Commonwealth: Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth)

Hazardous Waste (Regulation of Exports and Imports) Act 1989 No. 6, 1990 Compilation No. 21 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary Division 1—Introductory 1 Short title 2 Commencement 3 Object and aims Division 2—Interpretation 4 Interpretation—defined terms 4A Exports and transits to foreign countries—extended meaning of hazardous waste 4B Transit proposals 4C Article 11 arrangements 4D Treatment of colonies etc. 4E Environmentally sound management of hazardous waste 4F Article 11 arrangements—substances taken to be hazardous waste 4G Article 11 arrangements—substances not classified as hazardous waste 7 Failure to comply with permit condition when required is breach of condition Division 3—Operation of Act 9 Extension to external Territories 9A Extraterritorial operation 9B Geographical application of offences 10 Act binds Crown 10A Application of the Criminal Code 11 Relationship between Act and other Commonwealth laws Part 2—Import permits, export permits and transit permits Division 1—Applications for permits 12 Applications for import permits 13 Applications for export permits 13A Applications for transit permits 13B Basel permit or special permit Division 2—Special permits under a set of Article 11 regulations 13C Regulations may give effect to Article 11 arrangements 13D Contents of a set of Article 11 regulations 13E Special permit may be granted under a set of Article 11 regulations only if corresponding requirements of other sets of Article 11 regulations have been met 13F Special permit—waste not to be brought into Antarctica Division 3—Grant of Basel permits 14 Variation of applications for Basel permits 15 Minister may request further information about an application 15A Acknowledgment and notification 16 Period for making decision on application for Basel permit—default period 16A Period for making decision on application for Basel permit—extensions for Basel export permits 16B Period for making decision on application for Basel permit—extensions for Basel permits 16C Period for making decision on application for Basel permit—referrals under the Environment Protection and Biodiversity Conservation Act 1999 16D Period for making decision on application for Basel permit—extension agreed with applicant 17 Grant of Basel import permits and Basel export permits 17A Grant of transit permits 18 Determination of whether applicant has appropriate insurance 18A Export permits for final disposal may be granted only in exceptional circumstances 18B Basel permit may be granted only if the corresponding requirements of Article 11 regulations have been met 19 Applicants to be notified of decisions 19A Foreign countries to be notified of decision about grant of import permit 20 Matters to be specified in Basel import permits 21 Matters to be specified in Basel export permits 21A Matters to be specified in Basel transit permits 22 Basel permits may be granted subject to conditions Division 4—Revocation, surrender and variation of Basel permits Subdivision A—Revoking Basel permits 24 Revoking Basel permits—grounds 24A Revoking Basel permits—notice of proposed revocation 24B Notice of revocation 24C Exhaustive statement of natural justice hearing rule Subdivision B—Surrendering Basel permits 25 Surrender of Basel permits Subdivision C—Varying Basel permits: on application 26 Varying Basel permits on application 26A Minister may request further information about an application 26B Period for making a decision on an application—default period 26C Period for making a decision on an application—extensions for Basel export permits 26D Period for making a decision on an application—extensions for Basel permits 26E Period for making a decision on an application—referrals under the Environment Protection and Biodiversity Conservation Act 1999 26F Period for making a decision on an application—extension agreed with applicant 26G Notice of variation Subdivision D—Varying Basel permits: on Minister's initiative 26H Varying Basel permits on Minister's initiative—grounds 26J Varying Basel permits—notice of proposed variation 26K Notice of variation 26L Exhaustive statement of natural justice hearing rule Division 5—Miscellaneous 32 Applications and notices to be accompanied by fees 32A Applications to be accompanied by levy 33 Publication of certain particulars on Department's website Part 2A—Regulation of import, export, transit and sale of hazardous waste Division 1—Regulation of import of hazardous waste 33A Import of hazardous waste—basic contravention 33B Import of hazardous waste—injury or damage to human beings or the environment Division 2—Regulation of export of hazardous waste 33C Export of hazardous waste—basic contravention 33D Export of hazardous waste—injury or damage to human beings or the environment Division 3—Regulation of transit of hazardous waste 33E Transit of hazardous waste—basic contravention 33F Transit of hazardous waste—injury or damage to human beings or the environment 33G Notice that transit permit not required Division 4—Regulation of sale of hazardous waste 33H Regulation of sale of hazardous waste Part 3—Ministerial orders in relation to hazardous waste Division 1—Ministerial orders 34 Orders relating to import of hazardous waste 35 Orders relating to export of hazardous waste 35A Orders relating to transit of hazardous waste 36 Orders to remedy or mitigate damage 38 Orders authorising import of exported hazardous waste where it cannot be dealt with as intended Division 2—Contravention of orders 38A Orders to remedy or mitigate damage if order under section 34, 35, 35A or 38 not complied with 38B Minister may take action and recover costs if order under section 34, 35, 35A, 36, 38 or 38A not complied with 38C Failure to deal with waste in contravention of order under section 34, 35 or 35A—basic contravention 38D Failure to deal with waste in contravention of order under section 34, 35 or 35A—injury or damage to human beings or the environment 38E Failure to deal with waste in contravention of order under section 36 or 38A 38F Failure to deal with waste in contravention of order under section 38—basic contravention 38G Failure to deal with waste in contravention of order under section 38—injury or damage to human beings or the environment 38H Failure to give information in contravention of order under this Part Part 4A—Transportation of waste substances through transit countries where an export permit under this Act is not required 41A Transporting substance through transit country without approval 41B Approval of transportation of substances through transit countries 41C Notifiable substances in relation to transit countries Part 4B—Record keeping, information and confidentiality Division 1—Record keeping and information gathering 41D Requirement to make and retain records 41E Requirement to give information or produce documents 41F Self‑incrimination Division 2—Authorised uses and disclosures of relevant information Subdivision A—Authorised uses and disclosures by Minister 41G Disclosure of relevant information to Commonwealth entities 41H Disclosure of relevant information to State or Territory government body 41J Disclosure for the purposes of law enforcement 41K Disclosure to reduce serious risk to human health 41L Disclosure to reduce serious risk to the environment Subdivision B—Authorised uses and disclosures by entrusted person 41M Disclosure for the purposes of an Act 41N Publicly available information 41P Person to whom information relates 41Q Disclosure with consent 41R Person who provided information 41S Summaries or statistics 41T Disclosure to a court, tribunal etc. 41U Use for the purposes of disclosure Subdivision C—Offences 41V Unauthorised use or disclosure of protected information—entrusted person 41W Unauthorised use or disclosure of protected information—official of Commonwealth entity Part 5—Compliance powers Division 1—Inspectors 42 Appointment of inspectors Division 2—Powers of inspectors Subdivision A—Monitoring and investigation powers 43 Monitoring powers 44 Modifications of monitoring powers 45 Investigation powers 46 Modifications of investigation powers 47 Additional monitoring and investigation powers—control movement of vessels and aircraft etc. 48 Additional monitoring and investigation powers—production of permits and orders for import or export 49 Additional monitoring and investigation powers—production of transit permits Subdivision B—Audit powers 50 Audits 51 Single audit or program of audits may be required 52 Relevant person for an audit 53 Conduct of audit 54 Relevant person for an audit must provide assistance 55 Powers of auditors Part 5AA—Enforcement powers Division 1—Civil penalty provisions 56AA Civil penalty provisions Division 2—Infringement notices 56AB Infringement notices Division 3—Enforceable undertakings 56AC Enforceable undertakings Division 4—Injunctions 56AD Injunctions Part 5A—Arrangements by Minister 56A Arrangements by Minister Part 6—Miscellaneous 57 Review of decisions 58 Statement to accompany notification of decision 58A Extended standing of individuals and organisations to seek judicial review 58B Evidentiary certificate—classification of hazardous waste 58C Evidentiary certificate—environmentally sound management of hazardous waste 58D Regulations defining hazardous waste—Minister must consult 58F Contravening an offence provision or a civil penalty provision 59 Conduct of directors, employees and agents 59A Nomination of address for service of documents 59B Service of summons or process on foreign corporations—criminal proceedings 60 Delegation by Minister 60A Delegation by Secretary 61 Annual report 62 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide for the regulation of the export, import and transit of hazardous waste, and for related purposes Part 1—Preliminary Division 1—Introductory 1 Short title This Act may be cited as the Hazardous Waste (Regulation of Exports and Imports) Act 1989. 2 Commencement (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period. 3 Object and aims Object (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. Aims (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. Division 2—Interpretation 4 Interpretation—defined terms In this Act, unless the contrary intention appears: Antarctica means the area south of 60 South Latitude, including all ice shelves in that area. Article 11 arrangement has the meaning given by section 4C. audit means an audit under Subdivision B of Division 2 of Part 5. Australia, when used in a geographical sense: (a) includes the external Territories; but (b) does not include Australian waters. Australian aircraft means an aircraft: (a) that is owned or operated by: (i) the Commonwealth or a State or Territory; or (ii) an authority of the Commonwealth or a State or Territory; or (b) that is registered, or required to be registered, in Australia. Australian jurisdiction means Australia or Australian waters, including over Australia or Australian waters. Australian platform means a platform: (a) that is fixed to: (i) the seabed or subsoil beneath Australian waters; or (ii) the continental shelf of Australia; or (b) that is otherwise operating in: (i) Australian waters; or (ii) a part of the sea above the continental shelf of Australia. Australian vessel means a vessel: (a) that is owned or operated by: (i) the Commonwealth or a State or Territory; or (ii) an authority of the Commonwealth or a State or Territory; or (b) that is registered, or required to be registered, in Australia. Australian waters means the following: (a) the coastal sea of Australia; (b) the coastal sea of each external Territory; which have the same meanings as in section 15B of the Acts Interpretation Act 1901. Basel Convention means the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, as amended and in force for Australia from time to time. Note: The Convention is in Australian Treaty Series 1992 No. 7 ([1992] ATS 7) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). Basel export permit means a permit under section 17 permitting the export of hazardous waste. Basel import permit means a permit under section 17 permitting the import of hazardous waste. Basel permit means: (a) a Basel export permit; or (b) a Basel import permit; or (c) a Basel transit permit. Basel transit permit means a permit under section 17A permitting the carrying out of one or more transit proposals relating to hazardous waste. civil penalty provision has the same meaning as in the Regulatory Powers Act. Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. competent authority, in relation to a foreign country, means: (a) if the country is a party to the Basel Convention—the competent authority of the country within the meaning of the Basel Convention; and (b) otherwise—a person or organisation that officially represents the country. Note: The operation of this definition is modified in relation to colonies etc. by section 4D. Court means the Federal Court of Australia. deal with, in relation to hazardous waste, includes dispose of. decision period means: (a) in relation to a permit application—the period referred to in subsection 16(1), but as paused or extended under section 15, 16A, 16B, 16C or 16D; or (b) in relation to a variation application—the period referred to in subsection 26B(1), but as paused or extended under Subdivision C of Division 4 of Part 2. disposal means an operation specified in Annex IV to the Basel Convention. entrusted person means: (a) the Minister; or (b) the Secretary; or (c) an APS employee in the Department; or (d) any other person employed in, or engaged by, the Department. environmentally sound management, in relation to hazardous waste, has the meaning given by section 4E. evidential material has the same meaning as in the Regulatory Powers Act. executive officer, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned with, or takes part in, the management of the body. export means export from Australia. export permit means: (a) a Basel export permit; or (b) a special export permit. export proposal means a proposal to export hazardous waste and to deal with it outside Australia. foreign country includes: (a) a colony, overseas territory, overseas province or protectorate of a foreign country; and (b) a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory; and (c) a territory outside Australia that is to some extent self‑governing, but that is not recognised as an independent sovereign state by Australia. hazardous waste means: (a) waste prescribed by the regulations, where the waste has any of the characteristics mentioned in Annex III to the Basel Convention; or (b) wastes covered by paragraph 1(a) of Article 1 of the Basel Convention; or (c) household waste; or (d) residues arising from the incineration of household waste; or (e) plastic wastes, including mixtures of such wastes, covered by Annex II to the Basel Convention; but does not include wastes covered by paragraph 3 or 4 of Article 1 of the Basel Convention. Note 1: Section 4A provides for an extended meaning of hazardous waste. The extended meaning relates to the following matters: (a) a case where a foreign country has classified a particular substance or object as hazardous waste; (b) a case where a foreign country has classified waste collected from households as hazardous waste. Note 2: Section 4F provides for an extended meaning of hazardous waste. The extended meaning relates to substances or objects subject to notification or control under Article 11 arrangements. Note 3: Section 4G provides for exclusions from the definition of hazardous waste. The exclusions relate to substances or objects not subject to notification or control under Article 11 arrangements. holder, in relation to a Basel permit or a special permit, means the person to whom the permit was granted. household waste means waste collected from households, but does not include waste specified in the regulations. identity card, in relation to an inspector, means an identity card issued to the inspector under section 35 or 76 of the Regulatory Powers Act to the extent that either of those sections applies in relation to a provision of this Act. import means import into Australia. import permit means: (a) a Basel import permit; or (b) a special import permit. import proposal means a proposal to import hazardous waste and to deal with it in Australia. inspector means a person appointed under section 42 as an inspector. OECD country means a country that is a member of the Organisation for Economic Cooperation and Development under the Convention on the Organisation for Economic Cooperation and Development done at Paris on 14 December 1960. Note: The Convention is in Australian Treaty Series 1971 No. 11 ([1971] ATS 11) and could in 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). officer of Customs has the same meaning as in the Customs Act 1901. official has the same meaning as in the Public Governance, Performance and Accountability Act 2013. original export proposal, in relation to a variation application relating to a Basel export permit, means an export proposal in relation to which the permit was granted, as affected by any variation of the permit that has already been made. original import proposal, in relation to a variation application relating to a Basel import permit, means an import proposal in relation to which the permit was granted, as affected by any variation of the permit that has already been made. original transit proposal, in relation to a variation application relating to a Basel transit permit, means a transit proposal in relation to which the permit was granted, as affected by any variation of the permit that has already been made. permit application means an application for a Basel permit. permit condition means a condition specified in: (a) a Basel permit under section 22; or (b) a notice under section 26 varying a Basel permit; or (c) a special permit; or (d) a notice under a set of Article 11 regulations varying a special permit. platform includes any structure at sea (whether or not fixed), but does not include a vessel. premises includes any place (whether or not enclosed or built on). protected information means information of any of the following kinds obtained by an entrusted person: (a) information the disclosure of which by the entrusted person could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence; (b) information the disclosure of which could reasonably be expected to prejudice the effective working of government; (c) information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences; (d) information the disclosure of which could reasonably be expected to endanger a person's life or physical safety; (e) information the disclosure of which could reasonably be expected to prejudice the protection of public safety or the environment. recovery operation means an operation mentioned in Appendix 5.B to the OECD Decision C(2001)107, being Revision of Decision C(92)39/FINAL on the control of transboundary movements of wastes destined for recovery operations, made on 14 June 2001 by the Council of the Organisation for Economic Cooperation and Development, as in force from time to time. Note: The OECD Decision could in 2021 be viewed on the OECD website (https://legalinstruments.oecd.org/). Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. relevant authority, in relation to a searchable place, means: (a) in the case of premises in Australia—the occupier of the premises; and (b) in any other case—the person in command or control, or who appears to be in command or control, of the place. relevant information means information obtained by an entrusted person under, or in accordance with, this Act or the Regulatory Powers Act as it applies in relation to this Act. relevant person, for an audit, has the meaning given by section 52. searchable place means: (a) premises in Australia; or (b) an aircraft, vehicle or vessel within Australian jurisdiction; or (c) an Australian aircraft; or (d) an Australian platform; or (e) an Australian vessel. Secretary means the Secretary of the Department. set of Article 11 regulations has the meaning given by section 13C. special export permit means a permit under a set of Article 11 regulations permitting the export of hazardous waste. special import permit means a permit under a set of Article 11 regulations permitting the import of hazardous waste. special permit means: (a) a special export permit; or (b) a special import permit; or (c) a special transit permit. special transit permit means a permit under a set of Article 11 regulations permitting the carrying out of one or more transit proposals relating to hazardous waste. State or Territory government body means: (a) a Department of State of a State or Territory; or (b) an agency of a State or Territory; or (c) an authority of a State or Territory. this Act includes the regulations. transit permit means: (a) a Basel transit permit; or (b) a special transit permit. transit proposal has the meaning given by section 4B. variation, in relation to a Basel permit, includes a variation of the permit conditions imposed on the permit. variation application means an application under section 27 for the variation of a Basel permit. varied export proposal, in relation to a variation application relating to a Basel export permit, means the original export proposal, as proposed to be affected by the proposed variation. varied import proposal, in relation to a variation application relating to a Basel import permit, means the original import proposal, as proposed to be affected by the proposed variation. varied transit proposal, in relation to a variation application relating to a Basel transit permit, means the original transit proposal, as proposed to be affected by the proposed variation. vessel means anything capable of carrying persons or goods through or on water, and includes an air‑cushion vehicle or similar craft. waste means a substance or object that: (a) is proposed to be disposed of; or (b) is disposed of; or (c) is required by a law of the Commonwealth, a State or a Territory to be disposed of. Note: Disposed of has a meaning corresponding to the meaning of disposal. See the definition of disposal. 4A Exports and transits to foreign countries—extended meaning of hazardous waste When this section has effect (1) This section has effect for the purposes of the application of this Act: (a) to the export or proposed export of a substance or object to a particular foreign country; or (b) to, or to the carrying out of, a transit proposal that involves the export of a substance or object to a particular foreign country. Declaration extending the meaning of hazardous waste—classification under foreign laws (2) If: (a) the foreign country is a party to the Basel Convention; and (b) the Minister is satisfied that, under a law of that country that gives effect to the Basel Convention, a particular substance or object is, in particular circumstances, classified as hazardous waste; and (c) apart from this section, the waste is not hazardous waste; the Minister must, by writing, declare that that substance or object is, in those circumstances, hazardous waste for those purposes. Declaration extending the meaning of hazardous waste—waste collected from households (3) If: (a) the Minister is satisfied that the foreign country classifies particular waste collected from households as hazardous waste; and (b) apart from this section, the waste is not hazardous waste; the Minister must, by writing, declare that that waste is hazardous waste for those purposes. Declaration has effect accordingly (4) A declaration under this section has effect accordingly. Revocation of subsection (2) declaration (5) If: (a) a declaration is in force under subsection (2); and (b) the Minister ceases to be satisfied of the matter referred to in paragraph (2)(b); the Minister must revoke the declaration. Revocation of subsection (3) declaration (6) If: (a) a declaration is in force under subsection (3); and (b) the Minister ceases to be satisfied of the matter referred to in paragraph (3)(a); the Minister must revoke the declaration. Gazettal of declaration (7) If a declaration under this section is made or revoked, the Minister must arrange for a copy of the declaration or revocation to be published in the Gazette. 4B Transit proposals (1) This section sets out the proposals that are transit proposals for the purposes of this Act. Note: Australia does not include Australian waters (see section 4). Transit proposal (2) A proposal: (a) to bring hazardous waste into Australia (whether or not by way of import); and (b) to take the waste out of Australia within 30 days; is a transit proposal so long as it is not proposed to dispose of the waste in Australia. Extension of time for carrying out proposal (3) If the Minister is satisfied that there are special circumstances relating to a particular proposal, the Minister may, by writing, declare that subsection (2) applies to the proposal as if a reference in that subsection to 30 days were a reference to such longer period as is specified in the declaration. Declaration has effect accordingly (4) The declaration has effect accordingly. Notification of decision (5) If the Minister decides to make, or not to make, a declaration under this section about a person's proposal, the Minister must give the person a written notification of the decision. Gazettal of declaration (6) If the Minister makes a declaration under this section, the Minister must arrange for a copy of the declaration to be published in the Gazette. Deemed export (7) For the purposes of this Act, if hazardous waste is taken out of Australia in the course of carrying out a transit proposal, the taking of the waste out of Australia is to be treated as the export of the waste. Definitions (8) In this section: dispose of does not include store. take waste out of Australia means take waste out of Australia for the purpose of importing the waste into a foreign country (whether or not the waste will be transported through any other foreign countries). 4C Article 11 arrangements Declaration of Article 11 arrangement (1) If: (a) Australia has entered into an agreement or arrangement; and (b) the Minister is satisfied that the agreement or arrangement is of a kind mentioned in Article 11 of the Basel Convention; the Minister must, by writing, declare that the agreement or arrangement is an Article 11 arrangement for the purposes of this Act. Declaration has effect accordingly (2) A declaration under this section has effect accordingly. Revocation of declaration (3) If: (a) a declaration is in force under this section; and (b) the Minister ceases to be satisfied of the matter referred to in paragraph (1)(b); the Minister must revoke the declaration. Gazettal of declaration (4) If a declaration under this section is made or revoked, the Minister must arrange for a copy of the declaration or revocation to be published in the Gazette. 4D Treatment of colonies etc. When colony etc. is a party to the Basel Convention (1) For the purposes of this Act, if: (a) a territory is covered by either of the following subparagraphs: (i) a colony, overseas territory, overseas province or protectorate of a foreign country; (ii) a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory; and (b) the foreign country is a party to the Basel Convention; and (c) the territory is not specified in the regulations; the territory is taken to be a party to the Basel Convention. Competent authority of colony etc. (2) For the purposes of this Act, if a territory is covered by any of the following paragraphs: (a) a colony, overseas territory, overseas province or protectorate of a foreign country; or (b) a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory; or (c) a territory outside Australia that is to some extent self‑governing, but that is not recognised as an independent sovereign state by Australia; a person or organisation that officially represents the territory is taken to be a competent authority of the territory. Subsection (2) has effect despite the definition of competent authority (3) Subsection (2) has effect despite anything in the definition of competent authority in section 4. 4E Environmentally sound management of hazardous waste A reference in this Act to the environmentally sound management of hazardous waste is a reference to taking all practicable steps to ensure that the waste is managed in a manner that will protect human health, and the environment, against the adverse effects that may result from the waste. 4F Article 11 arrangements—substances taken to be hazardous waste (1) This section has effect for the purposes of the application of this Act: (a) to the import or proposed import of a substance or object from a particular foreign country; or (b) to the export or proposed export of a substance or object to a particular foreign country; or (c) to, or to the carrying out of, a transit proposal that involves the export of a substance or object to a particular foreign country. (2) If: (a) the country is a party to an Article 11 arrangement; and (b) the substance or object is subject to notification or control under the arrangement; and (c) apart from this section, the substance or object is not hazardous waste; the substance or object is taken to be hazardous waste for those purposes. 4G Article 11 arrangements—substances not classified as hazardous waste (1) This section has effect for the purposes of the application of this Act: (a) to the import or proposed import of a substance or object from a particular foreign country; or (b) to the export or proposed export of a substance or object to a particular foreign country; or (c) to, or to the carrying out of, a transit proposal that involves the export of a substance or object to a particular foreign country. (2) If: (a) the country is a party to an Article 11 arrangement; and (b) the arrangement expressly provides that the substance or object is not subject to notification or control under the arrangement; the substance or object is taken not to be hazardous waste for those purposes. 7 Failure to comply with permit condition when required is breach of condition (1) For the purposes of this Act, if: (a) under subsection 22(2) or 26(2), the Minister specifies the day on or before which a permit condition relating to a Basel permit is to be complied with; and (b) the condition is not complied with on or before that day; the holder of the permit is to be taken to have breached the condition at the end of that day. (2) For the purposes of this Act, if: (a) under a set of Article 11 regulations, the Minister specifies the day on or before which a permit condition relating to a special permit is to be complied with; and (b) the condition is not complied with on or before that day; the holder of the permit is taken to have breached that condition at the end of that day. Division 3—Operation of Act 9 Extension to external Territories This Act, and the Regulatory Powers Act to the extent that it applies in relation to a provision of this Act, extend to every external Territory. 9A Extraterritorial operation This Act and Regulatory Powers Act generally apply within and outside of Australian jurisdiction (1) Subject to this section, this Act, and the Regulatory Powers Act as it applies in relation to this Act, extend to acts, omissions, matters and things outside of Australian jurisdiction. Note: Some searchable places will be outside of Australian jurisdiction. Regulatory provisions applying outside of Australian jurisdiction apply only to Australian entities (2) Subject to subsections (4) and (5), to the extent that a provision of this Act, or a provision of the Regulatory Powers Act as it applies in relation to this Act, has effect in relation to anywhere outside of Australian jurisdiction, that provision applies only in relation to relevant Australian entities. Regulatory provisions apply to all entities etc. in Australian jurisdiction (3) Subject to subsection (4), to the extent that a provision of this Act, or a provision of the Regulatory Powers Act as it applies in relation to this Act, has effect in relation to Australian jurisdiction, that provision applies in relation to: (a) all relevant persons including foreign persons; and (b) all relevant searchable places in that jurisdiction, including any owned or occupied by foreign persons. This Act and the Regulatory Powers Act have effect subject to international law obligations (4) This Act, and the Regulatory Powers Act as it applies in relation to this Act, have effect subject to: (a) the obligations of Australia under international law, including obligations under any international agreement binding on Australia; and (b) any law of the Commonwealth giving effect to such an agreement. (5) The exercise in a foreign country of a power under this Act, or the Regulatory Powers Act as it applies in relation to this Act, is subject to the consent of the foreign country, if such consent is required under international law (including requirements under any international agreement binding on Australia). Definitions (6) In this section: Australian entity means: (a) an Australian citizen; or (b) an individual who is a resident of Australia; or (c) a body corporate established by or under a law of the Commonwealth, of a State or of a Territory; or (d) an Australian aircraft; or (e) an Australian vessel. foreign person means a person other than: (a) an Australian citizen; or (b) an individual who is a resident of Australia; or (c) a body corporate established by or under a law of the Commonwealth, of a State or of a Territory. 9B Geographical application of offences Division 14 (standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act. Note: The extended geographical application that section 9A gives to this Act applies to the offences and civil penalty provisions of this Act. 10 Act binds Crown This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. 10A Application of the Criminal Code Chapter 2 (other than Part 2.5 and Division 14) of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 11 Relationship between Act and other Commonwealth laws This Act is in addition to, and not in derogation of or substitution for, the Customs Act 1901, the Environment Protection and Biodiversity Conservation Act 1999 or any other law of the Commonwealth, whether enacted before or after the commencement of this Act. Part 2—Import permits, export permits and transit permits Division 1—Applications for permits 12 Applications for import permits (1) A person who has one or more import proposals in relation to hazardous waste may apply to the Minister for a permit authorising the import of the waste. (2) The application must: (a) be in the form approved by the Minister; and (b) set out, or be accompanied by, such information relating to the proposals as is required by the form. (3) The application may deal with 2 or more import proposals in relation to hazardous waste only if: (a) the following matters are common to each proposal: (i) the physical and chemical characteristics of the waste; (ii) the route over which the waste is to be transported; (iii) the sender of the waste; and (b) the proposals constitute a regular pattern; and (c) the proposals will all be carried out within 12 months of each other. 13 Applications for export permits (1) 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. (2) The application must: (a) be in the form approved by the Minister; and (b) set out, or be accompanied by, such information relating to the proposals as is required by the form. (3) The application may deal with 2 or more export proposals in relation to hazardous waste only if: (a) the following matters are common to each proposal: (i) the physical and chemical characteristics of the waste; (ii) the route over which the waste is to be transported; (iii) the recipient of the waste; and (b) the proposals constitute a regular pattern; and (c) the proposals will all be carried out within 12 months of each other. 13A Applications for transit permits (1) A person who has one or more transit proposals in relation to hazardous waste may apply to the Minister for a permit to carry out the proposals. Note: If a transit proposal is in connection with the movement of hazardous waste from one OECD country to another OECD country, a transit permit may not be required for that proposal: see subsection 33G(1). (2) The application must: (a) be in the form approved by the Minister; and (b) set out, or be accompanied by, such information relating to the proposals as is required by the form. (3) The application may deal with 2 or more transit proposals in relation to hazardous waste only if: (a) the following matters are common to each proposal: (i) the physical and chemical characteristics of the waste; (ii) the route over which the waste is to be transported; (iii) the sender and recipient of the waste; and (b) the proposals constitute a regular pattern; and (c) the proposals will all be carried out within 12 months of each other. 13B Basel permit or special permit Statement in application (1) An application under section 12, 13 or 13A must state that the applicant is applying for: (a) a Basel permit; or (b) a special permit under a specified set of Article 11 regulations; but not both. Note 1: If the applicant has applied for a Basel permit, the application is to be dealt with in accordance with Division 3. Note 2: If the applicant has applied for a special permit under a particular set of Article 11 regulations, the application is to be dealt with in accordance with that set of regulations. Application specifying Basel permit—adjustment of application (2) If: (a) an application under section 12, 13 or 13A states that the applicant is applying for a Basel permit; and (b) the Minister is satisfied that there are special circumstances relating to the application; the Minister may, by writing, determine that this Act has effect as if the applicant had applied instead for the corresponding type of special permit under a set of Article 11 regulations specified in the determination. Application specifying special permit—adjustment of application (3) If: (a) an application under section 12, 13 or 13A states that the applicant is applying for a special permit under a particular set of Article 11 regulations; and (b) the Minister is satisfied that there are special circumstances relating to the application; the Minister may, by writing: (c) determine that this Act has effect as if the applicant had applied instead for the corresponding type of Basel permit; or (d) determine that this Act has effect as if the applicant had applied instead for the corresponding type of special permit under another set of Article 11 regulations specified in the determination. Determination has effect accordingly (4) A determination under this section has effect accordingly. Applicant to be given copy of determination (5) As soon as practicable after the Minister makes a determination under this section, the Minister must give the applicant a copy of the determination. Division 2—Special permits under a set of Article 11 regulations 13C Regulations may give effect to Article 11 arrangements (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. (2) Regulations made for the purposes of this section may be expressed to take effect on the day the arrangement or amendment enters into force, or comes into effect, for Australia (but must not be expressed to take effect before then). (2A) As soon as practicable after the arrangement or amendment enters into force, or comes into effect, for Australia, the Minister must publish a notice in the Gazette giving details of that fact. (3) Regulations made for the purposes of this section that give effect to a particular Article 11 arrangement (including regulations that give effect to an amendment of the Article 11 arrangement) are to be known as a set of Article 11 regulations. 13D Contents of a set of Article 11 regulations (1) Each set of Article 11 regulations may: (a) specify the kinds of import proposals, export proposals and transit proposals that are within the scope of that set of regulations; and (b) provide for the granting of permits by the Minister authorising the import of hazardous waste, where the permit relates to an import proposal within the scope of that set of regulations; and (c) provide for the granting of permits by the Minister authorising the export of hazardous waste, where the permit relates to an export proposal within the scope of that set of regulations; and (d) provide for the granting of permits by the Minister authorising the carrying out of transit proposals within the scope of that set of regulations. Note 1: A permit covered by paragraph (1)(b) is known as a special import permit—see the definition in section 4. Note 2: A permit covered by paragraph (1)(c) is known as a special export permit—see the definition in section 4. Note 3: A permit covered by paragraph (1)(d) is known as a special transit permit—see the definition in section 4. (2) A set of Article 11 regulations may provide for: (a) conditions of special permits; and (b) the revocation, surrender and variation of special permits. (3) This section does not, by implication, limit section 13C. 13E Special permit may be granted under a set of Article 11 regulations only if corresponding requirements of other sets of Article 11 regulations have been met Import (1) If: (a) a person applies for a special import permit in relation to an import proposal that is within the scope of a particular set of Article 11 regulations; and (b) the proposal is within the scope of another set of Article 11 regulations; the Minister must not grant the permit unless the Minister is satisfied that the corresponding requirements of the other set of regulations have been met in relation to the proposal. For this purpose, a corresponding requirement of a particular set of Article 11 regulations is a requirement under that set of regulations: (c) that must be met before granting a special import permit under that set of regulations; and (d) that is declared by the regulations to be a corresponding requirement for the purposes of this subsection. (2) Subsection (1) does not prevent the set of Article 11 regulations mentioned in paragraph (1)(a) from setting out other requirements that must be met before granting a special import permit under that set of regulations. Export (3) If: (a) a person applies for a special export permit in relation to an export proposal that is within the scope of a particular set of Article 11 regulations; and (b) the proposal is within the scope of another set of Article 11 regulations; the Minister must not grant the permit unless the Minister is satisfied that the corresponding requirements of the other set of regulations have been met in relation to the proposal. For this purpose, a corresponding requirement of a particular set of Article 11 regulations is: (c) a requirement under that set of regulations to obtain the consent (whether actual or constructive) of an authority of a foreign country before granting a special export permit under that set of regulations authorising the export of hazardous waste to that country; or (d) another requirement under that set of regulations: (i) that must be met before granting a special export permit under that set of regulations; and (ii) that is declared by the regulations to be a corresponding requirement for the purposes of this subsection. (4) Subsection (3) does not prevent the set of Article 11 regulations mentioned in paragraph (3)(a) from setting out other requirements that must be met before granting a special export permit under that set of regulations. Transit (5) If: (a) a person applies for a special transit permit in relation to a transit proposal that is within the scope of a particular set of Article 11 regulations; and (b) the proposal is within the scope of another set of Article 11 regulations; the Minister must not grant the permit unless the Minister is satisfied that the corresponding requirements of the other set of regulations have been met in relation to the proposal. For this purpose, a corresponding requirement of a particular set of Article 11 regulations is: (c) a requirement under that set of regulations to obtain the consent (whether actual or constructive) of an authority of a foreign country before granting a special transit permit under that set of regulations authorising the carrying out of a transit proposal that involves the export of hazardous waste to that country; or (d) another requirement under that set of regulations: (i) that must be met before granting a special transit permit under that set of regulations; and (ii) that is declared by the regulations to be a corresponding requirement for the purposes of this subsection. (6) Subsection (5) does not prevent the set of Article 11 regulations mentioned in paragraph (5)(a) from setting out other requirements that must be met before granting a special transit permit under that set of regulations. 13F Special permit—waste not to be brought into Antarctica The Minister must not grant a special permit if the Minister is satisfied that the grant could result in hazardous waste being brought into Antarctica. Division 3—Grant of Basel permits 14 Variation of applications for Basel permits (1) An applicant for a Basel permit may, at any time before the Minister has decided whether to grant the permit, give the Minister a notice stating that the permit application is varied as set out in the notice. (2) The notice must: (a) be in the form approved by the Minister; and (b) set out, or be accompanied by, such information relating to the variation as is required by the form. (3) If the Minister receives a notice under subsection (1) from the applicant: (a) the application is to be taken to have been varied in accordance with the notice; and (b) the application, as varied, is to be taken to have been received by the Minister on the day on which the Minister received the notice. 15 Minister may request further information about an application (1) Within 60 days after the day of receiving an application for a Basel permit, the Minister may request the applicant to provide further information in writing to deal with the application. (2) If the Minister makes such a request of an applicant: (a) the period in subsection 16(1) for the Minister to decide whether to grant the Basel permit is paused until the request is complied with; and (b) the application is taken to be withdrawn if the request is not complied with within 60 days after the day that the request is made. 15A Acknowledgment and notification (1) Within 7 days after receiving an application for a Basel permit, the Minister must give the applicant a written acknowledgment of the receipt. (2) Within 7 days after receiving an application for a Basel import permit authorising the import of hazardous waste from a foreign country, the Minister must give the competent authority of the country a written notification of the receipt. 16 Period for making decision on application for Basel permit—default period (1) The Minister must decide whether to grant the Basel permit within 60 days starting on the day after the Minister receives the application (the decision period). Note: This period may be paused or extended under section 15, 16A, 16B, 16C or 16D. (2) If the Minister has not decided whether to grant the permit by the end of the decision period, the Minister is to be taken to have decided, on the last day of that period, not to grant the permit. 16A Period for making decision on application for Basel permit—extensions for Basel export permits (1) If the application is for a Basel export permit, then within 21 days after the day of receiving the application, the Minister must notify: (a) the competent authority of the country to which hazardous waste is to be exported under the permit (the receiving country); and (b) the competent authority of each country (if any) (a transit country) through which the hazardous waste is to be transported in order to export it to the receiving country; of such information about the application as is required by regulations made for the purposes of this subsection. (2) If, at the end of the 46th day of the decision period, either: (a) the competent authority of the receiving country has neither given nor refused written consent to the grant of the permit; or (b) a competent authority of a transit country notified under paragraph (1)(b) has neither given nor refused written consent to the grant of the permit; the decision period is paused until the earlier of: (c) the latest day such a refusal or consent is given by a competent authority covered by paragraph (a) or (b); and (d) 12 months after the day the Minister receives the application. (3) If a foreign country is a party to the Basel Convention, a reference in subsection (2) to a consent given by the competent authority of the country is a reference to a consent given in accordance with Article 6 of the Basel Convention. 16B Period for making decision on application for Basel permit—extensions for Basel permits (1) If: (a) the application is for a Basel permit; and (b) the Minister thinks that it will take more than 60 days to decide whether to grant the permit; the Minister may extend the decision period by up to a further 60 days. (2) The Minister must give written notice of any extension under subsection (1) to each of the following as soon as practicable: (a) the applicant; (b) in the case of an application for a Basel import permit—the competent authority of the country from which the permit authorises the import of hazardous waste; (c) in the case of a Basel export permit—the following: (i) the competent authority of the country to which the permit authorises the export of hazardous waste (the receiving country); (ii) the competent authority of each country (if any) through which the permit authorises the hazardous waste to be transported in order to export it to the receiving country. 16C Period for making decision on application for Basel permit—referrals under the Environment Protection and Biodiversity Conservation Act 1999 If, within the decision period, the proposal to grant the Basel permit is referred under Subdivision A of Division 4 of Part 11 of the Environment Protection and Biodiversity Conservation Act 1999, the decision period is paused until: (a) the Minister administering that Subdivision gives, under section 163 of that Act, advice on the proposed grant; or (b) the Minister administering that Subdivision decides, under section 161A of that Act, that that Subdivision does not apply to the referral. Note: Under Subdivision A of Division 4 of Part 11 of the Environment Protection and Biodiversity Conservation Act 1999, persons considering whether to authorise certain actions must get advice on environmental matters from the Minister administering that Subdivision. 16D Period for making decision on application for Basel permit—extension agreed with applicant The decision period is extended if the Minister and applicant agree in writing to the extension. 17 Grant of Basel import permits and Basel export permits (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: (a) the Minister is satisfied 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) in the case of a Basel export permit authorising the export of hazardous waste to a particular foreign country: (i) the Minister is satisfied that the competent authority of the country has given written consent to the grant of the permit; and (ii) the Minister is satisfied that the consent was given in accordance with Article 6 of the Basel Convention; and (ba) in the case of a Basel export permit— the Minister is satisfied 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) the Minister is satisfied 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) the Minister is satisfied that the applicant has appropriate insurance; and (e) the Minister has taken into account any relevant public comments received in response to an invitation under paragraph 33(1)(aa) about the permit application (or any notice relating to that application). 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), (5) or (5A) 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. (5A) The Minister may decide not to grant the permit if the applicant has previously failed to provide, or to arrange to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit. Note 1: For the requirement to provide an auditor with assistance that is reasonably necessary for the conduct of an audit, see section 54. Note 2: The audit need not relate to a permit. Assistance may be requested in relation to any audit of operations covered by a permit, an order under Part 3, a notification given under subsection 33G(1), or other prescribed operations: see section 50. (6) The Minister must not grant a Basel export permit or a Basel import permit if the Minister is satisfied that the grant could result in hazardous waste being brought into Antarctica. (7) The Minister must not grant a Basel export permit authorising the export of hazardous waste to a foreign country that is not a party to the Basel Convention. (8) The Minister must not grant a Basel import permit authorising the import of hazardous waste from a foreign country that is not a party to the Basel Convention. 17A Grant of transit permits (1) This section applies if the permit sought by a permit application is a Basel transit permit. (2) The Minister must grant the permit sought by a permit application if: (a) the Minister is satisfied that carrying out the transit proposals will not pose a significant risk of injury or damage to human beings or the environment; and (b) the Minister is satisfied 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 transit permit; and (c) the Minister is satisfied that the applicant has appropriate insurance; and (d) the Minister has taken into account any relevant public comments received in response to an invitation under paragraph 33(1)(aa) about the permit application (or any notice relating to that application). Note: Section 18 specifies circumstances in which the applicant has appropriate insurance. (3) Subsection (2) has effect subject to this Division. (4) The Minister may decide not to grant the permit if the Minister thinks that it would not be in the public interest to grant it. (4A) The Minister may decide not to grant the permit if the applicant has previously failed to provide, or to arrange to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit. Note 1: For the requirement to provide an auditor with assistance that is reasonably necessary for the conduct of an audit, see section 54. Note 2: The audit need not relate to a permit. Assistance may be requested in relation to any audit of operations covered by a permit, an order under Part 3, a notification given under subsection 33G(1), or other prescribed operations: see section 50. (5) The Minister must not grant the permit if the Minister is satisfied that carrying out the transit proposals could result in hazardous waste being brought into Antarctica. 18 Determination of whether applicant has appropriate insurance An applicant for a Basel permit has appropriate insurance for the purposes of section 17 or 17A if: (a) the applicant is reasonably insured against risks that might arise in relation to the hazardous waste concerned if the permit were granted; or (b) the applicant, whether because of arrangements made by the applicant or otherwise, will be able to discharge any liability of the applicant that might arise in relation to the hazardous waste concerned if the permit were granted. 18A Export permits for final disposal may be granted only in exceptional circumstances (1) The Minister must not grant a Basel export permit authorising the export of hazardous waste if the applicant proposes that the hazardous waste will be disposed of by a method that is within the scope of Section A of Annex IV to the Basel Convention. (2) Despite subsection (1), the Minister may grant a Basel export permit in the circumstances described in that subsection if the Minister is satisfied that there are exceptional circumstances. (3) Subsection (2) does not apply if the Minister is satisfied that carrying out the export proposals would be inconsistent with the environmentally sound management of the hazardous waste. (4) In deciding whether there are exceptional circumstances for the purposes of subsection (2), the Minister must have regard to the following: (a) whether there will be a significant risk of injury or damage to human beings or the environment if the Minister decides not to grant the permit; (b) whether the waste is needed for research into improving the management of hazardous waste; (c) whether the waste is needed for testing for the purposes of improving the management of hazardous waste; (d) matters prescribed for the purposes of this paragraph. 18B Basel permit may be granted only if the corresponding requirements of Article 11 regulations have been met Import (1) If: (a) a person applies for a Basel import permit in relation to an import proposal; and (b) the proposal is within the scope of a particular set of Article 11 regulations; the Minister must not grant the permit unless the Minister is satisfied that the corresponding requirements of that set of regulations have been met in relation to the proposal. For this purpose, a corresponding requirement of a particular set of Article 11 regulations is a requirement under that set of regulations: (c) that must be met before granting a special import permit under that set of regulations; and (d) that is declared by the regulations to be a corresponding requirement for the purposes of this subsection. Export (2) If: (a) a person applies for a Basel export permit in relation to an export proposal; and (b) the proposal is within the scope of a particular set of Artic