HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS) AMENDMENT ACT 2021 (NO. 73, 2021) - SCHEDULE 4 Offence and civil penalty provisions

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HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS) AMENDMENT ACT 2021 (NO. 73, 2021) - SCHEDULE 4

Offence and civil penalty provisions

Hazardous Waste (Regulation of Exports and Imports) Act 1989

1 Section 4

Insert:

"executive officer " , in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned with, or takes part in, the management of the body.

"OECD country " means a country that is a member of the Organisation for Economic Cooperation and Development under the Convention on the Organisation for Economic Cooperation and Development done at Paris on 14 December 1960.

Note: The Convention is in Australian Treaty Series 1971 No. 11 ([1971] ATS 11) and could in 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

"recovery operation " means an operation mentioned in Appendix 5.B to the OECD Decision C(2001)107, being Revision of Decision C(92)39/FINAL on the control of transboundary movements of wastes destined for recovery operations, made on 14 June 2001 by the Council of the Organisation for Economic Cooperation and Development, as in force from time to time.

Note: The OECD Decision could in 2021 be viewed on the OECD website (https://legalinstruments.oecd.org/).

2 Subsection 13A(1) (note)

Omit "paragraph 40A(1)(b)", substitute "subsection 33G(1)".

3 Paragraphs 22(2C)(a) and (b)

Omit "subsection 37(2)", substitute "subsection 38B(2)".

4 After Part 2

Insert:

Part 2A -- Regulation of import, export, transit and sale of hazardous waste

Division 1 -- Regulation of import of hazardous waste

33A Import of hazardous waste--basic contravention

Prohibition of imports

(1) A person contravenes this subsection if:

(a) the person imports waste; and

(b) the waste is hazardous waste; and

(d) the person is not the holder of a transit permit authorising the person to import the hazardous waste; and

(e) there is no notification in force under subsection 33G(1) that the person does not require a transit permit to import the hazardous waste; and

(f) the import has not been ordered under section 35; and

(g) the import is not authorised by an order under section 38.

Note 1: For paragraph (e), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).

Note 2: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Compliance with import permits

(2) A person contravenes this subsection if:

(a) the person imports waste; and

(b) the waste is hazardous waste; and

(d) the import is not in accordance with the permit.

Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Compliance with permit conditions

(3) A person contravenes this subsection if:

(a) the person imports waste; and

(b) the waste is hazardous waste; and

(d) the permit is subject to a permit condition; and

(e) the person does an act or omits to do an act; and

(f) the act or omission does not comply with the permit condition in relation to the import (whether before, during or after the import).

Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Fault-based offence

(4) A person commits an offence if the person contravenes subsection (1), (2) or (3).

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1), (2) or (3).

Penalty: 60 penalty units.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).

Civil penalty: 600 penalty units.

33B Import of hazardous waste--injury or damage to human beings or the environment

Prohibition of imports

(1) A person contravenes this subsection if:

(a) the person imports waste; and

(b) the waste is hazardous waste; and

(d) the person is not the holder of a transit permit authorising the person to import the hazardous waste; and

(e) there is no notification in force under subsection 33G(1) that the person does not require a transit permit to import the hazardous waste; and

(f) the import has not been ordered under section 35; and

(g) the import is not authorised by an order under section 38; and

(h) the import, or the presence of the hazardous waste in Australia after the import, injures or damages, or is likely to injure or damage, human beings or the environment.

Note 1: For paragraph (e), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).

Note 2: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Compliance with import permits

(2) A person contravenes this subsection if:

(a) the person imports waste; and

(b) the waste is hazardous waste; and

(d) the import is not in accordance with the permit; and

(e) the import, or the presence of the hazardous waste in Australia after the import, injures or damages, or is likely to injure or damage, human beings or the environment.

Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Compliance with permit conditions

(3) A person contravenes this subsection if:

(a) the person imports waste; and

(b) the waste is hazardous waste; and

(d) the permit is subject to a permit condition; and

(e) the person does an act or omits to do an act; and

(f) the act or omission does not comply with the permit condition in relation to the import (whether before, during or after the import); and

(g) the non-compliance with the permit condition injures or damages, or is likely to injure or damage, human beings or the environment.

Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Fault-based offence

(4) A person commits an offence if the person contravenes subsection (1), (2) or (3).

Penalty: Imprisonment for 8 years or 500 penalty units, or both.

Alternative verdict

(5) In a trial for an offence against subsection (4), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 33A(4), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (4) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 33A(4); and

Strict liability offence

(6) A person commits an offence of strict liability if the person contravenes subsection (1), (2) or (3).

Penalty: 60 penalty units.

Civil penalty provision

(7) A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).

Civil penalty: 1,000 penalty units.

Division 2 -- Regulation of export of hazardous waste

33C Export of hazardous waste--basic contravention

Prohibition of exports

(1) A person contravenes this subsection if:

(a) the person exports waste; and

(b) the waste is hazardous waste; and

(d) the person is not the holder of a transit permit authorising the person to export the hazardous waste; and

(e) there is no notification in force under subsection 33G(1) that the person does not require a transit permit to export the hazardous waste; and

(f) the export has not been ordered under section 34 or 35A.

Note 1: For paragraph (e), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).

Note 2: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Compliance with export permits

(2) A person contravenes this subsection if:

(a) the person exports waste; and

(b) the waste is hazardous waste; and

(d) the export is not in accordance with the permit.

Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Compliance with permit conditions

(3) A person contravenes this subsection if:

(a) the person exports waste; and

(b) the waste is hazardous waste; and

(d) the permit is subject to a permit condition; and

(e) the person does an act or omits to do an act; and

(f) the act or omission does not comply with the permit condition in relation to the export (whether before, during or after the export).

Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Fault-based offence

(4) A person commits an offence if the person contravenes subsection (1), (2) or (3).

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1), (2) or (3).

Penalty: 60 penalty units.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).

Civil penalty: 600 penalty units.

33D Export of hazardous waste--injury or damage to human beings or the environment

Prohibition of exports

(1) A person contravenes this subsection if:

(a) the person exports waste; and

(b) the waste is hazardous waste; and

(d) the person is not the holder of a transit permit authorising the person to export the hazardous waste; and

(e) there is no notification in force under subsection 33G(1) that the person does not require a transit permit to export the hazardous waste; and

(f) the export has not been ordered under section 34 or 35A; and

(g) the export, or the presence of the hazardous waste outside of Australia after the export, injures or damages, or is likely to injure or damage, human beings or the environment.

Note 1: For paragraph (e), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).

Note 2: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Compliance with export permits

(2) A person contravenes this subsection if:

(a) the person exports waste; and

(b) the waste is hazardous waste; and

(d) the export is not in accordance with the permit; and

(e) the export, or the presence of the hazardous waste outside of Australia after the export, injures or damages, or is likely to injure or damage, human beings or the environment.

Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Compliance with permit conditions

(3) A person contravenes this subsection if:

(a) the person exports waste; and

(b) the waste is hazardous waste; and

(d) the permit is subject to a permit condition; and

(e) the person does an act or omits to do an act; and

(f) the act or omission does not comply with the permit condition in relation to the export (whether before, during or after the export); and

(g) the non-compliance with the permit condition injures or damages, or is likely to injure or damage, human beings or the environment.

Note: The physical elements of an offence against subsection (4) are set out in this subsection (see section 58F).

Fault-based offence

(4) A person commits an offence if the person contravenes subsection (1), (2) or (3).

Penalty: Imprisonment for 8 years or 500 penalty units, or both.

Alternative verdict

(5) In a trial for an offence against subsection (4), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 33C(4), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (4) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 33C(4); and

Strict liability offence

(6) A person commits an offence of strict liability if the person contravenes subsection (1), (2) or (3).

Penalty: 60 penalty units.

Civil penalty provision

(7) A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).

Civil penalty: 1,000 penalty units.

Division 3 -- Regulation of transit of hazardous waste

33E Transit of hazardous waste--basic contravention

Prohibition of bringing waste into Australia

(1) A person contravenes this subsection if:

(a) in the course of carrying out a transit proposal, the person brings waste into Australia (whether or not by way of import); and

(b) the waste is hazardous waste; and

(c) the person is not the holder of a transit permit authorising the person to bring the hazardous waste into Australia; and

(d) there is no notification in force under subsection 33G(1) that the person does not require a transit permit for the transit proposal.

Note 1: For paragraph (d), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).

Note 2: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).

Compliance with transit permits--bringing waste into Australia

(2) A person contravenes this subsection if:

(a) in the course of carrying out a transit proposal, the person brings waste into Australia (whether or not by way of import); and

(b) the waste is hazardous waste; and

(d) the bringing of the hazardous waste into Australia is not in accordance with the permit.

Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).

Compliance with transit permits--exporting waste

(3) A person contravenes this subsection if:

(a) in the course of carrying out a transit proposal, the person exports waste; and

(b) the waste is hazardous waste; and

(d) the export is not in accordance with the permit.

Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).

Compliance with permit conditions

(4) A person contravenes this subsection if:

(a) in the course of carrying out a transit proposal, the person brings waste into Australia (whether or not by way of import); and

(b) the waste is hazardous waste; and

(d) the permit is subject to a permit condition; and

(e) the person does an act or omits to do an act; and

(f) the act or omission does not comply with the permit condition in relation to the transit of the hazardous waste (whether before, during or after bringing it into Australia).

Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).

Fault-based offence

(5) A person commits an offence if the person contravenes subsection (1), (2), (3) or (4).

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

Strict liability offence

(6) A person commits an offence of strict liability if the person contravenes subsection (1), (2), (3) or (4).

Penalty: 60 penalty units.

Civil penalty provision

(7) A person is liable to a civil penalty if the person contravenes subsection (1), (2), (3) or (4).

Civil penalty: 600 penalty units.

33F Transit of hazardous waste--injury or damage to human beings or the environment

Prohibition of bringing waste into Australia

(1) A person contravenes this subsection if:

(a) in the course of carrying out a transit proposal, the person brings waste into Australia (whether or not by way of import); and

(b) the waste is hazardous waste; and

(c) the person is not the holder of a transit permit authorising the person to bring the hazardous waste into Australia; and

(d) there is no notification in force under subsection 33G(1) that the person does not require a transit permit for the transit proposal; and

(e) the bringing into Australia, or the presence in Australia, of the hazardous waste injures or damages, or is likely to injure or damage, human beings or the environment.

Note 1: For paragraph (d), a notification under subsection 33G(1) may cease to be in force if it is revoked under subsection 33G(4).

Note 2: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).

Compliance with transit permits--bringing waste into Australia

(2) A person contravenes this subsection if:

(a) in the course of carrying out a transit proposal, the person brings waste into Australia (whether or not by way of import); and

(b) the waste is hazardous waste; and

(d) the bringing of the hazardous waste into Australia is not in accordance with the permit; and

(e) the bringing into Australia, or the presence in Australia, of the hazardous waste injures or damages, or is likely to injure or damage, human beings or the environment.

Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).

Compliance with transit permits--exporting waste

(3) A person contravenes this subsection if:

(a) in the course of carrying out a transit proposal, the person exports waste; and

(b) the waste is hazardous waste; and

(d) the export is not in accordance with the permit; and

(e) the export, or the presence of the hazardous waste outside of Australia after the export, injures or damages, or is likely to injure or damage, human beings or the environment.

Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).

Compliance with permit conditions

(4) A person contravenes this subsection if:

(a) in the course of carrying out a transit proposal, the person brings waste into Australia (whether or not by way of import); and

(b) the waste is hazardous waste; and

(d) the permit is subject to a permit condition; and

(e) the person does an act or omits to do an act; and

(f) the act or omission does not comply with the permit condition in relation to the transit of the hazardous waste (whether before, during or after bringing it into Australia); and

(g) the non-compliance with the permit condition injures or damages, or is likely to injure or damage, human beings or the environment.

Note: The physical elements of an offence against subsection (5) are set out in this subsection (see section 58F).

Fault-based offence

(5) A person commits an offence if the person contravenes subsection (1), (2), (3) or (4).

Penalty: Imprisonment for 8 years or 500 penalty units, or both.

Alternative verdict

(6) In a trial for an offence against subsection (5), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 33E(5), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (5) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 33E(5); and

Strict liability offence

(7) A person commits an offence of strict liability if the person contravenes subsection (1), (2), (3) or (4).

Penalty: 60 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes subsection (1), (2), (3) or (4).

Civil penalty: 1,000 penalty units.

33G Notice that transit permit not required

(1) The Minister may notify a person, in writing, that the person does not require a transit permit for a transit proposal if the Minister is satisfied:

(a) that carrying out the transit proposal is in connection with the movement of hazardous waste from one OECD country to another OECD country; and

(b) that the hazardous waste is destined for recovery operations; and

(c) that carrying out the transit proposal will not pose a significant risk of injury or damage to human beings or the environment; and

(d) of any other matters prescribed by the regulations for the purposes of this paragraph; and

(e) of any other matters the Minister considers relevant.

(2) Even if the Minister is satisfied as mentioned in subsection (1), the Minister may decide not to give a notification under that subsection if the applicant has previously failed to provide, or to arrange to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit.

Note 1: For the requirement to provide an auditor with assistance that is reasonably necessary for the conduct of an audit, see section 54.

Note 2: The audit need not relate to a notification. Assistance may be requested in relation to any audit of operations covered by a permit, an order under Part 3, a notification given under subsection 33G(1), or other prescribed operations: see section 50.

(3) The Minister must, as soon as practicable after giving a notification under subsection (1), cause to be published, on the Department's website, particulars of the notification.

(4) The Minister may, by notifying a person in writing, revoke a notification of the person under subsection (1) for a transit proposal if the Minister:

(a) is no longer satisfied of the matters in paragraphs (1)(a) to (d) in relation to the transit proposal and the person; or

(b) is satisfied that the person is failing, or has failed after the notice was given, to provide, or to arrange to provide, an auditor with assistance that is reasonably necessary for the conduct of an audit.

(5) However, a revocation of a notification only applies to the carrying out of a transit proposal if the carrying out of the transit proposal has yet to begin.

Division 4 -- Regulation of sale of hazardous waste

33H Regulation of sale of hazardous waste

(1) A person contravenes this subsection if:

(a) the person sells waste to a body corporate incorporated outside Australia (whether the sale occurs within or outside Australia); and

(b) the waste is hazardous waste; and

(i) does not have a registered office in Australia; or

(ii) does not have a principal office, and at least one executive officer, in Australia; and

(d) the person sells the waste knowing, or being reckless as to whether, the waste is to be exported by the body corporate; and

(e) an export permit authorising the export of the waste is not in force when the sale occurs.

Note: The physical elements of an offence against subsection (3) are set out in this subsection (see section 58F).

(2) A person contravenes this subsection if:

(a) the person sells waste to another person who is located outside Australia; and

(b) the waste is hazardous waste; and

(d) an export permit authorising the export of the waste is not in force when the sale occurs.

Note: The physical elements of an offence against subsection (3) are set out in this subsection (see section 58F).

Fault-based offence

(3) A person commits an offence if the person contravenes subsection (1) or (2).

Penalty: Imprisonment for 3 years or 180 penalty units, or both.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1) or (2).

Civil penalty: 360 penalty units.

5 Before section 34

Insert:

Division 1 -- Ministerial orders

6 Section 34 (heading)

Omit " where section 39 contravened ", substitute " relating to import of hazardous waste ".

7 Subsections 34(1) and (2)

Repeal the subsections, substitute:

(1) If a person contravenes one or more of the provisions mentioned in subsection (2) in relation to hazardous waste, the Minister may, in writing, order the person to deal with the waste in a specified way.

(2) For the purposes of subsection (1), the provisions are the following:

(a) subsection 33A(1) (import of hazardous waste--basic contravention);

(b) subsection 33A(2) (import in accordance with permit--basic contravention);

(d) subsection 33B(1) (import of hazardous waste--injury or damage);

(e) subsection 33B(2) (import in accordance with permit--injury or damage);

(f) subsection 33B(3) (compliance with permit conditions--injury or damage);

(g) subsection 38F(1) (contravention of order to import hazardous waste--basic contravention);

(h) subsection 38G(1) (contravention of order to import hazardous waste--injury or damage).

8 Subsection 34(3)

Omit "subsections (1) and (2), the Minister may, under either of those subsections", substitute "subsection (1), the Minister may, under that subsection".

9 Section 35 (heading)

Omit " where section 40 contravened ", substitute " relating to export of hazardous waste ".

10 Subsections 35(1) and (2)

Repeal the subsections, substitute:

(2) For the purposes of subsection (1), the provisions are the following:

(a) subsection 33C(1) (export of hazardous waste--basic contravention);

(b) subsection 33C(2) (export in accordance with permit--basic contravention);

(d) subsection 33D(1) (export of hazardous waste--injury or damage);

(e) subsection 33D(2) (export in accordance with permit--injury or damage);

(f) subsection 33D(3) (compliance with permit conditions--injury or damage).

11 Subsection 35(3)

Omit "subsections (1) and (2), the Minister may, under either of those subsections", substitute "subsection (1), the Minister may, under that subsection".

12 Section 35A (heading)

Omit " where section 40A contravened ", substitute " relating to transit of hazardous waste ".

13 Subsections 35A(1) and (2)

Repeal the subsections, substitute:

(2) For the purposes of subsection (1), the provisions are the following:

(a) subsection 33E(1) (transit of hazardous waste--basic contravention);

(b) subsection 33E(2) (compliance with transit permit to bring waste into Australia--basic contravention);

(d) subsection 33E(4) (compliance with transit permit conditions--basic contravention);

(e) subsection 33F(1) (transit of hazardous waste--injury or damage);

(f) subsection 33F(2) (compliance with transit permit to bring waste into Australia--injury or damage);

(g) subsection 33F(3) (compliance with transit permit to export waste--injury or damage);

(h) subsection 33F(4) (compliance with transit permit conditions--injury or damage).

14 Subsection 35A(3)

Repeal the subsection, substitute:

(3) Without limiting subsection (1), the Minister may, under that subsection:

(a) order the waste to be exported; or

(b) specify the day on or before which anything required to be done in relation to the waste is to be done.

15 Paragraph 36(1)(a)

Repeal the paragraph, substitute:

(a) a person contravenes one or more of the following provisions in relation to hazardous waste:

(i) subsection 33A(1), (2) or (3) (import of hazardous waste--basic contravention);

(ii) subsection 33B(1), (2) or (3) (import of hazardous waste--injury or damage);

(iii) subsection 33C(1), (2) or (3) (export of hazardous waste--basic contravention);

(iv) subsection 33D(1), (2) or (3) (export of hazardous waste--injury or damage);

(v) subsection 33E(1), (2), (3) or (4) (transit of hazardous waste--basic contravention);

(vi) subsection 33F(1), (2), (3) or (4) (transit of hazardous waste--injury or damage); and

16 Section 37

Repeal the section.

17 Sections 38A and 38B

Repeal the sections, substitute:

Division 2 -- Contravention of orders

38A Orders to remedy or mitigate damage if order under section 34, 35, 35A or 38 not complied with

(1) If:

(a) the person has been given an order under section 34, 35, 35A or 38 requiring the person:

(i) to deal with hazardous waste in a specified way; or

(ii) to deal with hazardous waste by a specified time; and

(b) the person does an act or omits to do an act; and

(d) the Minister is satisfied that the non-compliance with the requirement resulted in the waste causing significant injury or damage to human beings or the environment;

the Minister may, in writing, order the person to take such steps as the Minister thinks proper to remedy or mitigate the damage.

Note: A requirement to deal with hazardous waste in a specified way includes a requirement to import or export the waste.

(2) The Minister must not, under subsection (1), order the person to pay compensation.

38B Minister may take action and recover costs if order under section 34, 35, 35A, 36, 38 or 38A not complied with

(1) If:

(a) the Minister makes an order under section 34, 35, 35A, 36, 38 or 38A requiring a person to do something; and

(b) the person does not do the thing as and when required by the order;

the Minister may arrange for the thing to be done.

(2) If the Commonwealth incurs costs because of arrangements made by the Minister under subsection (1), the person is liable to pay to the Commonwealth an amount equal to so much of those costs as are reasonable and the amount may be recovered by the Commonwealth as a debt due to the Commonwealth in:

(a) the Court; or

(b) the Federal Circuit Court; or

38C Failure to deal with waste in contravention of order under section 34, 35 or 35A--basic contravention

Failure to deal with waste

(1) A person contravenes this subsection if:

(a) the person has been given an order under section 34, 35 or 35A requiring the person:

(i) to deal with hazardous waste in a specified way; or

(ii) to deal with hazardous waste by a specified time; and

(b) the person does an act or omits to do an act; and

Note 1: The physical elements of an offence against subsection (2) are set out in this subsection (see section 58F).

Note 2: A requirement to deal with hazardous waste in a specified way includes a requirement to import or export the waste.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 600 penalty units.

38D Failure to deal with waste in contravention of order under section 34, 35 or 35A--injury or damage to human beings or the environment

Failure to deal with waste

(1) A person contravenes this subsection if:

(a) the person has been given an order under section 34, 35 or 35A requiring the person:

(i) to deal with hazardous waste in a specified way; or

(ii) to deal with hazardous waste by a specified time; and

(b) the person does an act or omits to do an act; and

(d) the non-compliance with the requirement injures or damages human beings or the environment.

Note 1: The physical elements of an offence against subsection (2) are set out in this subsection (see section 58F).

Note 2: A requirement to deal with hazardous waste in a specified way includes a requirement to import or export the waste.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 500 penalty units, or both.

Alternative verdict

(3) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38C(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38C(2); and

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 1,000 penalty units.

38E Failure to deal with waste in contravention of order under section 36 or 38A

Failure to deal with waste

(1) A person contravenes this subsection if:

(a) the person has been given an order under section 36 or 38A requiring the person to take steps to remedy or mitigate damage; and

(b) the person does an act or omits to do an act; and

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 58F).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 600 penalty units.

38F Failure to deal with waste in contravention of order under section 38--basic contravention

Failure to deal with waste

(1) A person contravenes this subsection if:

(a) the person has been given an order under section 38 requiring the person to deal with hazardous waste in a specified way; and

(b) the person does an act or omits to do an act; and

Note 1: The physical elements of an offence against subsection (2) are set out in this subsection (see section 58F).

Note 2: A requirement to deal with hazardous waste in a specified way includes a requirement to import the waste or a requirement to deal with the waste within a specified time.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 600 penalty units.

38G Failure to deal with waste in contravention of order under section 38--injury or damage to human beings or the environment

Failure to deal with waste

(1) A person contravenes this subsection if:

(a) the person has been given an order under section 38 requiring the person to deal with hazardous waste in a specified way; and

(b) the person does an act or omits to do an act; and

(d) the act or omission injures or damages, or is likely to injure or damage, human beings or the environment.

Note 1: The physical elements of an offence against subsection (2) are set out in this subsection (see section 58F).

Note 2: A requirement to deal with hazardous waste in a specified way includes a requirement to import the waste or a requirement to deal with the waste within a specified time.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 8 years or 500 penalty units, or both.

Alternative verdict

(3) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38F(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38F(2); and

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 1,000 penalty units.

38H Failure to give information in contravention of order under this Part

Failure to give information

(1) A person contravenes this subsection if:

(a) a person has been given an order under this Part requiring the person to give the Minister specified information by a specified time and in a specified manner; and

(b) the person does an act or omits to do an act; and

Strict liability offence

(2) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 30 penalty units.

Civil penalty provision

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 240 penalty units.

18 Part 4 (heading)

Repeal the heading.

19 Sections 39 to 40B

Repeal the sections.

20 Section 41A

Repeal the section, substitute:

41A Transporting substance through transit country without approval

Transporting substance through transit country without approval

(1) A person contravenes this subsection if:

(a) the person exports a substance or object to a foreign country (the destination country ); and

(b) the substance or object is transported through a third country (the transit country ) on its way to the destination country; and

(d) under section 41C the substance or object is a notifiable substance in relation to the transit country; and

(e) at the time when the substance or object was brought into the transit country, the transportation had not been approved under section 41B.

Note: The physical elements of an offence against subsection (2) are set out in this subsection (see section 58F).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 3 years or 180 penalty units, or both.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 360 penalty units.

21 After paragraph 57(e)

Insert:

(ea) decisions to give a notice under subsection 33G(1);

(eb) decisions to revoke a notice under subsection 33G(4);

22 Paragraph 57(f)

Omit "35A and 36", substitute "35A, 36 and 38A".

23 After section 58E

Insert:

58F Contravening an offence provision or a civil penalty provision

(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision ) commits an offence or is liable to a civil penalty.

(2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.

(3) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct provision.

Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.

Part 2 -- Transitional and saving provisions

24 Saving provision--contraventions, orders and contraventions of orders

(1) Despite the amendments made by Part 1 of this Schedule, the old law continues to apply, on or after the commencement of that Part, in relation to:

(a) a contravention of Part 4 of the old law before that commencement; or

(b) an order under Part 3 of the old law made:

(i) before that commencement; or

(ii) on or after that commencement as a result of this item in relation to a contravention covered by paragraph (a) of this item;

as if those amendments were not made.

Note: The amendments made by Part 1 of this Schedule apply in relation to contraventions of Part 2A, or orders made under Part 3, of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (as amended by Part 1 of this Schedule) on or after the commencement of those amendments.

(2) In this item:

old law means the following provisions of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 as in force immediately before the commencement of this Part:

(a) Part 3;

(b) Part 4 (other than section 41);

(c) any other provision to the extent that it relates to Parts 3 or 4 (other than section 41 and the provisions of Part 5).

Note: For application and saving rules dealing with monitoring powers, investigation powers, audit powers and injunctions in relation to contraventions of Part 4 of the old law, and contraventions of orders under Part 3 of the old law, see Part 2 of Schedule 2 to this Act.

25 Transitional provision--notification of transit proposals that do not require a transit permit

A notification:

(a) given under paragraph 40A(1)(b) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 , as in force before the commencement of this Part; and

(b) that is in force immediately before that commencement;

continues in force (and may be dealt with) in relation to the import, export or transit of hazardous waste occurring on or after that commencement as if the notification were a notification given under subsection 33G(1) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 , as inserted by this Schedule.

Part 3 -- Contingent amendments

Hazardous Waste (Regulation of Exports and Imports) Act 1989

26 Paragraph 38B(2)(b)

Repeal the paragraph, substitute:

(b) the Federal Circuit and Family Court of Australia (Division 2); or

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