Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014

Legislation au F2014L00723 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 74, 2014

Issued by Authority of the Minister for the Environment

Subject – Hazardous Waste (Regulation of Exports and Imports) Act 1989

 

Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014

 

The Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act) regulates the export, import and transit of hazardous waste to ensure it is managed in an environmentally sound manner to minimise harmful effects on humans and the environment. The Act implements Australia’s obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention), an international treaty set up to control the movement of hazardous waste from one country to another.

 

Subsection 62(1) of the Act provides that the Governor -General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Subsection 18A(1) of the Act prohibits the Minister for the Environment (the Minister) from granting a Basel export permit ( a permit issued under the Act permitting the export of hazardous waste from Australia to foreign countries party to the Basel Convention) if the applicant proposes the hazardous waste will be disposed of by a method specified in the Basel Convention, such as high temperature incineration (HTI). However, subsection 18A(2) of the Act provides an exception to the prohibition in subsection 18A(1). It allows the Minister to grant a Basel export permit if certain conditions are satisfied namely, at the time of the decision to grant the permit, particulars of the export are specified in the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 (the Principal Regulation); and the Minister is satisfied there are exceptional circumstances. Specification of these particulars by regulation is a pre-requisite to the Minister’s decision-making process.

 

The Hazardous Waste (Regulation of Export and Imports) Amendment (Hexachlorobenzene) Regulation 2014 (the Regulation) amends the Principal Regulations to include the particulars of a proposed export of hexachlorobenzene and other chlorinated waste which is currently stored by Orica Australia Pty Ltd (Orica) in Matraville, New South Wales to France for final disposal by HTI on land. The Act regulates exports of hazardous waste from Australia to other Parties to the Basel Convention. France is a party to the Basel Convention. Orica has elected to export the waste to France which has HTI facilities reportedly with the capability to destroy hexachlorobenzene and other chlorinated waste.

 

The Regulation also remove regulations 5A to 5C (inclusive) of the Principal Regulations, which detail the particulars of exports that have already taken place or did not proceed and are therefore redundant.

 

Given the technical nature of the Regulation stakeholders were not consulted. However, stakeholders will have the opportunity to comment (a 28 day consultation period) on the proposed export when its details are published in the Government Notice Gazette. Further, Orica has been involved in detailed discussions with the Botany community regarding the hexachlorobenzene stored at Orica’s site for many years. This consultation has informed the current export proposal.

 

The Act specifies no conditions that need to be satisfied before the power to make the proposed Amendment Regulation may be exercised.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Details of the Regulation are set out in the Attachment.

The Regulation will commence on the day after registration on the Federal Register of Legislative Instruments.

 

Authority: Section 62(1) of the Hazardous Waste

                     (Regulation of Exports and

                     Imports) Act 1989

 

ATTACHMENT

 

Details of the Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014

 

Section 1 – Name of regulation

This section provides that the title of the Regulation is the Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014 (the Regulation).

Section 2 – Commencement

This section provides that the Regulation will commence on the day after it is registered on the Federal Register of Legislative Instruments.

Section 3 – Authority

This section provides that the Regulation is made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act).

Section 4 – Schedule(s)

This section provides that each instrument specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

Item 1 – Regulations 5A to 5C

This item repeals current regulations 5A to 5C (inclusive) of the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 , and inserts regulation 5A. Currently, regulations 5A to 5C detail the particulars of previous proposed exports of hazardous waste and are therefore redundant.

Regulation 5A details, for subsection 18(2)(a) of the Act, the particulars of Orica Australia Pty Ltd’s (Orica) proposed export of the hazardous waste including: the waste to be exported (hexachlorobenzene and other chlorinated waste); the amount of waste proposed for export to France (up to 132 tonnes); where the waste is current stored (Orica’s facilities in Matraville, New South Wales); how the waste will be transported to France and how the waste is to be disposed of in France (high temperature incineration on land).

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The Legislative Instrument makes amendments to the Hazardous Waste (Regulation of Exports and Imports) Regulation 1996 to include the particulars of a proposed export of, hexachlorobenzene and other chlorinated waste which is currently stored by Orica Australia Pty Ltd (Orica) in Matraville, New South Wales to France for final disposal by high temperature incineration (HTI) on land. France is a party to the Basel Convention. Orica has elected to export the waste to France which has HTI facilities reportedly with the capability to destroy hexachlorobenzene and other chlorinated waste.

 

The Legislative Instrument also removes the particulars of exports that have already taken place or did not proceed and are therefore, redundant.

 

Human rights implications

 

The Regulation has been assessed against the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Regulation does not engage any of the applicable rights or freedoms.

 

Conclusion

 

The Legislative Instruments are compatible with Australia's human rights obligations.

 

 

 

 

The Hon Greg Hunt MP, Minister for the Environment

Overview

The Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014 was enacted to address the specific issue of regulating the export of hazardous waste, particularly hexachlorobenzene, from Australia to other Basel Convention parties. This regulation amends the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 to incorporate the particulars of a proposed export by Orica Australia Pty Ltd, which involves the transport and disposal of hexachlorobenzene and other chlorinated waste stored in Matraville, New South Wales, to France for final disposal through high temperature incineration (HTI) on land. The primary objective of this regulation is to ensure that the export of hazardous waste is managed in an environmentally sound manner, thereby minimizing harmful effects on humans and the environment. The regulation was made under the authority of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 and aims to implement Australia's obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. The regulation also removes outdated details of previous exports that are no longer relevant.

Scope and Application

The Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014 applies to the export of hazardous waste from Australia, particularly hexachlorobenzene and other chlorinated waste, as stored by Orica Australia Pty Ltd in Matraville, New South Wales, to France for disposal via high temperature incineration. This regulation ensures compliance with the Hazardous Waste (Regulation of Exports and Imports) Act 1989, which governs the export, import, and transit of hazardous waste to mitigate environmental harm and protect human health. The Act extends to all entities involved in the export of hazardous waste, including waste management companies such as Orica, and encompasses the entire process from Australia to countries party to the Basel Convention, such as France. The Amendment Regulation specifies the particulars of the proposed export, including the type of waste, quantity, storage location, transportation method, and disposal technique, thereby facilitating the Minister for the Environment’s decision-making process regarding the issuance of a Basel export permit. Notably, this regulation does not apply to waste that has already been exported or to proposals that have been abandoned, as such particulars are considered redundant. The regulation is a legislative instrument under the Legislative Instruments Act 2003 and will take effect on the day following its registration on the Federal Register of Legislative Instruments.

Key Provisions

The main operative sections of the Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014 (the Regulation) concern the amendment of the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 (the Principal Regulations) to include the particulars of a proposed export of hexachlorobenzene and other chlorinated waste from Orica Australia Pty Ltd (Orica) in Matraville, New South Wales to France for disposal by high temperature incineration (HTI) on land (section 4, Schedule 1, Item 1). Additionally, the Regulation repeals the particulars of previous exports that have already occurred or did not proceed, which are deemed redundant (section 4, Schedule 1, Items 2 and 3). The obligations and requirements imposed by the Regulation on the relevant parties primarily focus on the detailed specification of the proposed export of hazardous waste. Specifically, regulation 5A, as inserted by the Regulation, requires the inclusion of particulars such as the type of waste, the amount proposed for export, the location of the current storage, and the method of transportation and disposal in France (section 4, Schedule 1, Item 1). This detailed specification is a prerequisite for the Minister for the Environment to consider granting a Basel export permit, as per the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act) (section 18A(2) of the Act). By including these particulars, the Regulation facilitates the Minister's decision-making process under the Act. The Act itself and the Regulation do not explicitly detail specific offences, penalties, or consequences for breaches. However, the general framework of the Act suggests that any unauthorised export of hazardous waste could lead to criminal or civil penalties, depending on the severity of the breach and the intent behind it. For instance, subsection 62(1) of the Act allows for the creation of regulations to enforce compliance, and any failure to comply with these regulations could result in penalties as prescribed by the Act. Although the exact penalties are not specified within the Regulation itself, they would be determined in accordance with the broader provisions of the Act and any applicable environmental laws in Australia. The Regulation also ensures compliance with human rights obligations by assessing its compatibility with the human rights and freedoms recognised in international instruments, as required by the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement of Compatibility with Human Rights concludes that the Regulation does not engage any of the applicable rights or freedoms, thereby affirming its compatibility with Australia's human rights obligations (Statement of Compatibility with Human Rights).

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