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Part 1—Preliminary

Part 1 Preliminary

   

1   Short title

                   This Act is the Industrial Chemicals Act 2017 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 180

1 July 2018.

1 July 2018

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3   Act binds the Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be:

                     (a)  prosecuted for an offence; or

                     (b)  subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or

                     (c)  given an infringement notice under Part 5 of the Regulatory Powers Act.

4   Alternative constitutional basis for this Act

                   Without limiting its effect apart from this section, this Act also has the effect it would have if each reference to the manufacture of industrial chemicals were expressly confined to:

                     (a)  the manufacture of those chemicals in Australia:

                              (i)  by a constitutional corporation; or

                             (ii)  by the Commonwealth or a Territory, or an authority of the Commonwealth or a Territory; or

                            (iii)  by a body corporate incorporated in a Territory; or

                            (iv)  for supply to a constitutional corporation; or

                             (v)  for supply in the course of constitutional trade and commerce; or

                            (vi)  for supply to, or to an authority of, the Commonwealth or a Territory; and

                     (b)  the manufacture of those chemicals in a Territory or a Commonwealth place.

5   Extension to external Territories

                   This Act extends to every external Territory.

6   Relationship to other laws

             (1)  The provisions of this Act are in addition to, and not in substitution for, the requirements of any other law of the Commonwealth (whether passed or made before or after the commencement of this Act).

             (2)  This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

7   Objects of this Act

                   The objects of this Act are to:

                     (a)  provide for a national scheme to regulate the introduction of industrial chemicals in Australia; and

                     (b)  aid in the protection of human health and the environment including through:

                              (i)  the regulation of the introduction of industrial chemicals; and

                             (ii)  the assessment and evaluation of the introduction and use of certain industrial chemicals; and

                            (iii)  the provision of information and recommendations about managing the risks arising from the introduction and use of industrial chemicals; and

                     (c)  provide for the collection and publication of information and statistics relating to industrial chemicals; and

                     (d)  give effect to Australia’s obligations under international agreements and arrangements relating to the regulation of industrial chemicals.

8   Simplified outline of this Act

This Act establishes the Australian Industrial Chemicals Introduction Scheme, and an Executive Director, to regulate the introduction (manufacture or import) of industrial chemicals.

A chemical is an industrial chemical to the extent that it is used other than for agricultural, veterinary or therapeutic purposes, or in food or feed (which are regulated by other schemes).

Introducers must be registered for a registration year (which begins on 1 September). A registration charge must be paid for registration. Penalties apply if a person introduces an industrial chemical when not registered.

Introductions must also comply with the requirements of a category of introduction, which are based on the level of risk to human health and the environment from the introduction.

Lower risk introductions (exempted and reported introductions) can be made without being assessed by the Executive Director. However, record keeping and reporting obligations apply.

Medium-to-high risk introductions require an assessment certificate issued by the Executive Director and must comply with the terms of the certificate. A person can also apply for commercial evaluation authorisations and the Minister can issue exceptional circumstances authorisations.

Industrial chemicals covered by an assessment certificate are listed on the Australian Inventory of Industrial Chemicals after 5 years. However, applications can be made for early listing and industrial chemicals can be listed in certain other circumstances. Any registered person can introduce an industrial chemical that is listed on the Inventory but must comply with the terms of the Inventory listing and record keeping and reporting requirements.

The Executive Director may initiate evaluations of industrial chemicals, or matters relating to industrial chemicals. Evaluations may result in changes to assessment certificates or Inventory listings or recommendations being made about the introduction and use of industrial chemicals.

The Executive Director is required to publish assessment statements, evaluation statements and other information under this Act. Applications can be made by any person for confidential business information not to be published.

This Act also contains provisions for monitoring and enforcement and provisions implementing Australia’s obligations under certain international agreements.

9   Definitions

                   In this Act:

AACN (short for AICIS approved chemical name) means a name for an industrial chemical determined by the Executive Director under paragraph 108(3)(a).

AAT means the Administrative Appeals Tribunal.

administrative action means any of the following:

                     (a)  making a decision;

                     (b)  exercising any power or complying with any obligation;

                     (c)  doing anything else that relates to making a decision or exercising a power or complying with an obligation.

Agvet Code means the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 .

AICIS : see Australian Industrial Chemicals Introduction Scheme .

animal test data means data or information of a kind prescribed by the rules for the purposes of this definition that relates to tests conducted on the following:

                     (a)  any live vertebrate animal (other than a human being or other animal prescribed by the rules for the purposes of this paragraph);

                     (b)  any animal of a kind prescribed by the rules for the purposes of this paragraph.

approved form means a form that is approved, in writing, by the Executive Director.

article means an object that:

                     (a)  is produced for use for a particular purpose, being a purpose that requires that the object have a particular shape, surface or design; and

                     (b)  is formed to that shape, surface or design during production; and

                     (c)  undergoes no change of chemical composition when used for that purpose except as an intrinsic aspect of that use;

but does not include an object of a kind prescribed by the rules for the purposes of this definition.

assessment statement means a written statement issued by the Executive Director in relation to an assessment of an industrial chemical that includes the following information:

                     (a)  the proper name for the industrial chemical;

                     (b)  the end use for the industrial chemical;

                     (c)  the defined scope of assessment;

                     (d)  a summary of the assessment and any risks to human health or the environment from the introduction or use of the industrial chemical;

                     (e)  the means for managing any risks identified in the course of conducting the assessment, including the following:

                              (i)  recommendations relating to the introduction or use of the industrial chemical;

                             (ii)  any conditions of a kind mentioned in subsection 38(2) or 81(2);

                            (iii)  any specific requirements to provide information to the Executive Director as mentioned in paragraph 38(1)(d) or 81(1)(e);

                      (f)  any other information relating to the safe introduction and use of the industrial chemical that the Executive Director considers relevant.

Note:          If an application to treat the proper name or end use for the industrial chemical as confidential business information has been approved, an AACN or generalised end use must be included in the statement instead of the proper name or end use if prescribed circumstances apply: see section 109.

Australian Industrial Chemicals Introduction Scheme means the scheme established under section 140.

Australia’s designated national authority means the non-corporate Commonwealth entity or person who is Australia’s designated national authority for industrial chemicals for the purposes of Article 4 of the Rotterdam Convention.

authorised inspector means a person appointed as an authorised inspector under section 137.

CAS name , for an industrial chemical, means the Chemical Abstracts Index Name for the industrial chemical.

CAS number , for an industrial chemical, means the Chemical Abstracts Service Registry Number for the industrial chemical.

civil penalty provision has the same meaning as in the Regulatory Powers Act.

Commonwealth place means a place referred to in paragraph 52(i) of the Constitution, other than the seat of government.

confidence holder , for an approval under subsection 108(1), has the meaning given by subsection 110(2).

consideration period :

                     (a)  for an application for an assessment certificate—has the meaning given by subsection 32(2); or

                     (b)  for an application to vary a term of an assessment certificate—has the meaning given by subsection 44(2); or

                     (c)  for an application for a commercial evaluation authorisation—has the meaning given by subsection 54(2); or

                     (d)  for an application to vary a term of a commercial evaluation authorisation—has the meaning given by subsection 63(2); or

                     (e)  for an application to vary a term of an Inventory listing—has the meaning given by subsection 89(2).

Note:          For circumstances affecting the calculation of the consideration period: see section 169.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade and commerce means:

                     (a)  trade or commerce between Australia and places outside Australia; and

                     (b)  trade or commerce among the States; and

                     (c)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories.

cosmetic means:

                     (a)  a substance or preparation intended for placement in contact with any external part of the human body, including:

                              (i)  the mucous membranes of the oral cavity; and

                             (ii)  the teeth;

                            with a view to:

                            (iii)  altering the odours of the body; or

                            (iv)  changing its appearance; or

                             (v)  cleansing it; or

                            (vi)  maintaining it in good condition; or

                           (vii)  perfuming it; or

                          (viii)  protecting it; or

                     (b)  a substance or preparation prescribed by the rules for the purposes of this paragraph;

but does not include:

                     (c)  a therapeutic good within the meaning of the Therapeutic Goods Act 1989 ; or

                     (d)  a substance or preparation prescribed by the rules for the purposes of this paragraph.

Note:          An ingredient or component of a cosmetic could be an industrial chemical.

end use , for an industrial chemical, means a purpose to which the industrial chemical can be applied.

entrusted person has the meaning given by subsection 115(2).

evaluation statement means a statement of the kind mentioned in subsection 73(2) or 78(2).

excluded introduction has the meaning given by section 11.

Executive Director means the person appointed as the Executive Director under section 143.

exempted introduction has the meaning given by subsection 26(2).

export an industrial chemical means do an act that constitutes exportation of the industrial chemical for the purposes of the Customs Act 1901 , or would constitute such exportation if that Act extended to the external Territories.

generalised end use : means a generalised description of an end use for an industrial chemical determined by the Executive Director under paragraph 108(4)(a).

Gene Technology Regulator has the same meaning as in the Gene Technology Act 2000 .

GM product has the same meaning as in the Gene Technology Act 2000 .

holder :

                     (a)  of an assessment certificate—means a person to whom the certificate is issued under section 37 (subject to sections 41 and 42); or

                     (b)  of a commercial evaluation authorisation—means a person to whom the authorisation is issued under section 58 (subject to sections 60 and 61); or

                     (c)  of an exceptional circumstances authorisation—means a person to whom the authorisation is issued under section 67; or

                     (d)  of an approval for the proper name or end use for an industrial chemical to be treated as confidential business information—a person to whom an approval is given under section 108; or

                     (e)  of an approval for information to be treated as confidential business information in relation to an industrial chemical—a person to whom an approval is given under section 114.

import an industrial chemical means do an act that constitutes importation of the industrial chemical for the purposes of the Customs Act 1901 , or would constitute such importation if that Act extended to the external Territories.

incidentally-introduced chemical means an industrial chemical:

                     (a)  that is introduced, either with or subsequent to the introduction of another industrial chemical, as a result of any of the following:

                              (i)  the incomplete reaction of starting materials or reaction intermediates used in the manufacture of the other industrial chemical;

                             (ii)  an unintended constituent present in the starting materials used in the manufacture of the other industrial chemical;

                            (iii)  the exposure of the other industrial chemical to light, heat or other environmental conditions in the course of handling or storage;

                            (iv)  the occurrence of a chemical reaction during the manufacture or use of the other industrial chemical; and

                     (b)  the introduction of which has no commercial value separate from the other industrial chemical.

industrial chemical : see section 10.

industrial use means a use other than (or in addition to) one of the following uses:

                     (a)  use as an agricultural chemical product (within the meaning of the Agvet Code) or in the preparation of such a product;

                     (b)  use as a veterinary chemical product (within the meaning of the Agvet Code) or in the preparation of such a product;

                     (c)  use as a substance or mixture of substances mentioned in paragraph 5(4)(a) of the Agvet Code (which deals with substances or mixtures of substances prepared by a pharmacist or veterinary surgeon) or in the preparation of such a substance or mixture of substances;

                     (d)  use as a therapeutic good (within the meaning of the Therapeutic Goods Act 1989 ) or in the preparation of such a good;

                     (e)  use as food intended for consumption by humans or in the preparation of such food;

                      (f)  use as feed intended for consumption by animals or in the preparation of such feed;

                     (g)  any use prescribed by the rules for the purposes of this paragraph.

introduce an industrial chemical means import, or manufacture in Australia, the industrial chemical.

Inventory means the Australian Inventory of Industrial Chemicals established under section 80.

issuing officer means:

                     (a)  a magistrate; or

                     (b)  a Judge of a court of a State or Territory; or

                     (c)  if a Judge of the Federal Circuit Court of Australia or a Judge of the Federal Court of Australia has consented to act as an issuing officer for the purposes of this Act and that consent is in force—the Judge.

Note:          Section 75 of the Regulatory Powers Act deals with the powers of, and confers protection and immunity on, issuing officers.

manufacture an industrial chemical means do any of the following:

                     (a)  produce the industrial chemical in the course of a chemical reaction;

                     (b)  extract the industrial chemical from a natural environment, with or without chemical change;

                     (c)  extract the industrial chemical from a UVCB substance;

                     (d)  produce or extract the industrial chemical in circumstances prescribed by the rules for the purposes of this paragraph;

but does not include producing or extracting the industrial chemical as described in paragraphs (a), (b) or (c) in circumstances prescribed by the rules for the purposes of this definition.

naturally-occurring chemical means:

                     (a)  an unprocessed chemical occurring in a natural environment; or

                     (b)  a chemical occurring in a natural environment that is extracted without chemical change by:

                              (i)  manual, mechanical or gravitational means; or

                             (ii)  dissolution in water; or

                            (iii)  flotation; or

                            (iv)  a process of heating for the sole purpose of removing uncombined water; or

                             (v)  any other process prescribed by the rules for the purposes of this subparagraph.

non-corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013 .

non-isolated intermediate means an industrial chemical that:

                     (a)  is produced in the course of the manufacture of another industrial chemical; and

                     (b)  is consumed in the course of the manufacture of the other industrial chemical; and

                     (c)  is not intentionally removed from the equipment in which it is manufactured (other than by sampling); and

                     (d)  is not likely to be released into the environment during normal operations.

notified industrial chemical means an industrial chemical that has at any time been the subject of a notification by Australia, or any other Party to the Rotterdam Convention, under paragraph 1 or 2 of Article 5 of the Rotterdam Convention.

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

prescribed international agreement means an international agreement:

                     (a)  to which Australia is a party; and

                     (b)  that is prescribed by the rules for the purposes of this paragraph.

prescribed international arrangement means an international arrangement that:

                     (a)  provides for countries to ban, restrict or otherwise regulate the introduction, use or export of an industrial chemical for the purposes of protecting the environment, public health or occupational health and safety; and

                     (b)  is prescribed by the rules for the purposes of this paragraph.

previously regulated : a chemical was previously regulated under a law of the Commonwealth if:

                     (a)  the chemical has been, but is no longer, within the scope of regulation of a Commonwealth law that:

                              (i)  relates to chemicals; and

                             (ii)  is prescribed by the rules for the purposes of this subparagraph; or

                     (b)  the chemical is contained in a product that has been, but is no longer, within the scope of regulation of any of the following:

                              (i)  the Agricultural and Veterinary Chemicals Code Act 1994 ;

                             (ii)  the Therapeutic Goods Act 1989 ;

                            (iii)  the Food Standards Australia New Zealand Act 1991 ;

                            (iv)  another Commonwealth law that relates to chemicals in products (whether consisting of a single chemical or not) and is prescribed by the rules for the purposes of this subparagraph.

protected information has the meaning given by subsection 115(3).

Register means the Register of Industrial Chemical Introducers established under section 14.

registration charge means a charge imposed on the registration of a person:

                     (a)  so far as it is a duty of customs—by the Industrial Chemicals Charges (Customs) Act 2017 ; and

                     (b)  so far as it is a duty of excise—by the Industrial Chemicals Charges (Excise) Act 2017 ; and

                     (c)  so far as it is neither a duty of customs nor a duty of excise—by the Industrial Chemicals Charges (General) Act 2017 .

registration year means 12 months beginning on:

                     (a)  1 September 2018; or

                     (b)  1 September of any subsequent year.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

relevant court means:

                     (a)  the Federal Court of Australia; or

                     (b)  the Federal Circuit Court of Australia; or

                     (c)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

reported introduction has the meaning given by subsection 27(2).

reviewable decision has the meaning given by subsection 166(1).

Rotterdam Convention means the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, done at Rotterdam on 10 September 1998, as amended and in force for Australia from time to time.

Note:          The Rotterdam Convention is in Australian Treaty Series 2004 No. 22 ([2004] ATS 22) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

rules means the rules made under section 180.

Secretariat means the Secretariat established under Article 19 of the Rotterdam Convention.

terms :

                     (a)  of an assessment certificate for an industrial chemical—has the meaning given by subsection 38(1); and

                     (b)  of a commercial evaluation authorisation for an industrial chemical—has the meaning given by subsection 59(1); and

                     (c)  of an exceptional circumstances authorisation for an industrial chemical—has the meaning given by subsection 67(3); and

                     (d)  of an Inventory listing for an industrial chemical—has the meaning given by subsection 81(1).

this Act includes the rules.

use , for an industrial chemical, includes any of the following activities involving the industrial chemical:

                     (a)  processing;

                     (b)  formulating;

                     (c)  storing;

                     (d)  transporting;

                     (e)  filling into containers;

                      (f)  transferring from a container to another container;

                     (g)  handling;

                     (h)  mixing;

                      (i)  sampling and testing;

                      (j)  producing an article;

                     (k)  releasing into the environment (with or without prior treatment);

                      (l)  activities relating to an end use for the industrial chemical;

                    (m)  any other activity prescribed by the rules for the purposes of this paragraph;

but does not include an activity prescribed by the rules for the purposes of this definition.

UVCB substance (short for unknown variable composition or biological substance) means any of the following:

                     (a)  a chemical of unknown or variable composition;

                     (b)  a complex product of a chemical reaction;

                     (c)  biological material, other than a whole animal or a whole plant.

working day means a business day other than a day prescribed by the rules for the purposes of this definition.

10   Definition of industrial chemical

             (1)  For the purposes of this Act, industrial chemical means any of the following:

                     (a)  a chemical element that has an industrial use;

                     (b)  a compound or complex of a chemical element that has an industrial use;

                     (c)  a UVCB substance that has an industrial use;

                     (d)  a chemical released from an article where the article has an industrial use;

                     (e)  a naturally-occurring chemical that has an industrial use;

                      (f)  any other chemical or substance prescribed by the rules for the purposes of this paragraph that has an industrial use.

             (2)  Despite subsection (1), industrial chemical does not include a chemical or substance prescribed by the rules for the purposes of this subsection.

             (3)  To avoid doubt, this Act only applies in relation to an industrial chemical to the extent that the industrial chemical is used, or proposed to be used, for an industrial use.

11   Application of this Act to excluded introductions

             (1)  This Act (other than Parts 1, 4, 7, 9 and 10) does not apply in relation to an excluded introduction.

             (2)  An introduction of an industrial chemical is an excluded introduction if the introduction is of any of the following:

                     (a)  a naturally-occurring chemical;

                     (b)  a non-isolated intermediate;

                     (c)  an incidentally-introduced chemical;

                     (d)  an industrial chemical that was released from an article that was not designed to release it;

                     (e)  an industrial chemical of a kind prescribed by the rules for the purposes of this paragraph.

             (3)  An introduction of an industrial chemical is an excluded introduction if:

                     (a)  the industrial chemical is introduced at a port or airport in Australia; and

                     (b)  the industrial chemical remains subject to customs control under the Customs Act 1901 at all times before leaving Australia; and

                     (c)  the industrial chemical leaves Australia within 25 working days beginning the day the industrial chemical is introduced.

             (4)  An introduction of an industrial chemical is an excluded introduction if circumstances prescribed by the rules for the purposes of this subsection apply in relation to the introduction.

             (5)  An introduction of an industrial chemical by an individual is an excluded introduction if the industrial chemical is introduced solely for the individual’s personal use.

             (6)  The rules may prescribe circumstances in which the introduction of an industrial chemical by an individual is taken not to be for the individual’s personal use for the purposes of subsection (5).