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10 March 2020 the Hon Barnaby Joyce MP House Standing 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’ <https://www.wwf.no/assets/attachments/SOLVING-PLASTIC-POLLUTION-THROUGH-ACCOUNTABILITY.pdf> 6. 4 Environmental Protection Act 1970 (Vic), Section 1k. 5 Department of the Environment, Land Water and Planning, ‘Victorians urged to keep recycling’ (July 2019) <https://www.environment.vic.gov.au/sustainability/victorians-urged-to-keep-recycling> 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 <https://www.wwf.no/assets/attachments/SOLVING-PLASTIC-POLLUTION-THROUGH-ACCOUNTABILITY.pdf>. 8 World Wide Fund for Nature, ‘Solving Plastic Pollution Through Accountability’ 8-9 <https://www.wwf.no/assets/attachments/SOLVING-PLASTIC-POLLUTION-THROUGH-ACCOUNTABILITY.pdf>. 9 MC Mehta v Union of India AIR 1987 SC 10865 at 1099. 10 ABC News, ‘Queensland premier “horrified” over NSW waste dumping, Four Corners allegations’, ABC News Online, 8 August 2017 <http://www.abc.net.au/news/2017-08-08/australias-organised-waste-trade-queensland-premier/8783820>. 11 Law Institute of Victoria, EPA Draft Guidelines on assessing planning proposals near landfills, available at < https://www.liv.asn.au/getattachment/2cab6511-a61c-43c4-bcbf- 96bcc4f0d320/920160708_SUB_EPA_GuidelineLandfillsPlanning_FINAL.pdf.aspx> 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) <https://www.environment.vic.gov.au/sustainability/victoria-unearthed/about-the-data/environmental-audit-overlay>. 13 Victorian Auditor-General’s Report, ‘Hazardous Waste Management’ June 2010, online at <https://www.parliament.vic.gov.au/papers/govpub/VPARL2006-10No315.pdf> [3]. 14 EPA Victoria, Best Practice Environmental Management—Siting, Design, Operation and Rehabilitation of Landfills (2010); Closed Landfills Guidelines (2012). 15 ABC News, ‘Queensland premier “horrified” over NSW waste dumping, Four Corners allegations’, ABC News Online (8 August 2017) <https://www.abc.net.au/news/2017-08-08/australias-organised-waste-trade-queensland-premier/8783820>. 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.
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