EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 229
ISSUED BY AUTHORITY OF THE MINISTER FOR ENVIRONMENT PROTECTION, HERITAGE AND THE ARTS
Hazardous Waste (Regulation of Exports and Imports) Act 1989
Hazardous Waste (Regulation of Exports and Imports) Amendment
Regulations 2010 (No. 1)
Subsection 62(1) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (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.
The Act implements Australia’s obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, an international treaty set up to control the movement of hazardous waste from one country to another.
Under subsection 18A(2) of the Act, the Minister for Environment Protection, Heritage and the Arts (the Minister) may grant a ‘Basel’ export permit authorising the export of hazardous waste destined for final disposal if (a) at the time of the decision to grant the permit, particulars of the export are specified in the regulations and (b) the Minister is satisfied that there are exceptional circumstances for granting the permit.
Regulation 5C of the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 (the Principal Regulations) specifies the particulars of a proposed export of hexachlorobenzene and other chlorinated waste and packaging containers, construction and demolition waste containing hexachlorobenzene and other chlorinated waste from Port Botany. The proposed export would be for up to 6,100 tonnes, to be disposed of in a high temperature incineration facility on land in Denmark.
The purpose of these Regulations is to omit paragraph 5C(g) from the Principal Regulations which currently provides that any Basel export permit to authorise the export is to be granted by 31 December 2009. As the timeframe for a decision on the grant of a permit is dependent on the authorities of the recipient country, which cannot be determined by Australia, the purpose of the amendment is to remove this time limit to provide appropriate flexibility.
Consultation on the Regulations is not required as the amendments are of a machinery nature and do not substantially alter existing arrangements.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations will commence on the day after they are registered on the Federal Register of Legislative Instruments.
Overview
The Hazardous Waste (Regulation of Exports and Imports) Amendment Regulations 2010 (No. 1) were enacted to address flexibility in the granting of Basel export permits for hazardous waste exports. This amendment was introduced to provide the Minister for Environment Protection, Heritage and the Arts with the ability to grant such permits beyond the previously set deadline of 31 December 2009. These regulations implement Australia's commitments under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which aims to regulate the movement of hazardous waste between countries. The flexibility afforded by these regulations ensures that decisions on the export of hazardous waste can be made in accordance with the authorities and capabilities of the recipient country, thus allowing for a more adaptive and practical approach to waste management and international compliance.
Scope and Application
The Hazardous Waste (Regulation of Exports and Imports) Amendment Regulations 2010 (No. 1) apply to entities and individuals involved in the export of hazardous waste from Australia, ensuring compliance with both national legislation and international obligations under the Basel Convention. These regulations are designed to refine the process for granting export permits for hazardous waste, particularly focusing on the export of specific types of hazardous waste such as hexachlorobenzene and other chlorinated waste from Port Botany. The amendments remove the previous timeframe for issuing permits, providing greater flexibility based on the circumstances and approvals of the recipient country. This change does not extend the scope of the Act but rather adapts the administrative process to better align with practical realities and international cooperation. The regulations apply across Australia and are relevant to any entity seeking to export hazardous waste, ensuring they adhere to the updated procedural requirements. Exclusions or exemptions from these regulations are not explicitly stated, implying that all relevant exports of hazardous waste are subject to the permit process outlined in the Act and its amendments.
Key Provisions
The Hazardous Waste (Regulation of Exports and Imports) Amendment Regulations 2010 (No. 1) primarily modify existing regulations concerning the export of hazardous waste. Specifically, section 3 of the regulations removes the time limit for the grant of a Basel export permit for the export of hexachlorobenzene and other chlorinated waste, construction and demolition waste containing such substances, from Port Botany to Denmark. This adjustment is detailed in Regulation 5C of the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996.
Under the amended regulation, there is no longer a requirement for the Minister for Environment Protection, Heritage and the Arts to grant a permit by 31 December 2009, as previously stipulated in paragraph 5C(g) of the Principal Regulations. Instead, the flexibility to grant such permits is extended to accommodate the varying timeframes dictated by the authorities of the recipient country, Denmark in this case.
The obligations imposed by these regulations primarily concern the Minister's authority and discretion in granting export permits for hazardous waste. The Minister must ensure that any permit issued complies with the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. This includes verifying that the export is for final disposal in a high-temperature incineration facility and ensuring that exceptional circumstances warrant the permit. Additionally, the regulations require that any permit be granted based on the particulars specified in the regulations, such as the type and amount of hazardous waste, and the destination country's approval and facility standards.
In terms of consequences for breach, the Act itself does not explicitly state penalties for non-compliance with these regulations. However, under the broader legislative framework, breaches of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 could result in both civil and criminal penalties. For instance, exporting hazardous waste without a valid permit may lead to fines, with the maximum penalty for corporations being up to $66,000 for each day of non-compliance. Individuals may face penalties of up to $13,200 per day. Additionally, criminal charges could be brought against those responsible for such breaches, potentially resulting in imprisonment. These penalties underscore the importance of adhering to the regulatory framework governing the export of hazardous waste.