Part 1—Preliminary
1 Name of regulations
These regulations are the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996.
3 Object
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.
4 Interpretation
(1) In these Regulations, unless the contrary intention appears:
Act means the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
amber control procedure means the procedure described in Section D of Chapter II of the OECD Decision.
amending instrument means the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021.
appropriate insurance has the meaning given by regulation 5.
decision period means:
(a) for an application for a special export permit—the period referred to in subregulation 13(1), but as paused or extended under regulation 11, 15, 15A or 15B; or
(b) for an application for a special import permit (other than a pre‑consented recovery facility special import permit)—the period referred to in paragraph 19(1)(b), but as paused or extended under regulation 11, 21 or 22; or
(c) for an application for a pre‑consented recovery facility special import permit—the period referred to in subregulation 19(1)(a), but as paused or extended under regulation 11 or 22; or
(d) for an application for a special transit permit—the period referred to in subregulation 26(1), but as paused or extended under regulation 11, 28 or 28A; or
(e) for an application to vary a special permit—the period referred to in subregulation 39(1), but as paused or extended under regulation 37, 40, 40A or 40B.
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 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, as in force or existing at the time when the amending instrument commences.
Note: The OECD Decision could in 2021 be viewed on the OECD website (https://legalinstruments.oecd.org/).
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.
pre‑consented recovery facility special import permit means a special import permit authorising the import of waste that is:
(a) subject to the amber control procedure; and
(b) proposed to undergo a recovery operation at a pre‑consented recovery facility for Australia.
recovery facility means a facility that carries out recovery operations on hazardous waste.
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.
5 Meaning of appropriate insurance
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.
6 Wastes destined for recovery operations that require control procedures to allow transboundary movement
(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 the amber control procedure.
7 Other wastes including wastes not listed in Appendix 3 or Appendix 4 of the OECD Decision
(1) The following wastes are also subject to the amber control procedure:
(a) wastes not listed in Appendix 3 or 4 of the OECD Decision that exhibit a hazardous characteristic listed in Appendix 2 of the OECD Decision;
(b) plastic wastes, including mixtures of such wastes, covered by Annex II to the Basel Convention.
(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.
8 Mixtures of wastes
(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.
8A Transboundary movement of wastes for laboratory analysis
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 CEO, in a form approved by the CEO, at least 30 days before the proposed movement; and
(d) within 30 days of receiving notice of the proposed movement, the CEO confirms in writing that the particular wastes are not subject to the amber control procedure.
Part 2—Applications for special permits
9 Application for special permit
(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).
10 Variation of applications
(1) At any time before the CEO grants or refuses a special permit, the applicant may give the CEO 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 CEO; and
(b) set out, or be accompanied by, the information about the variation as requested in the form.
(3) If the CEO 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 CEO on the day on which the CEO receives the notice.
11 CEO may request further information about an application
(1) The CEO may:
(a) for an application for a special export permit—within the period of 40 days starting after the day the CEO receives the application; or
(b) for an application for a special import permit (other than a pre‑consented recovery facility special import permit)—within the period of 30 days starting after the day the CEO gives, under subregulation 12(2) or (3), notice to the competent authority of the exporting country for the permit; or
(c) for an application for a pre‑consented recovery facility special import permit—within the period of 7 days starting after the day the CEO gives, under subregulation 12(2) or (3), notice to the competent authority of the exporting country for the permit; or
(d) for an application for a special transit permit—within the period of 30 days starting after the day the competent authority of the OECD country from which the waste is to be exported gives the CEO written notification of the export;
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 decision period for the application for the 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.
(3) As soon as practicable after the CEO makes such a request of an applicant, the CEO must give written notice that the decision period for the application is paused to:
(a) for an application for a special export permit—the following:
(i) the competent authority of the importing country for the permit;
(ii) the competent authority of each transit country (if any) for the waste to which the application relates; or
(b) for an application for a special import permit—the competent authority of the exporting country for the permit; or
(c) for an application for a special transit permit—the competent authority of the OECD country from which the waste is to be exported.
12 Acknowledgment and notification
(1) Within 3 working days after receiving an application for a special permit, the CEO 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 CEO 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 CEO 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 CEO must give:
(a) the competent authority of the importing country for the permit; and
(b) the competent authority of each transit country (if any) for the waste to which the application relates;
a written notice that sets out the information mentioned in subregulation (5) about the application.
(5) For the purposes of subregulation (4), the information about an application for a special export permit is the following:
(a) the fact that the application has been received;
(b) the waste to which the application relates;
(c) full details (including name, business address and telephone 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) for a notice to the competent authority of the importing country for the permit—the transit countries for the waste;
(e) for a notice to the competent authority of a transit country for the waste—the importing country for the permit and any other transit countries for the waste;
(f) the time when, or period during which, the export is proposed to occur.
Part 3—Grant of special permits
Division 1—Special export permits
13 Period for making decision on permit application—default period
(1) If the CEO receives an application for a special export permit, the CEO must decide whether to grant the permit within the period of 40 days starting after the day the CEO receives the application (the decision period).
Note: This period may be paused or extended under regulation 11, 15, 15A or 15B.
(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, to refuse the permit.
14 Decision on permit application
(2) As soon as practicable after granting or refusing a special export permit, the CEO must give the competent authority of the importing country for the permit written notice of the decision, and:
(a) if the decision is to grant the permit—give the permit to the applicant for the permit; or
(b) if the decision is a refusal—give the applicant for the permit written notice of the decision, and the reasons for it.
(3) Contravention of subregulation (2) does not affect the validity of the decision.
15 Period for making a decision on a permit application—extension for competent authority consents
If, at the end of the 35th day of the decision period for an application for a special export permit, either:
(a) the competent authority of the importing country for the permit has neither given nor refused written consent to the grant of the permit; or
(b) a competent authority of a transit country (if any) for the waste to which the application relates has neither given nor refused written consent to the grant of the permit;
the decision period is extended until the end of 5 working days after the latest day such a refusal or consent is given by a competent authority covered by paragraph (a) or (b).
Note: For the requirement to notify the competent authority of the importing country and the competent authority of any transit countries, see subregulation 12(4).
15A Period for making a decision on a permit application—extension on CEO’s initiative
(1) The CEO may extend the decision period for an application for a special export permit by up to 60 days if the CEO thinks that a decision whether to grant the permit cannot be made within the decision period.
(2) The CEO must give written notice of any extension under subregulation (1) to each of the following as soon as practicable:
(a) the applicant;
(b) the competent authority of the importing country for the permit;
(c) the competent authority of each transit country (if any) for the waste to which the application relates.
15B Period for making a decision on a permit application—extension agreed with applicant
(1) The decision period for an application for a special export permit is extended if the CEO and applicant agree in writing to the extension.
(2) The CEO must give written notice of any extension under subregulation (1) to each of the following as soon as practicable:
(a) the competent authority of the importing country for the permit;
(b) the competent authority of each transit country (if any) for the waste to which the application relates.
16 Grant of special export permit
(1) The CEO must not grant a special export permit authorising the export of hazardous waste unless:
(a) the CEO is satisfied that the application for the permit is permitted by regulation 9 to be made; and
(b) the CEO is satisfied that 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 CEO is satisfied that the competent authority of the importing country has given written consent to the movement of the waste; and
(d) the CEO is satisfied that 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), the CEO is satisfied that it is appropriate to grant the permit; and
(f) the CEO is satisfied that the waste will be allowed to be transported through any foreign country through which the waste is proposed to be transported; and
(g) the CEO is satisfied that the waste will be transported in a way that is consistent with the environmentally sound management of the waste; and
(h) the CEO is satisfied that the applicant:
(i) is a suitable person to be granted the permit; and
(ii) has appropriate insurance; and
(i) the CEO has taken into account any relevant public comments received in response to an invitation under paragraph 33(1)(aa) of the Act about the application for the permit (or any notice relating to that application).
(2) The CEO may refuse to grant the permit if the CEO considers that it is in the public interest to do so.
(3) The CEO may refuse to grant the permit if the CEO 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 CEO may refuse to grant the permit if the CEO 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 CEO must consider:
(a) the applicant’s financial viability; and
(b) the applicant’s previous record on environmental matters; and
(c) other relevant matters.
17 Commencement and duration of special export permits
(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.
18 Matters to be specified in permit
(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 and telephone number of the person;
(b) in relation to the hazardous waste to be exported under the permit:
(i) the name, business address and telephone 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
(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 CEO under regulation 33; and
(c) other information the CEO considers appropriate.
Division 2—Special import permits
19 Period for making a decision on a permit application—default period
(1) If the CEO receives an application for a special import permit, the CEO must decide whether to grant the permit:
(a) for a pre‑consented recovery facility special import permit—within the period of 7 days starting after the day the CEO gives, under subregulation 12(2) or (3), notice to the competent authority of the exporting country for the permit (the decision period); or
(b) otherwise—within the period of 30 days starting after the day the CEO gives such notice to the competent authority of the exporting country for the permit (the decision period).
Note 1: The decision period for a pre‑consented recovery facility special import permit may be paused or extended under regulation 11 or 22.
Note 2: The decision period for other special import permits may be paused or extended under regulation 11, 21 or 22.
(2) If the CEO has not decided whether to grant the permit by the end of the decision period for the permit, the CEO is to be taken to have decided, on the last day of that period, to grant the permit.
20 Decision on permit application
(2) As soon as practicable after granting or refusing a special import permit, the CEO must give the competent authority of the exporting country for the permit written notice of the decision, and:
(a) if the decision is to grant the permit—give the permit to the applicant for the permit; or
(b) if the decision is a refusal—give the applicant for the permit written notice of the decision, and the reasons for it.
(3) Contravention of subregulation (2) does not affect the validity of the decision.
21 Period for making a decision on a permit application—extension on CEO’s initiative
(1) The CEO may extend the decision period for an application for a special import permit (other than a pre‑consented recovery facility special import permit) by up to 60 days if the CEO thinks that a decision whether to grant the permit cannot be made within the decision period.
(2) The CEO must give written notice of any extension under subregulation (1) to each of the following as soon as practicable:
(a) the applicant;
(b) the competent authority of the exporting country for the permit.
22 Period for making a decision on a permit application—extension agreed with applicant
(1) The decision period for an application for a special import permit is extended if the CEO and applicant agree in writing to the extension.
(2) The CEO must give written notice of any extension under subregulation (1) to the competent authority of the exporting country for the permit as soon as practicable.
23 Grant of special import permit
(1) Before granting or refusing a special import permit, the CEO 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 CEO 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 CEO must not grant the permit, unless:
(a) the CEO is satisfied that the application for the permit is permitted by regulation 9 to be made; and
(b) the CEO is satisfied that 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 CEO is satisfied that 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), the CEO is satisfied that it is appropriate to grant the permit; and
(e) the CEO is satisfied that the waste will be transported in a way that is consistent with the environmentally sound management of the waste; and
(f) the CEO is satisfied that the applicant:
(i) is a suitable person to be granted the permit; and
(ii) has appropriate insurance; and
(g) the CEO has taken into account any relevant public comments received in response to an invitation under paragraph 33(1)(aa) of the Act about the application for the permit (or any notice relating to that application).
(4) The CEO may refuse to grant the permit if the CEO considers that it is in the public interest to do so.
(5) For subparagraph (3)(f)(i), the CEO must consider:
(a) the applicant’s financial viability; and
(b) the applicant’s previous record on environmental matters; and
(c) other relevant matters.
24 Commencement and duration of special import permits
(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.
25 Matters to be specified in permit
(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 and telephone number of the person;
(b) in relation to the hazardous waste to be imported under the permit:
(i) the name, business address and telephone 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 CEO under regulation 33; and
(c) other information the CEO considers appropriate.
Division 3—Special transit permits
26 Period for making a decision on a permit application—default period
(1) If the CEO receives an application for a special transit permit, the CEO must decide whether to grant the permit within the period of 30 days starting after the day the competent authority of the OECD country from which the waste is to be exported gives the CEO written notification of the export (the decision period).
Note: This period may be paused or extended under regulation 11, 28 or 28A.
(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, to grant the permit.
27 Decision on permit application
(2) As soon as practicable after granting or refusing a special transit permit, the CEO must give the competent authority of the OECD country from which the waste is to be exported for the permit written notice of the decision, and:
(a) if the decision is to grant the permit—give the permit to the applicant for the permit; or
(b) if the decision is a refusal—give the applicant for the permit written notice of the decision, and the reasons for it;
(3) Contravention of subregulation (2) does not affect the validity of the decision.
28 Period for making a decision on a permit application—extension on CEO’s initiative
(1) The CEO may extend the decision period for an application for a special transit permit by up to 60 days if the CEO thinks that a decision whether to grant the permit cannot be made within the decision period.
(2) The CEO must give written notice of any extension under subregulation (1) to each of the following as soon as practicable:
(a) the applicant;
(b) the competent authority of the OECD country from which the waste is to be exported.
28A Period for making a decision on a permit application—extension agreed with applicant
(1) The decision period for an application for a special transit permit is extended if the CEO and applicant agree in writing to the extension.
(2) The CEO must give written notice of any extension under subregulation (1) to the competent authority of the OECD country from which the waste is to be exported as soon as practicable.
29 Grant of special transit permit
(1) The CEO must not grant a special transit permit authorising the carrying out of a transit proposal unless:
(a) the CEO is satisfied that the application for the permit is permitted by regulation 9 to be made; and
(b) the CEO is satisfied that carrying out the transit proposal will not pose a significant risk of injury or damage to human beings or the environment; and
(c) the CEO is satisfied that 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 CEO is satisfied that the applicant:
(i) is a suitable person to be granted the permit; and
(ii) 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) of the Act about the application for the permit (or any notice relating to that application).
(2) The CEO may refuse to grant the permit if the CEO considers that it is in the public interest to do so.
(3) For subparagraph (1)(d)(i), the CEO must consider:
(a) the applicant’s financial viability; and
(b) the applicant’s previous record on environmental matters; and
(c) other relevant matters.
30 Commencement and duration of special transit permits
(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.
31 Matters to be specified in permit
(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 and telephone 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 and telephone 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 CEO under regulation 33; and
(c) other information the CEO considers appropriate.
Division 4—Special permit conditions
32 Movement/Tracking form to accompany shipment of waste
(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 CEO.
33 Other conditions specified in special permits
(1) The CEO 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:
(a) 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; but
(b) must not be before the day the CEO grants 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 CEO 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.
Part 4—Revocation, surrender and variation of special permits
Division 1—Revoking special permits
34 Revoking special permits—grounds
(1) The CEO may, in writing, decide to revoke a special permit if the CEO is satisfied that:
(a) the holder of 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 holder was reasonably able to have done so; or
(b) the holder of the permit:
(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 the 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.
Note 1: For the requirement to provide an auditor with assistance that is reasonably necessary for the conduct of an audit, see section 54 of the Act.
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 of the Act, a notification given under subsection 33G(1) of the Act, or other prescribed operations: see section 50 of the Act.
(2) However, a revocation of a special permit only applies to an import, export or the carrying out of a transit proposal authorised by the permit if the import, export or the carrying out of the transit proposal has yet to begin.
Note 1: This subregulation means that a special 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 subregulation also means a special 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.
34A Revoking special permits—notice of proposed revocation
(1) Despite subregulation 34(1), the CEO must not revoke a special permit under that subregulation unless:
(a) the CEO has given a written notice to the holder of the permit in accordance with subregulation (2) of this regulation; and
(b) the CEO has taken into account any information given, within 14 days after the day the notice is given to the 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.
34B Notice of revocation
(1) If the CEO decides under subregulation 34(1) to revoke a special 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.
Note: For further statements the notice must include, see section 58 of the Act.
(2) If the holder of the permit was given a notice (a show cause notice) under paragraph 34A(1)(a) that included the invitation referred to in paragraph 34A(2)(c), the revocation must not take effect before the end of 14 days after the day the show cause notice was given.
34C Exhaustive statement of natural justice hearing rule
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Division 2—Surrendering special permits
35 Surrender of permits
(1) The holder of a special permit may surrender it by returning the permit to the CEO 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 CEO.
Division 3—Varying special permits
Subdivision A—Varying special permits: on application
36 Varying special permits on application
(1) The CEO may, on application by the holder of a special permit, vary the permit if:
(a) the CEO is satisfied that, if the CEO were asked to grant the special 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) of the Act about the application.
Note: Examples of a variation include imposing a condition on the permit, or varying or revoking a permit condition.
(2) The application must:
(a) be in the form approved by the CEO; and
(b) set out, or be accompanied by, such information in relation to the proposed variation as is required by the form.
(3) Regulation 33 applies to the imposition or variation of a condition under this regulation as if a reference in regulation 33 to the grant of a special permit were a reference to a variation of a special permit.
37 CEO may request further information about application
(1) Within 60 days after the day an application to vary a special permit is received, 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 decision period for the application 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.
(3) As soon as practicable after the CEO makes such a request of an applicant, the CEO must give written notice that the decision period for the application is paused to:
(a) for an application to vary a special export permit—the following:
(i) the competent authority of the importing country for the permit;
(ii) the competent authority of each transit country (if any) for the waste to which the application relates; or
(b) for an application to vary a special import permit—the competent authority of the exporting country for the permit; or
(c) for an application to vary a special transit permit—the competent authority of the OECD country from which the waste is to be exported.
38 Acknowledgment and notification
(1) Within 3 working days after receiving an application to vary a special permit, the CEO must give the applicant written acknowledgment of the receipt.
(2) Within 5 working days after receiving the application, the CEO must:
(a) for a proposed variation of a special export permit—give written notice of the receipt and full details of the proposed variation to:
(i) the competent authority of the importing country for the permit; and
(ii) the competent authority of each transit country (if any) for the waste to which the application relates; 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.
39 Period for making a decision on an application to vary a special permit—default period
(1) If the CEO receives an application to vary a special permit, the CEO must decide whether to make the variation within the period of 60 days starting after the day the CEO receives the application (the decision period).
Note: This period may be paused or extended under regulation 37, 40, 40A or 40B.
(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:
(a) for an application to vary a special import permit or special transit permit—to vary the permit; or
(b) for an application to vary a special export permit—not to make the variation.
(3) A variation under paragraph (2)(a) takes effect on the day after the day mentioned in subregulation (2).
40 Period for making a decision on an application to vary a special permit—extension for special export permits
If the holder of a special export permit applies to vary the permit and, at the end of the decision period for the application, either:
(a) the competent authority of the importing country for the permit has neither given nor refused written consent to the variation; or
(b) a competent authority of a transit country (if any) for the waste to which the application relates has neither given nor refused written consent to the variation;
the decision period is extended until the end of 5 working days after the latest day such a refusal or consent is given by a competent authority covered by paragraph (a) or (b).
Note: For the requirement to notify the competent authority of the importing country of the application to vary a special export permit, see paragraph 38(2)(a).
40A Period for making a decision on an application to vary a special permit—extension on CEO’s initiative
(1) The CEO may extend the decision period for an application to vary a special permit by up to 60 days if the CEO thinks that a decision whether to vary the permit cannot be made within the decision period.
(2) As soon as practicable after extending the period under subregulation (1), the CEO must give written notice of the extension to the applicant and to:
(a) if the extension relates to a special export permit—the following:
(i) the competent authority of the importing country for the permit;
(ii) the competent authority of each transit country (if any) for the waste to which the application relates; or
(b) if the extension relates to a special import permit—the competent authority of the exporting country for the permit; or
(c) if the decision relates to a special transit permit—the competent authority of the OECD country from which the waste is to be exported.
40B Period for making a decision on an application to vary a special permit—extension agreed with applicant
(1) The decision period for an application to vary a special permit is extended if the CEO and applicant agree in writing to the extension.
(2) As soon as practicable after extending the period under subregulation (1), the CEO must give written notice of the extension to:
(a) if the extension relates to a special export permit—the following:
(i) the competent authority of the importing country for the permit;
(ii) the competent authority of each transit country (if any) for the waste to which the application relates; or
(b) if the extension relates to a special import permit—the competent authority of the exporting country for the permit; or
(c) if the decision relates to a special transit permit—the competent authority of the OECD country from which the waste is to be exported.
40C Notice of variation
If the CEO makes a decision in relation to an application to vary a special 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.
Note: For further statements the notice must include, see section 58 of the Act.
Subdivision B—Varying special permits: on CEO’s initiative
41 Varying special permits on CEO’s initiative—grounds
(1) The CEO may, in writing, decide to vary a special permit if the CEO is satisfied that:
(a) the holder of 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 holder was reasonably able to have done so; or
(b) the holder of the permit:
(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 the 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.
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 of the Act.
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 of the Act, a notification given under subsection 33G(1) of the Act, or other prescribed operations: see section 50 of the Act.
(2) Regulation 33 applies to the imposition or variation of a condition under this regulation as if a reference in regulation 33 to the grant of a special permit were a reference to a variation of a special permit.
41A Varying special permits—notice of proposed variation
(1) Despite regulation 41, the CEO must not vary a special permit under that regulation unless:
(a) the CEO has given a written notice to the holder of the permit in accordance with subregulation (2) of this regulation; 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.
41B Notice of variation
(1) If the CEO decides under regulation 41 to vary a special 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.
Note: For further statements the notice must include, see section 58 of the Act.
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 41A(1)(a) that included the invitation referred to in paragraph 41A(2)(c), the day stated under paragraph (1)(c) of this regulation 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.
41C Exhaustive 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.
Part 5—Miscellaneous
42 Pre‑consent of recovery facilities
(1) The CEO 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 CEO must not give pre‑consent to a facility unless the CEO 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 CEO may give a pre‑consent under subregulation (1) for a specified period of time.
(4) The CEO 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.
43 Review of decisions
Application may be made under the Administrative Review Tribunal Act 2024 to the Administrative Review Tribunal for review of a decision of the CEO:
(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.
Part 6—Application and transitional provisions
Division 1—Transitional matters relating to the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021
44 Application of amendments—special permits
Granting special permits
(1) The amendments of Parts 2 and 3 made by the amending instrument apply in relation to the following:
(a) an application for a special permit made on or after the commencement day;
(b) an application for a special permit made before that day if the application is varied on or after that day.
Revoking or varying special permits
(2) The amendments of Part 4 made by the amending instrument apply in relation to the following:
(a) a decision on or after the commencement day whether to revoke a special permit;
(b) an application made on or after that day for a variation of a special permit;
(c) a decision, on the CEO’s own initiative, on or after that day whether to vary a special permit;
whether the permit was granted before, on or after that day.
Definitions
(3) In this regulation:
commencement day means the day the amending instrument commences.
