the grant of a special export permit to the applicant is not prohibited by that subregulation.
26. The matter for the Tribunal’s consideration and determination is, therefore, whether or not the grant of a special export permit (as described above) to the applicant should be refused under subreg (2), (3) or (4) of reg 16 of the OECD Regulations.
27. The Tribunal notes at the outset that, although the applicant contended that, by reason of its previous successful applications for a special export permit under the OECD Regulations (referred to in paragraph 2 above), it “could reasonably have expected” that its application for a special export permit for the export of ULABs in the year 2010 would likewise be successful, such a reasonable expectation would not legally require the making of a favourable decision, or legally preclude the making of an adverse decision, in respect of the applicant’s application for a special export permit in respect of the year 2010. As previously indicated, the Tribunal’s function is to make what it considers to be the preferable decision on the applicant’s application for a special export permit under the OECD Regulations in respect of the year 2010, having regard to the whole of the evidence before it.
Should the grant of a special export permit to the applicant be refused under reg 16(4) of the OECD Regulations?
28. Pursuant to reg 16(4) of the OECD Regulations, the Tribunal has a discretionary power to refuse to grant a special export permit to the applicant if it is satisfied that the matters referred to in paras (a), (b) and (c) of that subregulation are fulfilled.
Could the hazardous waste be disposed of safely and efficiently by using a facility in Australia (reg 16(4)(a))?
Would such a disposal be consistent with the environmentally sound management of the waste (reg 16(4)(b))?
29. These two questions can conveniently be addressed together.
30. The applicant has conceded that:
· “the used lead acid batteries are treated appropriately” at each of the facilities operated by ARA, RMT and Hydromet; and that
· the smelting and recycling processes used at each of those facilities are “environmentally appropriate”.
The Tribunal understands that that concession constitutes a concession that:
· the relevant “hazardous waste” – namely, the quantity of ULABs, the subject of the applicant’s application for a special export permit – “could be disposed of safely and efficiently”, within the meaning of para (a) of reg 16(4), at each of the facilities operated by ARA, RMT and Hydromet; and that
· “such a disposal would be consistent with the environmentally sound management of the waste”, within the meaning of para (b) of reg 16(4).
31. The Tribunal notes that the expressions “disposal” and “environmentally sound management”, in relation to hazardous waste, are defined in the Act and that those expressions in the OECD Regulations have the same meaning as in the Act: see the Note at the end of reg 4(1) of the OECD Regulations and s 13(1) of the Legislative Instruments Act 2003 (Cth).
32. The word “disposal” is defined in s 4 of the Act to mean:
“ an operation specified in Annex IV to the Basel Convention”.
There is no dispute that the smelting and recycling processes used in each of the facilities operated by ARA, RMT and Hydromet fall within that definition.
33. As regards the phrase “environmentally sound management”, in relation to hazardous waste, s 4E of the Act provides:
“ A reference in this Act to the environmentally sound management of hazardous waste is a reference to taking all practicable steps to ensure that the waste is managed in a manner that will protect human health, and the environment, against the adverse effects that may result from the waste.”
There is likewise no dispute that the smelting and recycling processes used in each of the facilities operated by ARA, RMT and Hydromet would be consistent with the “environmentally sound management” (as so defined) of the relevant “hazardous waste”.
34. The Tribunal has had regard to the descriptions of their ULAB recycling processes provided by ARA, RMT and Hydromet, referred to in paras 42, 44 and 46 of the decision under review (T54, pp 388–390), and notes that those descriptions have not been disputed by the applicant. The Tribunal is satisfied, on the basis of that material, that the recycling processes used in each of the facilities operated by ARA, RMT and Hydromet would involve disposal of the relevant “hazardous waste” in a manner which is safe, efficient and environmentally sound.
35. Accordingly, the Tribunal is satisfied that:
· the relevant “hazardous waste” – namely, the quantity of ULABs in respect of which the applicant has applied for a special export permit for the period 1 January–31 December 2010 – “could be disposed of safely and efficiently by using a facility in Australia”, within the meaning of para (a) of reg 16(4) of the OECD Regulations; and
· “such a disposal would be consistent with the environmentally sound management of the waste”, within the meaning of para (b) of reg 16(4) of the OECD Regulations.
Having regard to the desirability of using facilities in Australia for the disposal of hazardous waste, should the waste be disposed of by using that facility rather than according to the export proposal (reg 16(4)(c))?
36. The stated premise of para (c) of reg 16(4) – namely, “the desirability of using facilities in Australia for the disposal of hazardous waste” generated in Australia – is consistent with Australia’s obligations under the Basel Convention (see paragraphs 7 and 8 above). The Explanatory Memorandum relating to the Hazardous Waste (Regulation of Exports and Imports) Bill 1989 (being the Bill for the Act) similarly notes (at para 24):
“ … The Basel Convention strongly discourages the export of hazardous waste if a country is able to safely dispose of that waste within its own territory.
…”
37. Accepting that premise, the question whether the relevant “hazardous waste” (namely, the quantity of ULABs, the subject of the applicant’s application for a special export permit for the year 2010) should be disposed of by using facilities in Australia rather than by exporting it to South Korea for the purpose of disposal in that country (as proposed by the applicant) primarily requires a consideration of the present capacity of facilities in Australia to dispose of that waste safely, efficiently and in an environmentally sound manner.
38. According to the evidence before the Tribunal, the present capacity of the facilities operated by ARA, RMT and Hydromet in Australia to process ULABs is as follows:
· the total processing capacity of the two facilities operated by ARA, in Laverton North, Victoria and in Alexandria, New South Wales, is 65,000 tonnes of ULABs per annum (see paras 3 and 7 of the Statement of Todd Vains (Exhibit 6) set out in paragraph 16 above);
· the processing capacity of the facility operated by RMT at Bomen (near Wagga Wagga) in New South Wales is 46,000 tonnes of ULABs per annum (see para 3 of the Statement of Wayne Richardson (Exhibit 4) set out in paragraph 17 above);
· the processing capacity of the facility operated by Hydromet in Unanderra, New South Wales is 36,000 tonnes of ULABs per annum (see para 4 of the Statement of Gregory Wrightson (Exhibit 12) set out in paragraph 21 above).
The present total processing capacity of the abovementioned facilities is, therefore, 147,000 tonnes of ULABs per annum.
39. The Tribunal has previously expressed its satisfaction that the processes for recycling ULABs used in each of the abovementioned facilities involve the disposal of ULABs in a safe, efficient and environmentally sound manner.
40. There is evidence before the Tribunal which indicates that the total quantity of ULABs generated in Australia per annum is substantially less than the abovementioned total processing capacity in Australia of 147,000 tonnes of ULABs per annum. More specifically, Mr Richardson, in para 6 of his abovementioned Statement, refers to a range of “approximately 90,000 to 110,000 tonnes of ULAB per annum” and a “credible market estimate of 100,000 tonnes per annum”. The applicant has acknowledged, in its Statement of Facts, Issues and Contentions, that “ULAB arisings in Australia will approximate 100,000–105,000 tonne in 2010”.
41. Having regard to the abovementioned considerations, the Tribunal is satisfied that the quantity of 4,000 tonnes of ULABs, the subject of the applicant’s application for a special export permit for the year 2010, could readily be disposed of safely, efficiently and in an environmentally sound manner by using one or more of the facilities operated in Australia by ARA, RMT and Hydromet.
42. The applicant has, however, advanced various contentions in support of its argument that its proposal to export 4,000 tonnes of ULABs in 2010 should be preferred to the disposal of that quantity of ULABs by using facilities in Australia, and, more generally, that its application for a special export permit under the OECD Regulations for the export of 4,000 tonnes of ULABs in 2010 should be approved. Those contentions may be summarised as follows:
· the refusal to grant a special export permit to the applicant would not be “in the interest of the public of Western Australia” because it would have the effect of:
-“limiting competition in Western Australia”; and
-reducing the quantity of ULABs collected in Western Australia for recycling purposes;
· such refusal would not be in the wider Australian public interest because it would also have the effect of increasing the quantity of ULABs transported by road or rail from Western Australia to the Australian processing facilities, all of which are located in New South Wales and Victoria, “a distance of 3,500 km–4,000 km, much of which is devoid of infrastructure to respond to an accident or incident” (“the public interest contentions”);
· such refusal would be inconsistent with Australia’s international obligations, as a Member of the Organisation for Economic Co-operation and Development (“OECD”) and as a Member of the World Trade Organisation (“WTO”), to “remove barriers to competition” and to liberalise trade because it would create “an unnecessary obstacle to international trade of waste destined for recovery operations”, contrary to the OECD Council Recommendation C (2004) 100 on the Environmentally Sound Management (ESM) of Waste (“the OECD and WTO contention”);
· such refusal would also be “in conflict with Australia’s National Competition Policy” and would contravene the inter-governmental Competition Principles Agreement (“the National Competition Policy contention”);
· the grant of a special export permit to the applicant would not be inconsistent with Article 4.2(d) of the Basel Convention, and would be consistent with the OECD Council Revision of Council Decision C(92)39/Final on the Control of Transboundary Movements of Wastes Destined for Recovery Operations which recognised that “the environmentally sound and economically efficient recovery of wastes may justify transboundary movements of wastes between member countries” (“the economic efficiency contention”).
The Tribunal notes that the above summary does not include every contention made by the applicant in its 21-page Statement of Facts, Issues and Contentions but, in the Tribunal’s opinion, it represents the essence of the applicant’s case in support of its application for the relevant special export permit.
43. The Tribunal will now address each of the applicant’s contentions (as summarised above).
The public interest contentions
44. Although the Tribunal accepts that it is in the public interest, in both the Western Australian and Australian contexts, to promote competition in the ULAB collection industry in Western Australia and to increase the quantity of ULABs collected in Western Australia for recycling, the Tribunal is not satisfied that the refusal to grant the relevant special export permit to the applicant would be likely to have the effect of limiting such competition or reducing such quantity, as contended by the applicant. No persuasive evidence in support of that contention has been provided by the applicant. There is, however, evidence before the Tribunal which, in the Tribunal’s opinion, clearly indicates that there is increasing competition for the collection of ULABs, and increasing quantities of ULABs being collected, in Western Australia (see the evidence of Mark Thomas, Todd Vains, and Wayne Allen) and, having regard to the substantial surplus capacity to process such ULABs in Australia (see paragraph 38 above), the Tribunal is satisfied that that trend is unlikely to be adversely affected by the refusal to grant the relevant special export permit to the applicant.
45. The Tribunal naturally accepts that it is in the public interest that ULABs collected in Western Australia be transported safely to processing facilities, whether interstate or overseas. The applicant has asserted, however, that the refusal to grant the relevant special export permit to it is not in the public interest because it will result in a greater quantity of ULABs being transported by road or rail from Western Australia to processing facilities in New South Wales and Victoria over a distance of approximately 3,500 - 4,000 kilometres “most of which is devoid of infrastructure to respond to an accident or incident”. The unstated premise of the applicant’s assertion is that a significant increase in the quantity of ULABs so transported will significantly enhance the risk of harm or damage to human health or the environment by accident. The Tribunal accepts that a significant increase in the quantity of ULABs transported from Western Australia to New South Wales or Victoria, necessitating an increase in the number of road or rail journeys for the purpose of so transporting such ULABs, will involve a greater risk of accident occurring during transit. The applicant, however, has produced no evidence of any such accidents or incidents in support of its assertion, other than an unsubstantiated reference, in the course of its oral submissions, to “a recent accident involving a truck carrying batteries on the Freeway”. There is, on the other hand, evidence before the Tribunal which indicates that, to date, there have been no reports of accidents or incidents involving harm or damage to human health or the environment in the course of road or rail transport of ULABs from Western Australia to New South Wales or Victoria (see the Statement of Todd Vains, para 17, and the Statement of Wayne Allen, paras 16 and 17, set out in paragraphs 16 and 19 above). On the whole of the evidence before it, the Tribunal is not satisfied that the transportation of ULABs by road or rail from Western Australia to New South Wales or Victoria poses a significant risk of harm or damage to human health or the environment.
The OECD and WTO contention
46. The applicant, in support of its contention, cited relevant passages from the OECD’s Guidance Manual for the Implementation of the OECD Recommendation C (2004) 100 on Environmentally Sound Management (ESM) of Waste (2007) (part of Exhibit 16) and from the website of the WTO.
47. The Tribunal is not satisfied, having regard to the whole of the evidence before it, that the refusal to grant the relevant special export permit to the applicant would be inconsistent with any of Australia’s international obligations as a Member of the OECD or the WTO. In any event, the Tribunal is of the opinion that, for the purpose of exercising the power conferred by reg 16 of the OECD Regulations, the greatest weight should be attached to Australia’s obligations under the Basel Convention and the OECD Decision which the Act (under which the OECD Regulations were made) and the OECD Regulations, respectively, were intended to implement. In this connection, the Tribunal notes, in particular, Article 4(2) and (9) of the Basel Convention (see paragraph 8 above).
The National Competition Policy contention
48. This contention is based on a report entitled: The Hazardous Waste (Regulation of Exports and Imports) Act 1989 – A National Competition Policy Review (February 2001) prepared by The Allen Consulting Group for Environment Australia and the Commonwealth Government (part of Exhibit 16). The applicant cited, in particular, the following passages from that report:
· legal advice provided by the solicitors commissioned by the Review Team which states, in relation to the conditions for the refusal to grant a special export permit under subregs (2), (3) and (4) of reg 16 of the OECD Regulations, as follows:
“ …
These conditions strictly exceed the requirements of the OECD Decision. They also exceed the requirements of Article 11 of the Basel Convention which provides at (2) that the provisions of the Basel Convention will not apply to Article 11 agreements provided that the agreements are consistent with environmentally sound management of hazardous waste as required by the Basel Convention.” (p 71);
· the following suggestion made by the Review Team:
“ export permits – if wastes can be recovered in an appropriate manner overseas at a significant cost and/or quality advantage then this should be an indicator that the domestic market is less competitive. This should be a factor that is taken into account by EA and the Minister;” (p 73).
49. The Tribunal accepts that reg 16 of the OECD Regulations is valid. The applicant has not contended otherwise; nor, in the Tribunal’s opinion, does the legal advice referred to in the preceding paragraph question the validity of reg 16.
50. As regards the abovementioned suggestion of the Review Team, the Tribunal accepts that economic efficiency in respect of the management of hazardous waste is a relevant consideration in deciding whether to exercise the discretionary power to refuse to grant a special export permit under reg 16 of the OECD Regulations. The Tribunal notes that clause 8 of the Preamble to the OECD Decision states:
“8. Recognising that the environmentally sound and economically efficient recovery of wastes may justify transboundary movements of wastes between Member countries;”.
The applicant’s economic efficiency contention is considered below.
The economic efficiency contention
51. The essence of the applicant’s economic efficiency contention appears from the following submissions:
“ Exporting the waste as detailed in the Application:
(i)attracts globally competitive prices for the ULABs which are demonstrably higher than those offered by the Australian processors;
(ii)costs approximately half the cost of road or road/rail freight from Perth to the Australian processors located in New South Wales and Victoria;
(iii)provides a 12 month contract which facilitates planning essential to the maintenance of the collection activities beyond the 30 day selling price horizon offered by the Australian processors;
(iv)ensures Dodd is able to maintain and further develop its established collection networks, the success of which is demonstrable and well known to the Respondent;
(v)underwrites payment by irrevocable letter of credit on the day the ship departs Fremantle compared with the Australian processors whose payment terms vary from 14 days to 45 days from the date of despatch;
(vi)facilitates selling ULABs on a fortnightly/monthly shipping cycle irrespective of tonnage without any effect on pricing, compared with the Australian processors whose pricing structures are tonnage and ‘market’ driven at their sole discretion;
(vii)ensures ULABs are shipped regularly for recycling, obviating the need to stockpile large quantities in Perth to attract competitive prices from the Australian processors;
(viii)eliminates the need to transport hazardous waste up to 4,000 km by road or road/rail, much of which is devoid of infrastructure capable of responding to an accident or incident involving hazardous waste.” (Applicant’s Statement of Facts, Issues and Contentions, pp 13–14)
52. Although (as previously stated) economic efficiency in respect of the management of hazardous waste is a relevant consideration for the purposes of subregs (2), (3) and (4) of reg 16 of the OECD Regulations, the Tribunal attaches little weight to it in the present case. It seems to the Tribunal that the economic efficiency considerations relied on by the applicant relate substantially, if not primarily, to the applicant’s own commercial interest and are clearly outweighed by Australia’s abovementioned obligations under the Basel Convention and the associated public interest in developing recycling facilities in Australia for ULABs generated in Australia.
Conclusion regarding para (c) of reg 16 (4) of the OECD Regulations
53. Having considered the contentions set out in the applicant’s Statement of Facts, Issues and Contentions, the Tribunal is not persuaded that the quantity of ULABs, the subject of the applicant’s application for a special export permit under the OECD Regulations for the period 1 January – 31 December 2010, should be disposed of in accordance with the applicant’s export proposal rather than by using the existing facilities in Australia for the disposal of that quantity of ULABs. On the contrary, the Tribunal concludes, having regard to the desirability of using such facilities in Australia, consistently with the Basel Convention, that that quantity of ULABs “should be disposed of by using that facility rather than according to the [applicant’s] export proposal”, within the meaning of para (c) of reg 16(4) of the OECD Regulations.
Conclusion regarding the exercise of the discretionary power conferred by reg 16(4) of the OECD Regulations
54. The Tribunal is satisfied that the matters referred to in paras (a), (b) and (c) of reg 16(4) of the OECD Regulations are fulfilled in this case. The Tribunal’s discretionary power to refuse to grant a special export permit, pursuant to reg 16(4), is therefore enlivened in this case.
55. That discretionary power should be exercised in such manner as would promote, and not hinder, the object and purpose of the Act and the OECD Regulations. The object and “aims” of the Act are set out in paragraph 6 above, and the object of the OECD Regulations is set out in paragraph 12 above.
56. The Tribunal has concluded, for the purposes of para (c) of reg 16(4) of the OECD Regulations, that, consistently with Australia’s obligations under the Basel Convention – see, in particular, Article 4(2)(b),(d) and Article 4(9)(a) – the quantity of ULABs proposed to be exported by the applicant in 2010 should be disposed of by using existing facilities in Australia rather than in accordance with the applicant’s export proposal. Consistently with that conclusion, the Tribunal should exercise the residual discretionary power conferred by reg 16(4) to refuse to grant a special export permit to the applicant unless there are overriding considerations which oppose that course of action. In the Tribunal’s opinion, having considered the whole of the evidence in this matter and the contentions advanced by the applicant, there are no such overriding considerations. Rather, the Tribunal is satisfied, on the basis of the evidence before it, that the preferable decision in this matter is that the applicant should not be granted a special export permit, pursuant to reg 16(4) of the OECD Regulations, to export the 4,000 tonnes of ULABs, the subject of its application for such a permit, in 2010.
Conclusion
57. It follows, from the abovementioned conclusion, that it is unnecessary for the Tribunal to consider whether it is appropriate to exercise the discretionary power conferred by reg 16(2) or reg 16(3) of the OECD Regulations. Suffice it to say, however, that the abovementioned analysis in respect of reg 16(4) would lead the Tribunal to a similar conclusion in respect of reg 16(2) and reg 16(3).
Decision
58. For the above reasons the Tribunal affirms the decision under review.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ......sgd E Jordan....................................................
AssociateDates of Hearing 5 and 6 October 2010
Date of Decision 30 November 2010
Representative of the Applicant Mr W Rock
Counsel for the Respondent Mr P Macliver
Solicitor for the Respondent Australian Government Solicitor
Counsel for Club Assist Pty Ltd Ms C Meighan
Solicitor for Club Assist Pty Ltd Talbot OlivierCounsel for Renewed Metal Mr A Deal
Technologies Pty Ltd and AustralianRefined Alloys Pty Ltd
Solicitor for Renewed Metal O’Halloran Deal
Technologies Pty Ltd and AustralianRefined Alloys Pty Ltd
Representative of Hydromet No appearance
Corporation Ltd
2
0
0