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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
ENVIRONMENTAL LEGISLATION AMENDMENT
BILL (No. 2)
2001
REVISED EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for the Environment and Heritage,
Senator
the Hon Robert Hill)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE
SENATE TO THE BILL AS INTRODUCED
The purpose of this Bill is to make amendments to the Hazardous Waste
(Regulation of Exports and Imports) Act 1989 and the Fuel Quality
Standards Act 2000, and to make minor machinery changes to other
portfolio legislation including the Environment Protection (Sea Dumping) Act
1981 and the Ozone Protection Act 1989.
The main purpose of the amendments to the Hazardous Waste (Regulation of
Exports and Imports) Act 1989 is to ensure that Australian companies can not
avoid the Act’s requirements by selling hazardous wastes to foreign
companies.
The amendments are intended to prevent this situation occurring by making it
an offence to sell hazardous waste to a foreign company unless an export permit
is in force.
Other amendments to the Hazardous Waste (Regulation of
Exports and Imports) Act 1989 will allow ministerial orders to be made in a
more effective and appropriate manner in incidents of this kind. They will also
deal with administrative matters such as clarifying the definition of hazardous
wastes.
The amendments to the Fuel Quality Standards Act 2000 are
primarily concerned with the analysis of fuel samples and evidentiary matters in
relation to those samples. The amendments propose that a certificate signed by
an accredited person or an authorised person in relation to an accredited
laboratory, is admissible as prima facie evidence of the matters stated in the
certificate and of the correctness of the results of the analysis. The
amendments protect the rights of defendants to have reasonable notice of the use
of such certificates, and enable persons to be cross examined in relation to the
contents of such certificates where notice requirements have been
satisfied.
Other minor amendments to the Fuel
Quality Standards Act 2000 replace references to the “Administrative
Review Tribunal” with “Administrative Appeals Tribunal”. In
accordance with the commencement provisions in the Bill, these amendments are
reversed if and when the Administrative Review Tribunal Act 2001 comes
into effect.
This Bill amends the following Acts: the Hazardous Waste (Regulation of Exports and Imports) Act 1989, the Fuel Quality Standards Act 2000, the Environment Protection (Sea Dumping) Act 1981, and the Ozone Protection Act 1989.
The Bill will have no financial impact.
This clause provides that the short title by which the Act may be cited is the Environmental Legislation Amendment Act (No. 2) 2001.
Subclause (1) provides that the commencement date for sections 1, 2 and 3 and items 1,4,5,6,7 and 14 of Schedule 2 of this Act is the day on which this Act receives Royal Assent.
Subclause (2) provides that the commencement date for amendments to the Hazardous Waste (Regulation of Exports and Imports) Act 1989 contained in section 4 and Schedule 1 of this Act is the 28th day after the day on which this Act receives Royal Assent.
Subclause (3) provides alternative commencement dates for the amendments to the Fuel Quality Standards Act 2000 concerning merits review appeals in Schedule 2.
Paragraph (3)(a) and subparagraph (i) provide that if Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have not commenced before this Act receives the Royal Assent, items 2, 8, 10 and 11 of Schedule 2 commence on the day on which this Act receives the Royal Assent. This will enable merits review applications under the Fuel Quality Standards Act 2000 to be taken to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.
Paragraph (3)(a) and subparagraph (ii) provide that immediately after Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have commenced, items 3, 9, 12 and 13 of Schedule 2 commence. This will enable merits review applications to be taken to the Administrative Review Tribunal under the Administrative Review Tribunal Act 2001.
Paragraph (3)(b) provides, in effect, that if Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have commenced before this Act receives the Royal Assent, items 2, 3, and 8 – 13 of Schedule 2 never commence. If this occurs, merits review applications can be taken to the Administrative Review Tribunal under the Administrative Review Tribunal Act 2001 in accordance with the terms of Fuel Quality Standards Act 2000.
Clause 3 – Schedules
This clause provides that, subject to the commencement provisions above, each Act, which is specified in a schedule to this Act, is amended as set out in the items of the schedule.
Clause 4 – Application - orders
This clause clarifies that the amendment made to orders referred to in Item 8 of Schedule 1, will apply only after the commencement of that item.
Item 1 – Section 4 (paragraph (b) of the definition of hazardous waste)
This item repeals the existing paragraph (b) which refers to Annexes I and III of the Basel Convention and inserts a new paragraph which refers to paragraph 1(a) of Article 1 of the Basel Convention instead. This amendment will ensure that the definition references Annexes VIII and IX of the Basel Convention, in addition to Annexes I and III.
Item 2 – Section 4 (paragraph (d) of the definition of hazardous waste)
This item repeals the existing paragraph (d) and inserts a new paragraph that excludes wastes covered by paragraph 4 of Article 1 of the Basel Convention. This amendment will align the Act with the Basel Convention by excluding wastes which derive from the normal operations of a ship, which are subject to other international control systems or instruments.
Item 3 – Subsection 13C(2) (Regulations may give effect to Article 11 arrangements)
This item amends the existing subsection 13C(2) to provide that Regulations may be expressed to take effect on the day an Article 11 arrangement enters into force, or comes into effect, for Australia. The amendment also requires gazettal of a notice indicating the Article 11 arrangements have come into force.
This amendment will eliminate the need to repeatedly amend Article 11 Regulations (which implement Article 11 arrangements in Australian law) to ensure that the specified commencement date does not arrive before the day the arrangement enters into force.
Item 4 – At the end of Section 34
This item inserts a new subsection 34(4) which provides that an order may also require the person to give the Minister specified information relating to dealing with the waste.
This addition will provide an opportunity for the Minister to seek information from the person to whom an order is made in relation to the waste and the actions specified to be undertaken.
Item 5 – At the end of Section 35
This item inserts a new subsection 35(4) which provides that an order may also require the person to give the Minister specified information relating to dealing with the waste.
This addition will provide an opportunity for the Minister to seek information from the person to whom an order is made in relation to the waste and the actions specified to be undertaken.
Item 6 – At the end of Section 35A
This item inserts a new subsection 35A(4) which provides that an order may also require the person to give the Minister specified information relating to dealing with the waste.
This addition will provide an opportunity for the Minister to seek information from the person to whom an order is made in relation to the waste and the actions specified to be undertaken.
Item 7 – At the end of Section 38
This item inserts a new subsection 38(5) which provides that an order may also require the person to give the Minister specified information relating to dealing with the waste.
This addition will provide an opportunity for the Minister to seek information from the person to whom an order is made in relation to the waste and the actions specified to be undertaken.
Item 8 – After Section 38
This item inserts new sections 38A (Persons to be given a reasonable time to comply with orders) and 38B (Contravention of orders under section 34, 35 or 35A).
Section 38A provides that if an order requires a person to do a thing by a specified time, then that time must be reasonable.
Section 38B provides that a person is guilty of an offence if an order has been given to deal with the waste in a specified way by a specified time and in a specified manner and the person contravenes that requirement. The penalty if the offender is an individual is imprisonment for a term not exceeding 2 years or if the offender is a body corporate a fine not exceeding 2,500 penalty units.
Section 38B also provides that a person is guilty of an offence if a person is required to give the Minister specified information by a specified time and in a specified manner and the person contravenes that requirement. The penalty is 30 penalty units.
At present there is no direct remedy if a person does not comply with a Ministerial order to deal with the waste in a particular way or to provide specified information. These provisions will ensure that failure to comply with an order or provide specified information is made an offence and is punishable by a fine or imprisonment.
Item 9 – Part 4 (heading)
This item amends the heading to insert the word “sale” because Part 4 will now regulate the import, export, transit and sale of hazardous waste.
Item 10 – After Section 40A
This item inserts new sections 40AA(1) and 40AA(2). Section 40AA(1) provides that a person is guilty of an offence if:
• the person sells hazardous waste to a body corporate incorporated outside Australia; and
• the body corporate does not have a registered office or a principal office and at least one executive officer in Australia; and
• the person sells the waste knowing, or being reckless as to whether, the waste is to be exported by the body corporate and an export permit is not in force when the sale occurs.
Section 40AA(2) provides that a person is guilty of an offence if:
• the person sells hazardous waste to another person; and
• the person sells the waste knowing, or being reckless as to whether, the waste is to be exported and an export permit is not in force when the sale occurs.
The penalty if the offender is an individual is imprisonment for a term not exceeding 2 years or if the offender is a body corporate, a fine not exceeding 2,500 penalty units.
Without the new section 40AA(1), if wastes are knowingly or recklessly sold by an Australian company or to a foreign-based concern which then exports them illegally, the Act provides the Commonwealth with no provision for recourse against the Australian seller of the waste. As prosecutions against foreign-based concerns can be extremely difficult, this can result in a situation where the Commonwealth is forced to carry the costs of the wastes’ return and/or disposal. The new section 40AA(1) would make it an offence to sell hazardous waste to a body corporate incorporated outside Australia unless the body corporate has a registered office or principal office in Australia or an export permit is in force when the sale occurs.
The new section 40AA(2) would also make it an offence for a person to sell hazardous waste to another person knowing, or being reckless as to whether, the waste will be exported illegally. This will increase the effectiveness of the provision by extending coverage to natural persons and business partnerships, in addition to bodies corporate.
This item inserts a reference to new section 40AA so that contravention of new section 40AA becomes an offence.
This item inserts a reference to new section 40AA so that contravention of new section 40AA becomes an offence.
This item inserts a reference to new section 40AA so that contravention of
new section 40AA becomes an offence.
This Schedule contains amendments to the Environment Protection (Sea Dumping) Act 1981, Fuel Quality Standards Act 2000, and the Ozone Protection Act 1989
These items replace the first or only occurrence of “Administrative Review Tribunal” with “Administrative Appeals Tribunal” in subsections 35(4), 70(1) and 70(2) of the Fuel Quality Standards Act 2000. These items will commence if the Administrative Review Tribunal Act 2001 has not commenced operation before this Act receives the Royal Assent.
These items replace “Administrative Appeals Tribunal” with “Administrative Review Tribunal” in subsections 35(4), 70(1) and 70(2) of the Fuel Quality Standards Act 2000. These items will commence immediately after Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have commenced.
This item inserts in section 37 a new paragraph that explains that the new Division 7A deals with the analysis of samples taken under Part 3 of the Act, and the evidentiary value of certificates containing information about the analysis of such samples.
These items insert a note at the end of subsections 41(1) and 44(1) of the Act referring readers to Division 7A of the Act. Subsections 41(1) and 44(1) list general monitoring and offence-related powers that may be exercised by inspectors under the Act. These include powers to conduct tests on, or take samples of, any fuel, fuel additive or other evidential material. Division 7A enables regulations to confer additional powers on inspectors in relation to fuel sampling and testing. The new Division also deals with the evidentiary value of certificates containing information about the analysis of such samples.
This item inserts the new Division 7A into the Act, which deals with the analysis of samples taken under Part 3 of the Act.
Subsection 58A How sample is to be dealt with
Subsection 58A(1) provides that regulations made under the Act may prescribe procedures for dealing with samples of any fuel, fuel additive or evidential material taken by an inspector under Part 3 of the Act. This subsection is not limited by subsections 58(2) or 58(3) (see subsection 58(6)).
Subsection 58A(2) provides that regulations may be made that enable inspectors to arrange for tests to be carried out on samples of fuel, fuel additives or other evidential material, by other persons. Subsection 58A(3) enables ‘routine’ procedural regulations to be drafted in such a way that substantial rather than strict compliance with their requirements is sufficient for the purposes of the Act. However under subsection 58A(4), strict compliance is required with procedures ensuring that a sample is not interfered with by anyone who is not authorised to interfere with a sample. Subsection 58A(5) provides that if routine procedures are not substantially complied with, and other procedures are not strictly complied with, then any certificate given under section 58B of the Act is of no effect.
Subsection 58B Evidentiary Certificates in relation to certain matters
Item 7 also inserts section 58B into the Act, which deals with evidentiary certificates in relation to certain matters. It applies to any proceedings for an offence against a provision of Part 2 of the Act (offence proceedings).
Subsection 58B(2) provides that a certificate may be signed by an accredited person, or an authorised person in relation to an accredited laboratory (as defined in subsection 58B(8). Such a certificate is admissible in offence proceedings under the Act as prima facie evidence of the matters stated in the certificate and of the correctness of the results of the analysis. Subsection 58B(2) lists the matters that may be stated in the certificate. These include details about when and from whom the substance was received, its label or other identification, the container it was in and how it was labelled or identified, the state of the container’s seals, a description of the substance received, when analysis took place, a description of the method of analysis, and the results of the analysis.
Subsection 58B(3) provides that a document purporting to be a certificate referred to in subsection 58B(2) is to be taken to be such a certificate and to have been duly given, unless the contrary intention is established.
Subsection 58B(4) provides that a certificate must not be admitted in evidence in any offence proceedings under the Act unless the person charged with an offence, or a barrister or solicitor who has appeared for the person in those proceedings, has, at least 14 days before the certificate is sought to be admitted, been given a copy of the certificate together with reasonable evidence of the intention to produce the certificate as evidence in the proceedings.
Subsections 58B(5) and (6) enable a person charged with an offence against Part 2 of the Act to require a person signing the certificate to be called as a witness for the prosecution and to be cross-examined about the contents of the certificate. This is only permissible when the prosecutor has been given at least 4 days notice of the need for the witness to be called (para. 58B(6)(a)) or the Court has, by order, allowed the person charged to require the person giving the certificate to be so called (para 58B(6)(b).
Subsection 58B(7) provides that any evidence given in support or in rebuttal of a matter stated in a certificate given under subsection 58B(2) must be considered on its merits. The fact that section 58B enables a certificate to be admitted as prima facie evidence cannot be taken to increase or diminish the merits, credibility and probative value of such evidence.
Subsection 58B(8) provides definitions for specified terms used in section 58B. An accredited laboratory means a laboratory or similar undertaking that, under the regulations, is an accredited laboratory for the purposes of the Act. An accredited person means a person that, under the regulations, is an accredited person for the purposes of the Act. An authorised person, in relation to an accredited laboratory, means a person that, under the regulations, is an authorised person in relation to an accredited laboratory for the purposes of the Act.
Subsection 58B(9) provides that for the purposes of subsection (8), regulations made for the purposes of defining accredited laboratory, accredited person and authorised person may provide for accreditation or approval by another person or body. This will enable regulation to be made that provide, for example, that the Minister or the National Association of Testing Authorities, Australia can accredit or approve a laboratory or person as an accredited laboratory, accredited person or authorised person for the purposes of the Act.
This item replaces “section 61 of the Act that establishes the Administrative Review Tribunal” in subsection 70(2) of the Fuel Quality Standards Act 2000 with “section 27 of the Administrative Appeals Tribunal Act 1975”. This amendment will enable merits review applications under the Fuel Quality Standards Act 2000 to be taken to the Administrative Appeals Tribunal if Parts 4 to 10 of the Administrative Review Tribunal Act 2001 has not commenced before this Act receives the Royal Assent.
Item 13 – Subsection 70(2)
This item replaces “section 27 of the Administrative Appeals Tribunal Act 1975” with “section 61 of the Administrative Review Tribunal Act 2001” in subsection 70(2) of the Fuel Quality Standards Act 2000. This will commence immediately after the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001.
Ozone Protection Act 1989
Item 10 – Subsections 41(4) and 41(5)
This item amends a technical drafting error in subsections 41(4) and (5) of
the Ozone Protection Act 1989. The words “, other than section
43,” do not add meaning to these subsections.