Dodd and Dodd Group Pty Ltd and Minister for Sustainability, Environment, Water, Population and Communities and Australian Refined Alloys Pty Ltd (Joined Party) and Club Assist Pty Ltd (Joined Party) and Renewed Metal Technologies Pty Ltd (Joined Party) and Hydromet Corporation Ltd (Joined Party) [2010] AATA 957 (30 November 2010)
[2010] AATA 957
Administrative Appeals Tribunal of Australia|2010-11-30
respondent. Decision under review affirmed; the Tribunal refused to grant the applicant a special export permit to export 4,000 tonnes of ULABs in 2010, exercising its discretion under reg 16(4) of the OECD...
Key principles
Under reg 16(4) of the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 the Minister (and the Tribunal on review) may refuse a special export...
Where Australian facilities have the capacity to dispose of hazardous waste safely, efficiently and in an environmentally sound manner, the desirability in the Basel Convention...
Economic efficiency and commercial advantages to an applicant are relevant but may be given little weight where they conflict with Australia's international obligations under the...
Issues before the court
Whether the hazardous waste (4,000 tonnes ULABs) could be disposed of safely and efficiently by using a facility in Australia (reg 16(4)(a))
Whether such disposal would be consistent with the 'environmentally sound management' of the waste (reg 16(4)(b))
Whether, having regard to the desirability of using facilities in Australia, the waste should be disposed of in Australia rather than exported (reg...
Plain English Summary
The applicant sought permission to export 4,000 tonnes of used lead acid batteries from Western Australia to South Korea for recycling. The delegate refused the export permit. On review, the Tribunal found that Australian processors had the capacity and environmentally sound processes to handle the batteries domestically, and that Australia’s international obligations under the Basel Convention favour disposal in the State of generation. Economic and competition arguments favouring export were considered but given little weight because they primarily served the applicant's commercial interests and conflicted with the public interest in using Australian facilities. The Tribunal therefore affirmed the refusal and denied the export permit.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,649 words · generated 20/06/2026
What happened
Dodd & Dodd Group Pty Ltd applied for a "special export permit" under the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (the OECD Regulations) to export 4,000 tonnes of used lead acid batteries (ULABs) from Western Australia to South Korea for recycling for the 2010 calendar year. The Minister's delegate refused that permit on 1 March 2010. The applicant sought merits review by the Administrative Appeals Tribunal. Joined parties, domestic processors and collectors (Australian Refined Alloys (ARA), Club Assist, Renewed Metal Technologies (RMT), and Hydromet), intervened supporting the proposition that domestic facilities could and should manage the batteries.
Weight to be given to economic efficiency, competition and international trade obligations in exercising discretion under reg 16(4)
Cited legislation
4 cited instruments linked from this judgment.
The Tribunal (Deputy President S D Hotop) conducted a merits review, analysed the statutory requirements in reg 16 of the OECD Regulations (which implements the OECD Decision and operates within the framework of the Hazardous Waste Act 1989, giving effect to the Basel Convention), examined the evidence of domestic processing capacity and safety/environmental standards, and considered the applicant’s arguments about commercial efficiency, public interest, transport risk and international trade obligations. The Tribunal concluded that the statutory conditions in reg 16(4)(a)–(c) were satisfied (domestic disposal was practicable, environmentally sound, and, given the desirability of using Australian facilities, the waste should be disposed domestically) and exercised its discretion to refuse the export permit, affirming the delegate’s decision.
Key factual inputs included industry evidence as to plant processing capacities (ARA ~65,000 tpa, RMT ~46,000 tpa, Hydromet ~36,000 tpa, aggregate c.147,000 tpa) and estimates of national ULAB arisings (~90,000–110,000 tpa, credible market estimate c.100,000 tpa). Collectors and processors also gave evidence about transport practices, licences, packaging standards and absence of reported incidents on interstate shipments.
Why the court decided this way
Statutory framework
Reg 16(1) sets preconditions for a special export permit; reg 16(4) gives the Minister (and thus the Tribunal on review) a discretion to refuse a permit if three conditions are satisfied: (a) the hazardous waste could be disposed of safely and efficiently using an Australian facility; (b) such disposal would be consistent with environmentally sound management; and (c) having regard to the desirability of using domestic facilities, the waste should be disposed in Australia rather than exported.
Basel Convention context
The Act gives effect to the Basel Convention; the Convention, including its Preamble and Article 4, favours minimising transboundary movements and disposing of waste where generated, subject to limited exceptions. The Tribunal treated those international obligations as the principal lens for exercising the reg 16(4) discretion (see Tribunal reasoning about the desirability of domestic disposal consistent with Basel).
Application of law to facts
The applicant conceded that domestic processors (ARA, RMT, Hydromet) used environmentally appropriate smelting and recycling processes. The Tribunal accepted that concession and reviewed documentary evidence (licences, facility descriptions, industry submissions) and concluded that domestic facilities could safely and efficiently dispose of the 4,000 tonnes and that such disposal would be environmentally sound.
The Tribunal compared national processing capacity (c.147,000 tpa) to domestic arising (c.100,000 tpa) and concluded there was capacity to absorb the 4,000 tonnes.
The Tribunal considered the applicant’s public interest arguments (competition impacts; collection rates), transport risk arguments (increase in interstate shipments exposing long road/rail routes to accident risk) and international economic/trade arguments (OECD/WTO/liberalisation and competition policy). It found no persuasive evidence that refusal would limit competition or reduce collections, and accepted industry evidence that interstate transport had not resulted in incidents, reducing the weight of transport-risk contentions.
On international/competition arguments, the Tribunal accepted economic efficiency is a relevant factor but concluded the applicant’s economic arguments were primarily commercial advantages to the applicant and were outweighed by Australia's Basel obligations and the public interest in developing and using domestic recycling capacity.
Discretion exercised
Having found the three reg 16(4) limbs satisfied, and no overriding considerations in favour of export, the Tribunal exercised the discretion conferred by reg 16(4) to refuse the permit.
Before and after state of the law
Before
The OECD Regulations require permits for export of hazardous wastes as part of implementation of the Basel Convention and the OECD Decision. Reg 16 contained an express discretion to refuse where domestic disposal is feasible and desirable.
After (as clarified by this decision)
The decision consolidates that, in the Tribunal’s view, where domestic processing capacity exists and disposal would be environmentally sound and efficient, the statutory preference (rooted in the Basel Convention) for domestic disposal will carry decisive weight in exercising the reg 16(4) discretion.
Economic efficiency and competition considerations remain relevant but will not displace the presumption in favour of domestic disposal where domestic capacity exists and environmental soundness is established.
Practical effect
Export permit applicants who can demonstrate only applicant‑specific commercial advantages, without showing absence of domestic capacity or environmental inadequacy, will face a high hurdle. Domestic processors and public interest considerations (development of national capacity) will be influential.
Tribunal language: "The Tribunal is satisfied that the matters referred to in paras (a), (b) and (c) of reg 16(4) ... are fulfilled in this case."
Translation: The Tribunal found that (a) the batteries could be handled in Australia safely and efficiently; (b) Australian processing would meet the Act’s environmental standard; and (c) given the desirability of using domestic facilities, the batteries should be managed within Australia.
On transport risk:
Tribunal language: "On the whole of the evidence ... the Tribunal is not satisfied that the transportation of ULABs by road or rail from Western Australia ... poses a significant risk ..."
Translation: The Tribunal accepted industry evidence that interstate transport has not created significant accidents or incidents, so the argument that refusing the permit would cause unacceptable transport risk lacked persuasive proof.
On economic efficiency:
Tribunal language: "the economic efficiency considerations ... relate substantially ... to the applicant's own commercial interest and are clearly outweighed by Australia's ... obligations under the Basel Convention ..."
Translation: While money and convenience matter, those factors cannot trump Australia's international obligations and the public interest in building domestic recycling capacity, especially when the claimed economic benefits are primarily for the exporter.
Dispositional conclusion:
Tribunal language: "the Tribunal concludes ... that that quantity of ULABs should be disposed of by using that facility rather than according to the [applicant's] export proposal."
Translation: The Tribunal decided the batteries should be recycled in Australia, not shipped overseas, and so refused the permit.
(Bracketed paragraph citations in the Tribunal's reasons identify where these points are developed.)
What fact patterns trigger this precedent
This decision is directly applicable where:
A permit is sought under the OECD Regulations to export hazardous waste from Australia for recovery/recycling;
Domestic facilities exist that are licensed, competent and have demonstrable capacity to handle the proposed quantity without compromising environmental protection (evidence of licences, capacity, processes);
The applicant advances primarily commercial/economic efficiency reasons to export (e.g., better price offshore, logistics advantages) rather than proof of domestic incapacity or environmental risk;
There is a relevant international instrument (Basel Convention/OECD Decision) that prefers domestic disposal where feasible.
Less likely to allow export:
Cases where domestic capacity demonstrably cannot meet the demand (quantitatively or technically);
Where domestic disposal would pose environmental or human health risks not present with export;
Where the import State’s recovery operation provides essential raw material inputs that cannot reasonably be sourced domestically (an Article 4(2)(b) Basel Convention exception).
How later courts have treated it
(Restriction: deep dive must rely only on the source judgment. The Tribunal itself framed reasoning rooted in the Act and international instruments and distinguished commercial efficiency from public interest obligations. The judgment did not cite later appellate treatment. Users should check subsequent authorities for citation history. Within the judgment the Tribunal accepted the validity of reg 16 and considered OECD/Basel instruments central. This decision will operate as persuasive AAT authority on how reg 16(4) should be applied on similar facts.)
Still-open questions
Quantitative threshold for "capacity", The Tribunal accepted aggregate capacity figures and national arising estimates to conclude domestic capacity sufficed. It did not lay down a formula or clear quantitative test for when domestic capacity is insufficient. Future decisions may need to clarify the evidential standard and margin of surplus/deficit that will permit export.
Weighting of economic efficiency, The Tribunal accepted economic efficiency is relevant but gave it little weight here. It remains open what degree or nature of economic efficiency, or what substantial public benefit tied to trade liberalisation, could outweigh Basel-driven domestic disposal preferences.
Interplay with multilateral/bilateral agreements, Article 11 of the Basel Convention allows compatible arrangements; the Tribunal prioritised Basel/OECD instruments. How specific bilateral trade obligations or WTO arguments should be weighed when domestic capacity exists but commercial arrangements are long-term remains unresolved.
Evidence sufficient to show transport risk, The Tribunal required persuasive evidence of actual risk or incidents to give weight to transport safety concerns. The precise nature and quantum of evidence needed to overturn the presumption favouring domestic disposal is not specified.
Procedural expectations from prior permits, The Tribunal rejected a claim that prior permits create a legal expectation of renewal. Yet transparency and predictability of permit regimes remain practical concerns; future applicants may seek guidance on procedural fairness and legitimate expectation in this regulatory context.
Practical tip for practitioners: when seeking an export permit under reg 16, an applicant should prepare robust evidence that (i) domestic capacity is genuinely inadequate (with quantitative support), or (ii) domestic facilities cannot manage the waste in an environmentally sound manner, or (iii) there exist overriding public interest or international obligations that favour export despite domestic capacity. Merely showing better commercial terms offshore is unlikely to succeed where Basel/OECD policy preferences and proven domestic capacity point the other way.
Judgment (46 paragraphs)
[1]
The applicant's case is comprised of its Statement of Facts, Issues and Contentions (including Attachments A-E (Exhibit 1)) and:
copy of Allianz Australia Insurance Ltd Certificate of Currency, dated 7 September 2010 (Exhibit 2);
copy of a letter from Sadlier's Transport Co (NSW Pty Ltd to the applicant, dated 1 October 2010, containing a quotation for the transportation of "controlled waste batteries" from Perth to destinations in New South Wales (Exhibit 3).
[2]
To the extent that it is necessary for it to do so, the Tribunal will refer to the applicant's contentions and any supporting evidence in the analysis which follows.
[3]
The function of the Tribunal is to decide, having regard to the whole of the evidence before it, whether a special export permit for the export of 4,000 tonnes of ULABs in the year 2010 should, or should not, be granted to the applicant under reg 16 of the OECD Regulations.
It is common ground that the Tribunal should be satisfied that all of the matters referred to in paras (a)-(h) of reg 16(1) are fulfilled in this case and, accordingly, the grant of a special export permit to the applicant is not prohibited by that subregulation.
The matter for the Tribunal's consideration and determination is, therefore, whether or not the grant of a special export permit (as described above) to the applicant should be refused under subreg (2), (3) or (4) of reg 16 of the OECD Regulations.
The Tribunal notes at the outset that, although the applicant contended that, by reason of its previous successful applications for a special export permit under the OECD Regulations (referred to in paragraph 2 above), it "could reasonably have expected" that its application for a special export permit for the export of ULABs in the year 2010 would likewise be successful, such a reasonable expectation would not legally require the making of a favourable decision, or legally preclude the making of an adverse decision, in respect of the applicant's application for a special export permit in respect of the year 2010. As previously indicated, the Tribunal's function is to make what it considers to be the preferable decision on the applicant's application for a special export permit under the OECD Regulations in respect of the year 2010, having regard to the whole of the evidence before it.
[4]
Should the grant of a special export permit to the applicant be refused under reg 16(4) of the OECD Regulations?
[5]
Pursuant to reg 16(4) of the OECD Regulations, the Tribunal has a discretionary power to refuse to grant a special export permit to the applicant if it is satisfied that the matters referred to in paras (a), (b) and (c) of that subregulation are fulfilled.
[6]
Could the hazardous waste be disposed of safely and efficiently by using a facility in Australia (reg 16(4)(a))?
[7]
Would such a disposal be consistent with the environmentally sound management of the waste (reg 16(4)(b))?
[8]
These two questions can conveniently be addressed together.
The applicant has conceded that:
"the used lead acid batteries are treated appropriately" at each of the facilities operated by ARA, RMT and Hydromet; and that
the smelting and recycling processes used at each of those facilities are "environmentally appropriate".
[9]
The Tribunal understands that that concession constitutes a concession that:
[10]
the relevant "hazardous waste" - namely, the quantity of ULABs, the subject of the applicant's application for a special export permit - "could be disposed of safely and efficiently", within the meaning of para (a) of reg 16(4), at each of the facilities operated by ARA, RMT and Hydromet; and that
"such a disposal would be consistent with the environmentally sound management of the waste", within the meaning of para (b) of reg 16(4).
[11]
The Tribunal notes that the expressions "disposal" and "environmentally sound management", in relation to hazardous waste, are defined in the Act and that those expressions in the OECD Regulations have the same meaning as in the Act: see the Note at the end of reg 4(1) of the OECD Regulations and s 13(1) of the Legislative Instruments Act 2003 (Cth).
The word "disposal" is defined in s 4 of the Act to mean:
[12]
" an operation specified in Annex IV to the Basel Convention".
[13]
There is no dispute that the smelting and recycling processes used in each of the facilities operated by ARA, RMT and Hydromet fall within that definition.
[14]
As regards the phrase "environmentally sound management", in relation to hazardous waste, s 4E of the Act provides:
[15]
" A reference in this Act to theenvironmentally sound managementof hazardous waste is a reference to taking all practicable steps to ensure that the waste is managed in a manner that will protect human health, and the environment, against the adverse effects that may result from the waste."
[16]
There is likewise no dispute that the smelting and recycling processes used in each of the facilities operated by ARA, RMT and Hydromet would be consistent with the "environmentally sound management" (as so defined) of the relevant "hazardous waste".
[17]
The Tribunal has had regard to the descriptions of their ULAB recycling processes provided by ARA, RMT and Hydromet, referred to in paras 42, 44 and 46 of the decision under review (T54, pp 388-390), and notes that those descriptions have not been disputed by the applicant. The Tribunal is satisfied, on the basis of that material, that the recycling processes used in each of the facilities operated by ARA, RMT and Hydromet would involve disposal of the relevant "hazardous waste" in a manner which is safe, efficient and environmentally sound.
Accordingly, the Tribunal is satisfied that:
the relevant "hazardous waste" - namely, the quantity of ULABs in respect of which the applicant has applied for a special export permit for the period 1 January-31 December 2010 - "could be disposed of safely and efficiently by using a facility in Australia", within the meaning of para (a) of reg 16(4) of the OECD Regulations; and
"such a disposal would be consistent with the environmentally sound management of the waste", within the meaning of para (b) of reg 16(4) of the OECD Regulations.
[18]
Having regard to the desirability of using facilities in Australia for the disposal of hazardous waste, should the waste be disposed of by using that facility rather than according to the export proposal (reg 16(4)(c))?
[19]
The stated premise of para (c) of reg 16(4) - namely, "the desirability of using facilities in Australia for the disposal of hazardous waste" generated in Australia - is consistent with Australia's obligations under the Basel Convention (see paragraphs 7 and 8 above). The Explanatory Memorandum relating to the Hazardous Waste (Regulation of Exports and Imports) Bill 1989 (being the Bill for the Act) similarly notes (at para 24):
[20]
" ... The Basel Convention strongly discourages the export of hazardous waste if a country is able to safely dispose of that waste within its own territory.
..."
[21]
Accepting that premise, the question whether the relevant "hazardous waste" (namely, the quantity of ULABs, the subject of the applicant's application for a special export permit for the year 2010) should be disposed of by using facilities in Australia rather than by exporting it to South Korea for the purpose of disposal in that country (as proposed by the applicant) primarily requires a consideration of the present capacity of facilities in Australia to dispose of that waste safely, efficiently and in an environmentally sound manner.
According to the evidence before the Tribunal, the present capacity of the facilities operated by ARA, RMT and Hydromet in Australia to process ULABs is as follows:
the total processing capacity of the two facilities operated by ARA, in Laverton North, Victoria and in Alexandria, New South Wales, is 65,000 tonnes of ULABs per annum (see paras 3 and 7 of the Statement of Todd Vains (Exhibit 6) set out in paragraph 16 above);
the processing capacity of the facility operated by RMT at Bomen (near Wagga Wagga) in New South Wales is 46,000 tonnes of ULABs per annum (see para 3 of the Statement of Wayne Richardson (Exhibit 4) set out in paragraph 17 above);
the processing capacity of the facility operated by Hydromet in Unanderra, New South Wales is 36,000 tonnes of ULABs per annum (see para 4 of the Statement of Gregory Wrightson (Exhibit 12) set out in paragraph 21 above).
[22]
The present total processing capacity of the abovementioned facilities is, therefore, 147,000 tonnes of ULABs per annum.
[23]
The Tribunal has previously expressed its satisfaction that the processes for recycling ULABs used in each of the abovementioned facilities involve the disposal of ULABs in a safe, efficient and environmentally sound manner.
There is evidence before the Tribunal which indicates that the total quantity of ULABs generated in Australia per annum is substantially less than the abovementioned total processing capacity in Australia of 147,000 tonnes of ULABs per annum. More specifically, Mr Richardson, in para 6 of his abovementioned Statement, refers to a range of "approximately 90,000 to 110,000 tonnes of ULAB per annum" and a "credible market estimate of 100,000 tonnes per annum". The applicant has acknowledged, in its Statement of Facts, Issues and Contentions, that "ULAB arisings in Australia will approximate 100,000-105,000 tonne in 2010".
Having regard to the abovementioned considerations, the Tribunal is satisfied that the quantity of 4,000 tonnes of ULABs, the subject of the applicant's application for a special export permit for the year 2010, could readily be disposed of safely, efficiently and in an environmentally sound manner by using one or more of the facilities operated in Australia by ARA, RMT and Hydromet.
The applicant has, however, advanced various contentions in support of its argument that its proposal to export 4,000 tonnes of ULABs in 2010 should be preferred to the disposal of that quantity of ULABs by using facilities in Australia, and, more generally, that its application for a special export permit under the OECD Regulations for the export of 4,000 tonnes of ULABs in 2010 should be approved. Those contentions may be summarised as follows:
the refusal to grant a special export permit to the applicant would not be "in the interest of the public of Western Australia" because it would have the effect of:
- "limiting competition in Western Australia"; and
- reducing the quantity of ULABs collected in Western Australia for recycling purposes;
such refusal would not be in the wider Australian public interest because it would also have the effect of increasing the quantity of ULABs transported by road or rail from Western Australia to the Australian processing facilities, all of which are located in New South Wales and Victoria, "a distance of 3,500 km-4,000 km, much of which is devoid of infrastructure to respond to an accident or incident" ("the public interest contentions");
[24]
The Tribunal notes that the above summary does not include every contention made by the applicant in its 21-page Statement of Facts, Issues and Contentions but, in the Tribunal's opinion, it represents the essence of the applicant's case in support of its application for the relevant special export permit.
[25]
The Tribunal will now address each of the applicant's contentions (as summarised above).
[26]
Although the Tribunal accepts that it is in the public interest, in both the Western Australian and Australian contexts, to promote competition in the ULAB collection industry in Western Australia and to increase the quantity of ULABs collected in Western Australia for recycling, the Tribunal is not satisfied that the refusal to grant the relevant special export permit to the applicant would be likely to have the effect of limiting such competition or reducing such quantity, as contended by the applicant. No persuasive evidence in support of that contention has been provided by the applicant. There is, however, evidence before the Tribunal which, in the Tribunal's opinion, clearly indicates that there is increasing competition for the collection of ULABs, and increasing quantities of ULABs being collected, in Western Australia (see the evidence of Mark Thomas, Todd Vains, and Wayne Allen) and, having regard to the substantial surplus capacity to process such ULABs in Australia (see paragraph 38 above), the Tribunal is satisfied that that trend is unlikely to be adversely affected by the refusal to grant the relevant special export permit to the applicant.
The Tribunal naturally accepts that it is in the public interest that ULABs collected in Western Australia be transported safely to processing facilities, whether interstate or overseas. The applicant has asserted, however, that the refusal to grant the relevant special export permit to it is not in the public interest because it will result in a greater quantity of ULABs being transported by road or rail from Western Australia to processing facilities in New South Wales and Victoria over a distance of approximately 3,500 - 4,000 kilometres "most of which is devoid of infrastructure to respond to an accident or incident". The unstated premise of the applicant's assertion is that a significant increase in the quantity of ULABs so transported will significantly enhance the risk of harm or damage to human health or the environment by accident. The Tribunal accepts that a significant increase in the quantity of ULABs transported from Western Australia to New South Wales or Victoria, necessitating an increase in the number of road or rail journeys for the purpose of so transporting such ULABs, will involve a greater risk of accident occurring during transit. The applicant, however, has produced no evidence of any such accidents or incidents in support of its assertion, other than an unsubstantiated reference, in the course of its oral submissions, to "a recent accident involving a truck carrying batteries on the Freeway". There is, on the other hand, evidence before the Tribunal which indicates that, to date, there have been no reports of accidents or incidents involving harm or damage to human health or the environment in the course of road or rail transport of ULABs from Western Australia to New South Wales or Victoria (see the Statement of Todd Vains, para 17, and the Statement of Wayne Allen, paras 16 and 17, set out in paragraphs 16 and 19 above). On the whole of the evidence before it, the Tribunal is not satisfied that the transportation of ULABs by road or rail from Western Australia to New South Wales or Victoria poses a significant risk of harm or damage to human health or the environment.
[27]
The applicant, in support of its contention, cited relevant passages from the OECD's Guidance Manual for the Implementation of the OECD Recommendation C (2004) 100 on Environmentally Sound Management (ESM) of Waste (2007) (part of Exhibit 16) and from the website of the WTO.
The Tribunal is not satisfied, having regard to the whole of the evidence before it, that the refusal to grant the relevant special export permit to the applicant would be inconsistent with any of Australia's international obligations as a Member of the OECD or the WTO. In any event, the Tribunal is of the opinion that, for the purpose of exercising the power conferred by reg 16 of the OECD Regulations, the greatest weight should be attached to Australia's obligations under the Basel Convention and the OECD Decision which the Act (under which the OECD Regulations were made) and the OECD Regulations, respectively, were intended to implement. In this connection, the Tribunal notes, in particular, Article 4(2) and (9) of the Basel Convention (see paragraph 8 above).
[28]
This contention is based on a report entitled: The Hazardous Waste (Regulation of Exports and Imports) Act 1989 - A National Competition Policy Review (February 2001) prepared by The Allen Consulting Group for Environment Australia and the Commonwealth Government (part of Exhibit 16). The applicant cited, in particular, the following passages from that report:
legal advice provided by the solicitors commissioned by the Review Team which states, in relation to the conditions for the refusal to grant a special export permit under subregs (2), (3) and (4) of reg 16 of the OECD Regulations, as follows:
[29]
" ...
These conditions strictly exceed the requirements of the OECD Decision. They also exceed the requirements of Article 11 of the Basel Convention which provides at (2) that the provisions of the Basel Convention will not apply to Article 11 agreements provided that the agreements are consistent with environmentally sound management of hazardous waste as required by the Basel Convention." (p 71);
[30]
the following suggestion made by the Review Team:
[31]
" export permits - if wastes can be recovered in an appropriate manner overseas at a significant cost and/or quality advantage then this should be an indicator that the domestic market is less competitive. This should be a factor that is taken into account by EA and the Minister;" (p 73).
[32]
The Tribunal accepts that reg 16 of the OECD Regulations is valid. The applicant has not contended otherwise; nor, in the Tribunal's opinion, does the legal advice referred to in the preceding paragraph question the validity of reg 16.
As regards the abovementioned suggestion of the Review Team, the Tribunal accepts that economic efficiency in respect of the management of hazardous waste is a relevant consideration in deciding whether to exercise the discretionary power to refuse to grant a special export permit under reg 16 of the OECD Regulations. The Tribunal notes that clause 8 of the Preamble to the OECD Decision states:
[33]
" 8. Recognising that the environmentally sound and economically efficient recovery of wastes may justify transboundary movements of wastes between Member countries;".
[34]
The applicant's economic efficiency contention is considered below.
[35]
The essence of the applicant's economic efficiency contention appears from the following submissions:
[36]
" Exporting the waste as detailed in the Application:
(i) attracts globally competitive prices for the ULABs which are demonstrably higher than those offered by the Australian processors;
(ii) costs approximately half the cost of road or road/rail freight from Perth to the Australian processors located in New South Wales and Victoria;
(iii) provides a 12 month contract which facilitates planning essential to the maintenance of the collection activities beyond the 30 day selling price horizon offered by the Australian processors;
(iv) ensures Dodd is able to maintain and further develop its established collection networks, the success of which is demonstrable and well known to the Respondent;
(v) underwrites payment by irrevocable letter of credit on the day the ship departs Fremantle compared with the Australian processors whose payment terms vary from 14 days to 45 days from the date of despatch;
(vi) facilitates selling ULABs on a fortnightly/monthly shipping cycle irrespective of tonnage without any effect on pricing, compared with the Australian processors whose pricing structures are tonnage and 'market' driven at their sole discretion;
(vii) ensures ULABs are shipped regularly for recycling, obviating the need to stockpile large quantities in Perth to attract competitive prices from the Australian processors;
(viii) eliminates the need to transport hazardous waste up to 4,000 km by road or road/rail, much of which is devoid of infrastructure capable of responding to an accident or incident involving hazardous waste." (Applicant's Statement of Facts, Issues and Contentions, pp 13-14)
[37]
Although (as previously stated) economic efficiency in respect of the management of hazardous waste is a relevant consideration for the purposes of subregs (2), (3) and (4) of reg 16 of the OECD Regulations, the Tribunal attaches little weight to it in the present case. It seems to the Tribunal that the economic efficiency considerations relied on by the applicant relate substantially, if not primarily, to the applicant's own commercial interest and are clearly outweighed by Australia's abovementioned obligations under the Basel Convention and the associated public interest in developing recycling facilities in Australia for ULABs generated in Australia.
[38]
Conclusion regarding para (c) of reg 16 (4) of the OECD Regulations
[39]
Having considered the contentions set out in the applicant's Statement of Facts, Issues and Contentions, the Tribunal is not persuaded that the quantity of ULABs, the subject of the applicant's application for a special export permit under the OECD Regulations for the period 1 January - 31 December 2010, should be disposed of in accordance with the applicant's export proposal rather than by using the existing facilities in Australia for the disposal of that quantity of ULABs. On the contrary, the Tribunal concludes, having regard to the desirability of using such facilities in Australia, consistently with the Basel Convention, that that quantity of ULABs "should be disposed of by using that facility rather than according to the [applicant's] export proposal", within the meaning of para (c) of reg 16(4) of the OECD Regulations.
[40]
Conclusion regarding the exercise of the discretionary power conferred by reg 16(4) of the OECD Regulations
[41]
The Tribunal is satisfied that the matters referred to in paras (a), (b) and (c) of reg 16(4) of the OECD Regulations are fulfilled in this case. The Tribunal's discretionary power to refuse to grant a special export permit, pursuant to reg 16(4), is therefore enlivened in this case.
That discretionary power should be exercised in such manner as would promote, and not hinder, the object and purpose of the Act and the OECD Regulations. The object and "aims" of the Act are set out in paragraph 6 above, and the object of the OECD Regulations is set out in paragraph 12 above.
The Tribunal has concluded, for the purposes of para (c) of reg 16(4) of the OECD Regulations, that, consistently with Australia's obligations under the Basel Convention - see, in particular, Article 4(2)(b),(d) and Article 4(9)(a) - the quantity of ULABs proposed to be exported by the applicant in 2010 should be disposed of by using existing facilities in Australia rather than in accordance with the applicant's export proposal. Consistently with that conclusion, the Tribunal should exercise the residual discretionary power conferred by reg 16(4) to refuse to grant a special export permit to the applicant unless there are overriding considerations which oppose that course of action. In the Tribunal's opinion, having considered the whole of the evidence in this matter and the contentions advanced by the applicant, there are no such overriding considerations. Rather, the Tribunal is satisfied, on the basis of the evidence before it, that the preferable decision in this matter is that the applicant should not be granted a special export permit, pursuant to reg 16(4) of the OECD Regulations, to export the 4,000 tonnes of ULABs, the subject of its application for such a permit, in 2010.
[42]
It follows, from the abovementioned conclusion, that it is unnecessary for the Tribunal to consider whether it is appropriate to exercise the discretionary power conferred by reg 16(2) or reg 16(3) of the OECD Regulations. Suffice it to say, however, that the abovementioned analysis in respect of reg 16(4) would lead the Tribunal to a similar conclusion in respect of reg 16(2) and reg 16(3).
[43]
For the above reasons the Tribunal affirms the decision under review.
[44]
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
[45]
Signed: ......sgd E Jordan....................................................
[46]
Solicitor for the Respondent Australian Government Solicitor
Legislation Cited (4)
Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996
Appeals Tribunal Act 1975
Instruments Act 2003
Waste (Regulation of Exports and Imports) Act 1989
Cases Cited (1)
Dodd and Dodd Group Pty Ltd and Minister for Sustainability, Environment, Water, Population and Communities and Australian Refined Alloys Pty Ltd (Joined Party) and Club Assist Pty Ltd (Joined Party) and Renewed Metal Technologies Pty Ltd (Joined Party) and Hydromet Corporation Ltd (Joined Party) [2010] AATA 957 (30 November 2010)
AI Analysis
Outcomerespondent
Disposition:
Decision under review affirmed; the Tribunal refused to grant the applicant a special export permit to export 4,000 tonnes of ULABs in 2010, exercising its discretion under reg 16(4) of the OECD Regulations.
such refusal would be inconsistent with Australia's international obligations, as a Member of the Organisation for Economic Co-operation and Development ("OECD") and as a Member of the World Trade Organisation ("WTO"), to "remove barriers to competition" and to liberalise trade because it would create "an unnecessary obstacle to international trade of waste destined for recovery operations", contrary to the OECD Council Recommendation C (2004) 100 on the Environmentally Sound Management (ESM) of Waste ("the OECD and WTO contention");
such refusal would also be "in conflict with Australia's National Competition Policy" and would contravene the inter-governmental Competition Principles Agreement ("the National Competition Policy contention");
the grant of a special export permit to the applicant would not be inconsistent with Article 4.2(d) of the Basel Convention, and would be consistent with the OECD Council Revision of Council Decision C(92)39/Final on the Control of Transboundary Movements of Wastes Destined for Recovery Operations which recognised that "the environmentally sound and economically efficient recovery of wastes may justify transboundary movements of wastes between member countries" ("the economic efficiency contention").