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 BoyleCATCHWORDS
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
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…
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- Case
- [2021] AATA 215
- Decision Date
CaseChat Overview and Summary
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.
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