The 5 per cent contamination cap is not a paperwork threshold. It is a criminal offence

Most coverage of the waste export rules, including our own earlier reporting, works from the rules and the department’s guidance. That is where the 5 per cent number lives. The rules are made under the Recycling and Waste Reduction Act 2020, and the Act is where the consequences live. We read it as compiled on 1 July 2026, compilation No. 3.

Section 20, in plain terms

The offence provision is headed exporting regulated waste material where prescribed export conditions are not complied with. It is built in the standard Commonwealth pattern, and the structure matters more than the wording:

The contravention. You export waste material, it is regulated waste material, its export is prohibited unless prescribed export conditions are complied with, and those conditions are not complied with.
The fault-based offence. Contravening that carries imprisonment for 5 years or 300 penalty units, or both.
Strict liability on two elements. For the offence, strict liability applies to whether the material is regulated waste material and whether its export is conditional. In practice that means not knowing your bale was caught by the scheme is not the defence a reader might assume it is.
A civil alternative. The same contravention is a civil penalty provision carrying 600 penalty units, which lets the regulator pursue a monetary outcome without proving a criminal case.

The Act also settles a question that matters for anyone shipping to a transit port: waste material is exported when the conveyance transporting the waste material from Australia starts its journey to a place outside Australia, whether or not that place is the intended final destination. The clock starts when the ship leaves, not when the container is accepted somewhere else.

Saying you complied is as serious as complying

This is the part that should change how a converter thinks about the declaration rather than the bale. The Act carries separate offences for representations about compliance, and they are not lesser offences.

Making a representation, expressly or by necessary implication, that the prescribed export conditions have been complied with, knowing that representation to be false or misleading, carries imprisonment for 5 years or 300 penalty units, or both. The same conduct done recklessly rather than knowingly carries 3 years or 180 penalty units. The same pair of offences applies to representations about matters stated in an export declaration.

So the maximum for saying the load was under 5 per cent when it was not is the same as the maximum for exporting it. The Act does not treat the paperwork as the lesser wrong. It also flags, in a note, that false or misleading information attracts the general offences in sections 146 and 147 of the Act and sections 137.1 and 137.2 of the Criminal Code.

What a penalty unit is worth

Update, 28 August 2026. This section originally said we would not give you a dollar figure, because the indexation instrument was one we had not read. We have now found and read it, so the figure is below. The caution that replaced it is narrower and, we think, more useful: the number depends on when the conduct happened, and on whether the defendant is a company.

Section 4AA of the Crimes Act 1914 defines a penalty unit as the amount of $330 (subject to indexation under subsection (3)). The catch is in the indexation clause: it operates On 1 July 2026 and each third 1 July following that day. The compilation of the Crimes Act we read is dated 4 June 2026, which is before that indexation date, and when a penalty unit is indexed the Minister must publish the new amount by notifiable instrument.

That instrument is the Crimes (Amount of a Penalty Unit) Instrument 2026, made by the Attorney-General on 15 June 2026 and commencing 1 July 2026. It provides that For the purposes of subsection 4AA(1A) of the Act, the amount of a penalty unit is $364. Its own note is the part worth reading twice: the amount only applies to offences committed on or after 1 July 2026. So which figure applies turns on when the conduct happened, not on when the matter is heard. It is $364 for offences committed on or after 1 July 2026, and the earlier $330 for offences committed before that.

One multiplier sits on top of that, and it matters here because the exporters these offences are aimed at are usually companies. Subsection 4B(3) of the Crimes Act provides that where a body corporate is convicted of a Commonwealth offence the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence. The penalty unit counts quoted earlier on this page are the maxima as the waste legislation states them, so for a corporate defendant read them as the starting point rather than the ceiling. Whether a contrary intention appears is a question about the waste legislation that we are not going to answer for you: if the number matters to a decision, get it from your lawyer rather than from us.

Why this changes the shape of the obligation

Reading the rules alone, the cap looks like a specification: keep contamination under a number, hold a licence, tick the box. Reading the Act, it is closer to a food-safety or biosecurity obligation, where the operational failure and the statement about it are both criminal matters and the regulator can choose the civil route if that suits it better.

That has a practical consequence we think is under-appreciated in the trade. The sampling and record-keeping that proves a bale was under 5 per cent is not administrative overhead sitting beside the real obligation. On this Act, it is the evidence that decides which side of a criminal provision you are on, and it is what any representation about compliance ultimately rests on.

What we still cannot tell you

The question we set out to answer in earlier reporting remains open: how the 5 per cent is actually measured or sampled. The rules do not say, and reading the Act does not answer it either, because the Act is about consequences rather than method. We have still not located departmental measurement guidance, and until we do, the most important operational question under this scheme has no published answer that we can find.

We also do not know how many licence holders there are, or whether any enforcement action has been taken under the cap since it commenced. We have asked that question in print before and we are asking it again here.

Work in waste paper export and know how the 5 per cent is sampled in practice, or have seen enforcement activity under the cap? That is the reporting we cannot do from documents alone. Tell us, and we will check it and log the outcome here.