These regulations are the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996.

These Regulations commence on 12 December 1996.

The object of these Regulations is to make regulations for section 13C of the Act giving effect to the OECD Decision.

Note   Regulations made for the purposes of section 13C of the Act are known as a set of Article 11 regulations: see ss. 13C (3) of the Act.

(1)

In these Regulations, unless the contrary intention appears:

amber control procedure means the procedure described in Section D of Chapter II of the OECD Decision.

appropriate insurance has the meaning given by regulation 5.

EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999.

exporting country, for a special import permit, means the OECD country from which the hazardous waste proposed to be imported under the permit originated.

green control procedure means the procedure described in Section C of Chapter II of the OECD Decision.

hazardous wastes has the meaning given by Section A of Chapter II of the OECD Decision.

importing country, for a special export permit, means the OECD country to which hazardous waste that is proposed to be exported under the permit is finally destined.

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

OECD Decision means 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, a copy of the English text of which is set out in Schedule 1.

pre-consented recovery facility means:

(a)

for Australia — a recovery facility approved under regulation 42; or

(b)

for an OECD country other than Australia — a recovery facility in that country to which Chapter II Section D (2) Case 2 of the OECD Decision applies.

recovery operation means an operation mentioned in Appendix 5.B to the OECD decision.

transboundary movement, in relation to wastes, means movement of wastes from an area under the national jurisdiction of an OECD country to an area under the national jurisdiction of another OECD country.

transit country, for particular hazardous waste, means a country through which the waste is proposed to be transported on the way to its final destination.

wastes has the meaning given by Section A of Chapter II of the OECD decision.

working day means a day, other than a Saturday, Sunday or public holiday, in the Australian Capital Territory.

Note   Words and phrases used in these Regulations that are defined in the Act have the same meaning in these Regulations as they do in the Act: see Acts Interpretation Act 1901, s 46. For example, section 4 of the Act includes definitions of Basel Convention, competent authority, environmentally sound management, export proposal, hazardous waste, holder, import proposal, special export permit, special import permit, special permit, special transit permit and transit proposal.

(2)

A reference in these Regulations to an acknowledgment, consent, notification or objection made or given by the competent authority of an OECD country is a reference to an acknowledgment, consent, notification or objection made or given in accordance with the OECD Decision.

For these Regulations, an applicant for a special permit has appropriate insurance if, were the permit to be granted, the applicant would be:

(a)

reasonably insured against risks that might arise in relation to the hazardous waste to which the permit relates; or

(b)

whether because of arrangements made by the applicant or otherwise — able to discharge his or her liability that might arise in relation to the waste.

(1)

The wastes listed in Appendix 3 to the OECD decision are subject to the green control procedure.

(2)

The wastes listed in Appendix 4 to the OECD decision are subject to the amber control procedure.

Note   The OECD decision on the control of transboundary movements of wastes destined for recovery operations sets out a two-tier system to delineate controls to be applied to movements of such wastes. The two procedures are the green control procedure and

(1)

Wastes not listed in Appendix 3 or Appendix 4 of the OECD decision that exhibit a hazardous characteristic listed in Appendix 2 of the OECD decision are subject to the amber control procedure.

(2)

However, all wastes (including those listed in Appendix 3 that are not otherwise subject to the amber control procedure) that are contaminated by other materials are subject to the amber control procedure if:

(a)

the risks associated with the wastes are increased sufficiently by the contamination to render them appropriate for submission to the amber control procedure, when taking into account the criteria in Appendix 6 of the OECD decision; or

(b)

the contamination prevents recovery of the wastes in an environmentally sound manner.

(1)

A mixture of wastes, being a mixture for which there is no individual entry in Appendix 3 or Appendix 4 of the OECD decision, is subject to the control procedures set out in this regulation.

(2)

A mixture of wastes, each subject to the green control procedure, is subject to the green control procedure if the composition of the mixture does not impair its environmentally sound recovery.

(3)

A mixture of a waste or wastes subject to the green control procedure and more than a trivial amount of a waste subject to the amber control procedure is subject to the amber control procedure if the composition of the mixture does not impair its environmentally sound recovery.

(4)

A mixture of wastes, each subject to the amber control procedure, is subject to the amber control procedure if the composition of the mixture does not impair its environmentally sound recovery.

Despite regulations 6, 7 and 8, wastes are not subject to the amber control procedure if:

(a)

the wastes are to be sent for laboratory analysis:

(i)

to assess physical or chemical characteristics; or

(ii)

to determine suitability for recovery operations; and

(b)

the amount of waste does not exceed 25 kg and is the minimum reasonably needed to perform the analysis; and

(c)

notice of the proposed transboundary movement is given to the Minister, in a form approved by the Minister, at least 30 days before the proposed movement; and

(d)

within 30 days of receiving notice of the proposed movement, the Minister confirms in writing that the particular wastes are not subject to the amber control procedure.

(1)

A person may apply under these Regulations for a special permit in relation to a particular substance that:

(a)

is subject to the amber control procedure; or

(b)

under subsection 4F (2) of the Act, is taken, for a particular OECD country, to be hazardous waste for the purposes set out in subsection 4F (1) of the Act.

(2)

Application for a special export permit under these Regulations may be made only for hazardous waste that is proposed to be exported to an OECD country to undergo a recovery operation in that country.

(3)

Application for a special import permit under these Regulations may be made only for hazardous waste that is proposed to be imported from an OECD country to undergo a recovery operation in Australia.

(4)

Application for a special transit permit under these Regulations may be made only for hazardous waste that is:

(a)

produced in an OECD country (other than Australia); and

(b)

proposed to undergo a recovery operation in another OECD country (other than Australia).

(1)

At any time before the Minister grants or refuses a special permit, the applicant may give the Minister a notice stating that the application is varied as set out in the notice.

(2)

The notice must:

(a)

be in the form approved by the Minister; and

(b)

set out, or be accompanied by, the information about the variation as requested in the form.

(3)

If the Minister receives a notice from the applicant:

(a)

the application is taken to be varied in accordance with the notice; and

(b)

the application, as varied, is taken to have been received by the Minister on the day on which the Minister receives the notice.

(1)

If the Minister needs more information to deal with an application for a special permit, the Minister may ask the applicant to provide the information in writing.

(2)

The request must be in writing and must be given to the applicant:

(a)

for a special export permit — within 40 days after the Minister receives the application; or

(b)

for a special import permit or special transit permit — within 30 days after the Minister receives the application.

(1)

Within 3 working days after receiving an application for a special permit, the Minister must give the applicant written acknowledgment of the receipt.

(2)

Within 3 working days after receiving notification from the competent authority of an OECD country of an import proposal, the Minister must give the competent authority written acknowledgment of the receipt.

(3)

If notification is not received from the competent authority of an OECD country about a particular import proposal, the Minister must give the competent authority written notice of the receipt of an application for the special import permit to which the proposal relates, within 3 working days after receiving the application.

(4)

Within 5 working days after receiving an application for a special export permit, the Minister must give the competent authority of the importing country a written notice that sets out the following information:

(a)

the fact that the application has been received;

(b)

the waste to which the application relates;

(c)

full details (including name, business address, telephone number and facsimile number) of:

(i)

the applicant; and

(ii)

the proposed recipient of the waste; and

(iii)

if the proposed recipient is not a recovery facility — the recovery facility at which the waste is proposed to undergo a recovery operation;

(d)

the transit countries in relation to the waste;

(e)

the time when, or period during which, the export is proposed to occur.

In this Division:

(1)

Subject to regulation 15, within 40 days after receiving an application for a special export permit, the Minister must grant or refuse the permit.

(2)

As soon as practicable after granting or refusing the permit, the Minister must give the competent authority of the importing country written notice of the decision, and:

(a)

if the decision is to grant the permit — give the permit to the applicant; or

(b)

if the decision is a refusal — give the applicant written notice of the decision, and the reasons for it.

(3)

Contravention of subregulation (2) does not affect the validity of the decision.

(4)

Before deciding to grant, or refuse to grant, an application for a special export permit, the Minister:

(a)

must allow the applicant access to, or give a copy to the applicant of, any material held by the Minister that suggests that the application should be refused; and

(b)

if the Minister considers that the applicant needs to know the name of the person or body from whom the material was obtained to enable the applicant to consider the material properly — may tell the applicant in writing the name of the person or body; and

(c)

must invite the applicant in writing to give written comments on the material to the Minister.

(5)

Before making the decision, the Minister must consider any written comments made by the applicant on the material.

(1)

If, within 35 days of receiving an application for a special export permit:

(a)

the competent authority of the importing country has neither consented nor objected to the grant of the permit; or

(b)

if the applicant for the permit proposes to transport the hazardous waste to which the permit applies through a foreign country — the competent authority of that country has not decided whether transport of the waste through the country should be allowed;

the decision period is extended until the end of 5 working days after the Ministerial receipt day.

(2)

In subregulation (1), Ministerial receipt day means:

(a)

if there is only 1 consent or objection — the day when the Minister receives the consent or objection; or

(b)

if there are 2 or more consents or objections and the Minister receives them on the same day — that day; or

(c)

if there are 2 or more consents or objections and the Minister receives them on different days — the last of those days.

(3)

If the Minister thinks that a decision cannot be made within the decision period, the Minister may extend the period by not more than 60 days.

(4)

As soon as practicable after extending the decision period under subregulation (3), the Minister must give written notice of that decision to:

(a)

the applicant; and

(b)

the competent authority of the importing country.

(5)

If the Minister has invited the applicant to comment under paragraph 14 (4) (c), the decision period is extended until the end of 15 working days after receipt by the Minister of any written comments made by the applicant.

(5A)

If, within the decision period, action is begun under the EPBC Act in relation to the export proposal that is the subject of the application, the decision period is extended until the end of 5 working days after completion of the procedures required by that Act because of the action.

Note   See section 6 of the Act as to when action is begun under the EPBC Act in relation to a proposal, and when procedures under that Act are completed.

(6)

If the decision period is extended by subregulation (5) or (5A), then, before the end of the period as so extended, the Minister may agree with the applicant, in writing, to extend the period further.

(7)

If the Minister has not granted or refused the permit by the end of the day by which the Minister is required by regulation 14 or this regulation to have done so, the Minister is taken to have refused the permit.

(1)

The Minister must not grant a special export permit authorising the export of hazardous waste unless the Minister is satisfied that:

(a)

the application for the permit is permitted by regulation 9 to be made; and

(b)

dealing with the hazardous waste concerned in accordance with the export proposal would be consistent with the environmentally sound management of the waste; and

(c)

the competent authority of the importing country has given written consent to the movement of the waste; and

(d)

the waste will undergo a recovery operation in the importing country at a recovery facility that is authorised to carry out recovery operations on waste of that type; and

(e)

having regard to the OECD decision, Chapter II, Section D (1) (a) (concerning written contracts covering the movement of waste), it is appropriate to grant the permit; and

(f)

the waste will be allowed to be transported through any foreign country through which the waste is proposed to be transported; and

(g)

the waste will be transported in a way that is consistent with the environmentally sound management of the waste; and

(h)

the applicant:

(i)

is a suitable person to be granted the permit; and

(ii)

has appropriate insurance.

(2)

The Minister may refuse to grant the permit if the Minister considers that it is in the public interest to do so.

(3)

The Minister may refuse to grant the permit if the Minister is satisfied that:

(a)

there is another way in which the hazardous waste could appropriately be dealt with; and

(b)

dealing with the waste in that way would not pose significant risk of injury or harm to people or the environment; and

(c)

having regard to Australia's international obligations, the waste should be dealt with in that way rather than according to the export proposal.

(4)

The Minister may refuse to grant the permit if the Minister is satisfied that:

(a)

the hazardous waste could be disposed of safely and efficiently by using a facility in Australia; and

(b)

such a disposal would be consistent with the environmentally sound management of the waste; and

(c)

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 according to the export proposal.

(5)

For paragraph (1) (c), if the waste proposed to be exported is waste subject to the amber control procedure, the competent authority of the importing country is taken to have given written consent to the grant of the permit if:

(a)

the country has acknowledged receipt of the notice mentioned in subregulation 12 (4); and

(b)

for waste that is proposed to be sent:

(i)

to a pre-consented recovery facility — no objection is received within 7 days of that acknowledgement; or

(ii)

in any other case — no objection is received within 30 days of that acknowledgement.

(5A)

For paragraph (5) (b), no objection is received means that no written objection to the export proposal from the importing country or a transit country is received by the exporting country or, if an objection of that type has been received, it has been withdrawn within the time allowed.

(6) A consent that, under subregulation (5), is taken to have been given to the grant of a permit has effect for the export proposal commencing on the day after the date of the acknowledgement mentioned in paragraph (5) (a) and ending:

(a)

for export to a pre-consented facility — 3 years and 7 days later; or

(b)

in any other case — 1 year and 30 days later.

(7)

For subparagraph (1) (h) (i), the Minister must consider:

(a)

the applicant's financial viability; and

(b)

the applicant's previous record on environmental matters; and

(c)

other relevant matters.

(1)

A special export permit commences on:

(a)

the day on which the permit is granted; or

(b)

if a later day of commencement is stated in the permit — the later day.

(2)

A special export permit has effect for the period stated in the permit, being a period not longer than:

(a)

if the wastes to be exported under the permit are to be sent to a pre-consented recovery facility — 3 years; or

(b)

in any other case — 1 year.

(1)

A special export permit must set out the following details:

(a)

in relation to the permit holder:

(i)

if the person is a company — the name and Australian Company Number of the company; and

(ii)

if the person is another type of organisation — the name of the organisation; and

(iii)

in any other case — the full name of the person; and

(iv)

the business address, telephone number and facsimile number of the person;

(b)

in relation to the hazardous waste to be exported under the permit:

(i)

the name, business address, telephone number and facsimile number of the proposed recipient of the waste; and

(ii)

the type of the waste; and

(iii)

the maximum quantity of the waste that may be exported; and

(iv)

how the waste is to be contained during export; and

(v)

how the waste is to be transported during export; and

(vi)

the time at which, or period during which, the waste is to be exported; and

(vii)

the port or ports from which the waste is to be exported; and

(viii)

the port of the importing country to which the waste is to be exported; and

(ix)

the transit countries; and

(x)

the facility at which the waste is to undergo a recovery operation; and

(xi)

the type of recovery operation the waste is to undergo.

(2)

The permit must also set out:

(a)

the condition mentioned in regulation 32; and

(b)

conditions specified by the Minister under regulation 33; and

(c)

other information the Minister considers appropriate.

In this Division:

(1)

Subject to regulations 21 and 22, within 30 days after giving the competent authority of an exporting country notice under subregulation 12 (2) or (3), the Minister must grant or refuse the special import permit to which the notice relates.

(2)

As soon as practicable after granting or refusing the permit, the Minister must give the competent authority of the exporting country written notice of the decision, and:

(a)

if the decision is to grant the permit — give the permit to the applicant; or

(b)

if the decision is a refusal — give the applicant written notice of the decision, and the reasons for it.

(3)

Contravention of subregulation (2) does not affect the validity of the decision.

(4)

Before deciding to grant, or refuse to grant, an application for a special import permit, the Minister:

(a)

must allow the applicant access to, or give a copy to the applicant of, any material held by the Minister that suggests that the application should be refused; and

(b)

if the Minister considers that the applicant needs to know the name of the person or body from whom the material was obtained to enable the applicant to consider the material properly — may tell the applicant in writing the name of the person or body; and

(c)

must invite the applicant in writing to give written comments on the material to the Minister.

(5)

Before making the decision, the Minister must consider any written comments made by the applicant on the material.

(1)

If the Minister thinks that a decision cannot be made within the decision period, the Minister may extend the period by not more than 60 days.

(2)

If the Minister has invited the applicant to comment under paragraph 20 (4) (c), the decision period is extended until the end of 15 working days after receipt by the Minister of any written comments made by the applicant.

(3)

If, within the decision period, action is begun under the EPBC Act in relation to the import proposal that is the subject of the application, the decision period is extended until the end of 5 working days after completion of the procedures required by that Act because of the action.

Note   See section 6 of the Act as to when action is begun under the EPBC Act in relation to a proposal, and when procedures under that Act are completed.

(4)

If the decision period is extended by subregulation (2) or (3), then, before the end of the period as so extended, the Minister may agree with the applicant, in writing, to extend the period further.

(4A)

As soon as practicable after extending the period under subregulation (4), the Minister must give written notice of the extension to:

(a)

the applicant; and

(b)

the competent authority of the exporting country.

(5)

If the Minister has not granted or refused the permit by the end of the day by which the Minister is required by regulation 20 or this regulation to have done so, the Minister is taken to have granted the permit.

(1)

If the Minister:

(a)

receives an application for a special import permit authorising the import of waste subject to the amber control procedure that is proposed to undergo a recovery operation at a pre-consented recovery facility in Australia; and

(b)

has not granted or refused the permit within 7 days after giving the competent authority of the exporting country notice under subregulation 12 (2) or (3);

the Minister is taken to have granted the permit at the end of that time.

(2)

Subregulation (1) does not apply if, before the end of that time, action is begun under the EPBC Act in relation to the import proposal that is the subject of the application.

(3)

If subregulation (2) applies, the decision period is extended until the end of 5 working days after completion of the procedures required by the EPBC Act because of the action mentioned in that subregulation.

Note   See section 6 of the Act as to when action is begun under the EPBC Act in relation to a proposal, and when procedures under that Act are completed.

(4)

Also, if the Minister has invited the applicant to comment under paragraph 20 (4) (c), the decision period is extended until the end of 15 working days after receipt by the Minister of any written comments made by the applicant.

(5)

If the decision period is extended by subregulation (3) or (4), then, before the end of the period as so extended, the Minister may agree with the applicant, in writing, to extend the period further.

(6)

As soon as practicable after extending the period under subregulation (5), the Minister must give written notice of the extension to:

(a)

the applicant; and

(b)

the competent authority of the exporting country.

(7)

If the Minister has not granted or refused the permit by the end of the decision period, the Minister is taken to have granted the permit.

(1)

Before granting or refusing a special import permit, the Minister must consider whether the waste to which the relevant import proposal relates should be dealt with in a way other than the way set out in the proposal.

(2)

In considering whether the waste should be dealt with in another way, the Minister must have regard to Australia's international obligations in relation to the international movement of hazardous waste (for example, obligations under the Basel Convention and the OECD Decision).

(3)

The Minister must not grant the permit, unless the Minister is satisfied that:

(a)

the application for the permit is permitted by regulation 9 to be made; and

(b)

dealing with the hazardous waste concerned in accordance with the import proposal would be consistent with the environmentally sound management of the waste; and

(c)

the waste will undergo a recovery operation in Australia at a recovery facility that is permitted under Australian law to carry out recovery operations on waste of that type; and

(d)

having regard to Chapter II, Section D (1) (a) of the OECD Decision, (concerning written contracts covering the movement of wastes), it is appropriate to grant the permit; and

(e)

the waste will be transported in a way that is consistent with the environmentally sound management of the waste; and

(f)

the applicant:

(i)

is a suitable person to be granted the permit; and

(ii)

has appropriate insurance.

(4)

The Minister may refuse to grant the permit if the Minister considers that it is in the public interest to do so.

(5)

For subparagraph (3) (f) (i), the Minister must consider:

(a)

the applicant's financial viability; and

(b)

the applicant's previous record on environmental matters; and

(c)

other relevant matters.

(1)

A special import permit commences on:

(a)

the day on which the permit is granted; or

(b)

if a later day of commencement is stated in the permit — the later day.

(2)

A special import permit has effect for the period stated in the permit, being a period not longer than:

(a)

if the wastes to be imported under the permit are to be sent to a pre-consented recovery facility — 3 years; or

(b)

in any other case — 1 year.

(1)

A special import permit must set out the following details:

(a)

in relation to the permit holder:

(i)

if the person is a company — the name and Australian Company Number of the company; and

(ii)

if the person is another type of organisation — the name of the organisation; and

(iii)

in any other case — the full name of the person; and

(iv)

the business address, telephone number and facsimile number of the person;

(b)

in relation to the hazardous waste to be imported under the permit:

(i)

the name, business address, telephone number and facsimile number of the proposed exporter; and

(ii)

the type of the waste; and

(iii)

the maximum quantity of the waste that may be imported; and

(iv)

how the waste is to be contained during import; and

(v)

how the waste is to be transported during import; and

(vi)

the time when, or period during which, the waste is to be imported; and

(vii)

the port through which the waste is to be imported; and

(viii)

the transit countries; and

(ix)

the facility at which the waste is to undergo a recovery operation; and

(x)

the time when, or period during which, the waste is to undergo the recovery operation; and

(xi)

the type of recovery operation the waste is to undergo.

(2)

The permit must also set out:

(a)

the condition mentioned in regulation 32; and

(b)

conditions specified by the Minister under regulation 33; and

(c)

other information the Minister considers appropriate.

In this Division:

(1)

Subject to regulation 28, the Minister must grant or refuse a special transit permit authorising the carrying out of a transit proposal within 30 days after the competent authority of the OECD country from which the waste is to be exported gives the Minister written notification of the export.

(2)

As soon as practicable after granting or refusing the permit, the Minister must give the competent authority of the OECD country written notice of the decision, and:

(a)

if the decision is to grant the permit — give the permit to the applicant; or

(b)

if the decision is a refusal — give the applicant written notice of the decision, and the reasons for it;

(3)

Contravention of subregulation (2) does not affect the validity of the decision.

(4)

Before deciding to grant, or refuse to grant, an application for a special transit permit, the Minister:

(a)

must allow the applicant access to, or give a copy to the applicant of, any material held by the Minister that suggests that the application should be refused; and

(b)

if the Minister considers that the applicant needs to know the name of the person or body from whom the material was obtained to enable the applicant to consider the material properly — may tell the applicant in writing the name of the person or body; and

(c)

must invite the applicant in writing to give written comments on the material to the Minister.

(5)

Before making the decision, the Minister must consider any written comments made by the applicant on the material.

(1)

If the Minister thinks that a decision cannot be made within the decision period, the Minister may extend the period by not more than 60 days.

(2)

If the Minister has invited the applicant to comment under paragraph 27 (4) (c), the decision period is extended until the end of 15 working days after receipt by the Minister of any written comments made by the applicant.

(3)

If, within the decision period, action is begun under the EPBC Act in relation to the transit proposal that is the subject of the application, the decision period is extended until the end of 5 working days after completion of the procedures required by that Act because of the action.

Note   See section 6 of the Act as to when action is begun under the EPBC Act in relation to a proposal, and when procedures under that Act are completed.

(4)

If the decision period is extended by subregulation (2) or (3), then, before the end of the period as so extended, the Minister may agree with the applicant, in writing, to extend the period further.

(4A)

As soon as practicable after extending the period under subregulation (4), the Minister must give written notice of the extension to:

(a)

the applicant; and

(b)

the competent authority of the OECD country from which the hazardous waste is to be exported.

(5)

If the Minister has not granted or refused the permit by the end of the day by which the Minister is required by regulation 27 or this regulation to have done so, the Minister is taken to have granted the permit.

(1)

The Minister must not grant a special transit permit authorising the carrying out of a transit proposal unless the Minister is satisfied that:

(a)

the application for the permit is permitted by regulation 9 to be made; and

(b)

carrying out the transit proposal will not pose a significant risk of injury or damage to human beings or the environment; and

(c)

the waste will be transported to and from Australia in a way that is consistent with the environmentally sound management of the waste; and

(d)

the applicant:

(i)

is a suitable person to be granted the permit; and

(ii)

has appropriate insurance.

(2)

The Minister may refuse to grant the permit if the Minister considers that it is in the public interest to do so.

(3)

For subparagraph (1) (d) (i), the Minister must consider:

(a)

the applicant's financial viability; and

(b)

the applicant's previous record on environmental matters; and

(c)

other relevant matters.

(1)

A special transit permit commences on:

(a)

the day on which the permit is granted; or

(b)

if a later day of commencement is stated in the permit — the later day.

(2)

A special transit permit has effect for the period stated in the permit, being a period not longer than:

(a)

if the wastes to which the permit applies are to be sent to a pre-consented recovery facility — 3 years; or

(b)

in any other case — 1 year.

(1)

A special transit permit must set out the following details:

(a)

in relation to the permit holder:

(i)

if the person is a company — the name and Australian Company Number of the company; and

(ii)

if the person is another type of organisation — the name of the organisation; and

(iii)

in any other case — the full name of the person; and

(iv)

the business address, telephone number and facsimile number of the person;

(b)

in relation to the transit proposal to be carried out under the permit:

(i)

the type of hazardous waste to which the proposal relates; and

(ii)

the maximum quantity of the waste to be transported under the proposal; and

(iii)

how the waste is to be contained during transit; and

(iv)

how the waste is to be transported during transit; and

(v)

full details of the carrier transporting the waste (including name, business address, telephone number and facsimile number); and

(vi)

the time at which, or period during which, the waste is to be brought into Australia; and

(vii)

the port at which the waste is to be brought into Australia; and

(viii)

the time at which, or period during which, the waste is to be taken out of Australia; and

(ix)

the port from which the waste is to be taken out of Australia.

(2)

The permit must also set out:

(a)

the condition mentioned in regulation 32; and

(b)

conditions specified by the Minister under regulation 33; and

(c)

other information the Minister considers appropriate.

(1)

It is a condition of a special permit that each shipment of hazardous waste under the permit be accompanied by a completed Movement/Tracking form.

(2)

The Movement/Tracking form must be in the form approved by the Minister.

(1)

The Minister may:

(a)

grant a special permit subject to conditions specified in it; and

(b)

specify the day on or before which the permit holder must comply with the condition.

(2)

The day specified may be before or after the particular export or import, or before or after the carrying out of the particular transit proposal, authorised by the permit.

(3)

A special permit may be granted subject to a condition relating to the giving of 1 or more guarantees or security deposits for ensuring compliance by the permit holder with his or her obligations under, or arising out of, these Regulations.

(4)

A special transit permit may be granted subject to conditions that the Minister considers necessary or desirable for the purposes of ensuring the particular transit proposals are carried out.

(5)

A condition does not exclude the operation of a State or Territory law unless an intention to exclude the law is expressed in the permit.

(1)

The Minister may revoke a special permit if:

(a)

the Minister becomes aware that:

(i)

information set out in, or given with, the application for the permit, a notice of variation of the application, or an application for variation of the permit, is false or misleading in a material detail; or

(ii)

the applicant for the permit, or variation of the permit, did not disclose information that ought reasonably to have been disclosed; or

(b)

the Minister becomes aware of information about which, had the Minister been aware at the time of granting the permit, or variation of the permit, the Minister would not have granted the permit or variation; or

(c)

the permit holder has contravened a condition to which the permit is subject.

(2)

Before deciding to revoke a special permit, the Minister must consider:

(a)

for the matters mentioned in paragraph (1) (a) — having regard to the seriousness of the false or misleading information or failure to disclose, whether a variation of the permit under regulation 41, rather than revocation of the permit, may be appropriate; and

(b)

for the matter mentioned in paragraph (1) (c) — the type and seriousness of the contravention; and

(c)

any other relevant matter.

(2A)

Before deciding to revoke a special permit, the Minister:

(a)

must allow the applicant access to, or give a copy to the applicant of, any material held by the Minister that suggests that the application should be revoked; and

(b)

if the Minister considers that the applicant needs to know the name of the person or body from whom the material was obtained to enable the applicant to consider the material properly — may tell the applicant in writing the name of the person or body; and

(c)

must invite the applicant in writing to give written comments on the material to the Minister.

(2B)

Before making the decision, the Minister must consider any written comments made by the permit holder on the material.

(3)

If a special permit authorises:

(a)

a single import or export of hazardous waste; or

(b)

the carrying out of a single transit proposal;

the Minister may not revoke the permit after the import or export has taken place, or after the transit proposal has been carried out, as the case requires.

(4)

If a special permit authorises:

(a)

2 or more imports or exports of hazardous waste; or

(b)

the carrying out of 2 or more transit proposals;

a revocation of the permit applies only to an import or export, or the carrying out of a transit proposal, that has not begun at the time of the revocation.

(5)

A revocation takes effect on the day on which the permit holder is given written notice of the revocation and the reasons for it.

(1)

The holder of a special permit may surrender it by returning the permit to the Minister with written notice of its surrender.

(2)

However, if the permit is a special import permit, it may not be surrendered after an import authorised by the permit has begun.

(3)

Also, if the permit is a special export permit, it may not be surrendered after an export authorised by the permit has begun.

(4)

Also, if the permit is a special transit permit, it may not be surrendered after the carrying out of a transit proposal authorised by the permit has begun.

(5)

A surrender takes effect on the day on which the permit and notice are given to the Minister.

(1)

The holder of a special permit may apply to the Minister to vary the permit in a particular way.

(2)

The holder of a special export permit or special import permit must apply to the Minister to vary the permit if, after the export or import of hazardous waste to which the permit relates, the waste is not dealt with in accordance with the permit.

(3)

An application must:

(a)

be in the form approved by the Minister; and

(b)

set out, or be accompanied by, the information about the proposed variation as requested in the form.

(1)

If the Minister needs more information to deal with a variation application, the Minister may ask the applicant to provide the information in writing.

(2)

The request must be:

(a)

in writing; and

(b)

given to the applicant within 60 days after the Minister receives the application.

(1)

Within 3 working days after receiving a variation application, the Minister must give the applicant written acknowledgment of the receipt.

(2)

Within 5 working days after receiving the application, the Minister must:

(a)

for a proposed variation of a special export permit — give the competent authority of the importing country:

(i)

written notice of the receipt; and

(ii)

full details of the proposed variation; or

(b)

for a proposed variation of a special import permit — give the competent authority of the exporting country written notice of the receipt; or

(c)

for a proposed variation of a special transit permit — give the competent authority of the OECD country from which the hazardous waste concerned is to be exported, written notice of the receipt.

(1)

Subject to subregulation (3A), the Minister must vary, or refuse to vary, a special permit within 60 days after receiving an application to vary the permit.

(2)

The Minister must vary the permit if the Minister is satisfied that, had the Minister been asked to grant, under these Regulations, the permit as proposed to be varied, the Minister would have done so.

(3)

However, for an application to vary a special import permit to allow the export to an OECD country (other than the originating exporting country) of hazardous waste that, after import under the permit, was not dealt with in accordance with the permit, the Minister must not make the variation without the written consent of the original exporting country.

(3A)

Before deciding an application to vary a special permit, the Minister:

(a)

must allow the applicant access to, or give a copy to the applicant of, any material held by the Minister that suggests that the application should be refused; and

(b)

if the Minister considers that the applicant needs to know the name of the person or body from whom the material was obtained to enable the applicant to consider the material properly — may tell the applicant in writing the name of the person or body; and

(c)

must invite the applicant in writing to give written comments on the material to the Minister.

(3B)

Before making the decision, the Minister must consider any written comments made by the applicant on the material.

(4)

As soon as practicable after varying the permit or refusing to do so, the Minister must:

(a)

give the applicant written notice of the decision and, if the decision is a refusal, the reasons for it; and

(b)

if the decision relates to a special export permit — give the competent authority of the importing country written notice of the decision; and

(c)

if the decision relates to a special import permit — give the competent authority of the exporting country written notice of the decision; and

(d)

if the decision relates to a special transit permit — give the competent authority of the OECD country from which the hazardous waste concerned is to be exported, written notice of the decision.

(5)

A variation takes effect:

(a)

if a day is set out in the written notice given to the applicant — on that day; or

(b)

if no day is set out — on the day after the day on which the notice is given.

(6)

Contravention of subregulation (4) does not affect the validity of the decision.

(1)

If the holder of a special export permit applies to vary the permit and, within the period mentioned in subregulation 39 (1) (the decision period):

(a)

the competent authority of the importing country has neither consented nor objected to the proposed variation; or

(b)

if the applicant for the special export permit proposes to transport the hazardous waste to which the permit applies through a foreign country — the competent authority of that country has not decided whether transport of the waste through the country should be allowed;

the decision period is extended until the end of 5 working days after the Ministerial receipt day.

(2)

In subregulation (1):

(3) If the Minister considers that a decision on an application to vary a special permit cannot be made within the decision period (including, for a special export permit, that period as extended under subregulation (1)), the Minister may extend the period by not more than 60 days.

(4)

If the Minister has invited the applicant to comment under paragraph 39 (3A) (c), the decision period is extended until the end of 15 working days after receipt by the Minister of any written comments made by the applicant.

(4A)

If, within the decision period, action is begun under the EPBC Act in relation to a varied export or import proposal that is the subject of the application, the decision period is extended until the end of 5 working days after completion of the procedures required by that Act because of the action.

Note   See section 6 of the Act as to when action is begun under the EPBC Act in relation to a proposal, and when procedures under that Act are completed.

(5)

If the decision period is extended by subregulation (4) or (4A), then, before the end of the period as so extended, the Minister may agree with the applicant, in writing, to extend the period further.

(6)

As soon as practicable after extending the period under subregulation (5), the Minister must give written notice of the extension to the applicant and:

(a)

if the extension relates to a special export permit — to the competent authority of the importing country; and

(b)

if the extension relates to a special import permit — to the competent authority of the exporting country; and

(c)

if the decision relates to a special transit permit — to the competent authority of the OECD country from which the hazardous waste concerned is to be exported.

(7)

If the Minister has not varied the permit or refused to so by the end of the day by which the Minister is required by regulation 39 or this regulation to have done so, the Minister is taken to have:

(a)

for an application to vary a special import permit or special transit permit relating to amber list hazardous waste — varied the permit; or

(b)

in any other case — refused to vary the permit.

(8)

A variation under paragraph (7) (a) takes effect on the day after the day mentioned in that subregulation.

(1)

Without the need for an application under regulation 36, the Minister may vary a special permit by giving written notice of the variation to the permit holder.

(2)

A permit may be varied:

(a)

by imposing a condition to which the permit is subject; or

(b)

by varying or revoking a condition; or

(c)

if a condition is to be complied with on or before a particular day — by varying the day.

(3)

However, the Minister may vary a permit only if:

(a)

the Minister becomes aware that:

(i)

information set out in, or given with, the application for the permit, a notice of variation of the application, or an application for variation of the permit, is false or misleading in a material detail; or

(ii)

the applicant for the permit, or variation of the permit, did not disclose information that ought reasonably to have been disclosed; or

(b)

having regard to information that was not considered before granting the permit or variation of the permit, the Minister is satisfied that the variation is required to protect human beings or the environment from a significant risk of injury or damage.

(4)

Before deciding to vary a permit, the Minister must consider:

(a)

for the matters mentioned in paragraph (a) — having regard to the seriousness of the false or misleading information or failure to disclose, whether revocation, rather than variation, of the permit may be appropriate; and

(b)

any other relevant matter.

(4A)

Before deciding to vary a special permit without application, the Minister:

(a)

must allow the permit holder access to, or give a copy to the permit holder of, any material held by the Minister that suggests that the permit should be varied; and

(b)

if the Minister considers that the permit holder needs to know the name of the person or body from whom the material was obtained to enable the applicant to consider the material properly — may tell the permit holder in writing the name of the person or body; and

(c)

must invite the permit holder in writing to give written comments on the material to the Minister.

(4B)

Before making the decision, the Minister must consider any written comments made by the permit holder on the material.

(5)

If the Minister varies a special permit under this regulation, the Minister must set out in the notice given to the permit holder the reasons for the variation.

(6)

Regulation 33 applies to the imposition or variation of a condition under this regulation as if it were imposed at the time of granting the permit.

(7)

A variation under this regulation takes effect:

(a)

if a day is set out in the written notice given to the permit holder — on that day; or

(b)

if no day is set out — on the day after the day on which the notice is given.

(1)

The Minister may give pre-consent, in writing, to a facility for the purpose of carrying out recovery operations on waste subject to the amber control procedure that is imported under a special import permit granted under these Regulations.

(2)

The Minister must not give pre-consent to a facility unless the Minister is satisfied that the facility is capable of carrying out recovery operations on waste subject to the amber control procedure in a manner appropriate to give effect to Australia's obligations under the OECD Decision.

(3)

The Minister may give a pre-consent under subregulation (1) for a specified period of time.

(4)

The Minister may at any time revoke a pre-consent given under subregulation (1).

Note   Chapter II Section D (2) Case 2 of the OECD Decision outlines matters relevant to pre-consent of recovery facilities.

Application may be made under the Administrative Appeals Tribunal Act 1974 to the Administrative Appeals Tribunal for review of a decision of the Minister:

(a)

to grant a special permit for less than:

(i)

if the wastes are to be sent to a pre-consented recovery facility — 3 years (see paragraphs 17 (2) (a), 24 (2) (a) and 30 (2) (a)); or

(ii)

in any other case — 1 year (see paragraphs 17 (2) (b), 24 (2) (b) and 30 (2) (b)); or

(b)

refusing to give pre-consent to a facility (see regulation 42); or

(c)

revoking a pre-consent given to a facility (see subregulation 42 (4)).

Note   Section 57 of the Act provides for review of decisions relating to, among other things, the grant, revocation or variation of special permits and the imposition of conditions on special permits.

The Minister may delegate, in writing, any or all of the Minister's functions and powers under these Regulations to:

(a)

the Secretary to the Department; or

(b)

an officer of the Senior Executive Service performing duty in the Department.