SIMS E-RECYCLING PTY LTD and MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES

[2012] AATA 269

[2012] AATA 269  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/4689
Re	SIMS E-RECYCLING PTY LTD
APPLICANT
And	MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin, QC, Deputy President
Date	8 May 2012
Place	Sydney

The decision of the Tribunal is that the application made by the Applicant for variation of the application for review is dismissed because if such a variation were made the Tribunal would not be undertaking a review of the decision made by the Minister.

.......................[sgd].................................................

The Hon. Brian Tamberlin, QC, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – jurisdiction question – whether the Tribunal has the power to consider a substantially amended version of the Applicant’s initial application subject to decision – proposed changes so fundamental as to constitute a new application – if such a variation were made the Tribunal would not be reviewing a decision of the Minister.

LEGISLATION

Administrative Appeal Tribunal Act 1975

Hazardous Waste (Regulation of Exports and Imports) Act 1989

Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996

CASES

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

Re Australian Refined Alloys Pty Ltd and Minister for Environment and Heritage; Exide Australia Pty Ltd (2003) 73 ALD 488

REASONS FOR DECISION

The Hon. Brian Tamberlin, QC, Deputy President

THE APPLICATION AND REFUSAL

1. On 17 January 2011 the Applicant applied to the Respondent for a special export permit to export up to 4,000 tonnes of waste glass from cathode ray tubes to undergo a recovery operation at a facility described as Mirec B. V. (Mirec) in the Netherlands. The application was made under reg 9 of the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (the OECD Regulations).  The decision-maker concluded that it was in the public interest to refuse the permit and that the waste could be disposed of safely and efficiently at a facility in Australia and that, in having regard to the desirability of disposing the waste in Australia, it should be disposed of domestically rather than as proposed by the export application.  In an application dated 27 October 2011 the Applicant applied for review of that decision in this Tribunal.

   PRELIMINARY ISSUE

2. The question arises at the outset whether the Tribunal, in reviewing the decision of the Respondent, has the power to consider a substantially amended version of the Applicant’s initial application which was the subject of the decision where the proposed country of import is changed from the Netherlands to the United Kingdom; the recovery facility is changed from the Mirec facility to a different facility near Liverpool in the United Kingdom; and the amount of waste sought to be exported is increased threefold from 4,000 tonnes to up to 12,000 tonnes.

   THE FACTUAL BACKGROUND AND REASONS UNDERLYING THE APPLICATION FOR CHANGES TO THE APPLICATION. 

3. In an affidavit by Mr Muir who is the Senior Manager E-Waste ANZ of the Applicant he states: 

   Sims is the Australian entity of a global recycling business operating under the Sims name and known as the Sims Group.  Applicant seeks to continue its application for review but change certain aspects of the proposal underpinning its special export permitting application in respect of which the decision under review was made.

4. He details his experience with Sims over a period of seven years, from 2005 to 2012. Mr Muir says that Sims wishes to alter the country of destination and the tonnage sought to be exported, as set out earlier.

5. The reason given for the change in destination is that the Sims Group owns a recycling facility in the Netherlands and, as the result of the policy decision by the Group, the facility in the Netherlands will cease processing by mid-2012.  The facility is operated by a related company of Sims and has conducted glass recycling for Sims in Europe.  Sims has invested heavily in a new facility near Liverpool in the United Kingdom which will provide capacity and efficiencies for the processing of cathode ray tube (CRT) glass and products, namely televisions and monitors.  The facility is fully operational in the United Kingdom and will provide CRT glass recycling solutions across Europe and beyond.

6. If the proceedings for review are successful, Sims does not expect to be able to obtain a permit and complete the export and recycling process before the proposed closure of the Netherlands facility by mid-2012.  This is due to the need to update insurance certificates, among other things.  Accordingly Mr Muir says permitting export to the Netherlands would have no utility.

7. Sims does not consider that the change in destination from Netherlands to the United Kingdom materially changes any of the matters in support of its application for a special export permit.  With the diminishing end markets for specification CRT glass, the United Kingdom facility is the preferred supplier to the downstream market, and meets all the applicable stringent quality specifications of the end producer.

8. The reason for the increase in tonnage is that Sims expects to see a substantial increase in the volume of CRT glass for recycling as a result of the implementation of legislation.  However, Sims cannot be confident of the precise likely increase because the scheme has not yet come into force in relation to CRT glass recycling, but as a substantial increase is expected Sims’ concerns in relation to the lack of capacity for effective recycling of CRT glass in Australia have increased.

   PRINCIPLES AND LEGISLATION

9. Under s 25(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the Tribunal has the power to review any decision in respect of which an application is made to it and any enactment. The present application for review was brought under s 57 of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act). Section 57(a) of the Act provides that applications may be made to this Tribunal for review of decisions whether to grant special permits. Under s 43(1) of the AAT Act the Tribunal’s powers of review stated provide:

   For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing affirming or setting aside the decision under review, and making a decision in substitution or remitting the matter (emphasis added).

10. The Tribunal’s role and powers  in reviewing a decision were considered by the High Court in Shi v  Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286. In that case the court decided that when the Tribunal reviews a decision, the Tribunal must consider the state of affairs existing at the time when the Tribunal makes its decision. It is not limited to the circumstances at the time when the decision under review was made. In her reasons for judgement at [133] Kiefel J points out that:

    Section 43(1) of the AAT Act provides for the powers that the Tribunal may exercise with respect to matters in respect of which it has jurisdiction. The exercise of the powers conferred by the sub-section is restricted to the Tribunal’s purpose, of review the decision in question (133). As Sheppard J said in Secretary to the Department of Social Security v Rile (134), it is not possible to apply s 43(1) to the facts of the case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review. (emphasis added)

11. The power to grant the permit is conferred under reg 14 of the OECD Regulations.  Sub-regulation (1) provides that subject to reg 15, within 14 days after receiving an application for a special export permit, the Minister must grant or refuse the permit.  The latter provisions allow for extensions of time in respect of certain aspects of the exportation, which may arise from the need to obtain consents from the countries of transit and the country of destination. 

12. In relation to applications, reg 9 provides that an application for a special export permit must be made only for hazardous waste that is proposed to be exported to an OECD country under a recovery operation in that country.

13. Regulation 10 provides that at any time before the Minister grants or refuses a special permit the applicant may give the Minister a notice stating that the application is varied as set out in the notice.  In the present case no notice was sent to the Minister before refusal. 

14. Under reg 12(4) within five working days after receiving an application for a special export permit the Minister must give the competent authority of the importing country a written notice that sets out certain information as to the proposed recipient of the waste, the recovery facility at which the waste is proposed to undergo a recovery operation and the transit countries in relation to the waste. 

15. Under reg 16 the Minister must not grant a special export permit unless satisfied that dealing with the hazardous waste concerned, in accordance with the export proposal, would be consistent with the environmentally sound management of the waste, and that the competent authority of the importing country has given written consent to the movement of the waste at the recovery facilities authorised to carry out recovery operations on waste of that type in question. 

16. The Minister, under s 16 of the Act, may refuse to grant a permit if it is considered that it is in the public interest do so and also if it is considered that the hazardous waste could be disposed of safely and efficiently using a facility in Australia.

17. The question of whether the Minister and the Tribunal have the power to issue a permit for the export of a lesser tonnage of hazardous waste than that applied for was considered by Deputy President Handley of this Tribunal in Re Australian Refined Alloys Pty Ltd and Minister for Environment and Heritage; Exide Australia Pty Ltd (2003) 73 ALD 488 at [123] and [124]. In that matter the Deputy President concluded that there was no specific power in reg 14, or the empowering provisions of the Act, for the Minister to vary the application made. He also referred to reg 10 which enables an applicant, before the Minister refuses a special permit, to give a notice varying it as set out in the notice. Reference was made to reg 36 and s 27 of the Act but the Deputy President observed [at 124] that the Minister’s stated power was that of either granting or refusing the application. It is noted that reg 18(1) provided for the maximum quantity of the waste that may be exported to be stated.

18. Deputy President Handley concluded that the tenor of the regulatory mechanism is that of not permitting the Minister to vary the tonnage applied for in accordance with his or her own view of what is reasonable, but merely to refuse the application or grant the permit in terms of the maximum specified by the applicant in the permit application.  He held that there was no power to issue the permit for the export of a lesser tonnage of hazardous waste than that applied for.

    REASONING

19. In this matter the decision under review is the decision to refuse a particular and specific application for a specified volume of material exported to a specific facility in a particular country.  The variation proposed through the review application is that volume of material be increased threefold and the country be changed from the Netherlands to the United Kingdom and that a different facility which may or may not use identical processes, will carry out the process by another company in the Group. 

20. Section 43(1) of the AAT Act stipulates that the Tribunal’s powers on review are those powers and discretions conferred on the Minister which the Tribunal must exercise for the purpose of reviewing a decision.  A “decision” under review may be affirmed, varied or set aside.  In the latter case there may be a substituted decision or the matter may be remitted for the making of a further decision in accordance with directions or recommendations of the Tribunal.

21. The conferral of powers and discretions on the Tribunal are given for the limited purpose of reviewing a decision. Therefore in considering whether the decision sought to be achieved by the amendment, in this case, comes within the provisions of s 43(1), the question is whether what is being sought by the amendment is review of the same decision or the making of a new or different decision.

22. Provisions relating to the making and processing of an application for a special export permit, referred to above, emphasise the central importance of identifying in the application the country to which the material is to be exported and processed. 

23. In the present case, that country, although an OECD country, has been changed to the United Kingdom.

24. It is of central importance in an application subject to the OECD Regulations to also know at the application stage the volume of material which is proposed to be the subject of the special export permit for the purpose of assessment by the the processing country of destination and also for transit countries through which the material passes in order to consider whether to consent.  In the present case, a threefold increase in the amount of the material sought to be processed may be of great significance to the countries which the material is transiting and to the country wherein it is proposed to be processed.

25. In addition, the volume of material will bear on the question whether the permit is in the public interest and whether the Minister should be satisfied that the hazardous waste could be disposed safely and efficiently using a facility in Australia. This raises a question of capacity to process in Australia. 

26. In my opinion the proposed changes are so fundamental as to constitute in effect a new application proposal.  The original proposal as proposed to be varied has never been considered or reviewed or decided on by the Respondent.  Therefore it cannot have been the subject of a decision.  This is not simply a case where circumstances or law have changed over time where they must be considered at the time when the Tribunal hears the decision.  What is sought to be done here is to substitute a new application to avoid perceived administrative delays in exporting the material to a different country, in a different amount, at a different site because the Applicant has made a policy decision to close the Netherlands plant.

27. Accordingly, I do not consider that the Tribunal has jurisdiction to process the proposed variation or to review the amendment to the application which is sought to be supported. Therefore, the application for such variation must be dismissed.

28. The decision of the Tribunal is that the application made by the Applicant for variation of the application for review is dismissed because if such a variation were made the Tribunal would not be undertaking a review of the decision made by the Minister.  In view of this and the apparent futility of proceeding with the application for review as presently framed the Applicant may wish to withdraw this application for review and make a fresh application to the Respondent.

29.       I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President.

.........................[sgd]...............................................

Associate

Dated  08 May 2012

Date of hearing	10 April 2012
Counsel for the Applicant	Mr J Smith
Solicitors for the Applicant	Norton Rose Australia
Counsel for the Respondent	Mr J Davidson
Solicitors for the Respondent	Australian Government Solicitor