Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999

These Regulations give domestic legal effect to the Waigani Convention for Australia, but only for non‑radioactive hazardous wastes. The Waigani Convention (formally the Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region) is an Article 11 arrangement under the Basel Convention. The Regulations import the notification and consent procedures of the Convention into Australian permit law, but they do not create a free‑standing permit system. Instead, they modify the application of the parent Act - the Hazardous Waste (Regulation of Exports and Imports) Act 1989 - for two specific categories of transboundary movement: imports of hazardous waste from a Forum Island Country, and transit of hazardous waste through Australia from a Forum Island Country (regulation 5). The Regulations expressly forbid the Minister from granting any export permit for hazardous waste destined for a Forum Island Country or for any territory within the Convention Area that is not a Party (regulation 6(a)). Import permits cannot be granted for waste originating from a country within the Convention Area that is not a Party, and transit permits cannot be granted for movements from or to such a country (regulation 6(b), (c)). In effect, the Regulations impose a blanket prohibition on allowing Australia to be used as a transit or destination for hazardous waste from non‑Party Pacific territories, while also banning Australian exports of hazardous waste to any Forum Island Country. The Regulations do not cover radioactive wastes; the definition of hazardous waste in the Act relies on the Basel Convention, which excludes radioactive materials. Radioactive waste exports and imports remain regulated under the Customs Act 1901 and associated prohibitions regulations (regulation 3, Note 3). The Regulations also exclude wastes derived from the normal operation of a vessel if covered by another international instrument (regulation 7). The Minister must be satisfied that the waste will not be dumped at sea within the Convention Area before granting a permit (regulations 10(2)(c), 11(2)(c)). The Regulations attach conditions to permits, including a movement document (Annex VI B of the Convention) that must be signed by each person taking charge of the waste in Australia (regulation 13), a notification of disposal completion by the importer (regulation 14), and an immediate accident notification requirement (regulation 15).

The central concept is the Convention Area, defined by Article 1 of the Waigani Convention and reproduced in regulation 4. It comprises the land territory, internal waters, territorial sea, continental shelf, archipelagic waters and exclusive economic zones of a list of twenty‑two territories: American Samoa, Australia, Cook Islands, Federated States of Micronesia, Fiji, French Polynesia, Guam, Kiribati, Republic of Marshall Islands, Nauru, New Caledonia and Dependencies, New Zealand, Niue, The Commonwealth of Northern Mariana Islands, Republic of Palau, Papua New Guinea, Pitcairn Islands, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, Wallis and Futuna, and Western Samoa (now Samoa). The Convention Area also includes certain areas of high seas enclosed by those exclusive economic zones, and areas added under Article 2.6 of the Convention. Forum Island Country is a subset: all of the above except Australia and New Zealand (see Note 1 to regulation 6). The Regulations mechanically link to the Act by treating references to the Basel Convention as references to the Waigani Convention (regulations 10(1)(a), 11(1)(a)). A Waigani import permit is a special import permit for hazardous waste imported from a Forum Island Country; a Waigani transit permit is a special transit permit for hazardous waste transiting Australia from a Forum Island Country (regulation 9). The concept of countries concerned comes from Article 6 of the Convention - these are the countries that must be notified and must consent before a permit is granted. The Regulations do not define that term further, leaving it to the Convention text. Competent Authority is the authority designated by each Party under the Convention; the Minister may publish a notice on the Department’s website listing those authorities and acceptable languages, but may rely on unverified information supplied by Parties (regulation 8). The concept of corresponding requirements in regulation 12 is significant: where a proposal falls under both these Regulations and another set of Article 11 regulations (e.g., implementing another regional agreement), the requirements of this Part are declared to be corresponding requirements for sections 13E and 18B(1) of the Act. That avoids double‑handling or conflicting permit conditions. The concept of dumping at sea is a prohibition condition: the Minister must be satisfied that the waste will not be dumped at sea within the Convention Area before granting a permit (regulations 10(2)(c), 11(2)(c)). The Regulations do not define “dumped at sea”, relying on the Convention’s own meaning. The movement document condition (regulation 13) requires the waste to be accompanied by a document containing the information set out in Annex VI B of the Convention, and each Australian person taking charge must sign it upon receipt. The accident notification condition (regulation 15) requires immediate notice to the Department, the Competent Authority of any affected Party (other than Australia), and the appropriate authority of any other affected country if an accident is likely to present a risk to human health or the environment.

The Regulations affect several groups. Importers in Australia who propose to bring hazardous waste into Australia from a Forum Island Country are the primary regulated entities. They must apply for a Waigani import permit, which incorporates the Act’s application process (sections 12, 13B, Divisions 3 and 4 of Part 2 of the Act) with the Waigani modifications. Transit operators who propose to move hazardous waste through Australia from a Forum Island Country must apply for a Waigani transit permit (regulation 11). Exporters in Forum Island Countries are indirectly affected because the Regulations require them to comply with the Convention’s notification and consent procedures. However, note that the Regulations do not authorise any Australian export permit for hazardous waste to Forum Island Countries or non‑Party territories within the Convention Area - that prohibition falls on Australian exporters seeking to send hazardous waste into the region (regulation 6(a)). Forum Island Countries themselves are affected as States whose consent is required before any transboundary movement can proceed. The Regulations give no substantive rights to private entities in those countries, but the Minister must obtain their consent (regulation 10(2)(b), 11(2)(b)). The Australian Department (the Department administered by the Minister who administers the Regulations, formerly the Department of the Environment and Energy) is affected as the recipient of permit applications, the publisher of competent authority notices, and the first point of contact for accident notifications. The Minister (as decision‑maker) is affected: the Regulations constrain the Minister’s discretion by imposing mandatory criteria (no export to Forum Island Countries, no import/transit from non‑Party Convention Area territories, prior notification and consent, no dumping at sea). Competent Authorities in other Parties are affected because they must be notified of accidents and may receive notifications under Article 6 of the Convention. Persons in Australia who take charge of hazardous waste under a permit are affected by the movement document signing requirement (regulation 13(2)). The importer is affected by the disposal notice condition (regulation 14). Trucking companies, shipping agents, and storage facility operators that handle the waste in transit are not directly named but may be affected as persons who “take charge” - they must sign the movement document. may be indirectly affected because the Act (incorporated by reference) may require financial guarantees. who act as Competent Authorities are affected because they must process notifications and give or withhold consent. The Regulations do not affect radioactive waste movements, which remain under Customs controls. They also do not affect normal vessel operation wastes covered by other international instruments (regulation 7), which exempts routine discharges from ships.

The Regulations impose duties on permit holders and applicants, and create limited rights in the form of the ability to apply for permits subject to statutory constraints. Duty to notify and obtain consent: an applicant for a Waigani import permit or a Waigani transit permit must notify the countries concerned (as defined by the Convention) of the proposal in accordance with Article 6 of the Convention, and must obtain the consent of each such country (regulations 10(2)(a), (b); 11(2)(a), (b)). This duty falls on the applicant, not on the Minister. It is a precondition to the Minister considering the grant. Duty to satisfy the Minister as to no dumping at sea: the applicant must satisfy the Minister that the waste will not be dumped at sea within the Convention Area (regulations 10(2)(c), 11(2)(c)). This is an evidential burden on the applicant. Duty to ensure waste is accompanied by a movement document: the permit holder must ensure that the waste is accompanied by a movement document containing the information set out in Annex VI B of the Convention (regulation 13(1)). This is a continuing condition of the permit. Duty on persons taking charge: any person in Australia who takes charge of the waste must sign the movement document when they receive it (regulation 13(2)). This creates a legal duty on any intermediary - not just the permit holder - to sign at the point of physical receipt. Duty on the importer to notify on receipt and disposal: the importer must notify the exporter and the Competent Authority of the exporting Party when they receive the waste and when disposal is completed (regulation 14). Duty to notify accidents: the permit holder must immediately inform the Department, the Competent Authority of any affected Party (other than Australia), and the appropriate authority of any other affected country if an accident occurs during the transboundary movement that is likely to present a risk to human health or the environment (regulation 15). The duty is triggered by an accident that presents risk - not any minor incident. Right to apply for a permit: a person may apply for a Waigani import permit or a Waigani transit permit. However, the scope is narrow - only imports from a Forum Island Country (not from other Convention Area territories) and only transit from a Forum Island Country (regulation 5). The right to apply is further constrained by regulation 6, which prohibits the Minister from granting certain permits altogether. There is no right to an export permit under these Regulations. : the Minister may publish a notice of Competent Authorities and acceptable languages, and may rely on Party-supplied information without verifying it (regulation 8). This is more a power than a right, but it creates an expectation that applicants can rely on the published information for compliance. : the application provisions of the Act (sections 12, 13A, 13B, Divisions 3 and 4 of Part 2) apply as if the Basel Convention were the Waigani Convention and with appropriate textual substitutions (regulations 10, 11). This incorporates all procedural duties under the Act, including application requirements, assessment criteria, and any conditions that the Act imposes on permits. : the incorporated provisions likely require a valid application, but the Regulations are silent on specific refusal grounds beyond those listed.

The Regulations themselves do not create specific penalty provisions. Instead, they operate by incorporating provisions of the Hazardous Waste (Regulation of Exports and Imports) Act 1989. Regulation 10(1) applies sections 12, 13B, and Divisions 3 and 4 of Part 2 of the Act to Waigani import permits, and regulation 11(1) applies sections 13A, 13B, and those Divisions to Waigani transit permits. Those Divisions of the Act contain offence and penalty provisions for breaches of permit conditions, unauthorised exports/imports, failure to notify, and false or misleading information. Though the Regulations do not reproduce the penalties, the effect is that a breach of a condition of a Waigani import permit or a Waigani transit permit is a breach of a condition of a permit under the Act, attracting the penalties set out in the Act. The movement document condition (regulation 13), the disposal notice condition (regulation 14), and the accident notification condition (regulation 15) are all conditions of the permit. Failure to comply with any of them would therefore be a breach of a permit condition, potentially a criminal offence under section 15 of the Act (export/import without permit) or section 16 (breach of permit condition), each carrying substantial fines and possible imprisonment. The accident notification condition (regulation 15) imposes a duty to inform “immediately”. Delay in notification could be a breach. The signing requirement on persons who take charge of the waste (regulation 13(2)) is also a condition, so failure to sign when required would be a breach of a permit condition, exposing that person to liability under the Act. The Act’s enforcement provisions, including powers to require information, monitoring powers, and court orders for remediation, would apply to these Regulations by virtue of the incorporation. The Regulations also incorporate section 13E of the Act (corresponding requirements for multiple Article 11 regulations) and section 18B(1) (declarations). There is no separate enforcement machinery in the Regulations. The Minister may also suspend or cancel a permit under the Act for non‑compliance. The regulation‑making power under the Act would allow amendments to penalties, but as they stand the penalties are those of the principal Act. Practitioners should refer to the Act for exact penalty units (e.g., up to 5 years imprisonment or 2,500 penalty units for some offences, adjusted over time). The Regulations impose no civil penalty regime of their own; enforcement is criminal or administrative through the Act. The Department’s role in accident notification (regulation 15) may trigger its own enforcement action under the Act or under environmental legislation. The notice‑publishing power (regulation 8) does not create enforcement obligations; it merely facilitates compliance.

The Regulations sit within a hierarchy. They are subordinate legislation made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989. The Act itself implements the Basel Convention; these Regulations implement the Waigani Convention as an Article 11 arrangement under Basel. Regulation 12 declares that the requirements of Part 3 of the Regulations are “corresponding requirements” for sections 13E and 18B(1) of the Act. Section 13E deals with proposals to which two or more sets of Article 11 regulations apply; the declaration means that compliance with Part 3 of these Regulations is treated as compliance with the corresponding requirements of another instrument, avoiding duplication. Section 18B(1) relates to the interaction of the Act with other laws; the declaration ensures that where both the Act and these Regulations apply, the requirements are aligned. The Regulations explicitly exclude radioactive wastes (regulation 3, Note 3). The definition of hazardous waste in the Act relies on the Basel Convention, which does not cover radioactive wastes. Therefore, the Regulations do not apply to radioactive waste movements. Instead, the Customs Act 1901 and the Customs (Prohibited Exports) Regulations and Customs (Prohibited Imports) Regulations apply. That means an exporter of radioactive waste to a Forum Island Country would need a Customs permit, not a Waigani permit. Regulation 7 excludes wastes from the normal operation of a vessel that are covered by an international instrument other than the Waigani Convention. Those wastes are regulated under MARPOL or other shipping pollution conventions, not under these Regulations or the Act. The Regulations do not displace any state or territory laws on hazardous waste transport and disposal. State and territory laws continue to apply to the domestic movement and disposal of hazardous waste after it arrives in Australia. The permit conditions (e.g., disposal notice) supplement, rather than override, state requirements. The Act’s general provisions on permits, including the power to impose additional conditions, apply through the incorporation in regulations 10 and 11. That means the Minister can impose conditions beyond those listed in regulations 13-15 under the Act’s own powers. The Regulations also interact with the Convention itself: the definition of “countries concerned” and the requirements of “consent” are not elaborated in the Regulations - they incorporate the Convention text. The interpretation of those terms may require reference to the Convention’s Article 1 definitions and Article 6 procedures. The Regulations do not incorporate the entire Convention; only the concepts necessary for permit decisions are brought into domestic law. The note to regulation 8 indicates that the Convention’s definition of “Competent Authority” is relevant. The Minister’s power to publish a notice of competent authorities relies on Convention information but does not oblige verification. The Regulations do not affect the operation of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) except indirectly through the general environmental risk assessment that may be triggered by a permit application. The duty to notify accidents (regulation 15) may overlap with reporting obligations under state environment protection authorities. Coordination is left to the permit holder. The Regulations also interact with the Act’s own transitional provisions: any permit application commenced under the Basel provisions before these Regulations came into force would be unaffected. The Regulations do not create any new liability for prior conduct.

The Regulations as provided are the Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 - a set of regulations that have been in force since 1999. The text shown appears to be a compilation (likely as at 2017 given the note about the Department). The user has not provided amendment history within the text, but we can infer from the notes: the note to regulation 3 refers to the Basel Convention as it could be viewed in 2017, and the Department note in regulation 15 says “In 2017, this was the Department of the Environment and Energy.” That suggests the text is current as at 2017. However, we must not invent amendments. We can note that the Regulations are made under the Act, and the Act has been amended several times. The Regulations themselves may have been amended to update references to the Department, to the Act sections, and to the Convention text. The definition of “Forum Island Country” and “Convention Area” are by reference to the Convention, which has not changed the list fundamentally but administrative updates may have occurred (e.g., Western Samoa renamed to Samoa). The Regulations have a note at regulation 4 acknowledging that Samoa is called Western Samoa in the text of the Convention as adopted in 1995, but is now known as Samoa. That reflects an informal clarification rather than a legislative amendment. The Regulations may have been amended to update the list of countries in the note to regulation 4 (the Convention Area and Forum Island Countries) if new territories acceded to the Convention. However, the Convention itself defines those terms dynamically; the Regulations reproduce the list as at the Convention’s adoption. Any subsequent accession by a territory would not automatically be reflected in the list unless the Regulations are amended. The Regulations may have been amended to reflect renaming of the Department (e.g., from Department of the Environment and Heritage to Department of the Environment and Energy to Department of Climate Change, Energy, the Environment and Water). The note in regulation 15 about the Department in 2017 suggests that the compilation was prepared at that time. The Regulations may also have been amended to adjust the cross‑references to the Act as the Act was amended (e.g., sections 13E, 18B were inserted by amendments to the Act). Regulation 12 refers to section 13E and 18B(1) - those references would need to be updated if the Act changed section numbers. No specific amendment information is provided, so we cannot detail individual amending instruments. The Regulations are likely to have undergone a sunsetting review under the Legislation Act 2003, but we have no dates. The practitioner should check the Federal Register of Legislation for the current compilation and any amending instruments.

No litigation is mentioned in the source text. It would be improper to invent any. However, we can note general possibilities: any legal challenge would most likely arise from a refusal to grant a Waigani import permit or a Waigani transit permit. The decision would be judicially reviewable under the Administrative Decisions (Judicial Review) Act 1977 or under section 75(v) of the Constitution. Grounds might include that the Minister failed to consider mandatory criteria (e.g., whether the applicant notified the countries concerned, or whether the waste would be dumped at sea). Alternatively, an applicant could argue that the Minister misconstrued “countries concerned” under the Convention. Another potential area of litigation is enforcement: prosecution for breach of permit conditions, such as failure to have a movement document or failure to notify an accident. A defendant might argue that the condition was not validly imposed because the Regulations did not incorporate the Act properly. The Regulations incorporate the Act by reference; any defect in the incorporation could be challenged. The declaration of corresponding requirements under regulation 12 could be challenged if a person argues that they should not be bound by both sets of requirements. The Minister’s notice under regulation 8 (competent authorities) could be challenged if it is incorrect and relied upon to the detriment of an applicant. However, the Minister is not obliged to verify information, so a mistake in the notice may not be actionable unless the Minister acted unreasonably. The prohibition on exporting to Forum Island Countries (regulation 6(a)) could be challenged as inconsistent with the Act or with Australia’s trade obligations, but the Regulations implement a multilateral environmental agreement, which may prevail over trade rules under WTO exceptions. The Regulations themselves do not create a cause of action; they are administrative in nature. There is no suggestion in the source of any decided case law under these specific Regulations. The parent Act has been litigated in a few cases, mainly on the meaning of “hazardous waste” and permit conditions, but those cases are not cited here.

Several provisions carry traps for the unwary. No export permit at all to Forum Island Countries: regulation 6(a) is absolute - the Minister has no power to grant an export permit for hazardous waste to any Forum Island Country. An Australian waste exporter cannot circumvent this by routing through a non‑Party territory; regulation 6(a)(ii) also prohibits permits to a territory within the Convention Area that is not an “Other Party” (i.e., not Australia or New Zealand). Even if the destination country otherwise consents, the Minister cannot issue a permit. Transit permits only from, not to: regulation 6(c) prohibits a transit permit for waste from, or to, a country within the Convention Area that is not a Party. So transit through Australia of waste from a non‑Party Pacific territory is banned, even if the final destination is a Party. Similarly, transit to a non‑Party from a Party is banned. Movement document must be signed by each person in Australia taking charge: this is a condition of the permit, but the obligation is not limited to the permit holder. A trucking company, warehouse operator, or rail carrier that takes physical custody of the waste must sign the movement document. Failure to do so is a breach of a permit condition, potentially exposing that entity to prosecution under the Act. The permit holder is responsible for ensuring compliance but cannot contract out of the condition. Accident notification is immediate and has multiple recipients: regulation 15 requires the permit holder to inform not only the Department but also the Competent Authority of any affected Party (other than Australia) and the appropriate authority of any other affected country. “Immediately” is a high standard - a few hours’ delay could be a breach. The permit holder must have contact details for all potential affected authorities. No verification obligation on the Minister for competent authority notices: the Minister may publish a notice based solely on information supplied by a Party and is not obliged to verify it (regulation 8(2)). An applicant who relies on an outdated or incorrect notice to contact the wrong authority may have their notification deemed invalid. The risk lies with the applicant. Waste from normal vessel operations exempted only if covered by another international instrument: regulation 7 is narrow. If the discharge is not covered by another instrument (e.g., MARPOL does not cover certain wastes), the exemption does not apply, and the waste could fall within the definition of hazardous waste and require a permit. : this is a precondition for both import and transit permits. An application that does not contain evidence addressing this risk may be refused. The applicant must show a lawful disposal pathway that excludes sea dumping. : the Convention Area includes territories that may not have ratified the Convention. Regulation 6 prohibits import permits for waste from a country within the Convention Area that is not a Party, but allows import permits from Forum Island Countries. However, a Forum Island Country might not be a Party - the definition of Forum Island Country in the Convention does not depend on ratification. If a Forum Island Country is not a Party, the Regulations are silent on whether import permits are possible; the only prohibition is for non‑Party countries within the Convention Area. The safer view is that the prohibition applies only to non‑Party countries, but Forum Island Countries that are not Parties may still be within the “Convention Area” and thus prohibited for import? The phrasing is ambiguous: regulation 6(b) prohibits import permits for waste imported from “a country within the Convention Area that is not a Party”. Forum Island Countries are all within the Convention Area. So unless the country is a Party, an import permit is prohibited. That means import permits are only available from Forum Island Countries that have ratified the Waigani Convention. Practitioners must verify the Party status of the exporting country. : regulation 12 declares that the requirements of Part 3 are corresponding requirements for sections 13E and 18B(1) of the Act. This means that if a proposal is also covered by another set of Article 11 regulations, the applicant must comply with both, but compliance with one is treated as compliance with the other for “corresponding” parts. However, the precise scope of correspondence is not defined - it could lead to disputes if the requirements are not identical. : regulations 10(1)(c) and 11(1)(c) omit provisions that apply only to export permits. That means references to export permit conditions in the Act do not apply. But care is needed: some provisions in the Act may apply to all permits by default; the omission is only for export‑specific provisions.

Compliance requires a structured approach. Step 1 - Determine if the Regulations apply: check whether the proposed movement is an import of hazardous waste from a Forum Island Country, or a transit of hazardous waste through Australia from a Forum Island Country (regulation 5). Also check that the country is a Party to the Waigani Convention (regulation 6(b)). If the movement is an export to a Forum Island Country or a transit from/to a non‑Party, the Minister cannot grant a permit - the proposal cannot proceed under these Regulations. Step 2 - Identify the correct Competent Authority: use the Minister’s published notice under regulation 8, but verify independently because the Minister is not obliged to ensure the information is correct. Contact the Competent Authority to confirm the acceptable language for notifications. Step 3 - Prepare notification under Article 6 of the Convention: the applicant must notify the countries concerned (exporting country, transit countries, importing country) of the proposed movement. The content of the notification is specified in the Convention; the Regulations do not list it. Ensure the notification includes all required information, especially a movement document under Annex VI B (required by regulation 13(1) as a condition). The notification must be in a language acceptable to the notified country. Step 4 - Obtain written consent: each country concerned must consent to the proposal in accordance with Article 6 of the Convention. The consent must be obtained before the application can proceed. Retain evidence of consent for the permit application. Step 5 - Apply for permit: submit an application for a Waigani import permit or a Waigani transit permit under the Act’s procedures (incorporating Divisions 3 and 4 of Part 2 of the Act). Include evidence of notification and consent, and evidence that the waste will not be dumped at sea within the Convention Area (e.g., a disposal contract with a licensed facility that does not involve ocean dumping). Step 6 - Comply with permit conditions: once granted, the permit holder must ensure the waste is accompanied by a movement document containing the Annex VI B information (regulation 13(1)). Every person in Australia who takes charge of the waste must sign the movement document when receiving it (regulation 13(2)). The permit holder should train all handlers on this requirement. Step 7 - Notify receipt and disposal: the importer (for import permits) must notify the exporter and the Competent Authority of the exporting Party when the waste is received and when disposal is completed (regulation 14). These notices should be in the acceptable language and sent promptly. : the permit holder must have a procedure to immediately inform the Department, any affected Party’s Competent Authority (other than Australia), and any other affected country’s appropriate authority if an accident during the transboundary movement is likely to present a risk to human health or the environment. Keep a list of emergency contacts for all countries along the route. : retain copies of all notifications, consents, movement documents, disposal notices, and any accident reports. The Act’s record‑keeping requirements apply (likely 5 years after the movement). : ensure compliance with the Act’s general provisions, state hazardous waste transport laws, and the Customs Act for radioactive wastes (if applicable). If the proposal also falls under another Article 11 arrangement, check regulation 12 to avoid duplicative requirements. : watch for amendments to the Regulations, updates to the Convention, and changes to the list of Parties. The Minister’s notice under regulation 8 may be updated. : given the complexity, engage a lawyer experienced in environmental law and the Act. The Regulations incorporate a foreign treaty that may require interpretation of the Convention’s Article 6 notification and consent procedures. Mistakes in notification can lead to permit refusal or prosecution.