Commonwealth: Hazardous Waste (Regulation of Exports and Imports) Amendment Act 2021 (Cth)

Hazardous Waste (Regulation of Exports and Imports) Amendment Act 2021 No. 73, 2021 An Act to amend the Hazardous Waste (Regulation of Exports and Imports) Act 1989, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Hazardous waste Hazardous Waste (Regulation of Exports and Imports) Act 1989 Schedule 2—Regulatory powers Part 1—Amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 Part 2—Application and saving provisions Schedule 3—Record keeping, information and confidentiality Part 1—Amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 Part 2—Application provisions Schedule 4—Offence and civil penalty provisions Part 1—Amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 Part 2—Transitional and saving provisions Part 3—Contingent amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 Schedule 5—Other amendments Part 1—Australian waters Hazardous Waste (Regulation of Exports and Imports) Act 1989 Part 2—Commenting on permit applications Division 1—Amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 Division 2—Application of amendments Part 3—Granting, revoking or varying Basel permits Division 1—Main amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 Division 2—Consequential amendments Environment Protection and Biodiversity Conservation Act 1999 Division 3—Application and transitional provisions Part 4—Publication of certain particulars Division 1—Amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 Division 2—Application provisions Part 5—Fees Hazardous Waste (Regulation of Exports and Imports) Act 1989 Part 6—New consultation mechanism Hazardous Waste (Regulation of Exports and Imports) Act 1989 Hazardous Waste (Regulation of Exports and Imports) Amendment Act 2021 No. 73, 2021 An Act to amend the Hazardous Waste (Regulation of Exports and Imports) Act 1989, and for related purposes [Assented to 30 June 2021] The Parliament of Australia enacts: 1 Short title This Act is the Hazardous Waste (Regulation of Exports and Imports) Amendment Act 2021. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 30 June 2021 2. Schedules 1, 2 and 3 A single day to be fixed by Proclamation. 30 December 2021 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 3. Schedule 4, Parts 1 and 2 At the same time as the provisions covered by table item 2. 30 December 2021 4. Schedule 4, Part 3 The later of: 30 December 2021 (a) immediately after the commencement of the provisions covered by table item 2; and (paragraph (a) applies) (b) immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021. 5. Schedule 5 At the same time as the provisions covered by table item 2. 30 December 2021 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Hazardous waste Hazardous Waste (Regulation of Exports and Imports) Act 1989 1 Section 4 (after paragraph (d) of the definition of hazardous waste) Insert: or (e) plastic wastes, including mixtures of such wastes, covered by Annex II to the Basel Convention; 2 Section 4 (definition of hazardous waste) Omit "paragraph 4", substitute "paragraph 3 or 4". Schedule 2—Regulatory powers Part 1—Amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 1 Section 4 Insert: audit means an audit under Subdivision B of Division 2 of Part 5. Australian jurisdiction means Australia or Australian waters, including over Australia or Australian waters. civil penalty provision has the same meaning as in the Regulatory Powers Act. evidential material has the same meaning as in the Regulatory Powers Act. 2 Section 4 (definition of identity card) Repeal the definition, substitute: 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. 3 Section 4 (definition of offence against a provision of Part 4) Repeal the definition. 4 Section 4 (definition of offence against this Act) Repeal the definition. 5 Section 4 Insert: Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. relevant person, for an audit, has the meaning given by section 52. Secretary means the Secretary of the Department. 6 Section 4 (definition of within Australian jurisdiction) Repeal the definition. 7 Section 8 Repeal the section. 8 Section 9 (heading) Omit "of Act". 9 Section 9 Omit "Act extends", substitute "Act, and the Regulatory Powers Act to the extent that it applies in relation to a provision of this Act, extend". 10 After section 9 Insert: 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. 11 Section 10A After "Part 2.5", insert "and Division 14". 12 Subsection 17(2) Omit "(4) or (5)", substitute "(4), (5) or (5A)". 13 After subsection 17(5) Insert: (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. 14 After subsection 17A(4) Insert: (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. 15 Section 41 Repeal the section. 16 Part 5 (heading) Repeal the heading, substitute: Part 5—Compliance powers 17 Before section 42 Insert: Division 1—Inspectors 18 After section 42 Insert: Division 2—Powers of inspectors Subdivision A—Monitoring and investigation powers 43 Monitoring powers Provisions subject to monitoring (1) The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act: (a) each provision of this Act; (b) an offence against the Crimes Act 1914 or the Criminal Code to the extent that it relates to this Act. Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection. Information subject to monitoring (2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act. Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection. Related provisions, authorised applicant, issuing officer, relevant chief executive and relevant court (3) For the purposes of Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2): (a) there are no related provisions; and (b) an inspector is an authorised applicant; and (c) a magistrate is an issuing officer; and (d) the Secretary is the relevant chief executive; and (e) the Court is the relevant court. Authorised persons (4) For the purposes of Part 2 of the Regulatory Powers Act: (a) an inspector is an authorised person in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2); and (b) an officer of Customs is an authorised person in relation to either of sections 48 and 49 of this Act and the information given in compliance or purported compliance with either of those sections. Person assisting (5) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2). 44 Modifications of monitoring powers Additional monitoring powers (1) For the purposes of determining: (a) whether a provision mentioned in subsection 43(1) has been, or is being, complied with; or (b) the correctness of information mentioned in subsection 43(2); the additional powers mentioned in subsection (2) of this section are taken to be included in the monitoring powers under Part 2 of the Regulatory Powers Act. (2) The additional monitoring powers are: (a) the power to sample any thing in a searchable place entered under Part 2 of the Regulatory Powers Act; and (b) the power to remove, test and analyse such samples; and (c) the power to secure a searchable place entered under Part 2 of the Regulatory Powers Act; and (d) the power to secure things in a searchable place entered under Part 2 of the Regulatory Powers Act for the purposes of sampling, testing or analysing those things; and (e) the powers set out in sections 47, 48 and 49 of this Act. Premises (3) Part 2 of the Regulatory Powers Act applies in relation to the provisions mentioned in subsection 43(1) of this Act, and the information mentioned in subsection 43(2) of this Act, as if a reference in that Part to "premises" were a reference to "searchable place" as defined in section 4 of this Act. Occupier (4) Part 2 of the Regulatory Powers Act applies in relation to the provisions mentioned in subsection 43(1) of this Act, and the information mentioned in subsection 43(2) of this Act, as if a reference in that Part to "occupier" were a reference to "relevant authority" as defined in section 4 of this Act. Stopping or detaining a vessel, aircraft or vehicle (5) If an authorised person is authorised under section 18 of the Regulatory Powers Act, as it applies in relation to: (a) a provision mentioned in subsection 43(1) of this Act; and (b) information mentioned in subsection 43(2) of this Act; to enter a searchable place that is a vessel, aircraft or vehicle, the monitoring powers under Part 2 of the Regulatory Powers Act are taken to include a power that the authorised person may stop and detain the vessel, aircraft or vehicle for the purposes of: (c) entering the vessel, aircraft or vehicle; and (d) exercising monitoring powers under that Part. Announcement before entry under a warrant (6) For the purposes of determining: (a) whether a provision mentioned in subsection 43(1) has been, or is being, complied with; or (b) the correctness of information mentioned in subsection 43(2); paragraph 26(b) of the Regulatory Powers Act is taken not to apply to an authorised person if the authorised person reasonably believes that showing the authorised person's identity card before entering a searchable place under Part 2 of that Act is not practical in the circumstances. (7) However, if either of the following persons is present at the searchable place when the authorised person so enters it: (a) the relevant authority in relation to the searchable place; (b) another person who apparently represents the relevant authority in relation to the searchable place; the Regulatory Powers Act is taken to require the authorised person to show the authorised person's identity card to the relevant authority, or other person, as soon as is practicable. Use of force in executing a monitoring warrant (8) In executing a monitoring warrant under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection 43(1) of this Act and the information mentioned in subsection 43(2) of this Act: (a) an authorised person may use such force against things as is necessary and reasonable in the circumstances; and (b) a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances. 45 Investigation powers Provisions subject to investigation (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is: (a) an offence against this Act; or (b) a civil penalty provision of this Act; or (c) an offence against the Crimes Act 1914 or the Criminal Code to the extent that it relates to this Act. Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure. Related provisions, authorised applicant, issuing officer, relevant chief executive and relevant court (2) For the purposes of Part 3 of the Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1): (a) there are no related provisions; and (b) an inspector is an authorised applicant; and (c) a magistrate is an issuing officer; and (d) the Secretary is the relevant chief executive; and (e) the Court is the relevant court. Authorised persons (3) For the purposes of Part 3 of the Regulatory Powers Act: (a) an inspector is an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1); and (b) an officer of Customs is an authorised person in relation to evidential material that relates to either of sections 48 and 49 of this Act. Person assisting (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1). 46 Modifications of investigation powers Additional investigation powers (1) The additional powers mentioned in subsection (2) are taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 45(1) of this Act. (2) The additional investigation powers are: (a) the power to sample any thing in a searchable place entered under Part 3 of the Regulatory Powers Act; and (b) the power to remove, test and analyse such samples; and (c) the power to secure a searchable place entered under Part 3 of the Regulatory Powers Act; and (d) the power to secure things in a searchable place entered under Part 3 of the Regulatory Powers Act for the purposes of sampling, testing or analysing those things; and (e) the powers set out in sections 47, 48 and 49 of this Act. Premises (3) Part 3 of the Regulatory Powers Act applies in relation to evidential material that relates to a provision mentioned in subsection 45(1) of this Act as if a reference in that Part to "premises" were a reference to "searchable place" as defined in section 4 of this Act. Occupier (4) Part 3 of the Regulatory Powers Act applies in relation to evidential material that relates to a provision mentioned in subsection 45(1) of this Act as if a reference in that Part to "occupier" were a reference to "relevant authority" as defined in section 4 of this Act. Stopping or detaining a vessel, aircraft or vehicle (5) If an authorised person is authorised under section 48 of the Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection 45(1) of this Act, to enter a searchable place that is a vessel, aircraft or vehicle, the investigation powers under Part 3 of the Regulatory Powers Act are taken to include a power that the authorised person may stop and detain the vessel, aircraft or vehicle for the purposes of: (a) entering the vessel, aircraft or vehicle; and (b) exercising investigation powers under that Part. Use of force in executing an investigation warrant (6) In executing an investigation warrant under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 45(1) of this Act: (a) an authorised person may use such force against things as is necessary and reasonable in the circumstances; and (b) a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances. 47 Additional monitoring and investigation powers—control movement of vessels and aircraft etc. (1) For the purposes of paragraph 44(2)(e) or 46(2)(e), the powers under Part 2 or 3 of the Regulatory Powers Act include the powers in this section if an authorised person acting under that Part has reasonable grounds for suspecting that there is in or on: (a) an Australian vessel or Australian aircraft; or (b) a vessel or aircraft that is within Australian jurisdiction; hazardous waste that is to be, or that has been, imported, exported or the subject of a transit proposal. (2) If this section applies in relation to a vessel, the authorised person may require the person in command or control, or who appears to be in command or control, of the vessel to do one or more of the following things: (a) ensure the vessel does not remain, or does not come, as the case requires, within Australian jurisdiction; (b) ensure the vessel is brought to a specified place to which it is safe and practicable to bring the vessel; (c) ensure the vessel remains at a specified place until an authorised person permits the vessel to leave; (d) arrange for goods being carried on the vessel to be unloaded; (e) ensure that goods being carried on the vessel are not unloaded until an authorised person permits their unloading. (3) If this section applies in relation to an aircraft, the authorised person may require the person in command or control, or who appears to be in command or control, of the aircraft to do one or more of the following things: (a) ensure the aircraft does not remain, or does not come, as the case requires, within Australian jurisdiction; (b) ensure the aircraft is landed at a specified airport at which it is safe and practicable to land the aircraft; (c) ensure the aircraft remains at a specified airport until an authorised person permits the aircraft to leave; (d) arrange for goods being carried on the aircraft to be unloaded; (e) ensure that goods being carried on the aircraft are not unloaded until an authorised person permits their unloading. (4) An authorised person may communicate a requirement under this section by means of: (a) an international signal code; or (b) if the requirement relates to a vessel—any other internationally recognised means of communication with a vessel; or (c) if the requirement relates to an aircraft—any other internationally recognised means of communication with an aircraft. Complying with requirement (5) A person contravenes this subsection if: (a) the person is subject to a requirement under this section; and (b) the person fails to comply with the requirement. Note: An example of failing to comply with a requirement is refusing to comply with it. (6) Subsection (5) does not apply if complying with the requirement would have endangered the person or any other person. Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act). Strict liability offence (7) A person commits an offence of strict liability if the person contravenes subsection (5). Penalty: 30 penalty units. Civil penalty provision (8) A person is liable to a civil penalty if the person contravenes subsection (5). Civil penalty: 240 penalty units. 48 Additional monitoring and investigation powers—production of permits and orders for import or export (1) For the purposes of paragraph 44(2)(e) or 46(2)(e), the powers under Part 2 or 3 of the Regulatory Powers Act include the powers in this section if an authorised person acting under that Part has reasonable grounds for suspecting that a person (the suspected person): (a) intends to import or export hazardous waste; or (b) is importing or exporting hazardous waste; or (c) has imported or exported hazardous waste. (2) The authorised person may require the suspected person to produce, or to produce evidence of the existence and contents of: (a) a Basel permit or special permit authorising the import or export; or (b) an order under section 34, 35, 35A or 38 authorising or requiring the import or export. Complying with requirement (3) A person contravenes this subsection if: (a) the person is subject to a requirement under subsection (2); and (b) the person fails to comply with the requirement. Note: An example of failing to comply with a requirement is refusing to comply with it. Strict liability offence (4) A person commits an offence of strict liability if the person contravenes subsection (3). Penalty: 30 penalty units. Civil penalty provision (5) A person is liable to a civil penalty if the person contravenes subsection (3). Civil penalty: 240 penalty units. 49 Additional monitoring and investigation powers—production of transit permits (1) For the purposes of paragraph 44(2)(e) or 46(2)(e), the powers under Part 2 or 3 of the Regulatory Powers Act include the powers in this section if an authorised person acting under that Part has reasonable grounds for suspecting that a person (the suspected person): (a) intends to carry out a transit proposal; or (b) is carrying out a transit proposal; or (c) has carried out a transit proposal. (2) The authorised person may require the suspected person to produce, or to produce evidence of the existence and contents of: (a) a transit permit authorising the carrying out of the transit proposal; or (b) a notification in force under subsection 33G(1) that a transit permit is not required for the transit proposal. Complying with requirement (3) A person contravenes this subsection if: (a) the person is subject to a requirement under subsection (2); and (b) the person fails to comply with the requirement. Note: An example of failing to comply with a requirement is refusing to comply with it. Strict liability offence (4) A person commits an offence of strict liability if the person contravenes subsection (3). Penalty: 30 penalty units. Civil penalty provision (5) A person is liable to a civil penalty if the person contravenes subsection (3). Civil penalty: 240 penalty units. Subdivision B—Audit powers 50 Audits Operations in relation to which audit may be required (1) The Secretary may, in writing, require an audit to be conducted of any of the following: (a) operations purportedly covered by an import proposal that is or was covered by an import permit; (b) operations purportedly covered by an export proposal that is or was covered by an export permit; (c) operations purportedly covered by a transit proposal that is or was covered by a transit permit; (d) operations that are or were covered by an order under Part 3; (e) operations that are or were purportedly covered by a notification under subsection 33G(1); (f) operations that are or were carried out, or proposed to be carried out, in any other circumstances prescribed by the regulations for the purposes of this paragraph. Matters to which audit must relate (2) An audit under subsection (1) must relate to whether operations referred to in a paragraph of subsection (1): (a) are covered by any permit, order or notification referred to in that paragraph; or (b) are complying, have complied, or will comply with any permit, order or notification referred to in that paragraph; or (c) are complying, have complied, or will comply with any requirement of, or made under, this Act; or (d) if a notification is referred to in that paragraph—would likely result in the Minister still being satisfied of the criteria in subsection 33G(1) were the Minister to consider making the notification again; or (e) are complying, have complied, or will comply with any other matter relating to the operation of this Act prescribed by the regulations for the purposes of this paragraph. (3) An audit under subsection (1) may deal with anything that is: (a) reasonably necessary for the effective conduct of the audit; or (b) incidental to the matter to which the audit relates. Who may conduct audit (4) An audit under this section must be conducted by an inspector. 51 Single audit or program of audits may be required The Secretary may require, under section 50, a single audit, or a program of audits, to be conducted in relation to a specified matter or matters included in a specified class of matters. Note: If the Secretary has required a program of audits to be conducted in relation to a matter, the Secretary may also require additional audits to be conducted in relation to the matter (see subsection 33(1) of the Acts Interpretation Act 1901). 52 Relevant person for an audit The relevant person for an audit is as follows: (a) for an audit of operations relating to a permit—the holder of the permit; (b) for an audit of operations relating to an order under Part 3—the person who is the subject of the order; (c) for an audit of operations relating to a notification under subsection 33G(1)—the person notified; (d) for an audit of operations that are, were, or proposed to be carried out in circumstances prescribed by the regulations for the purposes of paragraph 50(1)(f)—the person who is or was carrying out, or is proposing to carry out, the operations. 53 Conduct of audit (1) The Secretary need not give notice of an audit required under this Subdivision. (2) Before starting to conduct an audit, an auditor must give the relevant person for the audit a description of the scope of the audit. Regulations may make provision in relation to other matters (3) Regulations made for the purposes of this subsection may make provision for and in relation to: (a) other matters relating to the conduct of an audit; and (b) the process to be followed after an audit has been completed. (4) Without limiting subsection (3), the regulations may make provision for and in relation to the following: (a) information that must be provided to the relevant person for the audit before the audit, during the audit or after the audit is completed; (b) requirements for reports to be provided in relation to an audit. 54 Relevant person for an audit must provide assistance (1) The relevant person for an audit must provide the auditor with assistance that is reasonably necessary for the conduct of the audit. (2) Without limiting subsection (1), providing assistance that is reasonably necessary includes complying with any request under subsection 55(1) for the audit. Note: Failing to provide assistance that is reasonably necessary for the conduct of an audit may result in, for example, the revocation or variation of a permit or the revocation of notification given under subsection 33G(1). 55 Powers of auditors (1) For the purpose of conducting an audit, an auditor may request a person who the auditor reasonably believes has information or documents that are relevant to the audit to answer questions, provide information in writing, or produce the documents. Note: A person may commit an offence or be liable to a civil penalty if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code). (2) An auditor may make copies of, or take extracts from, a document or record produced under subsection (1). 19 Sections 43 to 56 Repeal the sections. 20 After Part 5 Insert: Part 5AA—Enforcement powers Division 1—Civil penalty provisions 56AA Civil penalty provisions Enforceable civil penalty provisions (1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act. Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision. Authorised applicant (2) For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions of this Act. Relevant court (3) For the purposes of Part 4 of the Regulatory Powers Act, the Court is a relevant court in relation to the civil penalty provisions of this Act. Division 2—Infringement notices 56AB Infringement notices Provisions subject to an infringement notice (1) A provision of this Act contravention of which is an offence of strict liability is subject to an infringement notice under Part 5 of the Regulatory Powers Act. Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions. Infringement officer (2) For the purposes of Part 5 of the Regulatory Powers Act, an inspector is an infringement officer in relation to the provisions mentioned in subsection (1). Relevant chief executive (3) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1). Division 3—Enforceable undertakings 56AC Enforceable undertakings Enforceable provisions (1) The provisions of this Act are enforceable under Part 6 of the Regulatory Powers Act. Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions. Authorised person (2) For the purposes of Part 6 of the Regulatory Powers Act, the Secretary is an authorised person in relation to the provisions mentioned in subsection (1). Relevant court (3) For the purposes of Part 6 of the Regulatory Powers Act, the Court is a relevant court in relation to the provisions mentioned in subsection (1). Division 4—Injunctions 56AD Injunctions Enforceable provisions (1) The provisions of this Act are enforceable under Part 7 of the Regulatory Powers Act. Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions. Authorised persons (2) For the purposes of Part 7 of the Regulatory Powers Act, each of the following persons is an authorised person: (a) in relation to the provisions mentioned in subsection (1)—the Secretary; (b) in relation to: (i) conduct or proposed conduct in contravention of a provision of this Act; or (ii) a refusal or failure to do a thing that was, is or would be a contravention of a provision of this Act; a person who, or entity to which, subsection (3), (4), (5) or (6) applies. (3) This subsection applies to a person whose interests have, are or will be affected by the conduct, proposed conduct, refusal or failure mentioned in paragraph (2)(b). (4) This subsection applies to an individual if: (a) the individual is an Australian citizen or ordinarily resident in Australia; and (b) at any time during the 2‑year period ending immediately before the individual makes an application for an injunction, the individual has engaged in one or more activities relating to any of the following: (i) research into hazardous waste; (ii) the protection of human beings or the environment from the harmful effects of hazardous waste; (iii) research into pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste; (iv) the protection of human beings or the environment from the harmful effects of pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste. (5) This subsection applies to a body corporate if: (a) the body corporate is incorporated in Australia; and (b) at any time during the 2‑year period ending immediately before the body corporate makes an application for an injunction, the body corporate has engaged in one or more activities relating to any of the following: (i) research into hazardous waste; (ii) the protection of human beings or the environment from the harmful effects of hazardous waste; (iii) research into pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste; (iv) the protection of human beings or the environment from the harmful effects of pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste; and (c) the objects or purposes of the body corporate include any of the following: (i) research into hazardous waste; (ii) the protection of human beings or the environment from the harmful effects of hazardous waste; (iii) research into pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste; (iv) the protection of human beings or the environment from the harmful effects of pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste. (6) This subsection applies to an unincorporated organisation or unincorporated association if: (a) the organisation or association was established in Australia; and (b) at any time during the 2‑year period ending immediately before the organisation or association makes an application for an injunction, the organisation or association has engaged in one or more activities relating to any of the following: (i) research into hazardous waste; (ii) the protection of human beings or the environment from the harmful effects of hazardous waste; (iii) research into pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste; (iv) the protection of human beings or the environment from the harmful effects of pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste; and (c) the objects or purposes of the organisation or association include any of the following: (i) research into hazardous waste; (ii) the protection of human beings or the environment from the harmful effects of hazardous waste; (iii) research into pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste; (iv) the protection of human beings or the environment from the harmful effects of pollution of the air, water or soil, where the pollution results from the disposal of hazardous waste. (7) Part 7 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1), applies as if a reference in subsections 119(1) and 119(2) of that Act to "a person" included references to "an unincorporated organisation" and "an unincorporated association". (8) Subparagraphs (4)(b)(i) to (iv), (5)(b)(i) to (iv) and (6)(b)(i) to (iv) do not apply to activities unless: (a) the activities are carried on within Australian jurisdiction; or (b) the activities relate to the effects of hazardous waste of Australian origin on human beings, or the environment, outside of Australian jurisdiction. (9) For the purposes of subsections (4), (5) and (6), in interpreting the expression hazardous waste, sections 4A, 4F and 4G are to be ignored. Relevant court (10) For the purposes of Part 7 of the Regulatory Powers Act, the Court is a relevant court in relation to the provisions mentioned in subsection (1). Certain limits on granting injunctions do not apply (11) Subsection 124(1) of the Regulatory Powers Act applies in relation to the provisions mentioned in subsection (1) of this section as if paragraph 124(1)(c) of that Act were replaced by the following paragraph: "(c) whether or not there is a significant risk of injury or damage to an individual or the environment if the person engages in conduct of that kind.". (12) Subsection 124(2) of the Regulatory Powers Act applies in relation to the provisions mentioned in subsection (1) as if paragraph 124(2)(c) of that Act were replaced by the following paragraph: "(c) whether or not there is a significant risk of injury or damage to an individual or the environment if the person refuses or fails to do the thing.". 21 Subsection 59(1) Omit "an offence against this Act", substitute "a designated offence". 22 Subsection 59(1) Omit "particular conduct", substitute "a particular act or omission". 23 Paragraph 59(1)(a) Omit "conduct was engaged in", substitute "act or omission was done". 24 Subsection 59(2) Omit "Any conduct engaged in", substitute "Any act or omission done". 25 Subsection 59(2) Omit "an offence against this Act", substitute "a designated offence". 26 Subsection 59(2) Omit "engaged in also", substitute "done also". 27 Subsection 59(2) Omit "the conduct", substitute "the act or omission". 28 Subsection 59(3) Omit "an offence against this Act", substitute "a designated offence". 29 Subsection 59(3) Omit "particular conduct", substitute "a particular act or omission". 30 Paragraph 59(3)(a) Omit "conduct was engaged in", substitute "act or omission was done". 31 Subsection 59(4) Omit "Any conduct engaged in", substitute "Any act or omission done". 32 Subsection 59(4) Omit "an offence against this Act", substitute "a designated offence". 33 Subsection 59(4) Omit "engaged in also", substitute "done also". 34 Subsection 59(4) Omit "the conduct", substitute "the act or omission". 35 Subsection 59(8) Repeal the subsection, substitute: (8) In this section: designated offence means one or more of the following: (a) an offence against this Act; (b) an offence against section 6 of the Crimes Act 1914 to the extent that it relates to an offence against this Act; (c) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code to the extent that it relates to an offence against this Act. 36 After section 60 Insert: 60A Delegation by Secretary (1) The Secretary may, in writing, delegate all or any of the Secretary's functions or powers under this Act to an SES employee, or acting SES employee, in the Department. (2) The functions or powers that may be delegated under subsection (1) include functions or powers the Secretary has as a relevant chief executive, authorised applicant or authorised person for the purposes of a provision of the Regulatory Powers Act because of this Act. (3) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Secretary. Part 2—Application and saving provisions 37 Definitions In this Part: Hazardous Waste Act means the Hazardous Waste (Regulation of Exports and Imports) Act 1989. new information monitoring provision means a provision mentioned in subsection 43(2) of the new law. new injunction provision means a provision mentioned in subsection 56AD(1) of the new law. new investigation provision means a provision mentioned in subsection 45(1) of the new law. new law means the Hazardous Waste Act as in force on or after the commencement of this Part. new monitoring provision means a provision mentioned in subsection 43(1) of the new law. old law means the Hazardous Waste Act as in force immediately before the commencement of this Part. old law provision means a provision of the Hazardous Waste Act as in force before, or continued in force by this Act on or after, the commencement of this Part. Note: A provision of the Hazardous Waste Act in force before the commencement of this Part may continue in force on and after that commencement: for example, see Part 2 of Schedule 4 to this Act. old monitoring and investigation provision means: (a) an old law provision; or (b) an offence against the Crimes Act 1914 or the Criminal Code to the extent that it relates to the Hazardous Waste Act as in force before the commencement of this Part. 38 Application of amendments—identity cards An identity card issued under section 43 of the old law is taken to be an identity card issued under sections 35 and 76 of the Regulatory Powers Act (as those sections apply as described in the Hazardous Waste Act). 39 Application and saving provisions—monitoring and investigation Application of regulatory powers (1) Part 2 of the Regulatory Powers Act applies as described in the new law (including section 9A of the new law) in relation to determining, on or after the commencement of this Part: (a) whether a new monitoring provision has been or is being complied with on or after that commencement; or (b) whether an old monitoring and investigation provision has been or is being complied with before, on or after that commencement; or (c) the correctness of information given on or after that commencement in compliance, or purported compliance, with a new information monitoring provision; or (d) the correctness of information given before, on or after that commencement in compliance, or purported compliance, with an old law provision. (2) Part 3 of the Regulatory Powers Act applies as described in the new law (including section 9A of the new law) in relation to evidential material that relates to: (a) a contravention or suspected contravention, on or after the commencement of this Part, of a new investigation provision; or (b) a contravention or suspected contravention, before, on or after the commencement of this Part, of an old monitoring and investigation provision. Saving old law provisions (3) Part 5 (other than sections 45, 52 and 52A) of the old law continues to apply on and after the commencement of this Part in relation to the following: (a) an application for a warrant made, but not decided, under that Part before that commencement; (b) a warrant issued, or completed and signed, under that Part before, on or after that commencement as a result of an application made before that commencement; (c) powers exercised, rights created and duties imposed under provisions of that Part before, on or after that commencement as a result of: (i) an entry or boarding of a searchable place before that commencement with the consent of the relevant authority in relation to the place; or (ii) an entry or boarding of a searchable place before, on or after that commencement as a result of a warrant referred to in paragraph (b); (d) things seized under provisions of that Part before, on or after that commencement as a result of: (i) an entry or boarding of a searchable place before that commencement with the consent of the relevant authority in relation to the place; or (ii) an entry or boarding of a searchable place before, on or after that commencement as a result of a warrant referred to in paragraph (b). Note: For the continued obligation to comply with a requirement made under subsection 45(2) or (3), 52(2) or 52A(2) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989, as in force immediately before the commencement of this Part, see section 7 of the Acts Interpretation Act 1901. 40 Application of amendments—audits Subdivision B of Division 2 of Part 5 of the new law (as that Subdivision applies under section 9A of the new law) applies to audits of the following: (a) operations relating to a permit or order: (i) mentioned in subsection 50(1) of the new law; and (ii) in force at any time before the commencement of this Part; (b) operations relating to a notification: (i) given under paragraph 40A(1)(b) of the Hazardous Waste Act as in force before that commencement; and (ii) in force at any time before, on or after that commencement; (c) operations relating to a permit, order or notification: (i) mentioned in subsection 50(1) of the new law; and (ii) in force at any time on or after that commencement; (d) operations covered by paragraph 50(1)(f) of the new law carried out, or proposed to be carried out, on or after that commencement. Note 1: For paragraph (b), a notification given under paragraph 40A(1)(b) of the Hazardous Waste Act as in force before that commencement may continue in force on or after that commencement: see Part 2 of Schedule 4 to this Act. Note 2: For paragraph (c), an order may be in force on or after that commencement under a continuation of the old law: see Part 2 of Schedule 4 to this Act. 41 Application and saving provisions—injunctions (1) Part 7 of the Regulatory Powers Act applies as described in the new law (including section 9A of the new law) in relation to: (a) a contravention or possible contravention, on or after the commencement of this Part, of a new injunction provision; or (b) a contravention or possible contravention, before, on or after that commencement, of an old law provision. (2) Section 41 of the old law continues to apply on or after the commencement of this Part in relation to an application made, but not decided, under that section before that commencement. Schedule 3—Record keeping, information and confidentiality Part 1—Amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 1 Section 4 Insert: Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. 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. official has the same meaning as in the Public Governance, Performance and Accountability Act 2013. 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. 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. 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. 2 After Part 4A Insert: Part 4B—Record keeping, information and confidentiality Division 1—Record keeping and information gathering 41D Requirement to make and retain records Records (1) The regulations may make provision for and in relation to requiring records to be made and retained by the following: (a) a person who holds a permit under this Act in relation to the import, export or transit of hazardous waste; (b) a person who has been notified under subsection 33G(1) that a transit permit is not required for carrying out a transit proposal; (c) a person who has been given an order under Part 3 of this Act. (2) Without limiting subsection (1), regulations made for the purposes of that subsection may make provision for and in relation to one or more of the following: (a) the kind of records that must be made and retained; (b) the form in which records must be retained; (c) the period for which records must be retained. (3) A person contravenes this subsection if: (a) the person is required to make or retain a record in accordance with regulations made for the purposes of subsection (1); and (b) the person fails to comply with the requirement. Strict liability offence (4) A person commits an offence of strict liability if the person contravenes subsection (3). Penalty: 30 penalty units. Civil penalty provision (5) A person is liable to a civil penalty if the person contravenes subsection (3). Civil penalty: 240 penalty units. 41E Requirement to give information or produce documents (1) The Secretary may, by written notice, require a person to give a specified inspector or entrusted person, in the manner and within the period specified in the notice, any: (a) specified information; or (b) specified documents; that the Secretary reasonably believes that the person is capable of giving for the purposes of investigating or preventing a contravention of a provision of this Act. (2) The period specified in a notice given under subsection (1) must be at least 14 days after the day the notice is given. (3) A notice given under subsection (1) must set out the effect of subsection (4) and sections 137.1 and 137.2 of the Criminal Code. (4) A person contravenes this subsection if: (a) the person is given a notice under subsection (1); and (b) the person fails to comply with the notice. Strict liability offence (5) A person commits an offence of strict liability if the person contravenes subsection (4). Penalty: 30 penalty units. Civil penalty provision (6) A person is liable to a civil penalty if the person contravenes subsection (4). Civil penalty: 240 penalty units. 41F Self‑incrimination (1) An individual is not excused from giving information or producing a document under section 41E on the ground that giving the information or producing the document might tend to incriminate the individual in relation to an offence. Note: A body corporate is not entitled to claim the privilege against self‑incrimination. (2) However: (a) the information given or document produced; and (b) the giving of the information or the production of the document; and (c) any information, document or thing obtained as a direct or indirect consequence of the giving of the information or the production of the document; are not admissible in evidence against the individual in criminal proceedings other than proceedings for an offence against: (d) section 41E of this Act; or (e) section 137.1 or 137.2 of the Criminal Code in relation to giving the information or producing the document. (3) If, at general law, an individual would otherwise be able to claim the privilege against self‑exposure to a penalty (other than a penalty for an offence) in relation to giving information or producing a document under section 41E, the individual is not excused from giving the information or producing the document under that provision on that ground. Note: A body corporate is not entitled to claim the privilege against self‑exposure to a penalty. 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 The Minister may disclose relevant information to a Commonwealth entity if the Minister is satisfied the disclosure is for the purposes of assisting the entity to perform its functions or exercise its powers. 41H Disclosure of relevant information to State or Territory government body The Minister may disclose relevant information to a State or Territory government body if: (a) the Minister reasonably believes that the disclosure of the information is necessary for the purposes of: (i) the Minister performing functions, or exercising powers, under this Act; or (ii) the administration of a State or Territory law; and (b) the State or Territory government body has undertaken not to use or further disclose the information except in accordance with an agreement that: (i) is in force between the Commonwealth and the State or Territory; and (ii) applies in relation to the information; and (c) the Minister is satisfied that the information will be used and further disclosed only in accordance with the agreement. 41J Disclosure for the purposes of law enforcement (1) The Minister may disclose relevant information to an enforcement body if: (a) the Minister reasonably believes that the disclosure of the information is necessary for: (i) the enforcement of the criminal law; or (ii) the enforcement of a law imposing a pecuniary penalty; or (iii) the protection of public revenue; and (b) the functions of that body include that enforcement or protection. (2) Each of the following is an enforcement body: (a) a Commonwealth entity; (b) a State or Territory government body; (c) the Australian Federal Police; (d) the police force or police service of a State or Territory. 41K Disclosure to reduce serious risk to human health The Minister may disclose relevant information if the Minister reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to human health. 41L Disclosure to reduce serious risk to the environment The Minister may disclose relevant information if the Minister reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to the environment. Subdivision B—Authorised uses and disclosures by entrusted person 41M Disclosure for the purposes of an Act An entrusted person may use or disclose relevant information if the use or disclosure is for the purposes of this Act or another Act administered by the Minister. 41N Publicly available information An entrusted person may use and disclose relevant information if the information has already been lawfully made available to the public. 41P Person to whom information relates An entrusted person may disclose relevant information to the person to whom the information relates. 41Q Disclosure with consent An entrusted person may use or disclose relevant information that relates to a person if: (a) the person has consented to the use or disclosure; and (b) the use or disclosure is in accordance with that consent. 41R Person who provided information An entrusted person may disclose relevant information to the person who provided the information. 41S Summaries or statistics An entrusted person may disclose: (a) summaries of relevant information; or (b) statistics derived from relevant information; if those summaries or statistics do not enable the identification of a person. 41T Disclosure to a court, tribunal etc. An entrusted person may disclose relevant information, or a document containing relevant information: (a) for the purposes of proceedings before: (i) a court; or (ii) a tribunal, authority or person that has the power to require the answering of questions or the production of documents; or (b) in accordance with an order of a court or such a tribunal, authority or person. 41U Use for the purposes of disclosure An entrusted person may use relevant information for the purpose of disclosing the relevant information under this Division. Subdivision C—Offences 41V Unauthorised use or disclosure of protected information—entrusted person Unauthorised use or disclosure (1) A person contravenes this subsection if: (a) the person is, or has been, an entrusted person; and (b) the person has obtained relevant information in the person's capacity as an entrusted person; and (c) the information is protected information; and (d) the person uses or discloses the information. Note: The physical elements of an offence against subsection (3) are set out in this subsection (see section 58F). Exceptions (2) However, subsection (1) does not apply if the use or disclosure is authorised or required by: (a) this Act; or (b) any other law of the Commonwealth; or (c) a prescribed law of a State or a Territory. Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act). Fault‑based offence (3) A person commits an offence if the person contravenes subsection (1). Penalty: Imprisonment for 2 years or 180 penalty units, or both. Strict liability offence (4) A person commits an offence of strict liability if the person contravenes subsection (1). Penalty: 60 penalty units. Civil penalty provision (5) A person is liable to a civil penalty if the person contravenes subsection (1). Civil penalty: 360 penalty units. 41W Unauthorised use or disclosure of protected information—official of Commonwealth entity (1) A person contravenes this subsection if: (a) the person is, or has been, an official of a Commonwealth entity; and (b) the person has obtained relevant information in the person's capacity as an official of the entity; and (c) the information is protected information that was disclosed to the entity under section 41G; and (d) the person uses or discloses the information other than for the purpose for which it was disclosed to the entity. Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 58F). Fault‑based offence (2) A person commits an offence if the person contravenes subsection (1). Penalty: Imprisonment for 2 years or 180 penalty units, or both. Strict liability offence (3) A person commits an offence of strict liability if the person contravenes subsection (1). Penalty: 60 penalty units. Civil penalty provision (4) A person is liable to a civil penalty if the person contravenes subsection (1). Civil penalty: 360 penalty units. Part 2—Application provisions 3 Application provision—notice to produce Section 41E of the Hazardous Waste (Regulation of Exports and Imports) Act 1989, as inserted by this Schedule, applies in relation to notices given under that section on or after the commencement of this Part, whether the contravention mentioned in subsection 41E(1) occurred before, on or after that commencement. 4 Application provision—use or disclosure of relevant information and protected information Division 2 of Part 4B of the Hazardous Waste (Regulation of Exports and Imports) Act 1989, as inserted by this Schedule, applies in relation to the use or disclosure of relevant information and protected information on or after the commencement of this Part, whether the information was obtained before, on or after that commencement. Schedule 4—Offence and civil penalty provisions Part 1—Amendments Hazardous Waste (Regulation of Exports and Imports) Act 1989 1 Section 4 Insert: 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. 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). 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