Hazardous Waste (Regulation of Exports and Imports) Regulations 1996
In ForceCTH
Jurisdiction
Commonwealth
Act Number
284 of 1996
Collection
legislative instrument
Plain English Summary
6/10 complexity
These regulations add detail to the Hazardous Waste (Regulation of Exports and Imports) Act 1989. They clarify that certain Basel Annex IX (List B) wastes are not treated as household waste unless mixed, require the Minister to notify foreign competent authorities with the Annex VA data for Basel export permit applications, and set specific record‑keeping, audit conduct and audit‑reporting rules. Permit‑holders, transit proposers, auditors and the Department must follow new documentation, retention (5 years), translation and reporting duties that affect compliance costs and operations.
The Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 establish the operational and administrative machinery required to implement the Hazardous Waste (Regulation of Exports and Imports) Act 1989. Mechanically, this instrument acts as a detailed regulatory framework that handles three main areas of environmental administration. First, it defines key boundary terms for waste classification. Second, it specifies the precise transboundary notification procedures required of the Australian Government under international treaty obligations. Third, it imposes strict compliance, record-keeping, and auditing obligations on private market participants and third-party auditors.
At its core, the instrument regulates how information flows between domestic permit holders, the federal environment department, and foreign competent authorities. Under section 5, when a person applies for a Basel export permit or a variation to an existing permit, the Minister is required to transmit the detailed technical information specified in Annex VA of the Basel Convention to the relevant foreign jurisdiction. This process ensures that importing and transit nations are fully informed of the nature of the hazardous materials before they enter their territory.
For private enterprises, the regulations establish a rigorous compliance and record-keeping regime under section 6. Any entity holding a permit, receiving a transit proposal notification, or subject to a ministerial order must systematically document their operations. The instrument also sets out the procedural standards for independent compliance audits under sections 7 and 8. It dictates how audits must be conducted to minimise operational interference and outlines the precise distribution and content requirements for the resulting audit reports.
Current sections
Direct links to the current provisions in Hazardous Waste (Regulation of Exports and Imports) Regulations 1996.
14
Part 1
Preliminary
Part 1—Preliminary
1
Name
1 Name
This instrument is the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996.
2
Authority
2 Authority
This instrument is made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
3
Definitions
3 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
Act means the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
4
Meaning of household waste
4 Meaning of household waste
For the purposes of the definition of household waste in section 4 of the Act, household waste does not include waste listed in Annex IX (List B) to the Basel Convention, unless the waste is mixed with other waste listed in Annex IX (List B) to that Convention.
Part 2
Basel export permits
Part 2—Basel export permits
5
Basel export permit—information to be notified to competent authority of a foreign country
5 Basel export permit—information to be notified to competent authority of a foreign country
For the purposes of subsections 16A(1) and 26C(1) of the Act, the information about:
(a) an application for a Basel export permit; or
(b) an application for a variation of a Basel export permit;
that the Minister is required to notify to a competent authority of a foreign country is the information mentioned in Annex VA to the Basel Convention about the application.
Part 3
Record keeping and audits
Part 3—Record keeping and audits
6
Record keeping
6 Record keeping
Requirement to make and retain records
(1) For the purposes of subsection 41D(1) of the Act, the following persons must make and retain the following records:
(a) for a person who holds a permit under the Act in relation to the import, export or transit of hazardous waste:
(i) each document (if any) that the person is required to keep in accordance with a condition of the permit; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the permit or any requirements of the Act or regulations made under the Act;
(b) for a person who has been notified under subsection 33G(1) of the Act that a transit permit is not required for carrying out a transit proposal—each document that:
(i) is made by the person or that comes into the person’s possession; and
(ii) is relevant to showing whether the criteria mentioned in paragraphs 33G(1)(a), (b), (c) and (d) of the Act are satisfied, or continue to be satisfied, for the transit proposal;
(c) for a person who has been given an order under Part 3 of the Act:
(i) each document (if any) that the person is required to keep in accordance with the order; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the order or any requirements of the Act or regulations made under the Act.
Period for which records must be retained
(2) A person who is required to retain records under this section must retain each such record for at least the period of 5 years starting on the day the record is made by the person or comes into the person’s possession.
Form in which records must be retained
(3) A person who is required to retain records under this section must retain each such record in a form that is:
(a) dated with the date the document is created or with the date the document comes into the person’s possession; and
(b) for a document created by the person—accurate and legible; and
(c) able to be audited; and
(d) in electronic or paper form.
(4) If a record is not in English, the person must obtain a translation of the record into English and retain the translation for at least the period of 5 years starting on the day the translation is obtained.
Alteration or defacing of records
(5) A person who is required to retain a record under this section must:
(a) not alter or deface the record; and
(b) take reasonable steps to prevent the record from being altered or defaced by another person.
(6) However, subsection (5) does not prevent a person from making notations or marking on the record in accordance with any ordinary practice.
(7) If a person makes notations or markings on the record in accordance with ordinary practice, the person required to retain the record under this section must also retain, for at least the period mentioned in subregulation (2) or (4) (as applicable):
(a) if reasonably practicable—a copy of the original record without notations or markings; and
(b) copies of the record that show how the record has changed over time.
Note: A person may commit an offence of strict liability or be liable to a civil penalty if the person is required to retain a record in accordance with this provision and the person fails to comply with the requirement (see subsections 41D(4) and (5) of the Act).
7
Conduct of audit
7 Conduct of audit
For the purposes of paragraph 53(3)(a) of the Act, an auditor must conduct an audit:
(a) as expeditiously as reasonably practicable; and
(b) in a way that results in minimal interference to the operations in relation to which the audit is conducted.
8
Process after audit completed
8 Process after audit completed
(1) For the purposes of subsection 53(3) of the Act, an auditor who completes an audit must:
(a) as soon as reasonably practicable after the audit is completed, notify the relevant person for the audit, orally or in writing, that the audit is completed; and
(b) within 14 days after the day the audit is completed, make a written report (an audit report) of the audit and give a copy of the audit report to:
(i) the Secretary, in the manner approved by the Secretary; and
(ii) the relevant person for the audit.
(2) The audit report must include the following:
(a) the name of the auditor;
(b) the day the audit commenced, the day the audit was completed, and the total time spent (in hours) conducting the audit;
(c) the name of the relevant person for the audit;
(d) a description of the operations to which the audit relates;
(e) a description of the scope of the audit;
(f) the findings of the audit including whether, in the auditor’s opinion, there is, or there has been, a failure to comply with the requirements of the Act in relation to a matter to which the audit relates, including a contravention of the conditions of a permit (if any);
(g) the reasons for the auditor’s findings.
(3) The audit report may also:
(a) identify any risk of a potential non‑compliance with a requirement of the Act in relation to a matter to which the audit relates; and
(b) include recommendations that any of the following actions be taken:
(i) action to address any non‑compliance with any of those requirements;
(ii) action to address the risk of a potential non‑compliance with any of those requirements.
Part 4
Application and transitional provisions
Part 1—Preliminary
1 Name
This instrument is the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996.
2 Authority
This instrument is made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
3 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
Act means the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
4 Meaning of household waste
For the purposes of the definition of household waste in section 4 of the Act, household waste does not include waste listed in Annex IX (List B) to the Basel Convention, unless the waste is mixed with other waste listed in Annex IX (List B) to that Convention.
Part 2—Basel export permits
5 Basel export permit—information to be notified to competent authority of a foreign country
For the purposes of subsections 16A(1) and 26C(1) of the Act, the information about:
(a) an application for a Basel export permit; or
(b) an application for a variation of a Basel export permit;
that the Minister is required to notify to a competent authority of a foreign country is the information mentioned in Annex VA to the Basel Convention about the application.
Part 3—Record keeping and audits
6 Record keeping
Requirement to make and retain records
(1) For the purposes of subsection 41D(1) of the Act, the following persons must make and retain the following records:
(a) for a person who holds a permit under the Act in relation to the import, export or transit of hazardous waste:
(i) each document (if any) that the person is required to keep in accordance with a condition of the permit; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the permit or any requirements of the Act or regulations made under the Act;
(b) for a person who has been notified under subsection 33G(1) of the Act that a transit permit is not required for carrying out a transit proposal—each document that:
(i) is made by the person or that comes into the person’s possession; and
(ii) is relevant to showing whether the criteria mentioned in paragraphs 33G(1)(a), (b), (c) and (d) of the Act are satisfied, or continue to be satisfied, for the transit proposal;
(c) for a person who has been given an order under Part 3 of the Act:
(i) each document (if any) that the person is required to keep in accordance with the order; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the order or any requirements of the Act or regulations made under the Act.
Period for which records must be retained
(2) A person who is required to retain records under this section must retain each such record for at least the period of 5 years starting on the day the record is made by the person or comes into the person’s possession.
Form in which records must be retained
(3) A person who is required to retain records under this section must retain each such record in a form that is:
(a) dated with the date the document is created or with the date the document comes into the person’s possession; and
(b) for a document created by the person—accurate and legible; and
(c) able to be audited; and
(d) in electronic or paper form.
(4) If a record is not in English, the person must obtain a translation of the record into English and retain the translation for at least the period of 5 years starting on the day the translation is obtained.
Alteration or defacing of records
(5) A person who is required to retain a record under this section must:
(a) not alter or deface the record; and
(b) take reasonable steps to prevent the record from being altered or defaced by another person.
(6) However, subsection (5) does not prevent a person from making notations or marking on the record in accordance with any ordinary practice.
(7) If a person makes notations or markings on the record in accordance with ordinary practice, the person required to retain the record under this section must also retain, for at least the period mentioned in subregulation (2) or (4) (as applicable):
(a) if reasonably practicable—a copy of the original record without notations or markings; and
(b) copies of the record that show how the record has changed over time.
Note: A person may commit an offence of strict liability or be liable to a civil penalty if the person is required to retain a record in accordance with this provision and the person fails to comply with the requirement (see subsections 41D(4) and (5) of the Act).
7 Conduct of audit
For the purposes of paragraph 53(3)(a) of the Act, an auditor must conduct an audit:
(a) as expeditiously as reasonably practicable; and
(b) in a way that results in minimal interference to the operations in relation to which the audit is conducted.
8 Process after audit completed
(1) For the purposes of subsection 53(3) of the Act, an auditor who completes an audit must:
(a) as soon as reasonably practicable after the audit is completed, notify the relevant person for the audit, orally or in writing, that the audit is completed; and
(b) within 14 days after the day the audit is completed, make a written report (an audit report) of the audit and give a copy of the audit report to:
(i) the Secretary, in the manner approved by the Secretary; and
(ii) the relevant person for the audit.
(2) The audit report must include the following:
(a) the name of the auditor;
(b) the day the audit commenced, the day the audit was completed, and the total time spent (in hours) conducting the audit;
(c) the name of the relevant person for the audit;
(d) a description of the operations to which the audit relates;
(e) a description of the scope of the audit;
(f) the findings of the audit including whether, in the auditor’s opinion, there is, or there has been, a failure to comply with the requirements of the Act in relation to a matter to which the audit relates, including a contravention of the conditions of a permit (if any);
(g) the reasons for the auditor’s findings.
(3) The audit report may also:
(a) identify any risk of a potential non‑compliance with a requirement of the Act in relation to a matter to which the audit relates; and
(b) include recommendations that any of the following actions be taken:
(i) action to address any non‑compliance with any of those requirements;
(ii) action to address the risk of a potential non‑compliance with any of those requirements.
Part 4—Application and transitional provisions
Division 1—Transitional matters relating to the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021
9 Application of amendments
Household waste
(1) Section 4, as inserted by the amending instrument, applies in relation to the import, export or transit of hazardous waste on or after the commencement day.
Notification to competent authority
(2) Section 5, as inserted by the amending instrument, applies in relation to the following:
(a) an application for a Basel permit made on or after the commencement day;
(b) an application for a Basel permit made before the commencement day if the application is varied on or after that day;
(c) an application made on or after the commencement day for a variation of a Basel permit, whether the permit was granted before, on or after the commencement day.
Record‑keeping
(3) Section 6, as inserted by the amending instrument, applies in relation to the following:
(a) a permit granted, under the Act, on or after the commencement day in relation to the import, export or transit of hazardous waste;
(b) a notification given, under subsection 33G(1) of the Act, on or after the commencement day;
(c) an order given, under Part 3 of the Act, on or after the commencement day.
(4) In this section:
amending instrument means the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021.
commencement day means the day the amending instrument commences.
Division 1
Transitional matters relating to the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021
Part 1—Preliminary
1 Name
This instrument is the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996.
2 Authority
This instrument is made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
3 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
Act means the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
4 Meaning of household waste
For the purposes of the definition of household waste in section 4 of the Act, household waste does not include waste listed in Annex IX (List B) to the Basel Convention, unless the waste is mixed with other waste listed in Annex IX (List B) to that Convention.
Part 2—Basel export permits
5 Basel export permit—information to be notified to competent authority of a foreign country
For the purposes of subsections 16A(1) and 26C(1) of the Act, the information about:
(a) an application for a Basel export permit; or
(b) an application for a variation of a Basel export permit;
that the Minister is required to notify to a competent authority of a foreign country is the information mentioned in Annex VA to the Basel Convention about the application.
Part 3—Record keeping and audits
6 Record keeping
Requirement to make and retain records
(1) For the purposes of subsection 41D(1) of the Act, the following persons must make and retain the following records:
(a) for a person who holds a permit under the Act in relation to the import, export or transit of hazardous waste:
(i) each document (if any) that the person is required to keep in accordance with a condition of the permit; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the permit or any requirements of the Act or regulations made under the Act;
(b) for a person who has been notified under subsection 33G(1) of the Act that a transit permit is not required for carrying out a transit proposal—each document that:
(i) is made by the person or that comes into the person’s possession; and
(ii) is relevant to showing whether the criteria mentioned in paragraphs 33G(1)(a), (b), (c) and (d) of the Act are satisfied, or continue to be satisfied, for the transit proposal;
(c) for a person who has been given an order under Part 3 of the Act:
(i) each document (if any) that the person is required to keep in accordance with the order; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the order or any requirements of the Act or regulations made under the Act.
Period for which records must be retained
(2) A person who is required to retain records under this section must retain each such record for at least the period of 5 years starting on the day the record is made by the person or comes into the person’s possession.
Form in which records must be retained
(3) A person who is required to retain records under this section must retain each such record in a form that is:
(a) dated with the date the document is created or with the date the document comes into the person’s possession; and
(b) for a document created by the person—accurate and legible; and
(c) able to be audited; and
(d) in electronic or paper form.
(4) If a record is not in English, the person must obtain a translation of the record into English and retain the translation for at least the period of 5 years starting on the day the translation is obtained.
Alteration or defacing of records
(5) A person who is required to retain a record under this section must:
(a) not alter or deface the record; and
(b) take reasonable steps to prevent the record from being altered or defaced by another person.
(6) However, subsection (5) does not prevent a person from making notations or marking on the record in accordance with any ordinary practice.
(7) If a person makes notations or markings on the record in accordance with ordinary practice, the person required to retain the record under this section must also retain, for at least the period mentioned in subregulation (2) or (4) (as applicable):
(a) if reasonably practicable—a copy of the original record without notations or markings; and
(b) copies of the record that show how the record has changed over time.
Note: A person may commit an offence of strict liability or be liable to a civil penalty if the person is required to retain a record in accordance with this provision and the person fails to comply with the requirement (see subsections 41D(4) and (5) of the Act).
7 Conduct of audit
For the purposes of paragraph 53(3)(a) of the Act, an auditor must conduct an audit:
(a) as expeditiously as reasonably practicable; and
(b) in a way that results in minimal interference to the operations in relation to which the audit is conducted.
8 Process after audit completed
(1) For the purposes of subsection 53(3) of the Act, an auditor who completes an audit must:
(a) as soon as reasonably practicable after the audit is completed, notify the relevant person for the audit, orally or in writing, that the audit is completed; and
(b) within 14 days after the day the audit is completed, make a written report (an audit report) of the audit and give a copy of the audit report to:
(i) the Secretary, in the manner approved by the Secretary; and
(ii) the relevant person for the audit.
(2) The audit report must include the following:
(a) the name of the auditor;
(b) the day the audit commenced, the day the audit was completed, and the total time spent (in hours) conducting the audit;
(c) the name of the relevant person for the audit;
(d) a description of the operations to which the audit relates;
(e) a description of the scope of the audit;
(f) the findings of the audit including whether, in the auditor’s opinion, there is, or there has been, a failure to comply with the requirements of the Act in relation to a matter to which the audit relates, including a contravention of the conditions of a permit (if any);
(g) the reasons for the auditor’s findings.
(3) The audit report may also:
(a) identify any risk of a potential non‑compliance with a requirement of the Act in relation to a matter to which the audit relates; and
(b) include recommendations that any of the following actions be taken:
(i) action to address any non‑compliance with any of those requirements;
(ii) action to address the risk of a potential non‑compliance with any of those requirements.
Part 4—Application and transitional provisions
Division 1—Transitional matters relating to the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021
9 Application of amendments
Household waste
(1) Section 4, as inserted by the amending instrument, applies in relation to the import, export or transit of hazardous waste on or after the commencement day.
Notification to competent authority
(2) Section 5, as inserted by the amending instrument, applies in relation to the following:
(a) an application for a Basel permit made on or after the commencement day;
(b) an application for a Basel permit made before the commencement day if the application is varied on or after that day;
(c) an application made on or after the commencement day for a variation of a Basel permit, whether the permit was granted before, on or after the commencement day.
Record‑keeping
(3) Section 6, as inserted by the amending instrument, applies in relation to the following:
(a) a permit granted, under the Act, on or after the commencement day in relation to the import, export or transit of hazardous waste;
(b) a notification given, under subsection 33G(1) of the Act, on or after the commencement day;
(c) an order given, under Part 3 of the Act, on or after the commencement day.
(4) In this section:
amending instrument means the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021.
commencement day means the day the amending instrument commences.
9
Application of amendments
9 Application of amendments
Household waste
(1) Section 4, as inserted by the amending instrument, applies in relation to the import, export or transit of hazardous waste on or after the commencement day.
Notification to competent authority
(2) Section 5, as inserted by the amending instrument, applies in relation to the following:
(a) an application for a Basel permit made on or after the commencement day;
(b) an application for a Basel permit made before the commencement day if the application is varied on or after that day;
(c) an application made on or after the commencement day for a variation of a Basel permit, whether the permit was granted before, on or after the commencement day.
Record‑keeping
(3) Section 6, as inserted by the amending instrument, applies in relation to the following:
(a) a permit granted, under the Act, on or after the commencement day in relation to the import, export or transit of hazardous waste;
(b) a notification given, under subsection 33G(1) of the Act, on or after the commencement day;
(c) an order given, under Part 3 of the Act, on or after the commencement day.
(4) In this section:
amending instrument means the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021.
commencement day means the day the amending instrument commences.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1—Preliminary
1 Name
1 Name
This instrument is the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996.
2 Authority
2 Authority
This instrument is made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
3 Definitions
3 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
Act means the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
4 Meaning of household waste
4 Meaning of household waste
For the purposes of the definition of household waste in section 4 of the Act, household waste does not include waste listed in Annex IX (List B) to the Basel Convention, unless the waste is mixed with other waste listed in Annex IX (List B) to that Convention.
Part 2 Basel export permits
Part 2—Basel export permits
5 Basel export permit—information to be notified to competent authority of a foreign country
5 Basel export permit—information to be notified to competent authority of a foreign country
For the purposes of subsections 16A(1) and 26C(1) of the Act, the information about:
(a) an application for a Basel export permit; or
(b) an application for a variation of a Basel export permit;
that the Minister is required to notify to a competent authority of a foreign country is the information mentioned in Annex VA to the Basel Convention about the application.
Part 3 Record keeping and audits
Part 3—Record keeping and audits
6 Record keeping
6 Record keeping
Requirement to make and retain records
(1) For the purposes of subsection 41D(1) of the Act, the following persons must make and retain the following records:
(a) for a person who holds a permit under the Act in relation to the import, export or transit of hazardous waste:
(i) each document (if any) that the person is required to keep in accordance with a condition of the permit; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the permit or any requirements of the Act or regulations made under the Act;
(b) for a person who has been notified under subsection 33G(1) of the Act that a transit permit is not required for carrying out a transit proposal—each document that:
(i) is made by the person or that comes into the person’s possession; and
(ii) is relevant to showing whether the criteria mentioned in paragraphs 33G(1)(a), (b), (c) and (d) of the Act are satisfied, or continue to be satisfied, for the transit proposal;
(c) for a person who has been given an order under Part 3 of the Act:
(i) each document (if any) that the person is required to keep in accordance with the order; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the order or any requirements of the Act or regulations made under the Act.
Period for which records must be retained
(2) A person who is required to retain records under this section must retain each such record for at least the period of 5 years starting on the day the record is made by the person or comes into the person’s possession.
Form in which records must be retained
(3) A person who is required to retain records under this section must retain each such record in a form that is:
(a) dated with the date the document is created or with the date the document comes into the person’s possession; and
(b) for a document created by the person—accurate and legible; and
(c) able to be audited; and
(d) in electronic or paper form.
(4) If a record is not in English, the person must obtain a translation of the record into English and retain the translation for at least the period of 5 years starting on the day the translation is obtained.
Alteration or defacing of records
(5) A person who is required to retain a record under this section must:
(a) not alter or deface the record; and
(b) take reasonable steps to prevent the record from being altered or defaced by another person.
(6) However, subsection (5) does not prevent a person from making notations or marking on the record in accordance with any ordinary practice.
(7) If a person makes notations or markings on the record in accordance with ordinary practice, the person required to retain the record under this section must also retain, for at least the period mentioned in subregulation (2) or (4) (as applicable):
(a) if reasonably practicable—a copy of the original record without notations or markings; and
(b) copies of the record that show how the record has changed over time.
Main concepts
Understanding the regulatory framework requires mastering several distinct concepts defined within the instrument and its parent Act.
The first concept is "household waste" as defined under section 4. The regulations narrow the statutory definition of household waste by reference to international lists. Specifically, household waste does not include any waste listed in Annex IX (List B) to the Basel Convention, unless that waste is mixed with other waste listed in the same Annex. This distinction prevents relatively low-risk, recyclable materials (which are generally categorised under List B) from being inadvertently classified as regulated household waste, unless contamination or mixing has occurred.
The second concept relates to "record-keeping categories" under section 6(1). The regulations separate regulated actors into three distinct compliance streams, each with tailored documentation requirements:
Permit holders (import, export, or transit) must keep all documents required by their permit conditions, alongside any record showing general statutory compliance.
Transit proposal exemption holders (notified under subsection 33G(1) of the Act) must retain documents proving they continue to meet the criteria that exempt them from needing a full transit permit.
Order recipients (subject to ministerial orders under Part 3 of the Act) must keep all documents required by the order, plus records demonstrating their compliance with the order and the Act.
The third concept is the "audit framework" under sections 7 and 8. The regulations establish the parameters for independent verification. This framework balances the state's interest in verification with the operator's interest in business continuity. It introduces the concepts of "minimal interference" and "expeditious" conduct, alongside a mandatory "audit report" that must include specific temporal data (such as total hours spent), a precise scope, and formal compliance opinions.
Who it affects
The regulations directly affect several key groups within the international logistics, waste management, and environmental services sectors.
First, it affects Australian exporters, importers, and transit facilitators of hazardous waste. These commercial operators must carry the administrative and financial burden of the record-keeping mandates. They must allocate resources to maintain paper or electronic archives for at least five years, translate foreign-language documents, and implement strict version-control systems to track document modifications. For these entities, compliance is not merely an annual check, but an ongoing operational cost integrated into their daily shipping and handling procedures.
Second, it affects businesses seeking transit permit exemptions. Even when the Minister determines under subsection 33G(1) of the Act that an operator does not require a transit permit, that operator is not freed from administrative oversight. Under section 6(1)(b), they are legally required to compile and preserve evidence proving they remain qualified for the exemption, shifting the evidentiary burden of compliance entirely onto the business.
Third, it affects professional environmental auditors. These individuals are subject to strict standards of conduct and tight reporting deadlines under sections 7 and 8. They must possess the operational capacity to complete audits quickly, minimise disruption to the audited business, and draft and distribute highly detailed technical reports within 14 days of completing their fieldwork.
Finally, the regulations affect federal regulators. The Secretary of the Department receives and processes these audit reports, while the Minister is legally bound to act as an information clearing house, transferring technical application data to foreign governments under section 5.
Key duties and rights
The regulations impose clear, non-negotiable duties on regulated parties while granting limited procedural rights to businesses undergoing compliance audits.
Key Duties
The Record-Keeping Duty (Section 6): Regulated entities must retain all compliance-relevant documents for a minimum of five years from the date the record was made or came into their possession. Under section 6(3), these records must be dated, accurate, legible, in an auditable form, and kept in either electronic or paper format.
The Translation Duty (Section 6(4)): If any compliance record is received or generated in a language other than English, the regulated party must obtain an English translation and retain it for five years from the date the translation was obtained.
The Document Integrity Duty (Section 6(5)): Regulated parties must not alter or deface records, and they must take reasonable steps to prevent third parties from doing so. If notations are made in the course of ordinary business practice, the operator must retain a copy of the original clean document (where practicable) and copies showing the history of changes over time.
The Ministerial Notification Duty (Section 5): The Minister must notify foreign competent authorities of permit applications and variations, using the precise information set out in Annex VA to the Basel Convention.
The Auditor’s Reporting Duties (Section 8): Upon completing an audit, the auditor must immediately notify the audited party. Within 14 days, the auditor must compile a written report containing their formal findings, the total hours spent, and their professional opinion on compliance. They must deliver copies to both the Secretary and the audited party.
Key Rights
The Right to Minimal Interference (Section 7): During an active audit, the business has a statutory right to have the audit conducted in a way that results in minimal interference to its daily operations.
The Right to Expeditious Conduct (Section 7): Audited entities have a right to an audit that is completed as quickly as is reasonably practicable, preventing open-ended or lingering regulatory investigations.
The Right to Receive Audit Reports (Section 8): Regulated parties have a right to be notified immediately when an audit is complete, and they must be given a copy of the final audit report within 14 days of its completion.
Penalties and enforcement
The enforcement mechanisms for these regulations are designed to ensure high compliance with international waste-tracking standards. While the regulations themselves do not list specific monetary penalties or custodial sentences, they are tied directly to the heavy enforcement provisions of the parent Act.
The note to section 6 alerts regulated parties that a failure to comply with the record-keeping mandates is a serious matter. Under subsections 41D(4) and (5) of the Act, failing to make or retain the required records in the prescribed form can result in strict liability criminal offences or substantial civil penalties. Strict liability means that the prosecution or regulator does not need to prove intent, recklessness, or negligence; the mere administrative failure to produce an auditable, dated, or properly translated document within the five-year retention window is sufficient to establish liability.
The audit process described in sections 7 and 8 serves as the primary enforcement and verification tool. Auditors do not merely check financial ledgers; they must form and state a clear opinion on whether there has been a failure to comply with the Act or any permit conditions (section 8(2)(f)).
Furthermore, the Secretary maintains control over the reporting process by requiring audit reports to be submitted in a manner approved by the Secretary (section 8(1)(b)(i)). If an auditor identifies a risk of potential non-compliance, they are authorised under section 8(3) to include formal recommendations in their report. These recommendations can direct the business to take corrective action, which the regulator can then monitor and enforce under the broader powers of the Act.
How it interacts with other laws
The regulations do not operate in isolation; they are positioned at the intersection of domestic administrative law and international environmental treaties.
The primary interaction is with the parent statute, the Hazardous Waste (Regulation of Exports and Imports) Act 1989. The regulations serve to fill in the operational details left open by the Act. For example, while the Act establishes the permit and transit systems, the regulations define what "household waste" means under section 4 of the Act, and they outline the exact records required to satisfy the record-keeping mandate in subsection 41D(1) of the Act. Similarly, the audit requirements under sections 7 and 8 of the regulations are designed to satisfy the statutory audit provisions set out in subsection 53(3) of the Act.
On an international level, the regulations directly incorporate elements of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. Section 4 relies on Annex IX (List B) of the Basel Convention to determine which wastes are excluded from the definition of household waste. Section 5 relies on Annex VA of the Basel Convention to define the exact scope of information that the Minister must transmit to foreign competent authorities during permit consultations.
By tying domestic definitions and notification duties directly to the annexes of the Basel Convention, the regulations ensure that Australia's domestic environmental controls remain aligned with its international treaty commitments. This alignment reduces trade friction and ensures that Australian waste exporters meet the import standards of destination countries.
Amendment history
The regulatory framework established by the original Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 has been periodically updated to match modern administrative practices and shifting international standards.
The most significant structural update in recent years was introduced by the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021 (referred to in the transitional provisions as the "amending instrument"). This amendment overhauled the definitions, permit notification protocols, and record-keeping regimes. To ensure a smooth transition and prevent retroactive compliance burdens, Part 4 (Division 1) of the regulations contains detailed transition rules:
Household Waste (Section 9(1)): The updated definition of household waste in section 4 applies only to imports, exports, or transits occurring on or after the commencement day of the 2021 amending regulations.
Notification to Foreign Authorities (Section 9(2)): The updated notification requirements in section 5 apply to all new Basel permit applications made on or after the commencement day. They also apply to older applications if they are varied after that date, and to any applications for variations made after commencement, regardless of when the original permit was granted.
Record-Keeping Rules (Section 9(3)): The modernised record-keeping requirements under section 6 apply to permits granted on or after the commencement day, transit notifications under subsection 33G(1) given on or after that day, and compliance orders issued under Part 3 of the Act on or after that day.
These transitional provisions ensure that older, completed shipments and existing records are not judged against the newer standards, maintaining legal certainty for operators.
Litigation history
Because this instrument is primarily administrative and procedural, its provisions are usually managed through direct bureaucratic oversight rather than high-profile courtroom litigation. The source text does not mention any specific common law precedents, judicial decisions, or administrative appeals.
For compliance professionals, this lack of recorded litigation suggests that disputes are typically resolved through administrative channels. When issues arise, they are generally addressed during the audit process (under sections 7 and 8) or through the variation of permit conditions, rather than through formal legal challenges.
However, the lack of extensive litigation history also highlights the importance of proactive compliance. Because the record-keeping offences under the parent Act (such as those tied to section 6 of these regulations) can carry strict liability, the regulator has a strong position when prosecuting administrative failures. In such cases, there are very few legal defences available to a business once a gap in its records is identified.
As a result, compliance professionals should focus on establishing robust internal record-management systems to satisfy department auditors, rather than relying on courts to interpret ambiguous provisions in their favour.
Gotchas
For compliance managers and legal advisers, several provisions in the regulations contain subtle requirements that can easily lead to accidental non-compliance.
The Notation and Change-Tracking Trap
Under section 6(6), employees are allowed to write notations or marks on records as part of ordinary business practice (such as signing off on a physical shipping manifest or correcting an entry). However, under section 6(7), if any such notations are made, the business must also retain:
a copy of the original record without any notations or markings (if reasonably practicable); and
copies of the record that clearly show how the document has changed over time.
Failing to save an clean scan of a document before it is marked up, or failing to maintain a clear version history of an edited spreadsheet, is a technical breach of the record-keeping rules and can expose the business to penalties.
The Translation Retention Clock
Under section 6(4), if a compliance document is not in English, the operator must obtain an English translation. Crucially, this translation must be retained for at least five years starting on the day the translation was obtained, not the day the original foreign-language document was created. This difference can lead to mismatched retention schedules, where the original document is legally cleared for destruction but the translation must still be kept on file.
The Burden of Exemptions
A common mistake is assuming that receiving a permit exemption means you are free from administrative burdens. If the Minister notifies an operator under subsection 33G(1) of the Act that a transit permit is not required for a transit proposal, the operator must still comply with section 6(1)(b). This section requires them to make and keep every document relevant to showing that they continue to meet the four distinct exemption criteria set out in paragraphs 33G(1)(a) to (d) of the Act. The business must actively document its ongoing eligibility for the exemption for five years.
The Tight 14-Day Audit Window
Under section 8(1)(b), an auditor must draft their final report and deliver it to both the Secretary and the audited business within 14 days of completing their audit. For businesses, this means there is very little time to review the auditor's findings or discuss potential errors before the report is officially filed with the department. Businesses must be prepared to respond to audit findings immediately.
How to comply
To ensure compliance with the regulations, businesses and compliance officers should implement several practical measures and procedures.
Implement an Electronic Document Management System (EDMS)
To satisfy the strict requirements of section 6, businesses should use an EDMS that automatically dates all incoming and created documents. The system should be configured to prevent the deletion or defacing of files for a minimum of five years. It should also include automatic version-tracking to capture all edits, notations, and metadata, ensuring compliance with the change-tracking rules in section 6(7).
Create Standard Operating Procedures for Mark-Ups
Establish a clear rule for staff: never mark up an original document. If a document must be signed, stamped, or annotated, staff must first save a clean, high-resolution scan of the original, unaltered file. Both the clean original and the marked-up version must be stored together in the compliance database to satisfy the requirement for "clean copy" retention.
Set Up a Managed Translation Protocol
Any compliance document received in a foreign language (such as shipping manifests, waste analyses, or customs clearance notes from foreign ports) must be flagged for immediate translation by an accredited translator. The compliance system should track two separate retention dates:
five years from the receipt of the original document; and
five years from the receipt of the official English translation.
Conduct Regular Exemption Audits
If your business operates under a transit permit exemption under subsection 33G(1) of the Act, do not treat it as a passive status. Conduct regular internal reviews to verify that the operations still meet the criteria in paragraphs 33G(1)(a) to (d) of the Act, and compile these reviews into dated compliance folders to satisfy section 6(1)(b).
Prepare an Audit Readiness Kit
Since independent audits must be completed quickly (section 7), businesses should maintain a pre-assembled audit package. This package should include all current permits, active ministerial orders, translated foreign documents, and change logs. Having these materials ready allows the auditor to complete their work with minimal disruption to your daily operations, while ensuring that the final report filed under section 8 is accurate and complete.
Note: A person may commit an offence of strict liability or be liable to a civil penalty if the person is required to retain a record in accordance with this provision and the person fails to comply with the requirement (see subsections 41D(4) and (5) of the Act).
7 Conduct of audit
7 Conduct of audit
For the purposes of paragraph 53(3)(a) of the Act, an auditor must conduct an audit:
(a) as expeditiously as reasonably practicable; and
(b) in a way that results in minimal interference to the operations in relation to which the audit is conducted.
8 Process after audit completed
8 Process after audit completed
(1) For the purposes of subsection 53(3) of the Act, an auditor who completes an audit must:
(a) as soon as reasonably practicable after the audit is completed, notify the relevant person for the audit, orally or in writing, that the audit is completed; and
(b) within 14 days after the day the audit is completed, make a written report (an audit report) of the audit and give a copy of the audit report to:
(i) the Secretary, in the manner approved by the Secretary; and
(ii) the relevant person for the audit.
(2) The audit report must include the following:
(a) the name of the auditor;
(b) the day the audit commenced, the day the audit was completed, and the total time spent (in hours) conducting the audit;
(c) the name of the relevant person for the audit;
(d) a description of the operations to which the audit relates;
(e) a description of the scope of the audit;
(f) the findings of the audit including whether, in the auditor’s opinion, there is, or there has been, a failure to comply with the requirements of the Act in relation to a matter to which the audit relates, including a contravention of the conditions of a permit (if any);
(g) the reasons for the auditor’s findings.
(3) The audit report may also:
(a) identify any risk of a potential non‑compliance with a requirement of the Act in relation to a matter to which the audit relates; and
(b) include recommendations that any of the following actions be taken:
(i) action to address any non‑compliance with any of those requirements;
(ii) action to address the risk of a potential non‑compliance with any of those requirements.
Part 4 Application and transitional provisions
Part 1—Preliminary
1 Name
This instrument is the Hazardous Waste (Regulation of Exports and Imports) Regulations 1996.
2 Authority
This instrument is made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
3 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
Act means the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
4 Meaning of household waste
For the purposes of the definition of household waste in section 4 of the Act, household waste does not include waste listed in Annex IX (List B) to the Basel Convention, unless the waste is mixed with other waste listed in Annex IX (List B) to that Convention.
Part 2—Basel export permits
5 Basel export permit—information to be notified to competent authority of a foreign country
For the purposes of subsections 16A(1) and 26C(1) of the Act, the information about:
(a) an application for a Basel export permit; or
(b) an application for a variation of a Basel export permit;
that the Minister is required to notify to a competent authority of a foreign country is the information mentioned in Annex VA to the Basel Convention about the application.
Part 3—Record keeping and audits
6 Record keeping
Requirement to make and retain records
(1) For the purposes of subsection 41D(1) of the Act, the following persons must make and retain the following records:
(a) for a person who holds a permit under the Act in relation to the import, export or transit of hazardous waste:
(i) each document (if any) that the person is required to keep in accordance with a condition of the permit; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the permit or any requirements of the Act or regulations made under the Act;
(b) for a person who has been notified under subsection 33G(1) of the Act that a transit permit is not required for carrying out a transit proposal—each document that:
(i) is made by the person or that comes into the person’s possession; and
(ii) is relevant to showing whether the criteria mentioned in paragraphs 33G(1)(a), (b), (c) and (d) of the Act are satisfied, or continue to be satisfied, for the transit proposal;
(c) for a person who has been given an order under Part 3 of the Act:
(i) each document (if any) that the person is required to keep in accordance with the order; and
(ii) each other document that is made by the person, or that comes into the person’s possession, and is relevant to showing whether the person has complied, or is complying, with the order or any requirements of the Act or regulations made under the Act.
Period for which records must be retained
(2) A person who is required to retain records under this section must retain each such record for at least the period of 5 years starting on the day the record is made by the person or comes into the person’s possession.
Form in which records must be retained
(3) A person who is required to retain records under this section must retain each such record in a form that is:
(a) dated with the date the document is created or with the date the document comes into the person’s possession; and
(b) for a document created by the person—accurate and legible; and
(c) able to be audited; and
(d) in electronic or paper form.
(4) If a record is not in English, the person must obtain a translation of the record into English and retain the translation for at least the period of 5 years starting on the day the translation is obtained.
Alteration or defacing of records
(5) A person who is required to retain a record under this section must:
(a) not alter or deface the record; and
(b) take reasonable steps to prevent the record from being altered or defaced by another person.
(6) However, subsection (5) does not prevent a person from making notations or marking on the record in accordance with any ordinary practice.
(7) If a person makes notations or markings on the record in accordance with ordinary practice, the person required to retain the record under this section must also retain, for at least the period mentioned in subregulation (2) or (4) (as applicable):
(a) if reasonably practicable—a copy of the original record without notations or markings; and
(b) copies of the record that show how the record has changed over time.
Note: A person may commit an offence of strict liability or be liable to a civil penalty if the person is required to retain a record in accordance with this provision and the person fails to comply with the requirement (see subsections 41D(4) and (5) of the Act).
7 Conduct of audit
For the purposes of paragraph 53(3)(a) of the Act, an auditor must conduct an audit:
(a) as expeditiously as reasonably practicable; and
(b) in a way that results in minimal interference to the operations in relation to which the audit is conducted.
8 Process after audit completed
(1) For the purposes of subsection 53(3) of the Act, an auditor who completes an audit must:
(a) as soon as reasonably practicable after the audit is completed, notify the relevant person for the audit, orally or in writing, that the audit is completed; and
(b) within 14 days after the day the audit is completed, make a written report (an audit report) of the audit and give a copy of the audit report to:
(i) the Secretary, in the manner approved by the Secretary; and
(ii) the relevant person for the audit.
(2) The audit report must include the following:
(a) the name of the auditor;
(b) the day the audit commenced, the day the audit was completed, and the total time spent (in hours) conducting the audit;
(c) the name of the relevant person for the audit;
(d) a description of the operations to which the audit relates;
(e) a description of the scope of the audit;
(f) the findings of the audit including whether, in the auditor’s opinion, there is, or there has been, a failure to comply with the requirements of the Act in relation to a matter to which the audit relates, including a contravention of the conditions of a permit (if any);
(g) the reasons for the auditor’s findings.
(3) The audit report may also:
(a) identify any risk of a potential non‑compliance with a requirement of the Act in relation to a matter to which the audit relates; and
(b) include recommendations that any of the following actions be taken:
(i) action to address any non‑compliance with any of those requirements;
(ii) action to address the risk of a potential non‑compliance with any of those requirements.
Part 4—Application and transitional provisions
Division 1—Transitional matters relating to the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021
9 Application of amendments
Household waste
(1) Section 4, as inserted by the amending instrument, applies in relation to the import, export or transit of hazardous waste on or after the commencement day.
Notification to competent authority
(2) Section 5, as inserted by the amending instrument, applies in relation to the following:
(a) an application for a Basel permit made on or after the commencement day;
(b) an application for a Basel permit made before the commencement day if the application is varied on or after that day;
(c) an application made on or after the commencement day for a variation of a Basel permit, whether the permit was granted before, on or after the commencement day.
Record‑keeping
(3) Section 6, as inserted by the amending instrument, applies in relation to the following:
(a) a permit granted, under the Act, on or after the commencement day in relation to the import, export or transit of hazardous waste;
(b) a notification given, under subsection 33G(1) of the Act, on or after the commencement day;
(c) an order given, under Part 3 of the Act, on or after the commencement day.
(4) In this section:
amending instrument means the Hazardous Waste (Regulation of Exports and Imports) Legislation Amendment Regulations 2021.
commencement day means the day the amending instrument commences.
Division 1 Transit
This is an opening excerpt, not the complete document.