Dodd & Dodd Group Pty Ltd and Minister for the Environment - [2021] AATA 215

Dodd & Dodd Group Pty Ltd and Minister for the Environment [2021] AATA 215 (11 February 2021)
Division: GENERAL DIVISION
File Number: 2020/1468
Re:Dodd & Dodd Group Pty Ltd
APPLICANT

AndMinister for the Environment
RESPONDENT

AndDGL Environmental Pty Ltd
OTHER PARTY

Energi Power Storage Recycling Pty LtdAnd
OTHER PARTY

DECISION
Tribunal:Deputy President Boyle
Date:11 February 2021
Place:Perth

The decision of the delegate of the Respondent made on or about 21 January 2020 to refuse to grant a special permit under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) and the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations1996 (Cth) to export up to 6,000 tonnes of used lead acid batteries to a company in the Republic of Korea for recycling and reclamation of metals and metal compound is affirmed.
.........[SGD]...............................................................
Deputy President Boyle
CATCHWORDS
HAZARDOUS WASTE – refusal to grant special permit under Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) – Australia’s obligations under Basel Convention – export of used lead acid batteries – export to Republic of Korea – recycling and reclamation of metals and metal compounds – whether hazardous waste could be disposed of safely and efficiently in Australia – whether disposal consistent with environmentally sound management of waste – commercial impact consideration weighed – Tribunal exercises discretion under reg 16(4) to refuse to grant export permit – reviewable decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) – s 29
Administrative Appeals Tribunal Act 1975 (Cth) – s 29(2)(b)(i)
Evidence Act1995 (Cth) – s 163
Hazardous Waste (Regulation of Exports and Imports) Act1989 (Cth) – ss 3, 13(1), 13C(1), 17, 17(4)(a), 17(5)(a), 17(5)(b), 33, 62
Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (Cth) – regs 3, 16, 16(1), 16(2), 16(3), 16(3)(a), 16(3)(b), 16(3)(c), 16(4), 16(4)(a), 16(4)(b), 16(4)(c), 16(1)(h)(ii), appendices 5.A, 5.B, 5.B (item R13)
CASES
Australian Refined Alloys Pty Ltd v The Minister for the Environment and Heritage [2003] AATA 247
Carter and Australian Securities and Investments Commission [2020] AATA 809
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Dodd & Dodd Group Pty Ltd v Minister for Sustainability, Environment, Population and Communities & Ors [2010] AATA 957
Flahive and Comcare [2020] AATA 3044
Griffiths and Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
O'Sullivan v Farrer (1989) 168 CLR 2010
Shi v Migration Agents Registration Authority (2007) 158 FCR 525
SECONDARY MATERIALS
Battery Stewardship Council, Australian Battery Market Analysis Project Report (2020) – p 36
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, opened for signature 22 March 1989, 1673 UNTS 126 (entered into force 5 May 1992) – preamble, para 2(d), arts 4, 4.2(b), 4.2(d). 4.9, 4.9(a), 11, 11(1), 11(2), Annex IV ss A, B, B (item R13)
Secretariat of the Basel Convention, Technical Guidelines for the Environmentally Sound Management of Waste Lead-acid Batteries (2003) – pt 4
REASONS FOR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 215
Decision Date: 11 February 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Minister for the Environment to refuse an application by Dodd & Dodd Group Pty Ltd for a permit to export approximately 6,000 tonnes of used lead acid batteries (ULAB) to the Republic of Korea for recycling. The applicant, which collects scrap metals and ULAB in Western Australia, had previously had mixed success with similar export applications. Objections to the current application were lodged by other companies asserting their capacity to process the ULAB within Australia.

The Tribunal was required to determine whether the refusal to grant the export permit was the correct or preferable decision. This involved considering the applicant's compliance with the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) and its associated regulations, particularly in light of Australia's obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. Key issues included whether the ULAB could be disposed of safely and efficiently in Australia, whether such disposal would be consistent with the environmentally sound management of waste, and whether the refusal was justified under the discretionary powers provided by the regulations.

The Tribunal affirmed the refusal, exercising its discretion under regulation 16(4) of the OECD Regulations. The reasoning was that the ULAB could be processed safely and efficiently within Australia, aligning with the principle of environmentally sound waste management. The Tribunal considered it desirable to utilise Australian facilities for hazardous waste disposal, thereby reducing transboundary movements of such waste, which is consistent with Australia's international obligations under the Basel Convention, specifically articles 4.2(b), 4.2(d), and 4.9(a). Consequently, the decision to refuse the export permit was upheld.

Orders

Orders of the court

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Background

Background to the litigation

In order to understand the issues for determination it is necessary to set out some of the factual background and legislative framework in which the Decision was made.Background The Applicant is in the business of the collection of scrap metals and ULAB in Western Australia for recycling (A1, para 5). Since 2007 the Applicant has made 10 applications for permits to export ULAB to the Republic of Korea (A1, para 18). Five of those applications were successful and five were not. The last of those unsuccessful applications, made on 26 September 2019 (the application is dated 9 September 2019 (R1, T5/18)), is the subject of the application before the Tribunal. On 30 September 2019, in accordance with s 33 of the Act, the Respondent published a notice on its website setting out the particulars of the application for the export permit made by the Applicant. Objections to the granting of the export permit were received by the Department of Agriculture, Water and the Environment (the Department) from DGL and Enirgi, Relevantly both DGL and Enirgi objected to the grant of the export permit on, amongst others, the basis that they had capacity to process the 6,000 tonnes of ULAB for which the Applicant sought the export permit. The Decision, which rejected that application for an export permit, summarised the reason for rejection (R1, T42/223) as follows:I made this decision on the basis of regulation 16(4) of the OECD Regulations, because I determined that the 6000 tonnes of ULABs that are the subject of the permit application could be disposed of safely and efficiently using a facility in Australia, that such disposal would be consistent with the environmentally sound management of the waste and, having regard to the desirability of using facilities in Australia for the disposal of hazardous waste, the waste should be disposed of using that facility rather than according to the export proposal.Legislative framework Section 3 of the Act identifies the Act’s object and aims as follows:(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.(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. Section 13(1) of the Act provides:A person who has one or more export proposals in relation to hazardous waste may apply to the Minister for a permit authorising the export of the waste. Section 13C(1) of the Act is as follows:(1) The regulations may provide for and in relation to: (a) giving effect to an Article 11 arrangement; and (b) giving effect to an amendment of an Article 11 arrangement. Section 17 of the Act relevantly provides as follows:(1A) This section applies if the permit sought by a permit application is a Basel import permit or a Basel export permit.(1) Subject to this Division, the Minister must grant the permit sought by a permit application if the Minister is satisfied: (a) that dealing with the hazardous waste concerned in accordance with the import proposals or export proposals would be consistent with the environmentally sound management of the hazardous waste; and(b) if the permit sought is a Basel export permit authorising the export of hazardous waste to a particular foreign country:(i)that the competent authority of the country has given written consent to the grant of the permit; and(ii)that the consent was given in accordance with Article 6 of the Basel Convention; and(ba) if the permit sought is a Basel export permit--that the hazardous waste will be allowed to be transported through any foreign country through which the waste is proposed to be transported; and(c) that, having regard to:(i)the applicant's financial viability; and(ii)the applicant's previous record in relation to environmental matters; and(iii)any other relevant matters;the applicant is a suitable person to be granted a Basel permit; and(d) that the applicant has appropriate insurance.Note: Section 18 specifies circumstances in which the applicant has appropriate insurance.(2)Even if the Minister is satisfied as mentioned in subsection (1), the Minister may decide under subsection (2A), (3), (4) or (5) not to grant the permit.(2A) The Minister may decide not to grant the permit if:(a)the permit sought is a Basel export permit; and(b)having regard to the requirements of paragraph 3(b) of Article 6 of the Basel Convention, the Minister thinks that it would not be appropriate to grant the permit.(3)The Minister may decide not to grant the permit if the Minister thinks that it would not be in the public interest to grant the permit.(4)The Minister may decide not to grant the permit if the Minister thinks that:(a) there is another way in which the hazardous waste could be dealt with; and(b) dealing with the waste in the other way would not pose a significant risk of injury or damage to human beings or the environment; and(c) having regard to Australia's international obligations, the waste should be dealt with in the other way rather than in accordance with the import proposals or export proposals.(5)The Minister may decide not to grant the permit if the permit sought is a Basel export permit and the Minister thinks that:(a) the hazardous waste could be disposed of safely and efficiently by using a facility in Australia; and(aa) such a disposal would be consistent with the environmentally sound management of the waste; and(b) 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 in accordance with the export proposals.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that, on balance, the correct or preferable decision is that the discretion under reg 16(4) to refuse to grant the export permit should be exercised. Such a decision is, in the Tribunal’s view, consistent with the Act, the Regulations and facilitates Australia’s obligations under the Basel Convention, in particular arts 4.2(b), 4.2(d) and art 4.9(a) which provide that, where technically possible, hazardous waste should be treated in Australia and that the transboundary movement of hazardous waste is reduced to a minimum.DECISION The decision of the delegate of the Respondent made on or about 21 January 2020 to refuse to grant a special permit under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) and the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (Cth) to export up to 6,000 tonnes of used lead acid batteries to a company in the Republic of Korea for recycling and reclamation of metals and metal compound is affirmed.

Ratio Decidendi

Legal Principle Established

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