10 March 2020
The Hon Barnaby Joyce MP House Standing Committee on Industry, Innovation, Science and Resources Parliament House by email only: [email protected]
Inquiry into Australia’s Waste Management and Recycling Industries
The Law Institute of Victoria (‘LIV’) thanks the House of Representative’s Standing Committee on Industry, Innovation, Science and Resources (‘the Committee’) for the opportunity to provide feedback on the Inquiry into Innovative Solutions in Australia’s Waste Management and Recycling Industries (‘the Inquiry’).
The LIV responds to the Inquiry’s Terms of Reference as follows:
Industrial, commercial and domestic waste
1. The LIV recommends the polluter pays principle is the most appropriate means to deal with the growing demands on the industrial, commercial and domestic waste industry. In the LIV’s view, efficient regulation must seek to utilise “not just governments but also business and third parties”.1 Increasingly, irresponsible corporate actions have failed to observe and comply with environmental regulations, partly as a result of “social pressures and economic constraints”.2 With this in mind, the World-Wide Fund for Nature (WWF) recommended implementing policies which extend the responsibility of polluters for waste originating in their trade chains.3 In Victoria, section 1k of the Environmental Protection Act (‘EP Act’) outlines the principles of enforcement, including that “no commercial advantage arises from non- compliant behaviour”. 4 Therefore, corporations operating in Victoria must comply with their legislative obligations in the EP Act in relation to waste removal.
2. The LIV commends efforts by the Commonwealth Government5 to reduce environmental impacts by implementing a circular economy, ensuring products are
1 Neil Gunningham, ‘The New Collaborative Environmental Governance: The Localization of Regulation’ (2009) 36 Journal of Law and Society 200. 2 Neil Gunningham, Robert Kagan, Dorothy Thornton, ‘Social License and Environmental Protections: Why Businesses Go Beyond Compliance’ (2004) 29 (2) Law and Social Inquiry, 307. 3 World Wide Fund for Nature, ‘Solving Plastic Pollution Through Accountability’
designed to be durable, readily repaired, re-used and recycled. Increasingly however, manufacturers using plastic converters in their product designs have limited responsibility for the impact on plastic waste and pollution,6 resulting in consumption patterns in supply chains producing “five times more virgin plastic than recyclable plastic”.7 In the LIV’s view, consistent with the recommendation of the WWF, prices in production should reflect the “full life cycle cost to nature and society”.8
3. The LIV suggests that addressing commercial interests requires implementing greater producer responsibility by encouraging market actors to innovate and develop their own solutions to waste production, at earlier stages, in order to minimise waste management costs. Where polluters’ costs and damages are recovered through civil litigation, compensation for environmental remediation and abatement measures must account for and be associated with the “magnitude and capacity of the enterprise”9 in order for penalties imposed upon corporations to serve the purpose of deterrence.
Waste in waterways and oceans
4. Investigations conducted by Four Corners10 revealed substantial gaps in the planning permit system in approving waste facilities and enforcing planning permit conditions, failing to effectively regulate and adequately maintain waste facilities. The investigation demonstrated the potential significant consequences to the amenity, health and safety for nearby residents, as well as those particularly vulnerable users of downstream surface water and groundwater.
5. The LIV previously submitted to the Environment Protection Authority (‘EPA’)11, following release of its draft guidelines on assessing planning applications to develop land near landfills, that the EPA should provide clearer planning requirements to address the management and impact of downstream water, particularly where the landfill site is in rural, farming, industrial or public open-space areas which may potentially enter and contaminate surface water. The LIV suggests the responsible planning authorities utilise planning tools such as Environmental Audit Overlays to identify landfill sites situated in areas surrounding landfills that have “known,
6 MESAB, ‘The Circular Economy - a Powerful Force for Climate Mitigation’ (Stockholm: Material Economics Sverige AB, 2018). 7 World Wide Fund for Nature, ‘Solving Plastic Pollution Through Accountability’ 12-13
identified or reasonably suspected contamination or potential contamination”12, to alert the public, prospective and/or existing landowners to this.
6. Landfill sites that have been closed down are the main sources of environmental legacy risks,13 given that a majority were previously constructed under less stringent practices rather than being regulated by the EPA’s 2010 revised better practice standards and the EPA’s 2012 guidelines for closed landfills.14 Landfills which have been shut down often pose further complications in relation to the contamination of groundwater and soil, which adversely affects downstream water sources, particularly when landfills are situated in high risk areas. Closed landfills can become the source of offsite contamination, which requires transparent information sharing and dissemination of results from landfill contamination assessments in order to properly cure the contaminated site and efficiently treat the surface water for safe use. The LIV recommends the creation of a centralised database for landfill sites which can alert the public and existing landowners within and surrounding planning buffer zones to the existence of contaminated land and/or surface water and potential risks. Landfill Reduction
7. The necessity for the Commonwealth Government to initiate and lead the response to increasing landfill demands was highlighted in the Four Corners investigation. The investigation revealed widespread practices used by waste transport and freight companies to transfer waste interstate to avoid paying higher landfill levies in their respective State (in particular, waste originating from New South Wales being transported to Queensland).15 Within Victoria, the increase in landfill levies has been correlated to a likely cause contributing to an increase in the amount of landfill being disposed of illegally16.
8. The LIV suggests that environmentally inconsistent waste management practices are a result of varying State and Territory regulatory regimes. The LIV recommends the Commonwealth Government consider establishing a national approach to achieve uniformity in relation to solid waste management. In the LIV’s view, this will ensure that waste management initiatives in one jurisdiction (for example, the proposal to
12 Department of the Environment, Land, Water and Planning, ‘Environmental Audit Overlay’ (August 2019)
16 Infrastructure Victoria, ‘Victorian Waste flows’, 11 October 2019, Blue Environment Pty Ltd p.18
ban e-waste from landfills in Victoria from mid-2018) are adopted and consistently implemented in all State and Territory jurisdictions.
9. The LIV recommends that the proposed development of a national approach to solid waste management adopt best-practices of both national and international jurisdictions, which rely upon established effective and innovative solutions including: a) A Container Deposit Scheme (CDS)
Implementing a CDS has long been used as a means of encouraging consumers to recycle. A CDS operates through the addition of a small deposit to the price of a product, which is refunded to a customer once the container is recycled. The most successful example of a CDS in Australia is the South Australian scheme. Introduced in 1977, the scheme produces a 76.9% return rate of containers and additional positive flow- on effects.17 For example, in 2017 $60 million was raised by charities and community groups through clean-up projects. The Northern Territory, New South Wales and Queensland now have a CDS and Western Australia has committed to implementing a CDS in 2020.
b) Banning Single-Use Plastics
Single-use plastics include lightweight plastic bags, cutlery, balloon sticks, food and beverage containers of expanded polystyrene and all oxo-degradable plastic products. The WWF estimated in its recent report ‘Solving Plastic Pollution Through Accountability’ that the rate of plastic pollution will double by 2030.12
In the LIV’s view, given that 40% of plastics are single-use, banning single-use plastics is crucial to effectively reducing plastic waste use. Although the LIV supports the Victorian Government’s commitment to banning single-use plastic bags,18 the LIV suggests more action can be taken to reduce the rate of plastic pollution in Victoria. For example, the European Union recently voted to ban ten categories of single-use items by 2021 including straws and cutlery, showcasing leadership in reducing the sources of waste from the outset.
17 See https://www.epa.sa.gov.au/environmental)info/container_deposit 18 Recycling Industry Strategic Plan, Department of Environment, Land, Water and Planning, (2018) p.5
The LIV recommends considering the waste management hierarchy19 of avoidance, resource recovery and disposal of waste20 at the design phase, in order to implement the most efficient mechanism in eliminating the source of waste and pollutants.
10. The LIV recommends the establishment of a Commonwealth framework be considered. In the LIV’s view, this will require a strengthened and expanded role of the Commonwealth Government to design and implement a national framework on waste management which, in the LIV’s view, will necessarily address the persistent issue of interstate transport of waste.
Energy Production 11. Due to the increasing transportation costs of sending waste to landfills, waste incineration is proving cost effective. Compared with landfills, incineration is more efficient in dealing with municipal waste by generating electricity for waste energy facilities. It is also beneficial by utilising a smaller footprint and overall “decreas[es] the volume of waste”.21 The landfill levy charged per tonne of municipal and industrial waste “is a critical factor in the financial viability of waste to energy facilities, because it reduces the gap between the lower cost of landfilling waste and the higher cost of recovering energy from waste”.22
12. However in the LIV’s view, waste-to-energy generation objectives should not compromise “best practice waste management”.23 Having regard to the waste management hierarchy, the recovery of energy shouldn’t be the primary method of alleviating the increased demands of Australia’s waste management system. The LIV acknowledges State and Territory Governments have recently committed to the development of many waste-to-energy facilities. With this in mind, the LIV urges caution about an over-reliance on these facilities, particularly where they substitute alternative methods of improving re-use and recycling efforts.
13. Although waste-to-energy facilities provide an appropriate means of turning high- calorific materials (whose exact composition and origin is often unknown) into electricity, some LIV members are concerned that this may be a source of harmful
19 Environment Protection Agency (NSW), The Waste Hierarchy (21 September 2017), < https://www.epa.nsw.gov.au/your- environment/recycling-and-reuse/warr-strategy/the-waste-hierarchy> 20 Environmental Protection Agency (USA), Sustainable Materials Management: Non- Hazardous Materials and Waste Management Hierarchy,
toxins that could pose greater challenges to the disposal and mitigation of waste. Thermal energy conversion used in these facilities may emit particulates that can be toxic, which could possibly cause disease and pollute the environment. Additionally, the fly-ash produced as residue of incineration contains toxic materials which must be disposed of in hazardous waste facilities.24 The fly-ash emitted by incineration is classified as a carcinogen by the International Agency for Research on Cancer.25 Fly- ash contains numerous dioxins that, due to its low water solubility, can be dangerous to human health, even in small concentrations.
14. Industry has warned against waste-to-energy projects by stating that it is significantly less beneficial than recycling, in support of a “circular flow of resources”.26 This method of waste management is also the least preferable method of waste disposal on the waste management hierarchy27. With many waste-to-energy projects underway, the LIV recommends strict regulation of these facilities to ensure they comply with EPA regulations to protect air quality and soil health,28 which is consistent with Victoria’s waste and resource recovery infrastructure plans,29 and do not displace resource recovery initiatives positioned higher on the waste management hierarchy. For this reason, the LIV is concerned to ensure that the by- products of energy conversion are fully considered so that optimal alternative waste- to-energy projects are implemented.
15. An example of preferable waste recovery initiatives is diverting priority waste from waste streams which can prevent landfill methane emissions and leachate contamination of groundwater. It was estimated that from 2015-2016, the Victorian economy lost an estimated $30 million dollars from organic waste ending up in landfill.30 The cost of landfills includes opportunity costs of recovering value from waste. The LIV recommends waste management alternatives that are higher in the waste management hierarchy be implemented in order to capture and improve the economic and social consequences caused by landfills.31
24 Phillip Kavan, Hui Hu, Xiang Li, ‘A Critical Evaluation of Waste Incineration Plants in Wuhan (China) Based on Site Selection, Environmental Influence, Public Health and Public Participation 12 (7) International Journal Environmental Research and Public Health,
Innovative recycling approaches and export opportunities
16. The LIV strongly recommends the establishment of a national circular economy in which materials are used, collected, recovered and re-used, with a particular focus on the recovery and re-use of parts that contribute towards reducing poverty by providing jobs and potential niches for industry and infrastructure.
17. In the LIV’s view, the Commonwealth Government can support approaches to waste management by facilitating the creation of a national market for waste and recycled materials. This would offer significant potential for innovation and new corporate venture opportunities to create solutions for effective and efficient waste disposal and associated issues with increasing volume of waste.
18. The need for an adaptive, national approach is illustrated by the global disruption to the export of waste, following the implementation of China’s National Sword Policy. China’s policy restricted the importation of recyclable materials that were unsorted or of low quality, requiring a contamination rate of 0.5% or less. In implementing its National Sword Policy China, having been the receiver of 55% of the world’s recycled paper and plastic, caused major impacts on Australia’s waste management and recycling industry.32 China’s trade restrictions, in conjunction with a fall in commodity values for paper and plastic, increased the cost of recycling services across Australia,33 causing major operational challenges to Australia’s waste management facilities. The Basel Convention34 amended in May 2019 created further restrictions on trade in plastic waste, banning contaminated, mixed and unrecyclable plastic waste.35 The Basel Convention also restricted trade to non-parties of the Convention, such as the United States.
19. These restrictions demonstrate that Australia’s waste management capacity is particularly vulnerable to international markets for recyclable materials. In the LIV’s view, the implementation of a national circular economy could minimise Australia’s dependence on international markets by creating robust and vigorous local markets for recycled materials through supportive national policies.36
32 Department Environment, Land, Water and Planning, Recycling Industry Strategic Plan, 10. 33 Department Environment, Land, Water and Planning, Recycling Industry Strategic Plan, 12. 34 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, UNTC (entry into force: 5 May 1992). 35 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, UNTC (entry into force: 5 May 1992). 36 EPA (NSW) ‘Too good to waste: discussion paper on a circular economy approach for NSW (October 2018) 13
Current impediments to innovation
20. The LIV previously recommended that the Victorian Government’s approach align seamlessly with both the Commonwealth Government and United Nations initiative “Goal 12: Ensure sustainable consumption and production patterns”.37 Without uniformity, there will be a lack of cross-jurisdictional alignment in similar policies in waste management and recycling.
21. The Department of the Environment and Energy (“DEE”) critically identified that only a handful of waste sorting facilities were equipped to process co-mingled waste in order to ensure waste is recyclable and not contaminated by prohibited plastics, paper and cardboard.38 The DEE identified opportunities for improvement of existing collection and recycling services, which would increase rates of resource-recovery and add value to recycled materials.39
22. The LIV recommends sufficient funding be dedicated for the development and upgrading of waste management facilities to allow facilities to have both the capacity and capability to accept complex and high volumes of waste, as opposed to general municipal waste.
23. The LIV has previously noted40 the New South Wales (‘NSW’) regime provides best practice methods that have been commended as world class. In the LIV’s view, the NSW regime should inform and guide the development of a national approach to environmental regulation. The LIV recommends the integration of the Protection of the Environment Operations Act 1977 and the Protection of the Environment Administration Act and Contaminate Lands Management Act 1997, which will enable the public to seamlessly navigate the regulatory and legislative frameworks; understand the clear objectives for environmental protection; and allow for the development of a robust and specialised area of law.
24. Clean up notices issued in NSW follow a hierarchy of recipients. For example, the NSW EPA issues clean up notices in sequence: first to polluters (where possible or practicable), followed by owners and finally occupiers. This cascading approach provides a distinct order of responsibility. The LIV believes this consistent application of protocols for polluters, if immediately enforced, provides coherence and prevents disputes between notice recipients.
37 UN SDG 12 ‘Ensure sustainable consumption and production patters’ https://www.un.org/sustainabledevelopment/sustainable-consumption-production/ 38 The Department of the Environment and Energy, Analysis of Australia’s municipal recycling capacity (October 2018)
25. Finally, the LIV recommends that new sources of waste require the Commonwealth Government’s immediate attention. For example, the product elements from hybrid cars and e-waste potentially pose future waste management complications. The Basel Convention amendments (COP14) resolved this issue by defining e-waste, and created guidelines for companies to “objectively distinguishing between waste and non-waste”41, especially when importing and exporting used electrical and electronic equipment for re-use.
26. In Australia, e-waste is growing three times faster (predicted to increase from 109,000 tonnes in 2015 to approximately 256,000 tonnes in 2035 in Victoria) than general municipal waste. Consequently, e-waste is placing considerable pressure on the current waste management infrastructure and the environment. The LIV recommends a separate inquiry be undertaken to more effectively understand and manage this escalating issue.
If you would like to discuss any of the matters raised in this letter, please do not hesitate me or Senior Lawyer for the Property and Environmental Law Section, Paul Snow, at or .
Yours sincerely
Sam Pandya President Law Institute of Victoria
41 Fourteenth Meeting of the Conference of the Parties to the Basel Convention (COP14) (14 May 2019)