Commonwealth Numbered Regulations - Explanatory Statements

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HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS) (OECD DECISION)REGULATIONS 1996 NO. 283

Statutory Rules 1996 No. 283

Issued by the Authority of the Minister for Environment

Hazardous Waste (Regulation of Exports and Imports) Act 1989

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

Section 62 of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.

Section 4 of the Acts Interpretation Act 1901 provides for the exercise of statutory powers between passing and commencement of the Act. The Hazardous Waste (Regulation of Exports and Imports) Amendment Act 1996 will amend the Act and is due to commence on 12 December 1996.

Section 13C of the Act states that regulations may give effect to an Article 11 arrangement.

Section 13D of the Act prescribes the contents of a set of Article 11 Regulations.

The purpose of the Regulations is to give effect to the Decision of the Council Concerning the Control of Transfrontier Movements of Waste Destined for Recovery Operations C92(39)/Final (OECD Council Decision). Australia is a Party to this decision, which is intended to secure a high level of environmental protection when hazardous waste is shipped from one country to another, but without unnecessarily burdening trade. This can be achieved under Regulations made for this purpose. The Minister for the Environment will declare the Council Decision to be an Article 11 arrangement under Section 4C for the purposes of the Act.

The Basel Convention establishes a control system for hazardous wastes being shipped from one country to another. States which are Parties to the Convention must not trade in hazardous wastes with non-Parties but an exception to this is provided for in Article 11, whereby Parties may enter into agreements or arrangements either with other Parties or with non-Parties. These agreements or arrangements can also set out controls which are different from those prescribed by the Convention itself, provided such controls do not reduce the level of environment protection intended by the Convention.

The main such arrangement to which Australia is a Party is the OECD Council Decision on Transboundary Movements of Hazardous Waste destined for Recovery Operations, which regulates transboundary movements of hazardous wastes among OECD countries. The Regulations give effect to the control procedures established by the OECD Council Decision. These use three lists of wastes, the red, amber and green lists, and a modified version of the Basel Convention notification and consent procedures.

Details of the Regulations are attached.

ATTACHMENT

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

Details of the Regulations are as follows:

Regulation 1 is a citation provision.

Regulation 2 provides that the Regulations commence on 12 December 1996.

Regulation 3 states that object of the Regulations are to give effect to the OECD Council Decision.

Regulations 4, 5, 6 and 7 provide the interpretation of key words and phrases, and specifically for "appropriate insurance", "red list waste" and "amber list waste".

Regulation 8 allows the Minister to decide in particular circumstances that "amber fist waste" is "red list waste" when it is sufficiently contaminated, and sets out the procedures covering such decisions.

Regulation 9 prescribes the circumstances in which an application for a permit is made under these Regulations, and which wastes are regulated, including waste on national lists. It prescribes that permits are confined to movements between OECD Countries and wastes destined for recovery.

Regulation 10 provides for applicants to request a variation of their application. A variation cannot be requested after a decision to grant or refuse the permit is made.

Regulations 11 and 37 provide for the Minister to request further information in order to make a decision on an application or a permit variation.

Regulations 12 and 38 state that the Minister must send an acknowledgment to the applicant of the receipt of an application for a permit or variation to a permit, and notify other foreign countries of the intended movement.

Regulations 13, 19 and 26 provide the interpretation of "decision period" as it relates to an application for an export, import or transit permit respectively.

Regulations 14, 20, and 27 prescribe the period in which the Minister must make a decision on an application for an export, import or transit permit respectively.

Regulations 15, 21, 22, 28 and 40 prescribe the circumstances in which a decision period can be extended, and the action to be taken if a decision is not made in the decision period.

Regulations 16, 23 and 29 prescribe the criteria for the Minister to use in deciding whether to grant or refuse an application for an export, import, or transit permit. In the criteria, the Minister must have regard to our international obligations to reduce transboundary movements of hazardous waste. Other criteria include that the waste will be managed and transported in an environmentally sound manner, that the applicant is a suitable person and has appropriate insurance, and that there are valid contracts in place. The Minister may refuse the permit if it is in the public interest to do so.

Regulations 17, 24 and 30 allow the Minister to grant an export, import, or transit permit respectively, for up to one year.

Regulations 18, 25 and 31 set out the information that must be included on an export, import, or transit permit respectively.

Regulation 32 provides that a condition of every permit is that a movement/tracking form accompanies each movement of hazardous waste.

Regulation 33 allows the Minister to specify other conditions and the compliance date for each condition.

Regulation 34 prescribes the circumstances in which the Minister can revoke permits. As the circumstances are similar in Regulation 41, it also sets out the criteria the Minister must consider when deciding to revoke or vary a permit.

Regulation 35 prescribes the circumstances in which a permit holder can surrender a permit.

Regulation 36 allows permit holders to apply to vary the permit.

Regulation 39 prescribes the taw in which the Minister must make a decision on an application for a variation of a permit It prescribes that when making a decision, the Minister must consider the variation in the same manner he would consider an application for a permit. In addition, it prescribes that in the case of re-export to a third country, consent to the movement must be received from the original country of export.

Regulation 41 sets out the circumstances in which the Minister may vary a permit without an application.

Regulation 42 allows the Minister to approve a facility in Australia to be an "approved recovery facility". Import permits for waste destined for an approved recovery facility receive reduced fees and decision periods.

Regulation 43 allows applications to be made to the Administrative Appeals Tribunal for a review of particular decisions, not covered by Section 57 of the Act. It also notes that Section 57 of the Act provides for the review of decisions in relation to a special permit.

Regulation 44 allows the Minister to delegate any functions and powers under the Regulations to the Secretary or other officer of the Senior Executive Service in his /her Department. This releases the Minister from the day-to-day administration of the Act.

Schedule 1 sets out the Decision of the Council Concerning the Control of Transfrontier Movements of Waste Destined for Recovery Operations C92(39)/Final.

Schedule 2 sets out the amended Red, Amber and Green fists of wastes.