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 DECISION
Deputy President Boyle
11 February 2021
THE APPLICATION

The Applicant seeks review of a decision of a 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) Act1989 (Cth) (the Act) and the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (Cth) (the Regulations) to export up to 6,000 tonnes of used lead acid batteries (ULAB) to a company in the Republic of Korea for recycling and reclamation of metals and metal compounds (the Decision) (T38).
By letter dated 13 February 2020 the Respondent provided a statement of reasons for the Decision and advised that the Applicant could seek review of the Decision by the Administrative Appeals Tribunal within 28 days of receipt of that letter.
On 13 March 2020 the Applicant lodged an application for the review of the Decision.
There is no evidence before the Tribunal as to when the letter providing the statement of reasons for the Decision was received by the Applicant. Section 29(2)(b)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) relevantly provides that, where the decision does not set out the findings and reasons, which is the case with the Decision, any application to the AAT for review must be made within the period ending on the twenty-eighth day after a statement in writing setting out the findings and reasons for decision was given to the Applicant. The date that the application was lodged in the AAT, 13 March 2020, is the twenty-ninth after the date of the statement setting out the terms of a decision. Accordingly, if the letter dated 13 February 2020 and statement were received on 13 February 2020, then the application would be out of time. As noted above, however, there is no evidence as to when the letter and statement were actually received, and the Respondent and the Other Parties have not sought to argue that the application was made out of time.
Notwithstanding that none of the parties has raised the issue of whether the application was lodged within the time required by s 29 of the AAT Act, it is a matter that goes to jurisdiction and a matter of which the Tribunal must be satisfied. In the absence of any evidence as to when the letter of 13 February 2020 and statement of reasons were received so as to trigger the commencement of the 28-day window for the lodgement of the application, the Tribunal:
(a)assumes that the letter and statement of reasons were not posted before the date that the letter bears; and
(b)applies s 29 of the Acts Interpretation Act 1901 (Cth) (the AI Act) and s 163 of the Evidence Act1995 (Cth) (the Evidence Act).
A summary of how those sections operate is set out in this Tribunal’s decision in Flahive and Comcare [2020] AATA 3044 at [24]-[41]. Relevant to this application, the effect of those sections is that the letter of 13 February 2020 and the statement setting out the findings and the reasons for the Decision are taken “to have been sent by prepaid post… on the fifth business day after the date … on which the letter was prepared” (s 163 of the Evidence Act). Further, they are taken to have been received by the Applicant “in the ordinary course of post” (s 29 of the AI Act), which would be at least four days after posting. The operation of those sections puts the date of the giving of the statement setting out the reasons for the Decision within the 28-day window under s 29(2)(b)(i) of the AAT Act. The Tribunal is therefore satisfied that the application was made within the prescribed time.
THE HEARING AND THE EVIDENCE
The application was heard on 9 and 10 November 2020. The Applicant was represented by Mr I Rogers of Thomson Geer Lawyers, the Respondent was represented by Mr R French, instructed by Sparke Helmore Lawyers, the Other Party DGL Environmental Pty Ltd (DGL) was represented by Mr A Fernon SC, instructed by O’Neill McDonald Lawyers and the Other Party, Enirgi Power Storage Recycling Pty Ltd (Enirgi) was represented by Mr M Palfrey of HWL Ebsworth Lawyers.
The following documents were provided to the Tribunal by the parties:
(a)Witness statement of William Frederick Rock dated 22 July 2020 (Exhibit A1);
(b)Photograph or batteries sitting in a paddock (Marked for Identification A2);
(c)Letter from Thomson Geer dated 21 May 2020, including 12 attachments (Exhibit A3);
(d)Section 37 documents (Exhibit R1);
(e)Statement from Battery Rescue dated 14 July 2020 (Exhibit R2);
(f)Supplementary T-Documents (Exhibit R3);
(g)Witness statement of Jeremy Perera dated 26 August 2020 (Exhibit DGL1);
(h)Supplementary statement of Jeremy Perera received by Tribunal 24 July 2020 (Exhibit DGL2);
(i)Further supplementary statement of Jeremy Perera dated 19 June 2020 (Exhibit DGL3);
(j)Battery Stewardship Council report dated 22 June 2020 (Exhibit DGL4);
(k)Statement of Rebecca Hardy dated 24 July 2020 (Exhibit E1) and
(l)Email sent to the parties including the AAT on 14 May 2020 from Rebecca Hardy setting out a number of her dealings with purchases from Dodd and Dodd (Exhibit E2).
The following witnesses gave evidence at the hearing and were cross-examined:
(a)Mr William Rock;
(b)Mr Jeremy Perera; and
(c)Ms Rebecca Hardy.
THE ISSUES
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.
Section 62 of the Act provides:
The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:
(a)required or permitted by this Act to be prescribed; or
(b)necessary or convenient to be prescribed for carrying out or giving effect to this Act.
The Basel Convention
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention) was ratified in 1992. The Preamble to the Basel Convention states:
The Parties to this Convention,
…
Recognising 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 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 waste and other wastes, and of the need as far as possible to reduce such movement to a minimum, …
Article 4 of the Basel Convention sets out the “general obligations” on Parties 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 waste 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 waste and other wastes only be allowed if:
(a)    The State of export does not have the technical capacity and the necessary 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.
Article 11 of the Basel Convention relevantly provides:
(1)Notwithstanding the provisions of Article 4 paragraph 5, Parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties 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. …
The Regulations
Regulation 3 identifies the object of the Regulations as follows:
The object of these Regulations is to make regulations for section 13C of the Act giving effect to the OECD Decision.
Regulation 16(1) requires the Minister to refuse an application for an export permit if the Minister is satisfied that any of the criteria in reg 16(1) have not been met. The Decision found that each of the criteria in reg 16(1) had been met (R1, T42/228–231).
Regulations 16(3) and 16(4) provide:
(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 a 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.
As noted above, the Decision to refuse the grant of the export permit was based on the exercise of the discretion under reg 16(4) (see [13] and [24] above). The Decision considered whether the discretion under reg 16(3) to refuse to grant the export permit should be exercised and concluded that the delegate was “not satisfied that there were grounds to support refusal of the permit under regulation 16(3)” (R1, T42/233). That, however, does not mean that the Tribunal is to limit its consideration to whether the discretion to refuse the permit under reg 16(4) should be exercised.

Also as noted above, the Decision found that the criteria under reg 16(1) had been met and that therefore the prohibition against the issue of a permit under that regulation did not apply. No argument was raised by the Respondent that any of the criteria was not met or that the prohibition under reg 16(1) should apply, however, Enirgi in its submissions does assert that the Applicant does not have appropriate insurance and, accordingly, reg 16(1)(h)(ii) is not satisfied and the prohibition under reg 16(1) applies. Similarly, while the Respondent does not seek to argue that the grant of an export permit would be against the public interest under reg 16(2), that is an argument which Enirgi appears to raise in its submissions.
At paragraph 27 of her Statement of Facts, Issues and Contentions (SFIC), the Respondent contends that the Tribunal should limit its considerations to the refusal criteria in regs 16(3) and 16(4). The parties’ submissions and evidence went to the matters relevant to regs 16(3) and 16(4).
At paragraph 3.1 of its SFIC, the Applicant identified the primary issue for determination as “whether the Respondent’s Decision was the correct or preferable decision”. While that statement is not an inaccurate description of the role of the Tribunal in reviewing a decision, it must be read in light of the fact that the role of the Tribunal is not to review the decision, or the reasons for the decision, but rather to determine what the correct or preferable decision is now, based on all of the evidence before the Tribunal. This Tribunal has described the role of the Tribunal in reviewing a decision in a number of previous matters, including Carter and Australian Securities and Investments Commission [2020] AATA 809 (Carter) at [48] to [51]. At [48] of that decision the Tribunal cited Hill J’s statement in Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521 that:
The Tribunal is an administrative Tribunal and, as has often been said, its function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be: cf Mobil Oil Australia Pty Limited v Commissioner of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 at 502 per Kitto J; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-415 per Bowen CJ and Deane J, and more recently see Liedig v Commissioner of Taxation [1994] FCA 1058; (1994) 50 FCR 461. In exercising its role, in what Davies J in Jebb v Repatriation Commission [1988] FCA 105; (1988) 8 AAR 285 at 288-289 referred to as a "part of" an administrative "continuum", the Tribunal, within the ambit of the jurisdiction conferred upon it as a review authority, decides the matter by reference to the evidence before it and not the evidence before the decision-maker, taking into account events that may have occurred to the date of decision: cf Jebb (at 289-290); Lucas v Repatriation Commission (1986) 69 ALR 415 at 421; Ward v Nicholls (1988) 20 FCR 18 at 22, per Wilcox J.
In other words, the Tribunal is to undertake afresh the decision-making process and, based on all of the information presented to the Tribunal, make its own decision as to what the correct or preferable decision should be. In undertaking that process, as described by Nicholson J in Shi v Migration Agents Registration Authority (2007) 158 FCR 525 at [10]:
… the Tribunal is not confined either to the material which was before the primary decision-maker or the events which had occurred up till the time of its decision: per Wilcox J in Commonwealth v Ford (1986) 65 ALR 323 at 437-438 citing Drake 46 FLR at 419 and Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 at 326-327; 34 ALR 639 at 640-641 cited by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344. This general approach of the Tribunal was described by Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 at 289; 80 ALR 329 at 333 as being:
to regard the administrative decision-making process as a continuum and to look upon the Tribunal’s function as a part of that continuum so that, within the limits of the reconsideration of the decision under review, the Tribunal considers the applicant’s entitlement from the date of application or other proper commencing date to the date of the Tribunal’s decision.
Paragraph 3.2 of the Applicant’s SFIC identifies a number of considerations which it says are relevant to the determination of the primary issue as identified by the Applicant in [28] above including:
… whether … the due diligence undertaken by the Respondent was adequate to ensure all the factors and matters were taken into consideration by the Respondent.
That misunderstands the role of the Tribunal in reviewing a decision. The role of the Tribunal is not to examine the processes undertaken by the original decision maker to see whether they were adequate or appropriate. The hearing before the Tribunal is a hearing de novo and the Tribunal’s function is to make what it considers to be the correct or preferable decision based on all of the evidence presented to it. The process by which the original decision maker made its decision is irrelevant to that function.
The other issues identified in paras 3.2(b)–3.2(f) of the Applicant’s SFIC are relevant to the matter that the Tribunal has to determine as they go to the matters raised by regs 16(3) and 16(4).
Paragraph 25 of the Respondent’s SFIC, more correctly in the Tribunal’s view, identifies the issues for determination as follows:
The issues to be determined by the Tribunal, in order of importance, are as follows:
a. Is the Tribunal’s discretion to refuse the grant of the permit enlivened, having regard to regulation 16(4)? This requires consideration of the following disputed issues:
i.Whether the hazardous waste could be disposed of safely and efficiently by using a facility in Australia?
ii.Does full processing to stage 3 constitute disposal for the purposes of regulation 16(4)?
iii.Does Enirgi have capacity to process the applicant’s 6,000 tonnes of ULAB at its Wagga Wagga facility to stage 3?
iv.Does stage 1 processing (i.e. battery breaking) constitute disposal for the purposes of regulation 16(4) and Annex IV of the Basel Convention?
v.Do stage 1 processors in Australia have capacity to process the 6,000 tonnes to stage 1?
b. Is the Tribunal’s discretion to refuse the grant of the permit enlivened, having regard to regulation 16(3)? This requires consideration of the following disputed issues:
i.Is stage 1 processing in Australia another appropriate way to deal with the 6,000 tonnes of ULAB for the purposes of subregulation 16(3)(a)-(c)?
c. Given the answers to the above, should the discretion to refuse the permit under regulations 16(3) or 16(4) be exercised?
The issues identified in paragraph 25 of the Applicant’s SFIC as set out above are largely raised as issues in paragraph 3.2(b)–3.2(f) of the Applicant’s SFIC.
THE APPLICANT’S SUBMISSIONS
The Applicant’s SFIC was divided into a number of sections. In the section headed “Facts and Evidence Relevant to the Issues”, the Applicant identified six export permits for the export of a total of 71,000 tonnes granted to DGL in 2019 (para 4.3.1) with each permit specifying that the waste was to undergo “recovery operation R4 – Recycling/reclamation of metals and metal compounds”.
The Applicant says that following the refusal of the Applicant’s application for a permit in January 2020, the Respondent granted (or was assessing) further export permits to DGL for a total of 63,200 tonnes, again with the requirement that the waste was to undergo recovery operation R4 – Recycling/reclamation of metals and metal compounds (paras 4.3.5–4.3.6). This included permits for the export of 14,000 tonnes of lead waste to the Republic of Korea.
The Applicant says that the existing licenced ULAB processing capacity of DGL is 86,000 tonnes (36,000 tonnes at Unanderra, New South Wales and 50,000 tonnes at Laverton, Victoria) and the existing licenced ULAB processing capacity of Enirgi as 70,000 tonnes. It says that the ULAB processed in 2018 and 2019 was much less than that processing capacity. The Applicant concedes that further processing capacity exists through facilities owned by other entities in Queensland and New South Wales, citing the Department’s reference to those facilities in paragraph 62 of its reasons for the Decision (R1, T42/234).
The Applicant notes the Department’s statement in the reasons for Decision that it did not receive any response to its enquiries from the Western Australian Department of Water and Environmental Regulation, the agency responsible for the environment in Western Australia. That Department had, according to the Applicant, previously supported the grant of special export permits to the Applicant and had provided responses to the Respondent in relation to these prior applications.
Under the heading “Domestic ULAB pricing and collection of ULAB in Western Australia”, the Applicant asserts that the financial return in selling to battery recyclers in Korea is greater than the return generated by selling ULAB in Australia once the costs of collection and transport to the processing facilities in Queensland and New South Wales is taken into account. The result, according to the Applicant, is that collectors of ULAB, including customers and other collectors and suppliers who sell ULAB to the Applicant, do not collect (or reduce their collection of) ULAB in Western Australia (particularly in remote and regional areas), leading to ULAB being stockpiled or dumped. The Applicant has an extensive collection network in Western Australia.
Under the heading “Contentions”, the Applicant contends that:
(a)the purpose of the Basel Convention is the protection of people and the environment from the harmful effects of hazardous waste;
(b)to achieve that purpose, the Basel Convention seeks to control the generation and transboundary movement of hazardous waste;
(c)the Basel Convention does not prohibit transboundary hazardous waste movements;
(d)rather, the Basel Convention provides that transboundary hazardous waste movements are permitted and are to be reduced to the minimum consistent, with the principles of environmentally sound management of those hazardous wastes;
(e)the Basel Convention does not compel countries to develop or maintain domestic facilities, capacity or sites in order to dispose of hazardous waste, it merely requires that countries take appropriate measures to ensure the availability of adequate disposal facilities, capacity or sites;
(f)the Basel Convention permits transboundary movements of hazardous waste in three alternative circumstances, namely:
(i)on environmental soundness considerations; i.e. where the country of export does not have the technical capacity and domestic facilities; or
(ii)on economic considerations; i.e. the hazardous waste is required as a raw material for recycling or recovery industries in the country of import; or
(iii)where other criteria are agreed;
(g)the Basel Convention, whilst it operates as the global regulatory regime for the transboundary movement of hazardous waste, it is not exclusive and will "stand aside" in the event that there is a suitable multi-lateral agreement between parties to the Basel Convention, such as the OECD Decision;
(h)whilst there is broad harmony between the provisions of the Basel Convention and the Regulations, the OECD Decision:
(i)provides a slight but significant gloss (but not a derogation) on the Basel Convention, namely, that the OECD Decision acknowledges well-established markets for recovery of valuable materials from hazardous wastes exist within member countries, who are developed (and not developing countries) and the importance of those markets and access by member countries to those materials; and
(ii)further expressly acknowledges the second alternative for transboundary movements of hazardous waste under the Basel Convention by noting that the environmentally sound and economically efficient recovery of hazardous waste may justify the transboundary movement;
(i)the Regulations must be read in light of the OECD Decision – they incorporate it and their object is to give effect to it, citing the decision of the Tribunal in Australian Refined Alloys Pty Ltd v The Minister for the Environment and Heritage [2003] AATA 247 at [100]-[101] (Australian Refined Alloys Pty Ltd). The same principles must be applied to the Regulations as a whole, which has implications for the proper construction of regs 16(3) and 16(4) of the Regulations;
(j)regulation 16(1)(b) and the waste treatment/disposal set out in (R1, T7) and regs 16(1)(c) and 16(1)(d) and the letter from the competent authority (R1, T25) are relevant to the construction of reg 16(4)(a);
(k)the Decision was based on the finding that the 6,000 tonnes of ULAB the subject of the application for the permit could be disposed of safely and efficiently. That finding is flawed because it is simply a mathematical calculation based on deducting the 60,000 tonnes processed by Enirgi from its 70,000 licence capacity and assuming that the resultant 10,000 tonne capacity shortfall can accommodate and recover (that is "R4 Recycling/reclamation of metals and metal compounds") the 6000 tonnes the subject of the application but ignores the fact that Enirgi did not recover any of the surplus 80,000 tonnes of ULAB arisings in Australia;
(l)there was insufficient domestic licensed capacity to accommodate (and recover; i.e. the recovery operation "R4 Recycling/reclamation of metals and metal compounds") the 6,000 tonnes of ULAB the subject of the permit if the permit was refused;
(m)there was insufficient licensed domestic capacity;
(i)in 2019 because the Respondent granted export permits to DGL to export 5,000 tonnes of lead waste and scrap (paste) derived from ULAB to Korea, and 66,000 tonnes of lead waste and scrap containing lead and lead compounds as constituents or contaminants (code A1020) to OECD and non-OECD countries (but parties to the Basel Convention); and
(ii)in 2020 because the Respondent granted export permits to DGL to export 23,200 tonnes of lead waste and scrap (paste) derived from ULAB (code A1160) to Korea (an OECD country) and 30,000 tonnes of lead waste and scrap containing lead and lead compounds as constituents or contaminants (code A1020) to Poland (an OECD country and party to the Basel Convention) and Spain (a non-OECD country but party to the Basel Convention);
(n)the above demonstrated that inadequate domestic disposal facilities were/are provided for the environmentally sound management of the ULAB and lead waste and scrap to carry out an operation specified in Annex IV to the Basel Convention and appendix 5.B to the OECD Decision, each of which specify "R4 Recycling/reclamation of metals and metal compounds" as an operation, to dispose of the ULAB and lead waste and scrap, noting DGL's statements that there is "no ready market in Australia for the lead paste" and that there may have been a surplus of "37,000 tonnes of additional ULAB available in the Australian market in 2019";
(o)the ULAB and lead waste and scrap is:
(i)valuable material for which a well-established market existed between Australia and its importing member OECD countries and parties to the Basel Convention; and
(ii)required as a raw material for recycling or recovery industries in the importing OECD countries and parties to the Basel Convention (see in this regard the recovery process is described at pages 80–89 of R1, T7 and the letter from the competent authority in Korea (R1, T25);
(p)the environmentally sound and economically efficient recovery of hazardous waste justified the transboundary movement of hazardous waste between Australia and its importing member OECD countries and parties to the Basel Convention;
(q)in the context of the ULAB Guidelines, by granting the permits in 2019 and 2020, the Respondent acknowledged that Australia's "specific contextual map" provides a solution for the "environmentally sound management of lead-acid battery waste" and recognises that:
(i)environmentally sound and economically efficient recovery of those wastes justifies their transboundary movements between OECD member countries; and
(ii)slavishly promoting domestic disposal (i.e. requiring that the recovery operation "R4 Recycling/reclamation of metals and metal compounds" be carried out domestically) should not become an obstacle to, or be used to curtail, that economic trade;
(r)the above conclusions follow even if Enirgi’s and DGL’s ULAB recycled throughput tonnes in 2018 and 2019 are considered because:
(i)DGL has kept its Laverton North facility in Victoria (that has lead smelting and refining capabilities) closed since June 2018 due to rising natural gas, electricity and chemical prices that make the operation uneconomical The Applicant identifies the “Perera statement” as providing that information, however, the Tribunal cannot find a statement to that effect in any of the statements provided by Mr Perera.;
(ii)Enirgi carries out battery breaking and materials separation, as well as smelting and refining to produce lead and lead alloy for sale, Enirgi was (and is) a facility with capacity to carry out (and carried out) the ULAB recovery operation "R4 Recycling/reclamation of metals and metal compounds");
(iii)the production of lead and lead alloy for sale from smelting and refining component of the ULAB recovery operation is at the higher end of the lead value chain;
(iv)there is "no ready market in Australia for the lead paste" (despite it being a "value added intermediate lead product[s]" "that is desirable to a downstream smelter customer") and that the possible surplus supply of approximately "37,000 tonnes of additional ULAB available in the Australian market in 2019" that was not recovered; i.e. that waste did not undergo a recovery operation "R4 Recycling/reclamation of metals and metal compounds" domestically (see DGL1);
(s)Enirgi did not have sufficient domestic capacity to recover (i.e. could not carry out the recovery operation "R4 Recycling/reclamation of metals and metal compounds" in respect of the 5,000 tonnes of lead waste and scrap (paste) for which an export permit to Korea was granted to DGL in 2019 and the 23,200 tonnes of lead waste and scrap (paste) for which export permits to Korea were granted to DGL in 2020 and the 66,000 tonnes of lead waste and scrap for which export permits were granted to DGL in 2019 and the 30,000 tonnes of lead waste and scrap for which export permits to Poland and Spain were granted to DGL in 2020;
(t)DGL did not have sufficient domestic capacity to recover the 5,000 tonnes of lead waste and scrap (paste) for which export permits were granted to it to export to Korea in 2019 and the 23,200 tonnes of lead waste and scrap (paste) for which export permits were granted to it to export to Korea in 2020;
(u)DGL elected to dispose of the ULAB (code A1160) and the lead waste and scrap (code A1020) on the international market because:
(i)it is was not and is not economically efficient and viable for DGL to recover, smelt and refine the lead waste and scrap (paste) at its Laverton North, Victoria facility; and
(ii)it was and is more economically efficient and viable for DGL to obtain internationally competitive and higher prices for the waste;
(v)these export permits granted to DGL could only have been granted on the basis that the Respondent considered that the environmentally sound and economically efficient recovery of the lead waste and scrap (paste) derived from ULAB and the lead waste and scrap justified their transboundary movements between Australia and the importing OECD member countries and parties to the Basel Convention;
(w)the proposition in (v) above is an irresistible and reasonable inference to be drawn in circumstances where, but for that basis, those export permits would have (and ought to have) been refused by the Respondent promoting the carrying out of the recovery operation "R4 Recycling/reclamation of metals and metal compounds" domestically under reg 16(4)(c) of the Regulations and s 17(5)(b) of the Act, as the case may be;
(x)the Applicant's motivation in applying for the export permit is no different to DGL's motivation in applying for its export permits; DGL’s cost of operating its Laverton North VIC smelter facility is (was) uneconomical in the same way as the Applicant's cost of collection of ULAB in much of Western Australia is uneconomical;
(y)the other inferences to be drawn are that during 2019 and 2020 each of Enirgi and DGL were operating at capacity but that ULAB arisings exceeded their existing licensed domestic ULAB processing capacity. That would be the position if the permit sought by the Applicant were granted. Both Enirgi and DGL will continue to operate. All that would happen is that Enirgi and DGL will be required to operate within Australia's "specific contextual map" (ULAB Guidelines see (q) above), which expressly recognises that transboundary movements of hazardous waste on both environmental soundness and economic efficiency considerations is permitted;
(z)it follows from the above that:
(i)“could appropriately be dealt with” and “could be dealt with”, when used in reg 16(3)(a) (and s 17(4)(a) of the Act, as the case may be); and
(ii)“could be disposed of safely and efficiently”, when used in reg 16(4)(a) (and s 17(5)(a) of the Act, as the case may be),
ought to be understood as meaning "could be recovered and managed in an environmentally sound and economically efficient manner";
(aa)in respect of reg 16(3) and s 17(3) of the Act, in the absence of all domestic ULAB arisings undergoing the recovery operation "R4 Recycling/reclamation of metals and metal compounds" domestically, there is no other way for that hazardous waste from domestic ULAB arisings to be "recovered and managed in an environmentally sound and economically efficient manner" because:
(i)the recovery operation "R4 Recycling/reclamation of metals and metal compounds" is the only way to remove "significant risk of injury or harm to people or the environment”; and
(ii)disposal to landfill, dumping, stockpiling and informal storage pose "significant risk of injury or harm to people or the environment”;
(bb)in such a circumstance, it is appropriate to have "regard to Australia’s international obligations" under the OECD Decision and Basel Convention and permit the transboundary movements of hazardous waste from domestic ULAB arisings on both environmental soundness and economic efficiency considerations. This is particularly the position in respect of remote, rural and regional Western Australia where ULAB is not collected because of the constantly fluctuating price;
(cc)the same applies to reg 16(4) and s 17(5)(b) of the Act;
(dd)where domestic ULAB collectors are not collecting domestic ULAB arisings because pricing is economically unattractive or unviable, that hazardous waste is not being "disposed of safely and efficiently” and it is undesirable to promote domestic disposal to a facility in Australia under reg 16(4)(c) as opposed to the waste being exported;
(ee)in the absence of being able to price ULAB based on prices achieved in exporting, recovery/collection in remote and rural Western Australia ULAB is likely to be unlawfully disposed of which is not in the public interest. The grant of the permit will enhance the collection and recovery of ULAB in Western Australia;
(ff)the issue of the permit will ensure that the waste is managed in an efficient and environmentally sound manner because in Korea it is required as a raw material for recycling or recovery industries in that developed OECD country and will undergo a recovery operation "R4 Recycling/reclamation of metals and metal compounds" in an environmentally sound and efficient manner. This is consistent with art 4.9 of the Basel Convention that expressly allows for transboundary movements of hazardous waste in the circumstances specified.
THE RESPONDENT’S SUBMISSION

The Respondent’s SFIC describes the three broad categories of ULAB recycling as being:
Stage 1 - Battery breaking or breakage;
Stage 2 - Lead reduction; and
Stage 3 - Lead refining.
The Respondent’s SFIC goes on the describe each category (hereinafter referred to as Stage 1, Stage 2 and Stage 3) as follows:
(a)Stage 1 or ‘battery breaking’ involves the separation and treatment of the various components which make up a ULAB with the main goal being the extraction of the lead grid and paste. Specifically, the ULABs are first sent through hammer mills to be crushed and broken into small pieces. This is necessary in order for the various components (i.e. lead plates, connectors, plastic boxes and acid electrolyte) to be separated by the following steps.
(b)The lead paste and battery acid are then separated from the larger components that comprise the lead grid and plastics. This mixture of lead paste and battery acid is typically then directed into a filter press which then further separates the lead paste from the battery acid. The remaining materials, being the lead grid and plastics, are directed into a Hydrodynamic Separator tank which separates the plastics from the lead grid. The plastics are then treated to remove any lead contamination and are subsequently sent into a tank designed to separate the polypropylene scrap from the plastic separators.
(c)Once these various materials have been separated, the battery acid and plastic separators are treated with chemicals and then disposed of in landfill, the polypropylene material is sold to a local plastics recycler, and the lead grid and lead paste are prepared for the ‘lead reduction’ stage.
(d)Stage 2 or lead reduction involves the isolation of the metallic lead from the mixture of substances that form part of the lead grid and lead paste produced by the ‘battery breaking’ process. This stage includes the smelting of the lead materials in a furnace to produce a crude lead bullion; and
(e)Stage 3 or lead refining involves the crude lead bullion produced by the ‘lead reduction’ stage being refined in a further process which produces ‘soft lead’. The purpose of this process is to remove as much copper, antimony, arsenic and tin as possible. At the end of this stage, the lead is then cast into ingots.
(f)It is common ground that Enirgi is currently the only business in Australia that can process ULAB through Stages 1, 2 and 3 (which the Respondent refers to as “Full Processing”). The other processors in Australia, notably DGL, Lex Enviro Services Pty Ltd (Lex Enviro) and V Resource Ltd (V Resource) only conduct Stage 1 processing. The parties appear to be in agreement that Stage 3 processing amounts to “disposal” for the purposes of reg 16.
(g)the Applicant asserts that the current ULAB arisings in Australia is 150,000 tonnes. Mr Perera for DGL gives evidence that the total actual annual amount of processing in 2019 was 122,701 tonnes. Mr Perera calculates that the total ULAB arising for 2019 would be approximately 136,300 tonnes.
(h)Citing evidence before the Tribunal, the Applicant says that:
(i)Lex Enviro has the capacity to process 8,000 tonnes of ULABs per annum. It processed 6,000 tonnes in 2019.
(ii)V Resource has the capacity to process 15,000 tonnes of ULABs per annum and in 2019 it processed 15,000 tonnes.
(iii)DGL has the capacity to process 86,000 tonnes of ULABs per annum and in 2019 it processed 44,025 tonnes. Therefore, DGL had unutilised capacity to process 41,975 tonnes in 2019.
(iv)Enirgi has capacity to process 70,000 tonnes of ULABs per annum. In 2019, it processed 57,676 tonnes resulting in an unutilised capacity of 12,324 tonnes.
Under the heading “The Respondent’s contentions” the Respondent says:
(i)regulation 16(4)(c) expressly refers to “the desirability of using facilities in Australia for the disposal of hazardous waste”. This is consistent with the objects and aims of the Act, the preamble to the Basel Convention and the extract from the OECD Decision which give primacy to limiting the transboundary movement of hazardous waste;
(j)regulation 16(4)(a) requires the Minister to consider the "efficiency” of the Australian facilities which would otherwise process the waste. There is no reference to consideration of the efficiencies of facilities in the importing country. Focus is given to local processors only. This is supported by Article 4.9 of the Basel Convention which provides:
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.
(k)Efficiency is not to be evaluated in the state of import. Further, article 4.9(a) seems to link the concept of “efficiency” to the “technical capacity” of the facilities in the state of export. In other words, in considering efficiency, one asks the question: can it be done by particular facilities in Australia?
(l)There is no indication in the Regulations, the Basel Convention or the OECD Decision that efficiency questions are to be answered by looking at the Applicant’s individual position and comparing prices for the waste in the exporting and importing states. Such matters impact the economic interests of the Applicant only. The efficiency considerations referred to in reg 16(4) do not solely relate to one party’s commercial interests;
(m)the Respondent cites the following passage from Dodd & Dodd Group Pty Ltd v Minister for Sustainability, Environment, Population and Communities & Ors [2010] AATA 957 (Dodd & Dodd 2010), an earlier case involving the Applicant, at [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.
(n)There is nothing in the Regulations, the Basel Convention or the OECD Decision that states, when considering matters of efficiency, the decision-maker is to consider the long-term effect that refusing the permit would have on the collection market;
(o)the Respondent contends that the Tribunal is not required to form a view, one way or the other as to the overall market change that might occur following the refusal or granting of one individual permit for 6,000 tonnes. Whilst trends in the market might occur over the longer term, there is insufficient evidence to predict what the outcome of granting or refusing one single permit might be. In any event, efficiency considerations in reg 16(4) do not require the Tribunal to make forecasts about the future of the collection market;
(p)the Respondent notes that efficiency considerations under reg 16(4) primarily refer to capacity of local processors to dispose of the waste. The Respondent contends that reference to “efficiency” in reg 16(4) is primarily directed to the technical capacity of domestic providers to dispose of the waste in the immediate future. If domestic processors did not have capacity to do so, then the waste would not be able to be disposed of or dealt with in the near future and it might be more efficient and environmentally sound to export the material overseas where it can be;
(q)in determining whether it would be more efficient to export the ULAB, the Tribunal should direct its attention to whether local providers have capacity to dispose of the 6,000 tonnes;
(r)it does not appear to be in dispute that processing to Stage 3 constitutes “disposal” for the purposes of reg 16(4). “Disposal” is defined in the Act to mean “an operation specified in Annex IV to the Basel Convention” and full processing to Stage 3 clearly falls within Section B of Annex IV;
(s)Ms Rebecca Hardy for Enirgi in her witness statement dated 24 July 2020 (“Hardy Statement”) states that:
(i)Enirgi continues to have capacity to buy and process the 6,000 tonnes; and
(ii)in 2020 Enirgi is operating at an annualised rate of 60,000 tonnes resulting in a projected unutilised capacity of 10,000 tonnes;
(t)Enirgi’s projection that it would have unutilised capacity of 10,000 tonnes would appear to be supported by the actual unutilised capacity it had last year. Further, there does not appear to be any evidence to the effect that Enirgi has agreed to accept surplus ULAB which might prevent it from processing the Applicant’s 6,000 tonnes. If the Tribunal finds that Enirgi has capacity to process the 6,000 tonnes, then the Respondent contends that the criteria in reg 16(4) will be met;
(u)the Applicant asserts that one must consider overall ULAB arisings when determining whether an individual processor is likely to have capacity. The Applicant asserts in its SFIC that, as an example, one cannot simply determine, as was done in the Decision, that Enirgi has capacity to process the 6,000 tonnes because it has unutilised capacity of approximately 10,000 tonnes. The Applicant appears to assert that there was a surplus of 80,000 tonnes of ULAB arisings last year and appears to suggest that Enirgi will have to process some of that surplus ULAB, leaving it with no capacity to take the applicant’s 6,000 tonnes;
(v)the Respondent submits that the difficulty with this argument is that it tacitly assumes that:
(i)a particular quantity of surplus ULAB will be offered to the particular processor (in this case Enirgi); and
(ii)that that processor will be compelled to accept a particular quantity of surplus ULAB, thereby creating a risk that it cannot take the Applicant’s 6,000 tonnes.
The Respondent submits there is no basis to support such an assumption. Indeed, the evidence is that the Applicant itself, a major collector, has rarely engaged Enirgi until recently. The question is whether domestic processors have capacity by reference to their own evidence and historical record, not by reference to surplus ULAB arisings that might not be even offered to them, or that they may not have purchased;
(w)if Ms Hardy’s evidence (in her capacity as General Manager of Enirgi) is accepted, then it would appear that Enirgi has capacity to dispose of the 6,000 tonnes. The Respondent submits that if such a finding is made, then the discretion under reg 16(4) is enlivened;
(x)further, it appears that there are other processors who have capacity to process the 6,000 tonnes to Stage 1. In 2019, DGL processed 44,025 tonnes of ULAB leaving it with unutilised capacity to process 41,975 tonnes in that year. If that trend continues, then DGL will likely have capacity to process the 6,000 tonnes to Stage 1. Assuming such a finding is made, the question is whether the availability of Stage 1 processing enlivens the discretion to refuse under either regs 16(3) or 16(4);
(y)in that regard the Respondent contends that disposal under reg 16(4) includes Stage 1 processing. Annex IV of the Basel Convention is headed “Disposal Operations” and contains two sections. Section A is headed “Operations which do not lead to the possibility of resource recovery, recycling, reclamation, direct re-use or alternative uses” and Section B is headed “Operations which may lead to resource recovery, recycling reclamation, direct re-use or alternative uses”.
(z)Stage 1 processing falls within item R13 in Section B which relates to the accumulation of material intended for any operation in Section B. As Stage 1 activities fall within Annex IV, it therefore constitutes a “disposal” for the purposes of reg 16(4). The Applicant contends that only those activities referred to in Section A constitute “disposals” for the purposes of reg 16(4), thus excluding Stage 1 processing. The Respondent contends that all activities included in Annex IV including section B constitute a disposal. This is in accordance with the express definition in the Act which does not differentiate between Sections A and B.
(aa)the Respondent contends that even if Stage 1 processing does not constitute “disposal” for the purposes of reg 16(4), then the capacity of Stage 1 processors, primarily DGL, to process to Stage 1 means that there is another way in which the ULABs could be appropriately dealt with within the meaning of reg 16(3)(a).
(bb)what constitutes another appropriate way to deal with hazardous waste for the purposes of reg 16(3)(a) is not defined in the Regulations or discussed in any relevant authority of which the Respondent is aware. However, on its plain meaning it could clearly encompasses something that is less than disposal or perhaps a step on the way to full disposal. It is not in dispute that Stage 1 processing is a critical step that must occur in the process toward final disposal of all materials arising from the ULAB. Further, DGL often sells the residual materials leftover from Stage 1 processing (i.e. lead paste and lead grid) to third parties who perform Stage 2 and Stage 3 processing. This may be to Enirgi or alternatively to an overseas processor thereby requiring DGL to obtain an export permit as it has done on numerous occasions in the past.
(cc)the Applicant speculates that it is inevitable that a Stage 1 processor, such as DGL, will eventually have to apply for an export permit once it has concluded its Stage 1 processing.
(dd)for the purposes of reg 16(3)(c), and having regard to Australia’s obligations under the Basel Convention to minimise transboundary movement of waste, the processing of the 6,000 tonnes to Stage 1, would satisfy Australia’s obligations under the Basel Convention and reg 16(3) as it would have been dealt with in an appropriate way.
(ee)the fact that residual materials (lead paste) might be exported is not a reason to grant an export permit for the ULAB now. It might be that by the time the 6,000 tonnes have undergone Stage 1 and are ready for Stage 2 processing that Enirgi has capacity to purchase the residual materials for Stages 2 and Stage 3 processing. If this ultimately occurred, then clear preference of the Regulations and the Basel Convention to favour local disposal will have occurred. Even if there does not exists a market in Australia for partially processed ULAB in the future and DGL have to apply for an export permit in respect of residual material, the Minister will determine at that time whether to grant the export permit;
(ff)it appears not to be in dispute that dealing with the ULAB in the manner described would not pose a risk of injury or harm to people or the environment for the purposes of reg 16(3)(b).
(gg)if the Tribunal is satisfied that the preconditions of regs 16(3) and/or 16(4) have been satisfied, the Tribunal should exercise its discretion to refuse the grant of the export permit. That discretionary power should be exercised in such manner as would promote, and not hinder, the object and purpose of the Act and the Regulations.
(hh)The Respondent contends that Australia’s obligations under the Basel Convention; in particular, arts 4.2(b), 4.2(d) and art 4.9(a), dictate that where technically possible, hazardous waste should be treated in Australia and that the transboundary movement of hazardous waste is reduced to a minimum.
ENIRGI’S SUBMISSIONS
In its submissions lodged on 30 September 2020, Enirgi submitted:
(a)Enirgi and DGL operate separate ULAB recycling businesses;
(b)ULAB processing is a capital-intensive business. It is a low-margin business with high fixed costs;
(c)Enirgi represents a large proportion of Australian ULAB processing capacity. Enirgi's Bomen facility has a technical and licensed ULAB processing capacity of 70,000 tonnes of ULAB per annum;
(d)Enirgi's Bomen facility has the technical ability to recover 96% of that tonnage as valuable products. In particular, Enirigi has an ISO-certified Quality Management System for the manufacture of refined lead and lead alloys which are a valuable product derived from ULAB;
(e)Enirgi's Bomen facility has a fully integrated Environmental Management System that is ISO compliant. Enirgi is licensed by the EPA to conduct its ULAB recycling and smelting activities. Enirgi's recycling process is an accepted way to reclaim materials from ULAB as described in the Basel Convention's Technical Guidelines for the Environmentally Sound Management of Waste Lead-acid Batteries;
(f)Enirgi plans to expand the capacity of its Bomen facility. Enirgi has been granted approval from the NSW Department of Planning to expand the capacity of its Bomen facility to 120,000 tonnes of ULAB per annum;
(g)Enirgi has purchased ULAB from the Applicant in 2020, comprising:
(i)2,115 tonnes at 29% of London Metal Exchange (LME) price; and
(ii)289 tonnes at 27.5% of LME.
(h)Regulation 16(1)(h)(ii) requires an applicant for a special export permit to have appropriate insurance. The Applicant's certificate of insurance (R1, T6) was in respect of a period of insurance that ended on 31 May 2020. There is consequently no basis for a finding that the Applicant has appropriate insurance for the purposes of reg 16(1)(h)(ii). A special export permit cannot be granted in those circumstances;
(i)even if the Tribunal were to find the matters in reg 16(1) to be satisfied, Enirgi contends that the Tribunal ought to refuse to grant the permit under reg 16(2) as it would be in the public interest to do so. It puts forward the following in support of that contention to refuse the permits would:
(i)promote Australia’s ability to meet its obligations under paragraph 2(d) of the Basel Convention to ensure that the transboundary movement of hazardous wastes is reduced to the minimum; and
(ii)promote employment in the Wagga Wagga region;
(j)maintaining a viable, domestic ULAB processing industry requires, among other things, sufficient and stable supply of ULAB feedstock. Because of the low margins and high costs in ULAB recycling, Enirgi and other members of the Australian ULAB processing industry are vulnerable to reductions in the available, domestic supply of ULAB feedstock;
(k)the 22 June 2020 Australian Battery Market Analysis Project Report notes at page 36 that the ULAB collection and reprocessing market is “[g]enerally viable but vulnerable to lower cost overseas processors”. Granting a special export permit to the Applicant would remove up to 6,000 tonnes from the available, domestic supply of ULAB feedstock. The removal of that tonnage would represent a significant reduction in the overall domestic supply of ULAB feedstock. Such a reduction would pose a risk to the profitability of Enirgi and the Australian ULAB processing industry as a whole as it would imperil the ability of the industry to attract sufficient ULAB feedstock;
(l)a risk to profitability creates a risk that domestic processors may cease to operate, reducing Australia's ability to process ULAB and causing economic harm;
(m)additionally, a risk that domestic ULAB processors may cease to operate would decrease domestic demand for ULAB. Such a decrease would result in a decrease in ULAB collection and a decrease in ULAB collection would result in one or more of:
(i)increased ULAB pollution;
(ii)increased ULAB disposal to landfill; and
(iii)increased export of ULAB,
each of which is against the public interest;
(n)onshore processing of ULAB provides a greater benefit to local and national economies than does ULAB export. Promotion of the economic benefits of onshore ULAB processing is in the public interest;
(o)the public interest does not require the collection of every ULAB unit arising in Western Australia. While such an outcome may be desirable it is not realistic. Nor does the public interest in ULAB collection across Western Australia require increased incentives to be applied in the short term (e.g. through increased pricing available in relation to ULAB to be exported). The development and maintenance of an established ULAB collection industry in Western Australia is in the public interest as such an industry will deliver greater economic and environmental benefits in the long-term;
(p)The material summonsed from Sims Metal Management, Lane Metals and Australian Scrap Battery show that in the period 2015 to 2020, significant quantities of ULAB have been recovered from Western Australia by the Applicant's competitors. At least some of those collections have been in rural, regional and remote areas. That is despite the issue of various export permits (including to the Applicant) and changes in the domestic price for ULAB during that period;
(q)the ULAB collection industry in Western Australia would be imperilled by the grant of a permit to the Applicant because allowing the Applicant to offer more for ULAB would create a risk that the Applicant could, at least in the short term, allow the Applicant to outcompete its competitors dramatically which would cause the competitors to cease or reduce operations. Further, if the permit were granted it may cause the Applicant’s competitors to seek export permits which would result in the substitution of an export market for ULAB for the domestic market and such a result would not be in the public interest;
(r)there is, in any event, nothing that would require the Applicant to export ULAB collected from rural, regional and/or remote areas under any permit that is the subject of the Application;
(s)the ULAB that are the subject of the application could be disposed of safely in Australia. There is no evidence of risks to the environment or safety that would prevent ULAB being transported to Bomen (or, for example, DGL's facility) safely;
(t)in any event, the Tribunal is not required to consider the relative levels of safety of the activities in proposed export and the Australian means of disposing of hazardous waste. It is sufficient for the purposes of reg 16(4)(a) that the hazardous could be disposed of safely by using a facility in Australia;
(u)even on its own Enirgi would have the capacity to dispose of the 6,000 tonnes of ULAB that are the subject of the application in 2020. Enirgi projects an unutilised capacity of 10,000 tonnes in 2020;
(v)while there may be other ULAB arisings in Australia (i.e. separate to those that are the subject of the application) in a quantity that meets or exceeds the unutilised capacity at a particular facility, that is not a sufficient basis for the Tribunal to find that the ULAB which are the subject of the application could not be disposed of efficiently by a facility in Australia. The test in reg 16(4)(a) does not require the Tribunal to find an Australian facility capable of processing ever tonne of ULAB arising in Australia. Rather, the Tribunal in applying reg 16(4)(a) must determine whether there is an Australian facility capable of processing the ULAB that are the subject of the application;
(w)the issuing of other permits by the Respondent is not evidence that Enirgi could not dispose of the ULAB that are the subject of the application. Previous decisions of the Respondent show no more than that in other factual situations. The Respondent or a delegate of the Respondent decided not to exercise the various discretions to refuse to grant a permit in reg 16(4);
(x)the fact that there is an economically efficient alternative, or even an economically more efficient alternative, to disposal in an Australian facility does not prevent an Australian facility from satisfying reg 16(4)(a);
(y)disposal of the ULAB that is the subject of the application by Enirgi would be consistent with the environmentally sound management of the waste for the purposes of reg 16(4)(b);
(z)the ULAB that are the subject of the application could be disposed of safely and efficiently in Australia and in a manner that would be consistent with the environmentally sound management of ULAB. The desirability of disposing of ULAB using Australian facilities, to which the Tribunal must have regard under reg 16(4)(c).
DGL’S SUBMISSIONS

In its submissions lodged on 1 October 2020, DGL submitted:
(a)DGL is a company involved in recycling of ULAB and operates facilities at Unanderra, New South Wales and Laverton North, Victoria for that purpose. The Unanderra facility has the capacity to process 50,000 tonnes of ULAB per annum but is only licensed to process 36,000 tonnes per annum. The Laverton North facility can process 50,000 tonnes per annum. It is not subject to any licence restrictions;
(b)in 2019, DGL processed 44,025 tonnes of ULAB;
(c)DGL's Unanderra and Laverton North facilities recycle the ULAB in the following manner:
(i)feeding and crushing the ULAB;
(ii)extracting and treating battery acid and disposing of it in landfill;
(iii)extracting and treating lead paste, packaging and exporting it to existing markets under permit, in the absence of a local market;
(iv)extracting and treating waste plastic separators and disposing of it in landfill;
(v)extracting polypropylene plastics and selling it to a local plastics recycler; and
(vi)extracting and treating lead grid, a non-hazardous waste, packaging and exporting it;
(d)several export permits have previously been issued to DGL in respect of the lead paste generated from its facilities;
(e)when the price paid for ULAB was 34% of the LME price (2015 and 2016) DGL made losses. Prices have been reduced to ensure the ongoing sustainability of the DGL business;
(f)the total capacity of all facilities within Australia to treat ULAB is 179,000 tonnes per annum. Only the Enirgi facility currently has the capacity to fully treat and dispose of locally all of the hazardous waste within the ULAB;
(g)based on 2019 processing Enirgi's facility has approximately 14,000 tonnes of unutilised capacity, DGL facilities have approximately 42,000 tonnes of unutilised capacity and the other facilities have approximately 2,000 tonnes of unutilised capacity;
(h)the annual quantity of ULAB currently produced in Australia is disputed. DGL contends that the current quantity produced approximates 136,600 tonnes per annum, on the basis that the ULAB collection rate in Australia approximates 90%. The Applicant asserts that the quantity of ULAB produced annually in Australia is 150,000 tonnes;
(i)in the event that it is found that the treatment of ULAB at the DGL, V Resource and Lex Enviro facilities does not give effect to a disposal for the purpose of reg 16(4), reg 16(3) should apply to the manner in which ULAB is otherwise treated and disposed of, particularly by the DGL facility. Accordingly, in those circumstances, the export permit sought by the Applicant should be refused.
(j)the Respondent's delegate determined that reg 16(4) did apply by reason of the unused capacity at Enirgi's facility. DGL support that determination. DGL also assert the unused capacity at its, V Resource and Lex Enviro's facilities are also relevant in respect of the application of reg 16(4).
(k)the Basel Convention and the OECD Decision identify the following underlying policies and/or principles underscoring Australia's international obligations incorporated into the Regulations:
(i)the disposal of hazardous and other waste does not occur on free market principles;
(ii)whilst economic efficiencies are relevant, the primary focus is on the safe recovery and disposal of hazardous and other waste; and
(iii)transborder movement of hazardous and other waste is permitted on a regulated basis, but the use and development of domestic facilities by each nation state for the disposal of such waste or the recovery of is preferred and is to be encouraged;
(l)in assessing the application of reg 16(2), it is in the public interest to maintain, develop and encourage the development of the Australian market and facilities for the disposal and/or recycling of hazardous and other waste;
(m)DGL records the low margins on which it operates its facilities. That is to be compared with the significant margins that the Applicant has secured through the operation of its business. Reducing the available supply of product to Australian facilities and operators such as DGL and Enirgi can only detrimentally impact their financial viability and future sustainability;
(n)whilst the Applicant complains that the LME prices paid by DGL and Enirgi for ULAB have been reduced and that significantly greater prices can be achieved from exporting the ULAB to South Korea, such issues do not establish any greater efficiency in the Australian hazardous waste management market, does not encourage or develop the Australian waste management market nor satisfy the principles and policies underlying the Regulations, as exposed by the Basel Convention and the OECD Decision;
(o)loss of a viable Australian waste management and recycling industry will only increase the need for transborder movement of hazardous and other wastes and undermine the principles and policies of the Basel Convention and OECD Decision;
(p)it is far from apparent that issuing an export permit to the Applicant as requested will increase the recoverability rate of ULAB in Western Australia, particularly in the rural areas which, in any event, represent a small proportion of the Western Australian market;
(q)in the event that the Tribunal concludes that because such facilities require the ultimate export of lead paste, lead grid and the sale of treated plastic, such facilities are not the same or substantially similar, the processes nevertheless provide another way for the hazardous waste to be "appropriately dealt with";
(r)in respect of the discretion granted by reg 16(4), the Tribunal should refuse the export permit sought because:
(i)the 6,000 tonnes of ULAB can be disposed of safely and efficiently by using a facility in Australia (reg 16(4)(a));
(ii)such disposal is consistent with the environmentally sound management of such ULAB (reg 16(4)(b)); and
(iii)it is desirable to use the Australian facilities rather than in accordance with the Applicant’s export proposal (reg 16(4)(c)).
(s)The Enirgi facility clearly has capacity to safely and efficiently dispose of the ULAB the subject of the permit sought. If a broader view of “disposal” (the term is not defined in the Regulations) is taken, the processing in the DGL facilities involves the disposal into landfill of two aspects of hazardous waste contained within the ULAB, namely acid and plastic separators. It involves treatment that removes the hazardous nature of the acid and plastic separators. It involves the treatment and shipment overseas of lead paste. Such treatment facilities safely and efficiently dispose the acid and plastic separators recovered from ULABs into landfill within Australia. It safely and efficiently disposes of the hazardous nature of further aspect of the ULAB product;
(t)the Applicant contends that there remains ULAB produced in Australia that is beyond Australia's capacity to treat. That contention answers the wrong question. reg 16(4) is concerned with the ULAB that is the subject of the export permit application. It is not concerned with other ULAB that may or may not be collected or treated;
(u)the Applicant contends that its proposal should be considered on a similar basis to the export permits granted to DGL. Such a contention is fallacious. The export permit that is the subject of the application concerns 6,000 tonnes of ULAB for the 2020 calendar year. The ULAB incorporates several hazardous waste elements, including lead paste, acid and plastic separators. By reason of DGL's processing, all but one of those elements, lead paste, is disposed totally or as a hazardous substance. DGL's prior and existing permits concern a different product to ULAB, namely lead paste, that is sold to an established market.
THE APPLICANT’S RESPONSE
In its submissions in response lodged on 30 October 2020, the Applicant said:
(a)the objects and aims of the Act, the preamble to the Basel Convention and the OECD Decision do not give primacy to limiting the transboundary movement of hazardous waste;
(b)the first object of the Act is to regulate the "export, import and transit of hazardous waste". The second object is to protect people and the environment, locally and outside Australia, from the harmful effects of the hazardous waste by ensuring that those activities (export, import and transit) are done in an environmentally sound manner;
(c)given the nature of the permit and the application, and by operation of arts 11(1) and 11(2) of the Basel Convention, the aim of the Act is to give effect to the provisions of the OECD Decision. It is these provisions that that are relevant as the Basel Convention "stands aside";
(d)significantly, there is nothing in the OECD Decision which might be said to presume against or limit the transboundary movement of hazardous waste. Rather, the OECD Decision:
(i)specifically acknowledges the role of well-established international markets in fostering the recovery of valuable materials from hazardous wastes through their transboundary movement as between OECD member countries;
(ii)expressly acknowledges that the transboundary movement of hazardous waste between OECD member countries may be justified where it is environmentally sound and economically efficient;
(iii)controls that transboundary movement by imposing obligations on those who wish to undertake it;
(e)the OECD Decision requires that hazardous waste is transported across international boundaries in an environmentally sound and economically efficient manner; but there is no presumption against such transboundary movement or even an attempt to dissuade against it;
(f)“Desirability of using facilities in Australia for the disposal of hazardous waste" in reg 16(4)(c) of the Regulations:
(i)connotes nothing more than a “positive aspiration” or “something worthy of achievement” (see Re Griffiths and Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274; (1993) 31 ALD 380); and
(ii)must be read within the context of the OECD Decision (see Australian Refined Alloys Pty Ltd);
(g)the efficiency questions are much broader and encompass:
(i)consistent and competitive pricing for ULAB offered by OECD member countries in international markets promotes the collection and recovery of ULAB by collectors operating within the collection market in remote, rural and regional Western Australia whereas constantly fluctuating domestic pricing offered by DGL and Enirgi does not; and
(ii)DGL itself recognises this economic efficiency as it exports lead paste to established international markets within OECD countries in the absence of a local market;
(iii)the economic interests of OECD member countries which acknowledge that ULAB and lead paste constitute valuable hazardous waste material as raw materials for recycling and support recovery industries in those countries which require that waste to sustain those industries in those and are prepared to pay consistent and competitive pricing for that waste;
(iv)the sustainability of the domestic collection market and the degree to which that market can expeditiously achieve and deliver the recycling and reclamation of hazardous waste so as to avoid any harm to the environment and people. This is achieved through transboundary movement of the hazardous waste because the pricing offered on international markets is stable and consistent and makes it economically attractive to promptly collect and dispose of that waste;
(h)in the Applicant's previous application for an export permit, high and stable pricing offered for ULAB was taken into account by the Respondent in assessing the exercise of discretion to either grant or refuse a permit under the OECD Regulations;
(i)since the granting of that previous export permit and following the refusal of the present application, each of Enirgi and DGL has reduced the prices they pay for ULAB;
(j)that reduced pricing has resulted in a disincentive for ULAB to be collected in Western Australia with the result that that ULAB will not be collected and the hazardous waste will not be "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";
(k)when reg 16(4) refers to capacity of local processors to dispose of waste it is focusing on what is actually disposed of domestically and what is not (i.e. what is exported under either a Basel export or a special export permit);
(l)it is clear that the domestic processors (noting that it is only Enirgi that carries out full processing; i.e. disposal) did not have sufficient capacity during 2019/2020 to expediently (i.e. in the immediate or near future) dispose of the waste domestically given the export and special export permits granted by the Respondent to DGL;
(m)the granting of the permits to DGL demonstrates that Enirgi did not have any unutilised capacity, noting that the tonnage for certain of the permits granted approximate to that in the Applicant’s application. Alternatively, if Enirgi had unutilised capacity, it was a direct result of management decisions to reduce prices which resulted in their purchases progressively declining from 75,151 tonne per annum to 57,676 tonne per annum;
(n)it follows that the criterion in reg 16(4) of the Regulations is not met;
(o)overall domestic ULAB arisings is a critical consideration as it is the constituents of the ULAB that must be disposed of. Where a domestic processor (i.e. Enirgi) requires ULAB (and all its constituents) to be able to run at full capacity to achieve economic efficiency, that must necessarily mean that that processor would make every effort to purchase all available ULAB, would dispose of that waste expediently and would object to constituents of that waste being exported for further disposal offshore. However, Enirgi did not do so and it can therefore be taken that it does not have the capacity to dispose of the 6,000 tonnes let alone all of the domestic ULAB arisings of which more than half are generated in close proximity to New South Wales and Victoria;
(p)in relation to Appendix 5 of the OECD Decision, Appendix 5.A is equivocal whether the operations specified amount to environmentally sound management of the hazardous wastes. Appendix 5.B is unequivocal that the operations specified amount to environmentally sound management of the hazardous wastes;
(q)“accumulation” (Appendix 5.B, item R13), when viewed against the remainder of the operations in Appendix 5.B, is directed at preparatory steps to gather or collect the hazardous waste so that the other environmentally sound operations (i.e. recovery, recycling, reclamation, direct re-use or alternative uses of the waste) can be carried out or undertaken;
(r)Stage 1 operations are more than, and occur post, the collection or gathering (i.e. accumulation) of the hazardous waste. The definition of "environmentally sound management of hazardous wastes or other wastes" in the Basel Convention and for the purposes of the OECD Decision, acknowledges that gathering, collecting and massing hazardous waste is environmentally sound management if that gathering, collecting and massing is "intended for any operation" in Appendix 5.B. The item R13 'accumulation' must lead to one or more of the other operations in Appendix 5.B. Stage 1 processing does not fall within item R13;
(s)"R4 Recycling/reclamation of metals and metal compounds" in Appendix 5.B of the OECD Decision (and in the equivalent in Section B of annexure IV of the Basel Convention) comprises the component operations of each of the Stage 1, Stage 2 and Stage 3 processing;
(t)an enquiry under reg 16(3)(a) of the Regulations focuses on the technical means by which the proposed treatment of the hazardous waste is to be carried out by a permit applicant and to ask whether there is “another way” in which that waste could appropriately be dealt with;
(u)the operations in Appendix 5.A of the OECD Decision and in the equivalent in Section A of annexure IV of the Basel Convention “pose significant risk of injury or harm to people or the environment” and therefore do not satisfy reg 16(3)(b) of the Regulations;
(v)the only means by which the ULAB the subject of the Application can be “dealt with” in a manner which does not pose a significant risk of injury or harm to people or the environment is by recycling and reclamation; i.e."R4 Recycling/reclamation of metals and metal compounds" in Appendix 5.B of the OECD Decision which is precisely the means by which the Applicant proposes that the ULAB the subject of the Application be "dealt with";
(w)on that basis, there is not “another way” (and Stage 1 processing by DGL is not “another way”) to deal with the ULAB which would satisfy regs 16(3)(a) and 16(3)(b);
(x)in considering reg 16(3)(a) of the Regulations, it is necessary to consider whether there is another way of dealing with the particular hazardous waste that is proposed to be exported under the application for an export permit which requires a consideration of ULAB sourced from remote, rural and regional Western Australia;
(y)if the export permit is refused, that is sufficient to ground a conclusion that there is not “another way in which the hazardous waste (ULAB) could appropriately be dealt with” because the ULAB will not be “dealt with” at all and as such the discretion under reg 16(3) of the Regulations is not “triggered” (enlivened);
(z)such a conclusion negates a conclusion being reached that “the hazardous waste could be disposed of safely and efficiently by using a facility in Australia";
(aa)there is nothing different to the basis upon which DGL was granted its export permits in the absence of local disposal;
(bb)there is no residual discretion. Regulations 16(2)–16(4) “provide the Tribunal on review with the only discretionary matters to refuse to grant the permit”;
(cc)DGL itself concedes a reason for it low margins and revenue– it has kept its Laverton North facility in Victoria (that has lead smelting and refining capabilities) closed since June 2018 because it is uneconomical to operate. The constantly fluctuating pricing offered by each of DGL and Enirgi to the Applicant detrimentally impacts the financial viability and future sustainability of the Applicant's ULAB collection component of its business;
(dd)the term “public interest” derives its content from the subject matter, scope and purpose of the enactment in which it appears: see O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 2010 (O’Sullivan v Farrer); Australian Refined Alloys Pty Ltd. The term “public interest” is capable of encompassing a wide range of considerations. Public interest (or the legitimate concern of the public) within reg 16(2) of the Regulations, when considered within the context of the OECD Decision and the object and aims of the Act, encompasses the collection and disposal of hazardous waste including management and disposal of domestic hazardous waste, economic efficiency and the need for domestic legislation not to restrict international trade;
(ee)the issue is not the risk of profitability of the industry; rather, the issue is the domestic environmentally sound and economically efficient and expeditious disposal (recycling/reclamation) of domestic hazardous waste and the risk is that people and the environment domestically are at risk of the harmful effects of that waste where that waste is not being disposed of in that manner as opposed to being exported;
(ff)the economic benefits extend to those benefits for international markets because the higher and fixed pricing offered on international markets promotes the environmentally sound and economically efficient and expeditious disposal (recycling/reclamation) of domestic hazardous waste achieving the object and aims of the Act and the OECD Decision;
(gg)the evidence of the Applicant, Lane Metals and Sims demonstrates that the higher and fixed pricing offered on international markets by way of permits promotes the environmentally sound and economically efficient and expeditious disposal (recycling/reclamation) of Western Australia hazardous waste (ULAB) by promoting the collection rates of that waste and avoiding that waste being left uncollected, thereby achieving the object and aims of the Act and the OECD Decision;
(hh)it matters not whether there is that capacity and whether or not the hazardous could be disposed of. What matters is whether or not hazardous waste is being collected and disposed of in an environmentally sound and economically efficient and expeditious manner. When not, prompt transboundary export of that waste is permitted. To restrict or impede prompt transboundary export of hazardous waste from occurring simply on the basis that there is technical or unutilised capacity and/or the possibility of that waste being collected and disposed of at domestic processors cannot be supported;
(ii)there is ULAB not being collected and disposed of in rural, regional and remote Western Australia, this being the collection market within which the Applicant actively operates, despite this unutilised capacity. This hazardous waste is left uncollected and not disposed of, which defeats the object and aims of the Act and fails to give effect to the OECD Decision.
CONSIDERATION
Regulation 16(1)

As noted above, while the Decision found that the criteria under reg 16(1) had been met and that therefore the prohibition against the issue of a permit under that regulation did not apply. No argument was raised by the Respondent that any of the criteria was not met or that the prohibition under reg 16(1) should apply. Enirgi, however, in its submissions does assert that the Applicant does not have appropriate insurance and, accordingly, submitted that reg 16(1)(h)(ii) is not satisfied and the prohibition under reg 16(1) applies. The basis identified by Enirgi for asserting that the Applicant did not have “appropriate insurance” was that the period of insurance ended on 31 May 2020 (Enirgi’s SFIC, para 28).
That contention is easily dealt with. As the Applicant pointed out at paragraph 2.4.2 of its responsive submissions, updated insurance has been taken out. The relevant certificate of insurance, which was lodged with the Tribunal at the time of the Applicant’s responsive submissions, shows insurance cover for the period from 31 May 2020 to 31 May 2021.
As no other non-compliance with any of the provisions of reg 16(1) has been raised, the Tribunal is satisfied that the prohibition under reg 16(1) does not apply.
Regulation 16(2)
In the Decision, the delegate of the Respondent found (R1, T42/233):
51.On balance, I considered that there are no clear public interest grounds that support refusal of the permit under regulation 16(2).
52.Therefore, I have decided not to exercise my discretion under regulation 16(2) of the OECD Regulations to refuse the permit on public interest grounds.
The delegate did go on to refuse the permit exercising the discretion under reg 16(4) (R1, T42/236).
As noted above, the Respondent does not argue that the permit should be refused by exercise of the discretion under reg 16(2). The Respondent submits that if the Tribunal is satisfied that the preconditions of regs 16(3) or 16(4) have been met, the Tribunal should exercise its discretion to refuse the grant of the export permit under those regulations. The Respondent identifies the issues for determination as being whether the discretion to refuse the permit is “enlivened having regard to” regs 16(3) or 16(4) (see [33] above). While the Respondent’s submissions encompass issues that are clearly matters of public interest, those submissions are made in the context of exercise of the discretion under regs 16(3) and 16(4), not reg 16(2).
Enirgi submitted that the permit should be refused under reg 16(2) on public interest grounds which it identified as those set out at [44](i) above. The first of those claimed public interest considerations, Australia’s ability to meet its obligations under para 2(d) of the Basel Convention to ensure that the transboundary movement of hazardous wastes is reduced to a minimum appears to be, in effect, the same or very similar to the factors identified in regs 16(3)(c) and 16(4)(c), or a combination of those two provisions. That consideration in isolation, in other words in the context of public interest under reg 16(2) alone, rather than in conjunction with the other considerations identified as relevant to exercising a discretion under regs 16(3) or 16(4), is not, in the Tribunal’s view sufficient to warrant an exercise of the discretion to refuse a permit under reg 16(2).
The second public interest ground identified by Enirgi, promoting employment in the Wagga Wagga region, is, in the Tribunal’s view too speculative and lacks evidential support. At paras 34 and 35 of her statement (E1) Ms Hardy, the general manager of Enirgi, identifies how many people Enirgi employs and expects to employ “in the next few years” at its Bomen facility, and says that its ability to employ people is directly affected by its ability to source ULAB. That falls a long way short of establishing that the issuing of the export permit sought by the Applicant would have an impact on Enirgi’s capacity to employ people.
In relation to reg 16(2), DGL submits that it is in the public interest to maintain, develop and encourage the development of the Australian market and facilities for the disposal and/or recycling of hazardous and other waste (see [45](l) above). It submits that because it, unlike the Applicant, operates at very low profit margins, reducing the available supply of product to Australian facilities and operators such as DGL and Enirgi can only detrimentally impact their financial viability and future sustainability. Again, that submission is, in the Tribunal’s assessment, too speculative to sustain refusal of the permit under reg 16(2) on public policy grounds alone. Insofar as DGL’s submissions go on to link this public policy consideration to the use of Australian processing facilities as being preferable to exporting ULAB, they are, in effect, moving into the considerations or preconditions identified in regs 16(3) and 16(4).
While the parties have made extensive submissions on the factors to be taken into account in the exercise of the discretion to refuse the permit, it is only the submissions of Enirgi and DGL identified above that specifically made submissions on the refusal of the permit under reg 16(2), refusal on public policy grounds alone. That is, with respect to the drafters of the Regulations, not surprising given the paucity of direction in and apparent overlap of the matters which might be relevant to regs 16(2), 16(3) and 16(4). Regulation 16(2) does not define, or even guide, the decision maker as to what matters might be relevant to the public interest. The Applicant in its responsive submissions above) referred to O'Sullivan v Farrer and other cases (see [46](dd) and contended that the term “public interest” is capable of encompassing a wide range of considerations. The Tribunal does not dispute the Applicant’s submission on the breadth of meaning that the courts have given to that term, however, that, unsurprisingly, is not particularly helpful to the Tribunal in determining what in this case is in the public interest.
It is the case, however, that a significant proportion of the submissions made by the parties in relation to regs 16(3) and 16(4) could fairly be described as “public interest” considerations. That again is not surprising given the lack of definition or direction in regs 16(3) and 16(4) as to the basis upon which the discretion to refuse the export permit is the be exercised once the decision maker is satisfied of the that the conditions for the exercise of the discretion have been met. Accordingly, the Tribunal will take into account those public interest arguments raised by the parties, not in the context of considering whether the apparently unqualified discretion under reg 16(2) should be exercised, but rather, as the parties appear to have argued, in considering whether the discretion to refuse the permit under regs 16(3) or 16(4) should be exercised, provided that the preconditions for the exercise of the discretion is established under either of those regulations.
The Tribunal is not satisfied that the correct or preferable decision in the present case is that the discretion to refuse the export permit in the public interest alone under reg 16(2) should be exercised.
Regulation 16(3)
As noted above, the Decision was to exercise the discretion to refuse the permit under reg 16(4), the delegate having found that the precondition in reg 16(3)(a) for the exercise of the discretion under that regulation had not been met because:
…although there are Australian facilities that could potentially process the ULABs, their treatment methods are sufficiently similar to that proposed by Dodd and Dodd that they should not be considered as another way’ of dealing with the waste.
(R1, T42/233)
The parties’ submissions, for example the Applicant’s responsive submissions (see [46t] above onwards) sought to address that issue by analysing the physical and chemical processes by which the ULAB would be disposed of once they are shipped to Korea, as the delegate had done in the Decision. That was on the basis that the words “another way” in reg 16(3)(a) are referring the mechanical, chemical and other physical processes that the ULABs will be subjected to once they are arrive at the export destination. The wording of reg 16(3) is, however, not clear on what the “way” is to which “another way” is the alternative. In the context of the Regulations and Act as a whole, and more particularly in the context of reg 16 which is considering whether a special export permit should be granted, “another way” could well be a reference to a way other than export.
Perhaps the only guide to whether “another way” in reg 16(3) means a way other than export or another physical treatment or processing of the hazardous waste, is that if it is the former it comes close to covering the same matters as reg 16(4) which, by reg 16(4)(a), requires consideration of whether the hazardous waste could be disposed of using facilities in Australia, that is disposed of in Australia rather than being exported.
On the basis that that is the correct interpretation, based on the evidence provided by the parties, in particular the Other Parties, the Tribunal agrees with the delegate’s conclusion that physical processing of the ULAB in Korea as described in the Applicant’s application for the export permit and the documents submitted with the application (R1, T5–T7) is sufficiently similar to the way that Australian facilities could potentially process the ULAB that the processing of the ULAB in Australia could not be considered “another way” for the purposes of reg 16(3)(a).
The Applicant argues that in considering reg 16(3)(a) it is necessary to consider whether there is another way of dealing with the particular hazardous waste that is proposed to be exported under the application for an export permit which requires a consideration of ULAB sourced from remote, rural and regional Western Australia (see [46](x) above). The Tribunal does not consider that reg 16(3)(a) requires an enquiry to that extent. The enquiry need only go to the ULAB the subject of the application for the export permit. The Tribunal agrees with the delegate’s approach which, as the Applicant described it “focusse[d] on the technical means by which the proposed treatment of the [exported] hazardous waste is to be carried out” (see [46](t) above). On that basis it was not established that there was “another way” in which the hazardous waste the subject of the export permit could appropriately be dealt with.
The Tribunal accordingly agrees with the delegate’s conclusion that the condition for the exercise of the discretion under reg 16(3) not to issue the export permit was not satisfied.
Regulation 16(4)
Consideration of reg 16(4) falls into two categories, firstly whether the Tribunal is satisfied that the requirements of regs 16(4)(a)–(c) have been met and then if they have been met, whether the discretion to refuse to grant the permit should be exercised.
Is reg 16(4)(a) satisfied?
The Applicant says that the finding that the 6,000 tonnes of ULAB the subject of the application for the permit could be disposed of safely and efficiently was, and presumably is, flawed on several grounds. Firstly, the Applicant says that it is simply a mathematical calculation based on deducting the 60,000 tonnes processed by Enirgi from its 70,000-licence capacity and assuming that the resultant 10,000 tonne capacity shortfall can accommodate and recover the 6,000 tonnes the subject of the application. However, according to the Applicant, that conclusion ignores the fact that Enirgi did not recover any of the surplus 80,000 tonnes of ULAB arisings in Australia. That criticism is, in the Tribunal’s view, not valid.
The Applicant’s argument is that there was a surplus of 80,000 tonnes of ULAB arisings last year that Enirgi did not access and that if it did it would not have had, and presumably will not have, capacity to take the 6,000 tonnes the subject of the Applicant’s export permit.
That argument is based on capacity to process being measured against total theoretical arisings (which is an estimate only) rather than what history shows is actually processed. There would obviously be a whole range of factors– geographical, commercial and legal, which would influence how much ULAB is actually processed in a given year. What is clear on the evidence, however, is that historically, total processing of ULAB falls well short of licensed capacity. Enirgi alone has the capacity to buy and process the 6,000 tonnes of ULAB the subject of the export permit application and has, or had in the relevant period, 10,000 tonnes of unused capacity (E1, para 16). The Tribunal accepts Ms Hardy’s evidence in that regard.
Further, whether a particular processor or the processors as a whole would have the capacity to process all of the ULAB arisings generated in a particular year is not the point. The enquiry dictated by reg 16(4)(a) is as to whether there is capacity in Australian facilities to dispose of “the hazardous waste” (emphasis added) which clearly, in the context of that regulation, means the 6,000 tonnes of ULAB the subject of the export permit application, not all ULAB in Australia.
In addition to Ms Hardy’s evidence, Mr Perera, a director of DGL, gave several statements (DGL1–DGL3) which also analysed processing capacity on publicly available information. His assessment was that there was, across four processors (DGL, Enirgi, Lex Enviro and V Resources), 57,000 of unused processing capacity. While not all of that capacity was to process ULAB to Stage 3, it is not disputed by the Applicant that Enirgi processes to Stage 3.
The Respondent also submits that the Applicant’s argument based on there being some 80,000 tonnes of unprocessed ULAB in the market assumes that:
(a)a particular quantity of surplus ULAB will be offered to the particular processor (in this case Enirgi); and
(b)that that processor will be compelled to accept a particular quantity of surplus ULAB, thereby creating a risk that it cannot take the Applicant’s 6,000 tonnes.
The Respondent submits that there is no basis to support such an assumption and that the Applicant itself, a major collector, has rarely engaged Enirgi until recently. The question, according to the Respondent, is whether domestic processors have capacity by reference to the evidence and historical records, not by reference to surplus ULAB arisings that have not been offered for processing and may never even be offered. The Tribunal agrees.
On the evidence before the Tribunal it is clear that there is capacity in facilities in Australia to dispose of the 6,000 tonnes of ULAB the subject of the Applicant’s application for an export permit and considerably more. Enirgi by itself has the capacity to process that amount of ULAB to Stage 3.
Extensive submission were made by the Applicant and evidence presented through the statement (A1) and oral evidence of Mr Rock, a long-standing consultant to the Applicant who has been responsible for numerous applications, as to previous applications for export permits made by the Applicant and DGL which were opposed by the Applicant. The purpose of this evidence appeared to be to argue that DGL could not, on the one hand, seek an export permit (apparently successfully) which necessarily argued a lack of domestic processing capacity, and, on the other hand, argue against the grant of the export permit to the Applicant on the basis that there was sufficient domestic processing capacity. The Tribunal rejects that argument. The function of this Tribunal is to review the Respondent’s decision to refuse the export permit as sought by the Applicant’s application dated 9 September 2019 for 6,000 tonnes of ULAB to Korea. The relevant consideration for this Tribunal is, amongst other factors, whether, on the evidence presented to the Tribunal, there is capacity in Australia to dispose of the 6,000 tonnes ULAB that the Applicant seeks to export. What the Respondent may have decided in relation to applications by others for export permits in previous years, or what those applicants may have argued in support of those applications, is not relevant to whether, at this time, there is capacity to process the 6,000 tonnes of ULAB. Each application for an export permit must be decided on its merits and a decision made based on the evidence presented. The fact that at some time in the past a delegate of the Respondent apparently considered that the requirements for the issue of an export permit were made out does not establish, or even indicate, that in the context of the present application there is not sufficient domestic capacity to process the 6,000 tonnes of ULAB sought to be exported by the Applicant.
The Applicant’s arguments in relation to reg 16(4)(a) seem to be limited to arguing that the domestic processors simply do not have the capacity to process the 6,000 tonnes of ULAB which the Applicant seeks to export. The Tribunal does not understand the Applicant to argue that, if there is capacity in Enirgi and the other domestic processors, it is not capacity to safely and efficiently dispose of the 6,000 tonnes of ULAB. Although the Applicant in various places of its SFIC and responsive submissions refers to efficiency in general terms and the safety of the public and the preference for processing to Stage 3, the Tribunal understands those submission to be made in relation to the exercise of the discretion under regs 16(3) or 16(4) rather than as an argument that the capacity to process the 6,000 tonnes of ULAB in Australia (if such capacity exists) is not safe and efficient.
In any event, there is no evidence before the Tribunal which would sustain such an argument. It seems to be accepted by the Applicant that when looking at the domestic processors’ capacity, one is looking at licensed capacity. That certainly is the effect of the evidence of Ms Hardy and Mr Perera, and Mr Rock’s evidence seems to proceed on the same basis.
Ms Hardy’s statement (E1) also advised that Enirgi had implemented a Quality Management System (QMS) which complies with ISO 9001.2015 for its processes which was re-certified in May 2020. She was not cross-examined on that issue.
Insofar as reg 16(4)(a) requires consideration of capacity to “safely and efficiently” dispose of ULAB as well as gross capacity, the Tribunal accepts that under the licensing regimes covering the processors, licensed capacity equates to capacity to dispose of the ULAB safely and efficiently and that ULAB processed by the domestic processors would be processed safely and efficiently.
The Tribunal finds that the condition in reg 16(4)(a) is satisfied.
Is reg 16(4)(b) satisfied?
As with consideration of reg 16(4)(a), the parties’ submissions, in particular those of the Applicant, are made on general bases rather than specifically in relation to individual sub-regulations of reg 16(4). While those submissions may have some application to reg 16(4)(b), they appear to be primarily addressing factors which the parties say are relevant to the exercise of the discretion not to grant the permit rather than whether the conditions under regs 16(4)(a)–(c) are met.
The Tribunal found in relation to reg 16(4)(a) that the domestic capacity to process the 6,000 tonnes of ULAB the subject of the export permit application was capacity to dispose of that ULAB safely and efficiently (see [77] above). Again, the Tribunal accepts that the relevant processors who have satisfied the relevant regulatory authorities that they can process ULAB safely have also satisfied the relevant authorities that their disposal processes are consistent with environmentally sound management. Ms Hardy in her statement (E1) stated that Enirgi had implemented an Environmental Management System (EMS) which was fully integrated into the structure of the organisation and complies with AS/NZ ISO 14001:2015 and that Enirgi publishes its monthly environmental monitoring reports online. She was not cross-examined on that issue.

While full processing of ULAB to Stage 3 may be considered to be environmentally preferable to processing to Stages 1 and 2, the Tribunal accepts that the processes employed by the domestic processors are an acceptable way of disposing of ULAB as described in the Basel Convention’s Technical Guidelines for the Environmentally Sound Management of Waste Lead-acid Batteries (see generally Technical Guidelines for the Environmentally Sound Management of Waste Lead-acid Batteries pt 4 Lead-Acid Battery Recycling). Even if processing of ULAB to Stages 2 and 3 is arguably not “disposal” for the purposes of the Basel Convention or that such processing is not as environmentally sound as processing to Stage 3, the Tribunal has found that Enirgi has the capacity to safely and efficiently dispose of the 6,000 tonnes of ULAB the subject of the application for the export permit and the Tribunal accepts, as the Applicant appears to, that processing to Stage 3 is consistent with environmentally sound management. Regulation 16(4)(b) is therefore satisfied.
Is reg 16(4)(c) satisfied?
This regulation in effect states the discretion to be exercised if regs 16(4)(a) and 16(4)(b) are satisfied. It starts with the direction, consistent with the Basel Convention and the domestic legislation and Regulations which facilitate the implementation of the Basel Convention that it is desirable to use facilities in Australia for the disposal of waste rather than exporting that waste.
There are several threads to the Applicant’s argument which could be relevant to whether the discretion under reg 16(4) should be exercised. Some have been dealt with in considering regs 16(4)(a) and 16(4)(b) above. Insofar as that is not the case, the Tribunal addresses them as follows:
(a)Applicant’s contention
The issue of export permits in the past to DGL evidences
i.a concession on the part of the Respondent that three is insufficient domestic capacity; and
ii.that the export of components of ULAB, in particular lead paste, demonstrates an acceptance that it is consistent with Australia’s obligations under the Basel Convention to allow export of ULAB.
The first element of that argument has been addressed in considering reg 16(4)(a) in [73] above. As to the second element, the Tribunal accepts that in certain circumstances it may be consistent with the Basel Convention and appropriate to permit the export of hazardous waste whether that be ULAB or the partly processed product of ULAB. The mere fact that someone has been granted an export permit in the past for the export of hazardous ULAB product does not, however, indicate that it is appropriate in this case.
(b)Applicant’s contention
Domestic ULAB collectors are not collecting domestic ULAB arisings because pricing is economically unattractive or unviable, that hazardous waste is not being "disposed of safely and efficiently” and it is undesirable to promote domestic disposal to a facility in Australia under regulation 16(4)(c) as opposed to the waste being exported. In the absence of being able to price ULAB based on prices achieved in exporting, recovery/collection in remote and rural Western Australia ULAB is likely to be unlawfully disposed of which is not in the public interest. The grant of the permit will enhance the collection and recovery of ULAB in Western Australia.
The Tribunal understands the sentiment behind this argument, with the caveat that it is likely in part at least driven by the Applicant’s own commercial interests. The difficulty that the Applicant faces, however, is the lack of evidence to support the contention. On broad economic principles of supply and demand, it makes sense that the higher the price that is paid for ULAB (which would be facilitated by being able to sell to overseas processors) the more ULAB will be collected. That, on the Applicant’s argument, would be better for the environment in Western Australia and consistent with the intent of the Basel Convention.
Of course on the other side of the economic/commercial argument, are the matters raised by Enirgi and DGL who argue that the effect of allowing the export of ULAB would be to increase the price that they would have to pay in the market for ULAB which would prejudice the viability of their capital intensive processing operations. They argue that it is in Australia’s best interests, and consistent with Australia’s obligations under the Basel Convention, for Australia to have a sustainable, long-term ULAB processing/disposal capacity.
The Tribunal’s view is that the commercial viability arguments raised by Enirgi and DGL outweigh the financial arguments raised by the Applicant or, at best for the Applicant, those competing commercial considerations cancel each other out. In that regard the Tribunal notes the observation of Deputy President Hotop in Dodd & Dodd 2010 at [52] that:
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 a 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.
(c)Applicant’s contention
The issue of the permit will ensure that the waste is managed in an efficient and environmentally sound manner because in Korea it is required as a raw material for recycling or recovery industries in that developed OECD country and will undergo a recovery operation "R4 Recycling/reclamation of metals and metal compounds" in an environmentally sound and efficient manner. This is consistent with article 4.9 of the Basel Convention that expressly allows for transboundary movements of hazardous waste in the circumstances specified.
The contention is largely answered by the Tribunal’s finding that Enirgi, which processes to Stage 3 which is, at best what the Korean processor would do, has the capacity to safely and efficiently dispose of the 6,000 tonnes of ULAB for which the Applicant seeks the export permit. In any event, the Tribunal does not accept that processing to Stages 1 and 2 would not also be consistent with the Basel Convention.
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.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.....[SGD]...................................................................
Associate
Dated: 11 February 2021

Dates of hearing: 9 and 10 November 2020

Counsel for the Applicant: Ian Rogers

Solicitors for the Applicant: Thomson Geer

Counsel for the Respondent: Robert French

Solicitors for the Respondent: Sparke Helmore Lawyers

Counsel for DGL Environmental Pty Ltd: Andrew Fernon SC

Solicitors for DGL Environmental Pty Ltd: O'Neill McDonald Lawyers

Counsel for Enirgi Power Storage Recycling Pty Ltd: Michael Palfrey

Solicitor for Enirgi Power Storage Recycling Pty Ltd: HWL Ebsworth Lawyers

Dates of hearing:	9 and 10 November 2020
Counsel for the Applicant:	Ian Rogers
Solicitors for the Applicant:	Thomson Geer
Counsel for the Respondent:	Robert French
Solicitors for the Respondent:	Sparke Helmore Lawyers
Counsel for DGL Environmental Pty Ltd:	Andrew Fernon SC
Solicitors for DGL Environmental Pty Ltd:	O'Neill McDonald Lawyers
Counsel for Enirgi Power Storage Recycling Pty Ltd:	Michael Palfrey
Solicitor for Enirgi Power Storage Recycling Pty Ltd:	HWL Ebsworth Lawyers