Hazardous Waste (Regulation of Exports and Imports) Levy Act 2017

The Act operates around a small set of statutory concepts, each defined or invoked in the text.

• Hazardous waste permit application. The concept is defined by reference, not by content. Section 5 defines a hazardous waste permit application as an application made under ss 12, 13 or 13A of the Hazardous Waste (Regulation of Exports and Imports) Act 1989. The Act therefore depends on the 1989 Act to identify which applications are captured. The present Act does not reproduce or expand those application types.

• Levy and payer. The Act treats the charge as a “levy”. Levy is imposed on the hazardous waste permit application (s 7) and is payable by the applicant (s 8). There are no statutory exemptions or waivers contained in this Act.

• Amount and regulation ceiling. The core monetary figure is $4,616 (s 9(1)(a)). Parliament carved out a regulatory ceiling by allowing the regulations to prescribe “another amount not exceeding $6,000” (s 9(1)(b)), with the Governor‑General authorised to make regulations for that paragraph (s 10). That creates a bounded executive discretion to set a different flat amount, but not above $6,000.

• Indexation structure. The Act establishes an indexation day (s 5), being 1 July 2018 and each later 1 July. If the indexation factor for an indexation day exceeds 1, the levy amount is replaced on that day by the amount produced by the statutory formula in s 9(2). The indexation factor is itself calculated from CPI index numbers (s 9(4)), where “index number” is defined as the All Groups CPI weighted average of the eight capital cities as published by the Australian Statistician for a quarter (s 5). The Act prescribes numerical precision and rounding: the indexed amount is rounded to the nearest dollar with 50 cents rounded up (s 9(3)), and the indexation factor must be worked out to three decimal places with prescribed rounding of the fourth decimal (s 9(5)). The Act contains two procedural safeguards aimed at handling statistical reissues and CPI reference period changes, namely disregarding replacement index numbers where the Australian Statistician substitutes a later index number for an earlier publication (s 9(6)), and, if the Australian Statistician changes the CPI reference period, having regard only to index numbers published in terms of the new reference period for applying the section after that change (s 9(7)).

• Territorial and Crown operation. The Act extends to external Territories (s 4), binds State and Territory Crowns (s 3), but does not bind the Commonwealth Crown (s 3). The Act also contains an express non‑taxation of State property clause (s 6), which interacts with constitutional treatment of State property (the text references the meaning in s 114 of the Constitution by definition cross‑reference, s 5).

These concepts together create a charging regime tied to a pre‑existing permit system, indexed by CPI, with a capped allowance for regulatory adjustment. The Act is silent on collection procedure, on refund or waiver practice, and on administrative enforcement measures within its own text.

The Act’s immediate economic incidence is narrow and identifiable from the text.

• Permit applicants under the 1989 Act. The person who must pay the levy is the applicant who lodges an application defined as a “hazardous waste permit application” under ss 12, 13 or 13A of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (s 5; s 8). That includes any natural person, company, trust, partnership, government agency, or other legal entity that submits one of those specified applications. The Act does not carve out categories of applicants, nor does it provide exemptions for government agencies, private businesses, or individuals.

• Businesses dealing in hazardous waste exports and imports. Because the levy attaches to permit applications under the export/import hazardous waste regime, businesses that export or import waste requiring those permits will face the levy cost whenever they apply for the relevant permits. The Act fixes a per‑application charge rather than a recurring licence fee; the charge therefore affects each discrete application event.

• State and Territory governments. The Act binds the Crown in right of each State, and the Crown in right of the Australian Capital Territory and the Northern Territory (s 3). That means state and territory agencies are subject to the Act’s requirements. The Commonwealth Crown is not bound (s 3). The Act also contains an express provision that it does not impose a tax on property of any kind belonging to a State (s 6). The interaction between s 3 and s 6 is that while State Crown entities are within the operation of the Act, the Act is not to be treated as imposing a property tax on State property.

• External Territories. The Act extends to every external Territory (s 4), so applicants located or operating in external Territories are within its territorial ambit.

• The executive and statistician functions. The Australian Statistician is engaged indirectly: the CPI series the Act uses is the All Groups CPI number published by the Australian Statistician (s 5), and the Governor‑General has power to make regulations to prescribe another levy amount (s 10). Those actors do not, under the Act, carry enforcement roles, but they determine indexation values and potential new prescribed amounts.

Who does not have an immediate statutory obligation under this Act? The Act does not, on its face, impose obligations on permit‑issuing officials, nor does it impose a tax on State property (s 6). It also does not bind the Commonwealth Crown (s 3). The Act is narrowly targeted at applicants for specified hazardous waste permits; it does not create upstream obligations for senders of waste that do not require those specified permits.

The Act sets out a small number of clear duties and attendant numeric rules. Rights are implicit in the statutory structure rather than widely articulated.

Duties

• Duty to pay the levy. The principal duty is statutory: “Levy imposed on a hazardous waste permit application is payable by the applicant” (s 8). That duty is imposed at the time the application is the subject of the levy (s 7).

• Duty to account to statutory amount and prescribed ceiling. Applicants must pay the levy equal to the statutory base amount, currently $4,616 (s 9(1)(a)), unless the regulations prescribe a different amount within the capped limit of $6,000 (s 9(1)(b); s 10). That creates an obligation to check the regulations in force at the relevant time to determine the payable sum.

• Duty to accept indexation outcomes. From 1 July 2018 and each later 1 July (s 5), if the computed indexation factor exceeds 1 then the levy amount is replaced by the indexed amount calculated by the Act’s formula (s 9(2)). The Act fixes the method for calculating the indexation factor (s 9(4)) and prescribes rounding rules (ss 9(3) and 9(5)). Applicants therefore must accept the result of those statutory arithmetic rules when determining payment.

Rights and procedural features (as provided or implied)

• Right to a determinable levy quantum. The Act gives applicants a predictable, formulaic amount to be paid, either the fixed amount in s 9(1)(a) or a regulations‑prescribed amount not exceeding $6,000 (s 9(1)(b)). The indexation mechanism is formulaic and uses published CPI data, which is publicly available.

• Right to statutory clarity on indexation methodology. The Act prescribes the CPI series to be used, the reference and base March quarters for calculating the indexation factor (s 9(4)), rounding rules (ss 9(3), 9(5)), and handling of substituted index numbers and reference period changes (ss 9(6)-(7)). That reduces discretion in calculation of the indexed amount.

• Absence of express rights to refund, remission or review. The Act contains no provision for refund, remission, waiver, or administrative review of the levy. It also contains no procedural rules about when the levy is to be paid in relation to the application process, or what consequences attach to non‑payment. Those matters fall outside the text of this Act.

Delegations and rule‑making

• Regulatory power limited to prescribing a different amount. The executive, via regulations made by the Governor‑General, may prescribe another levy amount, but only within the ceiling of $6,000 (s 9(1)(b); s 10). The Act does not authorise regulations about collection procedures, exemptions, or enforcement mechanisms in this text; s 10 is expressly directed only to the purposes of paragraph 9(1)(b). That constrains the scope of delegated law insofar as the statutory text is read literally.

Administrative and constitutional constraints

• Crown operation and property limitation. The Act binds State and Territory Crowns (s 3) but not the Commonwealth. It also expressly provides it does not impose a tax on property belonging to a State (s 6). That language interacts with constitutional rules about State property and Crown immunity, and will inform how the levy applies to State entities and property, though the Act itself does not spell out detailed mechanics.

In short, the Act creates a clear monetary duty on identified applicants and a mechanistic indexing rule, but it does not contain procedural protections, collection or enforcement provisions, or exemptions beyond the constitutional non‑taxing of State property. The power to change the flat amount is delegated, but capped.

The Act contains no express penalty provisions or detailed enforcement machinery. The text provides only the imposition of the levy, the identity of the payer, the amount or formula for amount, rules for indexation, and a narrow regulation-making power (ss 7-10). From that textual silence, and only as far as the Act itself allows, the following observations flow.

No statutory penalty in the Act

• There are no fines, criminal offences, civil penalties, enforcement orders, or recovery mechanisms set out in this Act. The Act does not specify the consequences for failing to pay the levy, nor does it identify an enforcement agency or administrative process to be followed in the event of non‑payment.

Implications of silence

• Enforcement must be framed by other instruments or existing administrative processes. Because the levy relates to permit applications under the Hazardous Waste (Regulation of Exports and Imports) Act 1989, enforcement of the levy in practice is likely to be handled via the administrative procedures surrounding permit applications under that 1989 Act. However, this Act itself does not state that, and it does not create a debt recovery pathway, or authorise suspension of processing for non‑payment. Users must therefore look to the 1989 Act and to any regulations or administrative directions made under it or under other statutes to identify how non‑payment is treated in practice.

Regulation‑making power limited to amount

• The Governor‑General is empowered to make regulations for the purposes of paragraph 9(1)(b) (s 10). Paragraph 9(1)(b) is limited to prescribing another amount not exceeding $6,000. The Act does not permit, within s 10, regulations that create penalties or enforcement processes, at least not within the express object stated. If the executive wished to provide statutory enforcement mechanisms, separate regulation‑making powers elsewhere would need to be invoked, or the 1989 Act would need to provide the collection and enforcement machinery.

Administrative practice and risk

• Because the Act is silent, the practical enforcement architecture depends on the administering agency and any regulatory instruments associated with the 1989 Act. That creates implementation risk: unless collection and enforcement rules are set out elsewhere, applicants may face inconsistent administrative practice across different permit‑processing offices. Practitioners should locate any administrative guidance, fee schedules or procedural rules issued by the department responsible for the 1989 Act to understand how the levy is collected, the timing of payment, treatment of late payment, and any remission or refund policy.

Constitutional and Crown considerations

• The Act binds State Crowns (s 3) but not the Commonwealth Crown, and s 6 specifies the Act does not impose a tax on State property. The Act does not create special enforcement rules for Crown applicants. How enforcement against a State entity operates in practice may raise separate constitutional or intergovernmental issues, and again the Act contains no special penalty provisions to address them.

In short, the Act generates the liability and arithmetic rules for the levy, but leaves enforcement and penalty arrangements to be found in the broader administrative law framework and associated instruments. The enactment’s silence on penalties and collection is a material practical consideration for applicants and administrators.

The Act is narrowly framed to sit alongside the existing Hazardous Waste (Regulation of Exports and Imports) Act 1989 and with other Commonwealth administrative and fiscal instruments. The text explicitly cross‑references and depends on other legal and administrative actors in several ways.

Direct interaction with the 1989 Act

• Definition by reference. The Act defines the taxable trigger as a “hazardous waste permit application”, meaning an application under sections 12, 13 or 13A of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (s 5). The precise scope of the levy therefore depends on the content, scope and operation of those provisions in the 1989 Act. If the 1989 Act provides procedural rules for permit applications, payment, processing and conditions, those rules will be the primary operational environment for this levy, because the present Act provides no procedural detail. Any amendment to the 1989 Act that changes where or how such applications are taken could affect the application of the levy, because this Act ties itself to specific section numbers.

Constitutional and State property rules

• Crown operation. Section 3 binds the Crown in right of each State, and the Crown in right of the Australian Capital Territory and the Northern Territory. It does not bind the Commonwealth Crown. Section 6 states the Act does not impose a tax on property belonging to a State, using the same meaning as section 114 of the Constitution via the definition in s 5. The Act therefore interacts with constitutional principles about State property and fiscal powers, and may affect how State entities are treated compared with private applicants. The text makes clear that while State Crowns are subject to the Act, the Act is not to be construed as levying a tax on State property.

Interplay with the Australian Statistician’s publications

• Indexation depends on CPI data. The Act relies on CPI index numbers “published by the Australian Statistician” for the relevant quarters (s 5; s 9(4)). It further includes rules dealing with substituted index publications (s 9(6)) and with changes to the CPI reference period (s 9(7)). Those clauses require users to consult the Australian Statistician’s official publications when calculating indexation.

Regulation‑making and delegated legislation

• Limited regulatory scope. The Governor‑General may make regulations for the purposes of paragraph 9(1)(b) (s 10), that is, to prescribe another levy amount not exceeding $6,000. The Act does not, in its own terms, give the Governor‑General power to prescribe collection, enforcement, waiver, repayment or other procedural provisions under the same head, although other statute or delegated powers may exist elsewhere. Practitioners must check the regulations made under this Act and regulations under the 1989 Act for any fee schedules and procedural requirements.

Absence of express cross‑references to revenue use or taxation law

• The Act does not state where levy receipts are to be appropriated, nor does it describe the levy as a tax in terms of annual appropriation, nor does it specify a trust or earmarking. The Act also explicitly disclaims that it imposes a tax on State property (s 6).Therefore, interaction with Commonwealth appropriation, Public Governance, Performance and Accountability Act controls, or departmental receipts accounting will not be found in this Act and must be sourced from administrative practice or other statutes.

Potential interaction risks

• Dependence on external instruments for implementation. Because the Act supplies the liability but not the implementation mechanics, it must be read in tandem with the administrative law instruments, departmental practice statements, fees orders and the operative provisions of the 1989 Act. Changes in the 1989 Act, or in administrative practice, can therefore change the effective operation of the levy without any amendment to this Act.

In sum, the Act is designed to operate as a targeted charging provision that slots into the pre‑existing hazardous waste permit regime and relies on CPI publications and limited delegated rule‑making. The practical operation depends on the 1989 Act and on any regulations and administrative procedures made or maintained outside the text of this Act.

The legislation text provided contains only the original enactment material and a commencement table. The Act’s internal commencement table and the accompanying note emphasise that the table relates only to provisions as originally enacted and will not be amended to reflect later amendments. From the text given the following is explicit.

• Assent and original commencement. The Act was assented to on 22 February 2017. Sections 1 and 2 and anything not elsewhere covered in the table commenced on the day of Royal Assent, 22 February 2017 (s 2, table item 1). Sections 3 to 10 commenced on the later of 1 July 2017 and the day after Royal Assent; the table records that paragraph (a), 1 July 2017, applies (s 2, table item 2). The table also contains an editorial note stating it applies only to the provisions as originally enacted and will not be amended for later amendments.

• No amendments shown in source. The source material provided does not include any subsequent amendment, repeal, or consolidated text. The Act as reproduced shows only the original provisions and the commencement particulars. There is no material in the provided text indicating that the Act has been amended, that the regulations referred to have been made, or that any subsequent technical or substantive changes have been enacted.

• Regulation‑making power remains as originally enacted. Section 10, which gives the Governor‑General power to make regulations for paragraph 9(1)(b), is part of the original Act. There is no modification or later legislative change to that power in the source material.

• Indexation mechanics are part of the original Act. The detailed indexation provisions in s 9(2)-(7) are present in the original text and have not been shown as subsequently altered in the source material.

Practitioners should treat the Act as reproduced here as the original 2017 enactment and must consult up‑to‑date consolidated legislation and the Federal Register of Legislation for any later amendments, regulations, or omitted commencement adjustments. The source text itself contains the standard parliamentary second reading speech references but no later amendment notes.

The provided text contains no litigation history. It does not list any cases, judicial interpretations, or reported disputes arising under the Act. The Act text and the accompanying parliamentary material reproduced in the source include only the Minister’s second reading speeches references and the text of the Act itself. There is no schedule of decisions, no references to judicial review or case law, and no reported challenges included in the material supplied.

Because the Act is narrowly prescriptive about the levy quantum and indexation mechanics, potential litigation issues that could arise in future would include disputes about whether a given application falls within the scope of a “hazardous waste permit application” under the 1989 Act, the proper calculation of the indexation factor using the Australian Statistician’s CPI numbers, or constitutional challenges concerning application to State property despite s 6. None of those matters are adjudicated or mentioned in the provided source.

If litigation has occurred after the date of the source text, or if administrative decisions about collection, non‑payment, or treatment of Crown applicants have been judicially reviewed, those occurrences are not recorded in the material supplied. Users relying on this note for practice should search current legal databases and the Federal Register of Legislation for any case law, administrative determinations or binding tribunal decisions that post‑date the original enactment.

The Act is short and focused, but several concrete traps for practitioners and administrators arise from what it says and what it does not say.

1. The Act creates a payment obligation but contains no collection procedure or enforcement rules. The levy is “payable by the applicant” (s 8), but the Act does not specify when payment is due, what evidence is required, whether an application is invalid if unpaid, or what enforcement sanctions apply for non‑payment. Practically, collection and enforcement will depend on procedural rules under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 or on departmental practice. Do not assume the levy will be charged or collected in a particular way without checking the administering agency’s instruments.

2. Definition is by reference to specified sections of the 1989 Act. The Act captures applications under ss 12, 13 and 13A of the 1989 Act (s 5). If those section numbers or the structure of the 1989 Act are amended, the statutory trigger in this levy Act continues to point to those original section numbers only. That creates a brittleness risk if the 1989 Act is restructured, because the levy might not follow the substance of the application types unless the levy Act is amended to refer to the new provisions.

3. Regulations can change the amount, but only up to $6,000. The Governor‑General may make regulations prescribing another amount not exceeding $6,000 (s 9(1)(b); s 10). This is a narrow delegated power: it cannot, on its face, be used to change indexation, impose additional fees, or create exemptions, unless other regulatory provision exists elsewhere. Check the regulations to see whether a different flat amount has been prescribed. Also, be alert that the executive could, within the $6,000 cap, increase the per‑application cost significantly above the $4,616 base figure.

4. Indexation only operates if the indexation factor exceeds 1. The statutory replacement of the levy amount by an indexed amount occurs only when the indexation factor for an indexation day is greater than 1 (s 9(2)). Thus, in periods of CPI stagnation or deflation relative to the base period, indexation may not increase the levy, and could in some arithmetic scenarios leave it unchanged.

5. The indexation mechanism requires two particular March quarters. The indexation factor is calculated using the last March quarter before the indexation day as the reference March quarter, and the last March quarter before the reference March quarter as the base March quarter (s 9(4)). These temporal definitions can produce non‑intuitive results if the timing of publication of CPI data or a change of CPI reference period intervenes. The Act attempts to handle data replacements and reference period changes in ss 9(6)-(7), but calculating the factor requires careful reading of those provisions.

6. Rounding and precision matter. The indexation factor must be worked to three decimal places with specified rounding rules (s 9(5)). The indexed amount is rounded to the nearest dollar with 50 cents rounded up (s 9(3)). Small differences in rounding methodology could change the payable amount by a dollar or two.

7. Crown and State property subtleties. The Act binds State Crowns (s 3), but s 6 says it does not impose a tax on State property. It is not self‑evident from the text whether a State body applying for a permit would be required to pay the levy in the same way as private applicants, or whether any special accounting treatment applies. The Act does not provide procedural rules for state entities. Practitioners should consider obtaining state legal advice if a State agency is the applicant.

8. No stated destination for receipts. The Act does not identify where levy receipts are appropriated, whether funds are held by the administering department, or whether they are consolidated revenue. Do not assume earmarking or special accounting treatment based on the Act alone.

9. Limited regulatory scope. Section 10 authorises regulations “for the purposes of paragraph 9(1)(b)”. That suggests regulations under this Act may be limited to prescribing another amount not exceeding $6,000. If one expects comprehensive fee rules, collection timetables, or penalty provisions to be contained in regulations under this Act, that expectation may be misplaced unless other statutory powers are identified.

10. Administrative dependence on external publications. The indexation calculation depends on the Australian Statistician’s published CPI numbers. Practitioners must use the specific published series identified by the Act and must account for substituted publications or reference period changes per ss 9(6)-(7). Mistaking the CPI series or using a different publication could produce a miscalculation.

These points are concrete operational issues arising directly from the text of the Act as provided. They identify areas where further documentary searches and confirmations are required: the regulations made under the Act, the administrative instruments and fee schedules of the department that administers the 1989 Act, and any subsequent legislative amendments or judicial rulings.

Compliance requires aligning application practice under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 with the levy obligations created by this Act. The Act itself prescribes the payer and the quantum rules, but not procedural steps for collection. The following checklist is grounded in the Act and identifies practical steps an applicant or adviser should take.

1. Identify whether the application is captured. Start by confirming whether your application is made under s 12, s 13 or s 13A of the Hazardous Waste (Regulation of Exports and Imports) Act 1989. The levy applies only to those applications, because “hazardous waste permit application” is defined by that cross‑reference (s 5). If you cannot easily locate whether the application is captured, obtain the text of the 1989 Act and check the content and scope of those sections.

2. Determine who is the applicant for levy purposes. The levy is payable by the applicant (s 8). Where an application is lodged by an agent or a corporate entity, confirm which legal person qualifies as “the applicant” under the 1989 Act and ensure that entity is prepared to discharge the levy.

3. Confirm the current levy amount. The base statutory amount is $4,616 (s 9(1)(a)), but the regulations may have prescribed another amount not exceeding $6,000 (s 9(1)(b); s 10). Before lodging an application, check the current regulations and any departmental fee schedules to confirm the exact payable amount at that date.

4. Prepare for indexation dates. Indexation days are 1 July 2018 and each later 1 July (s 5). If you are applying on or after an indexation day, check whether the indexation factor for that day is greater than 1, and if so apply the indexation formula in s 9(2) using the CPI index numbers as defined in s 5 and described in s 9(4)-(7). Ensure calculation adheres to the rounding rules: indexation factor to three decimal places with rounding (s 9(5)), and final amount rounded to nearest dollar with .50 rounded up (s 9(3)).

5. Consult the Australian Statistician’s CPI publications. Use the All Groups CPI number that is the weighted average of the eight capital cities for the relevant quarters (s 5). For indexation, determine the reference March quarter (the last March quarter before the indexation day) and the base March quarter (the last March quarter before the reference March quarter) per s 9(4). Apply ss 9(6)-(7) if the Australian Statistician has published substituted index numbers or has changed the CPI reference period.

6. Confirm payment mechanics with the administering agency. Because this Act does not state the collection procedure, check the application forms, the online portal, the administering department’s guidance notes, and any fees orders under the 1989 Act to establish how and when to pay the levy, what payment methods are accepted, and what evidence of payment must accompany the application.

7. Retain documentary proof of payment. Given the Act lacks express procedural protections or refund rules, preserve receipts, bank records and any departmental acknowledgements showing payment of the levy in case of administrative queries or disputes.

8. Check for any departmental or regulatory exemptions, remissions or concessions. The Act contains no exemptions or remission powers for applicants. However, the administering agency may have policies or other statutory powers that provide relief in special circumstances. Don’t assume relief is available; locate any such policies and confirm their legal basis.

9. Account treatment and budgeting. Because the Act treats the levy as a per‑application charge, include it as a discrete application cost in project budgets. If applying for multiple permits, multiply accordingly. Monitor whether the executive makes any regulations increasing the flat fee up to $6,000 that could change budgeting.

10. Seek targeted legal advice in edge cases. If the applicant is a State entity, or if there are questions about whether the application falls within ss 12, 13 or 13A of the 1989 Act, obtain specific legal advice. The Act binds State and Territory Crowns (s 3) but includes s 6, which states it does not impose a tax on State property, and those provisions may present nuanced issues.

11. Monitor secondary materials. Because enforcement, collection details and administrative practice are not in this Act, monitor relevant departmental communications, the Federal Register of Legislation for any regulations made under this Act or the 1989 Act, and any administrative guidance that addresses the levy’s operational application.

Following these steps aligns an applicant with the statutory obligations as spelled out in the Levy Act. Remember that the Act sets the liability and arithmetic rules; operational compliance depends on the interplay between this Act, the 1989 Act, any made regulations, and administrative practice.