These Regulations shall come into force on 17th March 1987 and shall have effect as from 25th November 1982.
(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.
(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.
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).
(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.
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.
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.
NEPA has the same meaning as in the National Environmental Protection Agency Act2025.
Note: NEPA is short for the National Environmental Protection Agency.
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).
(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/).
(b)the CEO 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
(7)If a declaration under this section is made or revoked, the CEO must arrange for a copy of the declaration or revocation to be published in the Gazette.
(3)If the CEO is satisfied that there are special circumstances relating to a particular proposal, the CEO 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.
(5)If the CEO decides to make, or not to make, a declaration under this section about a person’s proposal, the CEO must give the person a written notification of the decision.
(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.
(3)Subsection (2) has effect despite anything in the definition of competent authorityin section 4.
4EEnvironmentally 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.
4FArticle 11 arrangements—substances taken to be hazardous waste#
(1)This section has effect for the purposes of the application of this Act:
(a)under subsection 22(2) or 26(2), the CEO 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)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.
(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.
(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).
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.
11Relationship 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.
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.
(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.
(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 CEO 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 CEO 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 CEO 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 transitpermit—see the definition in section 4.
(b)the revocation, surrender and variation of special permits.
(3)This section does not, by implication, limit section 13C.
13ESpecial 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#
the CEO must not grant the permit unless the CEO 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 requirementof 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.
the CEO must not grant the permit unless the CEO 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 requirementof 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.
the CEO must not grant the permit unless the CEO 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 requirementof 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.
13FSpecial permit—waste not to be brought into Antarctica#
(1)An applicant for a Basel permit may, at any time before the CEO has decided whether to grant the permit, give the CEO a notice stating that the permit application is varied as set out in the notice.
(b)set out, or be accompanied by, such information relating to the variation as is required by the form.
(3)If the CEO 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 CEO on the day on which the CEO received the notice.
15CEO may request further information about an application#
(1)Within 60 days after the day of receiving an application for a Basel permit, the CEO may request the applicant to provide further information in writing to deal with the application.
(2)If the CEO makes such a request of an applicant:
(a)the period in subsection 16(1) for the CEO 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.
16Period for making decision on application for Basel permit—default period#
(1)The CEO must decide whether to grant the Basel permit within 60 days starting on the day after the CEO 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 CEO has not decided whether to grant the permit by the end of the decision period, the CEO is to be taken to have decided, on the last day of that period, not to grant the permit.
16APeriod 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 CEO must notify:
(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;
(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.
16CPeriod 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.
16DPeriod for making decision on application for Basel permit—extension agreed with applicant#
The decision period is extended if the CEO and applicant agree in writing to the extension.
17Grant of Basel import permits and Basel export permits#
(1)Subject to this Division, the CEO must grant the permit sought by a permit application if:
(a)the CEO 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
(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 CEO is satisfied that the applicant has appropriate insurance; and
(e)the CEO 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 CEO is satisfied as mentioned in subsection (1), the CEO may decide under subsection (2A), (3), (4), (5) or (5A) not to grant the permit.
(2A)The CEO may decide not to grant the permit if:
(b)having regard to the requirements of paragraph 3(b) of Article 6 of the Basel Convention, the CEO thinks that it would not be appropriate to grant the permit.
(3)The CEO may decide not to grant the permit if the CEO thinks that it would not be in the public interest to grant the permit.
(4)The CEO may decide not to grant the permit if the CEO 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 CEO may decide not to grant the permit if the permit sought is a Basel export permit and the CEO 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 CEO 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.
(a)the CEO 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
(c)the CEO is satisfied that the applicant has appropriate insurance; and
(d)the CEO 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 CEO may decide not to grant the permit if the CEO thinks that it would not be in the public interest to grant it.
(4A)The CEO 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 CEO must not grant the permit if the CEO is satisfied that carrying out the transit proposals could result in hazardous waste being brought into Antarctica.
18Determination 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.
18AExport permits for final disposal may be granted only in exceptional circumstances#
(2)Despite subsection (1), the CEO may grant a Basel export permit in the circumstances described in that subsection if the CEO is satisfied that there are exceptional circumstances.
(3)Subsection (2) does not apply if the CEO 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 CEO 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 CEO 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.
18BBasel permit may be granted only if the corresponding requirements of Article 11 regulations have been met#
the CEO must not grant the permit unless the CEO is satisfied that the corresponding requirements of that set of regulations have been met in relation to the proposal. For this purpose, a corresponding requirementof 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.
the CEO must not grant the permit unless the CEO is satisfied that the corresponding requirements of that set of regulations have been met in relation to the proposal. For this purpose, a corresponding requirementof 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.
the CEO must not grant the permit unless the CEO is satisfied that the corresponding requirements of that set of regulations have been met in relation to the proposal. For this purpose, a corresponding requirementof 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.
(1)If the CEO decides to grant a Basel permit, the CEO must give the permit to the applicant as soon as practicable after making the decision.
(2)If the CEO decides not to grant a Basel permit, the CEO must give the applicant a written statement setting out the decision and the reasons for it as soon as practicable after making the decision.
(3)A contravention of this section in relation to a decision does not affect the validity of the decision.
19AForeign countries to be notified of decision about grant of import permit#
(g)if the hazardous waste is to be disposed of after the import—the facility to be used in the disposal and the process (if any) involved in the disposal.
(3)A Basel import permit may also include conditions under section 22 and such other information as the CEO considers appropriate.
21Matters to be specified in Basel export permits#
(g)if the hazardous waste is to be disposed of after the export—the facility to be used in the disposal and the process (if any) involved in the disposal.
(3)A Basel export permit may also include conditions under section 22 and such other information as the CEO considers appropriate.
21AMatters to be specified in Basel transit permits#
(1)A Basel transit permit must specify particulars of the transit proposals concerned.
(2)A Basel transit permit may also include conditions under section 22 and such other information as the CEO considers appropriate.
22Basel permits may be granted subject to conditions#
(1)The CEO may grant a Basel permit subject to conditions specified in the permit.
(2)The CEO may specify in the Basel permit the day on or before which the holder of the permit is to comply with a condition.
(2A)A Basel transit permit must be granted subject to such conditions as the CEO considers necessary or desirable for the purposes of ensuring that the transit proposals are carried out.
(2B)A Basel permit may be granted subject to a condition relating to the giving of:
(a)one or more guarantees; or
(b)one or more security deposits;
in respect of compliance by the permit holder with the permit holder’s obligations under, or arising out of, this Act.
(2C)The following are examples of cases where a guarantee or a security deposit might be given:
(a)a holding company gives the CEO a guarantee that a subsidiary of the holding company will pay any amounts owed by the subsidiary under subsection 38B(2);
(b)a person gives the CEO a security deposit in respect of compliance by the person with the person’s obligations to pay amounts owing under subsection 38B(2).
(2D)Subsections (2A) and (2B) do not, by implication, limit subsection (1).
Note 1: Another example of a condition is one that includes a day on or before which it needs to be complied with.
Note 2: The condition could be imposed under this section or under Division 4 as a variation of the permit.
(3)A condition is not to be taken to be intended to exclude the operation of a State or Territory law unless an intention to exclude State or Territory laws, or to exclude the particular State or Territory law, is expressed in the permit.
(i)gave the CEO false, misleading or incomplete information; and
(ii)when doing so, failed to give the CEO an explanation for doing so, or failed to give the CEO the correct or complete information if the person was reasonably able to have done so; or
(i)is failing, or has failed, to comply with a condition to which the permit is subject; or
(ii)is failing, or has failed, to comply with a provision of this Act relating to the permit; or
(iii)is failing, or has failed after the granting of the permit, to provide or to arrange to provide an auditor with assistance that is reasonably necessary for the conduct of an audit; or
(c)after considering information that was not considered when granting the permit, the permit would not be granted if the CEO were now asked to grant it; or
(d)after considering information that was not considered when granting the permit, the revocation is necessary to prevent or lessen a threat of serious harm to human health or the environment; or
(e)a ground prescribed by the regulations for the purposes of this paragraph is satisfied for the holder and the permit.
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 the 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.
Note 1: This subsection means that a Basel permit that authorises 2 or more imports or exports of hazardous waste, or the carrying out of 2 or more transit proposals, only applies to an import or export, or the carrying out of a transit proposal, that has not begun at the time of the revocation.
Note 2: This subsection also means a Basel permit cannot be revoked if it only authorises a single import or export that has already begun or the carrying out of a single transit proposal that has already begun.
24ARevoking Basel permits—notice of proposed revocation#
(1)Despite subsection 24(1), the CEO must not revoke a Basel permit under that subsection unless:
(a)the CEO has given a written notice to the holder of the permit in accordance with subsection (2) of this section; and
(b)the CEO has taken into account any information given, within 14 days after the day the notice is given to the permit holder, to the CEO in response to the notice.
(2)A notice under paragraph (1)(a) must:
(a)specify the proposed revocation of the permit; and
(b)specify the grounds for the proposed revocation; and
(c)invite the holder of the permit to give the CEO, within 14 days after the day the notice is given, a written statement showing cause why the permit should not be revoked; and
(d)include a statement setting out the holder’s right to seek review of a decision to revoke the permit.
(3)A notice under paragraph (1)(a) is not required if the CEO reasonably believes that the proposed revocation is necessary to prevent or lessen a serious and imminent threat to human health or the environment.
(1)If the CEO decides under subsection 24(1) to revoke a Basel permit, the CEO must give the holder of the permit a written notice stating the following:
(a)that the permit is to be revoked;
(b)the reasons for the revocation;
(c)the day the revocation is to take effect (which must not be before the day the notice is given to the holder);
(d)information about the holder’s right to seek review of the decision.
(2)If the holder of the permit was given a notice (a show cause notice) under paragraph 24A(1)(a) that included the invitation referred to in paragraph 24A(2)(c), the revocation must not take effect before the end of 14 days after the day the show cause notice was given.
24CExhaustive statement of natural justice hearing rule#
This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(b)giving the CEO written notice that the permit is surrendered.
(2)If the permit is a Basel import permit, the permit may not be surrendered after any import authorised by the permit has begun.
(2A)If the permit is a Basel export permit, the permit may not be surrendered after any export authorised by the permit has begun.
(2B)If the permit is a Basel transit permit, the permit may not be surrendered after the carrying out of any transit proposal authorised by the permit has begun.
(3)The surrender of the permit takes effect on the day on which subsection (1) is satisfied.
(a)the CEO is satisfied that, if the CEO were asked to grant the Basel permit (as proposed to be varied), the CEO would decide to grant the permit; and
(b)the CEO has taken into account any relevant public comments received in response to an invitation under paragraph 33(1)(aa) about the application.
(b)set out, or be accompanied by, such information in relation to the proposed variation as is required by the form.
(3)The CEO must give the applicant written notice of having received an application within 7 days after the day of receiving it.
26ACEO may request further information about an application#
(1)Within 60 days after the day of receiving the application, the CEO may request the applicant to provide further information in writing to deal with the application.
(2)If the CEO makes such a request of an applicant:
(a)the period in subsection 26B(1) for the CEO to decide whether to make the variation 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 the request is made.
26BPeriod for making a decision on an application—default period#
(1)The CEO must decide whether to make the variation within the period of 60 days starting on the day after the CEO receives the application (the decision period).
Note: This period may be paused or extended under section 26A, 26C, 26D, 26E or 26F.
(2)If the CEO does not decide whether to make the variation by the end of the decision period, the CEO is to be taken to have decided, on the last day of that period, not to make the variation.
26CPeriod for making a decision on an application—extensions for Basel export permits#
(1)If the application is for a variation of a Basel export permit, then within 21 days after the day of receiving the application, the CEO must notify:
(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 variation; or
(b)a competent authority of a transit country notified under paragraph (1)(b) has neither given nor refused written consent to the variation;
(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.
26EPeriod for making a decision on an application—referrals under the Environment Protection and Biodiversity Conservation Act 1999#
If, within the decision period, the proposal to vary 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 variation; 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.
26FPeriod for making a decision on an application—extension agreed with applicant#
The decision period is extended if the CEO and applicant agree in writing to the extension.
If the CEO makes a decision in relation to an application to vary a Basel permit, the CEO must give the holder of the permit a written notice stating the following:
(a)whether the permit is to be varied;
(b)if the decision is that the permit is to be varied—the day the variation is to take effect;
(c)if the decision is that the permit is not to be varied:
(i)the reasons for the decision; and
(ii)information about the holder’s right to seek review of the decision.
(i)gave the CEO false, misleading or incomplete information; and
(ii)when doing so, failed to give the CEO an explanation for doing so, or failed to give the CEO the correct or complete information if the person was reasonably able to have done so; or
(i)is failing, or has failed, to comply with a condition to which the permit is subject; or
(ii)is failing, or has failed, to comply with a provision of this Act relating to the permit; or
(iii)is failing, or has failed after the granting of the permit, to provide or to arrange to provide an auditor with assistance that is reasonably necessary for the conduct of an audit; or
(c)after considering information that was not considered when granting the permit, the variation is necessary to prevent or lessen a threat of serious harm to human health or the environment; or
(d)a ground prescribed by the regulations for the purposes of this paragraph is satisfied for the holder and the permit.
Note 1: Examples of a variation include imposing a condition on the permit, or varying or revoking a permit condition.
Note 2: For the requirement to provide an auditor with assistance that is reasonably necessary for the conduct of an audit, see section 54.
Note 3: The audit need not relate to the 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.
26JVarying Basel permits—notice of proposed variation#
(1)Despite section 26H, the CEO must not vary a Basel permit under that section unless:
(a)the CEO has given a written notice to the holder of the permit in accordance with subsection (2) of this section; and
(b)the CEO has taken into account any information given, within 14 days after the day the notice is given to the permit holder, to the CEO in response to the notice.
(2)A notice under paragraph (1)(a) must:
(a)specify the proposed variation of the permit; and
(b)specify the grounds for the proposed variation; and
(c)invite the holder of the permit to give the CEO, within 14 days after the day the notice is given, a written statement showing cause why the permit should not be varied; and
(d)include a statement setting out the holder’s right to seek review of a decision to vary the permit.
(3)A notice under paragraph (1)(a) is not required if the CEO reasonably believes that the proposed variation is necessary to prevent or lessen a serious and imminent threat to human health or the environment.
(1)If the CEO decides under section 26H to vary a Basel permit, the CEO must give the holder of the permit a written notice stating the following:
(a)that the permit is to be varied;
(b)the reasons for the variation;
(c)the day the variation is to take effect (which must not be before the day the notice is given to the holder);
(d)information about the holder’s right to seek review of the decision.
Example: A variation could impose a condition to be complied with on or after the day the variation takes effect in relation to an import that has already happened.
(2)If the holder of the permit was given a notice (a show cause notice) under paragraph 26J(1)(a) that included the invitation referred to in paragraph 26J(2)(c), the day stated under paragraph (1)(c) of this section when the variation is to take effect must not be before the end of 14 days after the day the show cause notice was given.
26LExhaustive statement of natural justice hearing rule#
This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
32Applications and notices to be accompanied by fees#
(1)The regulations may prescribe fees to be paid in relation to applications and notices given to the CEO under this Part or under a set of Article 11 regulations.
(2)An application or notice given to the CEO under this Part or under a set of Article 11 regulations must be accompanied by the prescribed fee (if any).
(3)If an application or notice given to the CEO under this Part or under a set of Article 11 regulations is not accompanied by the prescribed fee (if any), the application or notice is to be taken not to have been received by the CEO until the fee has been paid.
(4)The amount or rate of a fee must be reasonably related to the expenses incurred or to be incurred by the Commonwealth in relation to the application or notice to which it relates, and must not be such as to amount to taxation.
(5)The CEO may wholly or partly waive, or wholly or partly refund, a prescribed fee in circumstances prescribed by the regulations.
(7)The regulations may make provision for and in relation to the indexation of prescribed fees.
(1)An application under section 12, 13 or 13A must be accompanied by the levy imposed by the Hazardous Waste (Regulation of Exports and Imports) Levy Act 2017.
(aa)for each application or notice described in paragraph (a)—an invitation for members of the public to comment on the application or notice within 15 business days after being published under this subsection; and
(2)Subsection (1) does not apply to particular information if the CEO determines, in writing, that to publish the information would be contrary to the public interest because the publication would, or could reasonably be expected to:
(2A)Subsection (1) does not apply to publishing an invitation described in paragraph (1)(aa) for public comment on an application or notice if the CEO is satisfied that:
(a)the existence of exceptional circumstances means it is inappropriate to do so; or
(b)it would not be in the public interest to do so; or
(c)the application, or notice, is for a variation that is of a minor or technical nature.
(e)there is no notification in force under subsection 33G(1) that the person does not require a transit permit to import the hazardous waste; and
(f)the import has not been ordered under section 35; and
(g)the import is not authorised by an order under section 38; and
(h)the import, or the presence of the hazardous waste in Australia after the import, injures or damages, or is likely to injure or damage, human beings or the environment.
Note 1: For paragraph (e), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).
Note 2: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).
(d)the import is not in accordance with the permit; and
(e)the import, or the presence of the hazardous waste in Australia after the import, injures or damages, or is likely to injure or damage, human beings or the environment.
Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).
(5)In a trial for an offence against subsection (4), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 33A(4), if:
(a)the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (4) of this section; and
(b)the trier of fact is satisfied that the defendant is guilty of the offence against subsection 33A(4); and
(c)the defendant has been accorded procedural fairness in relation to that finding of guilt.
(e)there is no notification in force under subsection 33G(1) that the person does not require a transit permit to export the hazardous waste; and
(f)the export has not been ordered under section 34 or 35A; and
(g)the export, or the presence of the hazardous waste outside of Australia after the export, injures or damages, or is likely to injure or damage, human beings or the environment.
Note 1: For paragraph (e), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).
Note 2: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).
(d)the export is not in accordance with the permit; and
(e)the export, or the presence of the hazardous waste outside of Australia after the export, injures or damages, or is likely to injure or damage, human beings or the environment.
Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).
(5)In a trial for an offence against subsection (4), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 33C(4), if:
(a)the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (4) of this section; and
(b)the trier of fact is satisfied that the defendant is guilty of the offence against subsection 33C(4); and
(c)the defendant has been accorded procedural fairness in relation to that finding of guilt.
(e)the person does an act or omits to do an act; and
(f)the act or omission does not comply with the permit condition in relation to the transit of the hazardous waste (whether before, during or after bringing it into Australia).
Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).
(d)there is no notification in force under subsection 33G(1) that the person does not require a transit permit for the transit proposal; and
(e)the bringing into Australia, or the presence in Australia, of the hazardous waste injures or damages, or is likely to injure or damage, human beings or the environment.
Note 1: For paragraph (d), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).
Note 2: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).
(e)the bringing into Australia, or the presence in Australia, of the hazardous waste injures or damages, or is likely to injure or damage, human beings or the environment.
Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).
(d)the export is not in accordance with the permit; and
(e)the export, or the presence of the hazardous waste outside of Australia after the export, injures or damages, or is likely to injure or damage, human beings or the environment.
Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).
(e)the person does an act or omits to do an act; and
(f)the act or omission does not comply with the permit condition in relation to the transit of the hazardous waste (whether before, during or after bringing it into Australia); and
(g)the non-compliance with the permit condition injures or damages, or is likely to injure or damage, human beings or the environment.
Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).
(6)In a trial for an offence against subsection (5), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 33E(5), if:
(a)the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (5) of this section; and
(b)the trier of fact is satisfied that the defendant is guilty of the offence against subsection 33E(5); and
(c)the defendant has been accorded procedural fairness in relation to that finding of guilt.
(b)that the hazardous waste is destined for recovery operations; and
(c)that carrying out the transit proposal will not pose a significant risk of injury or damage to human beings or the environment; and
(d)of any other matters prescribed by the regulations for the purposes of this paragraph; and
(e)of any other matters the CEO considers relevant.
(2)Even if the CEO is satisfied as mentioned in subsection (1), the CEO may decide not to give a notification under that subsection 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 notification. 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.
(3)The CEO must, as soon as practicable after giving a notification under subsection (1), publish on NEPA’s website, particulars of the notification.
(4)The CEO may, by notifying a person in writing, revoke a notification of the person under subsection (1) for a transit proposal if the CEO:
(a)is no longer satisfied of the matters in paragraphs (1)(a) to (d) in relation to the transit proposal and the person; or
(b)is satisfied that the person is failing, or has failed after the notice was given, to provide, or to arrange to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit.
(5)However, a revocation of a notification only applies to the carrying out of a transit proposal if the carrying out of the transit proposal has yet to begin.
(1)If a person contravenes one or more of the provisions mentioned in subsection (2) in relation to hazardous waste, the CEO may, in writing, order the person to deal with the waste in a specified way.
(2)For the purposes of subsection (1), the provisions are the following:
(b)specify the day on or before which anything required to be done in relation to the waste is to be done.
(4)An order under this section may also require the person to give the CEO (by a specified time and in a specified manner) specified information relating to the dealing with the waste.
(1)If a person contravenes one or more of the provisions mentioned in subsection (2) in relation to hazardous waste, the CEO may, in writing, order the person to deal with the waste in a specified way.
(2)For the purposes of subsection (1), the provisions are the following:
(b)specify the day on or before which anything required to be done in relation to the waste is to be done.
(4)An order under this section may also require the person to give the CEO (by a specified time and in a specified manner) specified information relating to the dealing with the waste.
(1)If a person contravenes one or more of the provisions mentioned in subsection (2) in relation to hazardous waste, the CEO may, in writing, order the person to deal with the waste in a specified way.
(2)For the purposes of subsection (1), the provisions are the following:
(a)subsection 33E(1) (transit of hazardous waste—basic contravention);
(b)specify the day on or before which anything required to be done in relation to the waste is to be done.
(4)An order under this section may also require the person to give the CEO (by a specified time and in a specified manner) specified information relating to the dealing with the waste.
(v)subsection 33E(1), (2), (3) or (4) (transit of hazardous waste—basic contravention);
(vi)subsection 33F(1), (2), (3) or (4) (transit of hazardous waste—injury or damage); and
(b)the CEO is satisfied that the contravention resulted in the waste causing significant injury or damage to human beings or the environment;
the CEO may, in writing, order the person to take such steps as the CEO thinks proper to remedy or mitigate the damage.
(2)Without otherwise limiting subsection (1), the CEO must not, under that subsection, order the person to pay compensation.
38Orders authorising import of exported hazardous waste where it cannot be dealt with as intended#
(1)If:
(a)a person has exported hazardous waste in accordance with the requirements of this Act; and
(b)the waste cannot be dealt with in accordance with:
(i)if the export was authorised by an export permit—the permit (including the permit conditions); or
(ii)if the export was ordered by the CEO under section 34—the order;
the person may apply to the CEO, in writing, for an order authorising the person to import the waste.
(2)If the CEO receives an application under subsection (1), the CEO may make the order.
(3)The CEO may, in the order, require that the waste be imported and dealt with in a specified way.
(4)Without limiting subsection (3), the CEO may, under that subsection, specify the day on or before which anything required to be done in relation to the waste is to be done.
(5)An order under this section may also require the person to give the CEO (by a specified time and in a specified manner) specified information relating to the dealing with the waste.
(b)the person does an act or omits to do an act; and
(c)the act or omission contravenes the requirement; and
(d)the CEO is satisfied that the non-compliance with the requirement resulted in the waste causing significant injury or damage to human beings or the environment;
the CEO may, in writing, order the person to take such steps as the CEO thinks proper to remedy or mitigate the damage.
(2)If the Commonwealth incurs costs because of arrangements made by the CEO under subsection (1), the person is liable to pay to the Commonwealth an amount equal to so much of those costs as are reasonable and the amount may be recovered by the Commonwealth as a debt due to the Commonwealth in:
(3)In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38C(2), if:
(a)the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b)the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38C(2); and
(c)the defendant has been accorded procedural fairness in relation to that finding of guilt.
(3)In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38F(2), if:
(a)the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
(b)the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38F(2); and
(c)the defendant has been accorded procedural fairness in relation to that finding of guilt.
(a)a person has been given an order under this Part requiring the person to give the CEO specified information by a specified time and in a specified manner; and
(b)the person does an act or omits to do an act; and
(c)the act or omission contravenes the requirement.
(4)If, during the competent authority’s decision period, the competent authority notifies the CEO that it consents to the transportation, the CEO must, as soon as practicable after receiving that notification, give the applicant a written notice approving the transportation.
(5)If, during the competent authority’s decision period, the competent authority notifies the CEO that it does not consent to the transportation, the CEO must, as soon as practicable after receiving that notification, give the applicant a written notice refusing to approve the transportation.
(2)If a substance or object is Annex I/III waste, the substance or object is a notifiable substancein relation to the transit country for those purposes. However, this rule does not apply if the substance or object is declared to be exempt in relation to the transit country by the regulations.
Note: Annex I/IIIwasteis defined by subsection (7).
(b)the CEO is satisfied that, under a law of that country that gives effect to the Basel Convention, a particular substance or object is classified as hazardous waste; and
(6)If a declaration under subsection (3) is made or revoked, the CEO must arrange for a copy of the declaration or revocation to be published in the Gazette.
Annex I/III wastemeans waste that belongs to any category contained in Annex I to the Basel Convention, unless it does not possess any of the characteristics contained in Annex III to that Convention.
(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.
(5)A person is liable to a civil penalty if the person contravenes subsection (3).
Civil penalty: 240 penalty units.
41ERequirement to give information or produce documents#
(1)The CEO 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 CEO 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
(1)An individual is not excused from giving information or producing a document under section41E 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:
(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.
41GDisclosure 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.
41HDisclosure of relevant information to State or Territory government body#
(d)the police force or police service of a State or Territory.
41KDisclosure 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.
41LDisclosure 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.
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).
(a)appoint an eligible person to be an inspector; or
(b)appoint a class of eligible persons to be inspectors.
(2)A person who is an inspector stops being an inspector if the person stops being an eligible person.
(3)For the purposes of this section, the following persons are eligible persons:
(a)officers and employees of the Commonwealth and of authorities of the Commonwealth;
(b)officers and employees of a State or Territory;
(c)members and special members of the Australian Federal Police;
(d)members of the police force of a State or Territory.
Note: Paragraph (a) includes, for example, staff of the Australian Maritime Safety Authority.
(4)The CEO must not appoint an officer or employee of a State or Territory, or a member of the police force of a State or Territory, as an inspector unless the appointment is in accordance with an arrangement made by the CEO with the appropriate Minister of that State or Territory.
(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.
(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.
(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)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.
(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).
(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.
(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.
(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.
(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.
(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:
(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:
(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 againstthings 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.
(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.
(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):
(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).
(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.
(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.
(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:
(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 againstthings 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.
47Additional 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:
(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:
(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 anauthorised person permits their unloading.
(3)If this section applies in relation to an aircraft, theauthorised 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 anauthorised 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 anauthorised person permits their unloading.
(4)Anauthorised 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.
(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).
(8)A person is liable to a civil penalty if the person contravenes subsection (5).
Civil penalty: 240 penalty units.
48Additional 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 Parthas reasonable grounds for suspecting that a person (the suspected person):
(5)A person is liable to a civil penalty if the person contravenes subsection (3).
Civil penalty: 240 penalty units.
49Additional 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 Parthas reasonable grounds for suspecting that a person (the suspected person):
(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.
(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 CEO still being satisfied of the criteria in subsection 33G(1) were the CEO 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.
(4)An audit under this section must be conducted by an inspector.
51Single audit or program of audits may be required#
The CEO 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 CEO has required a program of audits to be conducted in relation to a matter, the CEO may also require additional audits to be conducted in relation to the matter (see subsection 33(1) of the Acts Interpretation Act 1901).
(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.
(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.
54Relevant 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).
(1)For the purpose of conducting an audit, an auditor may requesta 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).
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.
(2)For the purposes of Part 4 of the Regulatory Powers Act, the CEO is an authorised applicant in relation to the civil penalty provisions of this Act.
(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.
(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).
(3)For the purposes of Part 5 of the Regulatory Powers Act, the CEO is the relevant chief executive in relation to the provisions mentioned in subsection (1).
(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 CEO;
(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:
(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:
(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:
(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:
(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:
(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:
(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.
(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.”.
(3)Arrangements under subsection (1) may include, but are not limited to, arrangements involving co-operation by the Commonwealth with any or all of the following:
(a)the government of a foreign country, of a State or of a Territory;
(4)Before making an arrangement covered by paragraph (1)(c), (d) or (e), the Minister must consult the government or administration of a State or Territory if:
(a)the arrangement relates, in whole or in part, to an activity carried on, or proposed to be carried on, in the State or Territory; and
(b)the government or administration of the State or Territory is not a party to the arrangement.
(5)The Minister may perform functions conferred by subsection (1) to the extent only that they do not exceed the functions that may be conferred on the Minister by virtue of any of the legislative powers of the Parliament. In particular, the Minister may perform functions under subsection (1) for purposes related to:
(a)trade or commerce with other countries, or among the States; and
(b)external affairs; and
(c)the spending of money appropriated by the Parliament; and
(d)the granting of financial assistance to a State on such terms and conditions as the Minister determines; and
(e)the executive power of the Commonwealth; and
(f)statistics; and
(g)a Territory; and
(h)the activities of a corporation to which paragraph 51(xx) of the Constitution applies.
(c)decisions to require permit conditions to be complied with on or before particular days;
(d)decisions whether to vary Basel permits or special permits;
(e)decisions to revoke Basel permits or special permits;
(ea)decisions to give a notice under subsection 33G(1);
(eb)decisions to revoke a notice under subsection 33G(4);
(f)decisions under sections 34, 35, 35A, 36 and 38A to order people to do things;
(g)decisions whether to make orders under section 38;
(h)decisions under section 4A (which deals with declarations of hazardous waste);
(i)decisions under section 4B (which deals with extensions of time for carrying out transit proposals);
(j)decisions under section 13B (which deals with the classification of applications for permits);
(k)decisions under subsection 32(5) (which deals with reduction of fees);
(l)decisions under section 41B (which deals with the approval of the transportation of notifiable substances through transit countries);
(m)decisions under section 41C (which deals with declarations of notifiable substances).
58Statement to accompany notification of decision#
(1)Where a decision of a kind referred to in section 57 is made and a written notice of the decision is given to a person whose interests are affected by the decision, the notice must include:
(a)a statement to the effect that application may be made to the Administrative Review Tribunal under the Administrative Review Tribunal Act 2024 for review of the decision; and
(b)a statement to the effect that a person who is entitled to apply to the Administrative Review Tribunal for the review of a decision may, under section 268 of that Act, request a statement of reasons (within the meaning of that Act).
(3)A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.
58AExtended standing of individuals and organisations to seek judicial review#
(1)This section has effect for the purposes of the application of the Administrative Decisions (Judicial Review) Act 1977 to a decision under this Act.
(2)An individual is taken to be a person aggrieved by the decision 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 decision was made, the individual has engaged in a series of activities relating to any of the following:
(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.
(3)An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision if:
(a)the organisation or association is incorporated, or was otherwise established, in Australia; and
(b)at any time during the 2-year period ending immediately before the decision was made, the organisation or association has engaged in a series of activities relating to any of the following:
(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 included any of the following:
(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.
(4)Subsection (3) does not apply in relation to a decision made before the objects or purposes of the organisation or association included the matter concerned.
(5)Subparagraphs (2)(b)(i), (ii), (iii) and (iv) and (3)(b)(i), (ii), (iii) and (iv) do not apply to activities unless:
(1)The Minister may issue a written certificate stating that a specified substance or object is, or is not, in specified circumstances, hazardous waste:
(1)The Minister may issue a written certificate stating that engaging, or failing to engage, in specified conduct in relation to specified hazardous waste is, or is not, environmentally sound management of that hazardous waste for the purposes of this Act.
(4)A copy of a certificate under subsection (1) must be published in the Gazette.
58DRegulations defining hazardous waste—Minister must consult#
Before regulations are made for the purposes of paragraph (a) of the definition of hazardous waste in section 4, the Minister must consult one or more of the following:
(a)a person who the Minister considers has expertise or qualifications relevant to those regulations;
58FContravening an offence provision or a civil penalty provision#
(1)This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.
(2)For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.
(3)For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct provision.
Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
(1)Where, in proceedings for a designated offence, it is necessary to establish the state of mind of a body corporate in relation to a particular act or omission, it is sufficient to show:
(a)that the act or omission was done by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b)that the director, employee or agent had the state of mind.
(2)Any act or omission done on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is to be taken, in proceedings for a designated offence, to have been done also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the act or omission.
(3)Where, in proceedings for a designated offence, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular act or omission, it is sufficient to show:
(a)that the act or omission was done by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b)that the employee or agent had the state of mind.
(4)Any act or omission done on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is to be taken, in proceedings for a designated offence, to have been done also by the first-mentioned person unless the person establishes that the person took reasonable precautions and exercised due diligence to avoid the act or omission.
(5)Where:
(a)a person other than a body corporate is convicted of an offence; and
(b)the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for the offence.
(6)A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a)the knowledge, intention, opinion, belief or purpose of the person; and
(b)the person’s reasons for the intention, opinion, belief or purpose.
(7)A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth or of a State or Territory.
(b)any other document given by the person to, or to a delegate of, the CEO.
(2)For the purposes of this Act, a document may be given to the person by leaving it at, or by sending it by pre-paid post to, the nominated address for service.
(3)Subsection (2) has effect in addition to section 28A of the Acts Interpretation Act 1901.
59BService of summons or process on foreign corporations—criminal proceedings#
(1)This section applies to a summons or process in any criminal proceedings under this Act, where:
(a)the summons or process is required to be served on a body corporate incorporated outside Australia; and
(b)the body corporate does not have a registered office or a principal office in Australia; and
(a)as soon as practicable after the end of each financial year, prepare a report on the operation of this Act during that year; and
(b)cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after completion of the report.
(2)If this Act does not commence at the beginning of a financial year, this section has effect in relation to the period beginning at the commencement of this Act and ending on the next 30 June as if:
(a)if the period is less than 6 months—the period were included in the next financial year; or
(b)in any other case—the period were a financial year.