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Industrial Chemicals (Notification and Assessment) Amendment Bill 2003

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2002-2003

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT BILL 2003

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Parliamentary Secretary to the Minister for

Health and Ageing, the Hon Trish Worth)



 

INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT BILL 2003

 

 

OUTLINE

 

This Bill makes amendments to the Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) in relation to commercial evaluation permits and company registration provisions.  The Act establishes a system of notification and assessment of industrial chemicals to protect health, safety and the environment and to provide for registration of certain persons proposing to introduce industrial chemicals into Australia.

 

Commercial Evaluation Permits (CEP)

 

The Bill amends the Act to increase the maximum quantity (volume) of new industrial chemicals that a manufacturer or importer (collectively referred to as a company) can introduce under the Commercial Evaluation Permit (CEP) system from 2000 kilograms to 4000 kilograms.  Introduction has a particular meaning under the Act.  When used in relation to an industrial chemical, it refers to the importation, or manufacture in Australia, of the chemical.

 

The object of the CEP system is to provide a simple means of by-passing the assessment certificate system in cases where the introduction of a new industrial chemical is required for the sole purpose of commercial evaluation subject to adequate safeguards.  The CEP system allows companies to introduce industrial chemicals at a controlled volume and time, for market testing of new and innovative chemicals.  Companies provide a minimal data set to the Director, National Industrial Chemicals Notification and Assessment Scheme (NICNAS).  NICNAS conducts a health and environmental risk assessment, and sets conditions for safe use of the new industrial chemical under permit.  Companies are required to report later to NICNAS on the outcomes of use under the permit.  Industry made formal representation to NICNAS to increase the allowable volume of new industrial chemicals to be introduced for market testing, arguing that the 2000-kilogram limit is unduly restrictive.  Subsequently, NICNAS investigated in-house data on use of the CEP system and surveyed current industry practices concerning use of the CEP system.  The increase in volume to 4000 kilograms will enable more companies to enter into a CEP and complete the market testing.

 

These changes are not expected to lead to a change in the NICNAS assessment fee.

 

Company Registration

 

Part 3A of the Act has provisions relating to the registration of introducers of industrial chemicals (referred to as the company registration provisions).  Registration is required of any person who introduces (i.e. imports and/or manufactures) relevant industrial chemicals (chemicals used for industrial purposes more particularly defined in section 7A of the Act) to a total value of $500,000 or more in a registration year (a period of 12 months starting on 1 September).  Registration is also required of a person who introduces any quantity of relevant industrial chemicals in a registration year if that person introduced relevant industrial chemicals to the value of $500,000 or more in the previous financial year (the financial year ending on 30 June last occurring before that registration year).  Registration is for the duration of the registration year, and is renewable annually.

 

The changes to the company registration provisions were developed in response to an independent review of the company registration program in 2000, with the aim of streamlining administration and strengthening compliance, in particular to address the low compliance rate with the renewal deadline for registration, and to provide greater flexibility to the fee setting mechanism so that NICNAS can respond more readily to cost recovery needs.

 

Renewal deadline

 

Currently the renewal deadline for registration is 1 August, 30 days before the expiry of registration on 31 August.  Such a deadline is a deviation from the norm as licences and registrations common in everyday life do not have to be renewed before the expiry date.  Industry has not understood the rationale for an early renewal date and this in part has led to a persistently low compliance rate (51-53% for the past five years) with the renewal deadline.  The cost of obtaining outstanding payments from non-complying companies is passed onto complying companies.

 

This Bill aligns the deadline for the renewal of company registration with the registration expiry date, i.e. 31 August each year, bringing company registration in line with common practices.  This, coupled with the introduction of late renewal penalties, should greatly reduce the costs for pursuing outstanding payments.

 

Non-renewals

 

A company which is registered with NICNAS for a particular year is required to notify NICNAS if it is unlikely to be registrable in the following year.  No deadline, however, is currently specified for such notification; thus when a registration is not renewed by the renewal deadline, NICNAS cannot tell whether the renewal is late or registration is no longer required.

 

This Bill specifies 31 August (the registration expiry date) as the date by which a registered company must notify NICNAS if it intends not to renew its registration for the following year.

 

Late renewal penalty

 

Over the years NICNAS has exhausted all avenues to assist companies in complying with the renewal deadline and these have been to no avail.  Although an urgent handling fee is in place, it is not enforceable and cannot be used as a means to encourage compliance.  Significant resources have had to be allocated to pursue outstanding renewals and the costs incurred as a result should be born by late registrants rather than shared among all registrants.

 

This Bill removes the urgent handling fee and establishes late renewal penalties for renewals received after the renewal deadline.  If a company has not renewed its registration by 31 August for the following year, its registration lapses until the registration fees and charges for the relevant registration year and the appropriate late renewal penalty have been paid, whereupon the registration is deemed to have been re-instated from the beginning of the registration year.

 

Consequential amendments are necessary to ensure that the provision for late renewal penalties is viable.  This Bill therefore stipulates that if a company is registered for one year and seeks registration in the following year, that registration in the following year is treated as a renewal (attracting the late renewal penalty if it is late), and not as a new registration (which would avoid the late renewal penalty).

 

Fees and charges

 

Currently company registration fees and charges are prescribed in the Act, resulting in an inflexible fee system which cannot respond readily to cost recovery needs.  This Bill moves company registration fees and charges out of the Act.  As with many other government fees, company registration fees and charges will be specified in the regulations.  Late renewal penalties, or the method of their calculation, will also be specified in the regulations ( see items 8 and 21).

 

 

Financial Impact Statement

 

The amendments to the Act have no significant financial impact.



 

REGULATION IMPACT STATEMENT

 

Changes to the National Industrial Chemicals Notification and Assessment Scheme Commercial Evaluation Permit (CEP) System

 

The Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) covers the notification and assessment of industrial chemicals in Australia.  The National Industrial Chemicals Notification and Assessment Scheme (NICNAS), administers the Act and is located within the Commonwealth Department of Health and Ageing.

 

Section 21A-P of the Act enables potential introducers of new industrial chemicals to apply for a Commercial Evaluation Permit (CEP).  A CEP enables introduction of a new industrial chemical solely for the purpose of commercial evaluation, for a specified time period and volume, namely maximum of 2000kg for up to 2 years.

 

Section 21A defines the object of the CEP system as (a) to provide a simple means of by-passing the assessment certificate system in cases where the introduction of new industrial chemicals is required for the sole purpose of commercial evaluation; and (b) to ensure that the means of by-passing the assessment certificate system is subject to adequate safeguards.

 

Section 5 of the Act defines “commercial evaluation” in relation to an industrial chemical, as meaning testing the chemical with a view to ascertaining its potential for commercial application.

 

The CEP system commenced under the Act in 4 August 1992, allowing introduction of up to 2000kg for up to 2 years, with the Director able to refuse the application if not satisfied that volume exceeding 1000kg and time exceeding 1 year were needed for effective commercial evaluation. 

 

In the 1997 reforms to the Act, maximum volumes and times of 2000kg and 2 years remained, but the Director was given the power to refuse the application if not satisfied that the volume applied for was needed for effective commercial evaluation.

 

Since the commencement of the CEP system, NICNAS has issued over 500 commercial evaluation permits to approximately 120 companies.

 

A NICNAS key priority is to respond to client needs within a culture of service and ongoing improvement.  In 1999 NICNAS identified a need to further reform the CEP system in response to industry representation.  Industry informed that not all sectors could access a CEP.  Time and volume were the main barriers.  Time included time industry needs to prepare the NICNAS application, NICNAS assessment time and the duration of the permit.  The current maximum volume allowed under the CEP is a barrier for companies that utilise large (i.e. > 2000kg) batch industrial processes.  In other instances, because industry cannot start the introduction process with certainty until the permit is issued, significant inroads may be made into the permit duration while arrangements for introduction and transit take place.  Companies may overcome the volume or time restriction by applying for a repeat CEP, or by notifying in another higher volume NICNAS category.  Both these options increase the regulatory burden on industry.

 

To support chemical industry interests in reform of the CEP system, industry members on the NICNAS Industry Government Consultative Committee (IGCC) tabled a raft of reforms in July 1999, specifically including the proposal to make the CEP system more responsive to modern industry needs.  Reform of the CEP system was endorsed and given high priority.

 

In 1999-2000, NICNAS engaged an industry consultant to work with the chemical industry and conduct a survey of industry practices in relation to use of the CEP.  NICNAS analysed and reported the findings in “Report on Commercial Evaluation Practices for Industry Chemicals, April 2001” .

 

Draft recommendations were put forward in the Public Discussion Paper Reform of the Commercial Evaluation Category (CEC) Permit - National Industrial Chemicals Notification and Assessment Scheme (December 2001) .  The document included three categories for action, Administrative Changes that do not require changes to the Act, Legislative and Regulatory Changes and Improvements to NICNAS Guidance.

 

None of the Recommendations in the Final Report would restrict industry competition.  The changes are designed to:

.           assist industry to comply with their current responsibilities under the Act;

.           improve controls on introduction and safe handling of chemicals; and

.           have a positive impact on Ecologically Sustainable Development.

 

Changes with significant impact are considered below.

 

Chemical Volume Limits

 

The Problem

Industry has advised NICNAS by formal and informal representation and in the survey of industry commissioned for this review, that the current volume limit of 2000kg does not allow all industry sectors to utilise the CEP system.  Under the current legislation, companies wishing to introduce more than 2000kg for commercial evaluation would need to submit an application for an assessment certificate, ie, standard, limited or synthetic polymer of low concern as appropriate.  Certificate applications necessarily entail more resources by companies and NICNAS.  Applications for assessment certificates involve a longer NICNAS assessment time (more than 90 days unless the chemical is of low hazard in which case it would qualify for early introduction after 28 days), a more detailed notification package, including test reports (which may include toxicity and ecotoxicity test reports) and a higher assessment fee (up to $11,700 for a standard notification).  Under current legislation, CEP data requirements are minimal, the NICNAS (non-statutory) assessment time is 14 days and the assessment fee is $2,600.

 

Objective

To expand the allowable volume to enable all industry sectors to utilise the CEP system, while maintaining adequate safeguards for the protection of human health and the environment.

 

Options

(1)     No change to the current 2000kg limit over 2 years [Section 21E(1)]

 

(2)     Increase the maximum volume to 4000kg over 2 years [Section 21E(1) the Act to be amended to increase the maximum quantity (volume) up to 4000kg]

 

Impact Analysis

Parties affected include industry (applicants and downstream users), the Government and the community.

 

Option (1) No change to the current 2000kg limit over 2 years - NICNAS internal analysis of current CEP users suggests that the needs of most of the current users are covered by the existing 2000kg limit.  However, anecdotal evidence suggests that the existing volume limit can be restrictive on industry.  Responses to the Industry Survey revealed that across a range of industry sectors and production processes, the chemical volume required for commercial evaluation ranged from 25-1000kg, with 1000-2000kg being the most frequent volume needed.  Twenty-eight percent (28%) of responses indicated that the current 2000kg maximum is too low for effective commercial evaluation, however thirty-eight (38%) of companies rated their reliability to forecast the volumes of chemicals needed as poor.  Most respondents did not nominate the volume increase they required and taken as a whole, the responses did not provide clear direction for any specific percentage or volume increase that would satisfy most requirements.  The no-change option for the volume limit would result in no change in community impact.

 

Option (2) Increase the maximum volume to 4000kg over 2 years [Section 21E(1) the Act to be amended to increase the maximum quantity (volume) up to 4000kg] - NICNAS internal analysis suggests that the needs of more than 97% of potential CEP users would be covered as a volume limit of 4000kg.  The estimated new total volume from applications made to NICNAS would be 126,436kg, an increase of 99% per year compared to Option (1).  It is also possible that industry that does not currently use the CEP system because of the current 2000kg limit and therefore is not captured in the internal analysis or substantially in the Industry Survey, could now access the CEP system.  There will be an impact on users of chemicals introduced as higher volumes under this option.  They will be handling a large volume of a chemical that under the current volume limit could only be introduced if NICNAS had assessed more comprehensive data for the chemical and issued a NICNAS Assessment Report, including Recommendations and an assessment certificate.  In allowing the increase CEP volume to 4000kg, the NICNAS responsibility to set effective permit conditions for safe chemical use without an increase in data requirements would need to be balanced by the enhanced administration procedures, facilitated compliance with NICNAS and the proposed legislative change below, to include a summary of the health and environment effects of the chemical as a data requirement.  Compliance relates to the applicant’s responsibilities to provide User Agreements and Final Reports to NICNAS, and relay the CEP conditions to downstream users.

 

Community - there will be no change to the impact on the community with Option (1) and no adverse public impact with Option (2).  NICNAS is confident that the risk assessment process, coupled with the enhanced administration procedures and facilitated compliance with NICNAS regulations, will be sufficient to aid in the protection of the public, workers and the environment, as required under Section 3 of the Act.  In addition, the NICNAS Director retains the power to refuse an application if not convinced the volume of chemical sought is needed for effective commercial evaluation.

 

No special community or public groups would be separately affected.

 

Industry - importers and manufacturers of new industrial chemicals would benefit from the increase in allowable introduction volume under the CEP.  Options (1) and (2) would not result in any change in industry resources needed to prepare the permit application.  NICNAS does not envisage any change in the assessment time (there is no statutory time frame, however NICNAS applies an in-house timeframe), or application fee (Note: NICNAS is collecting resource data for a future review of applications fees, including the fee for CEP).  Option (2) would not restrict industry competition as any company may avail themselves of the larger volume.  It may increase competition by improving industry access to the CEP.  Downstream users have the potential to be handling greater volumes of chemical with Option (2).  They are expected to benefit from the implementation of the enhanced administration procedures and facilitated industry compliance, as these are designed to ensure that downstream users are aware of the CEP conditions and have input into the Final Reports.

 

Government - there are no implications for government (Commonwealth, State/Territory or Local) with Options (1) or (2), except that both informal and formal representation from industry would be anticipated if Option (1) were adopted.

 

Recommended Option

 

Option (2) would increase industry access to the CEP.  NICNAS maintains that the risk in allowing introduction to Australia of the higher volume of chemical not supported by a full data package (currently set at 2000kg under the CEP system), is offset by the capacity under the Act to assign CEP conditions.  Penalties apply for applicants and downstream users who do not adhere to permit conditions.  Administration changes initiated by NICNAS to clarify applicants’ responsibilities in providing the Final Report and including information from users, will be a means for NICNAS to monitor and report on outcomes of CEP granted under Option (2).

 

Government Revenue

NICNAS is cost recovered from the chemical industry for chemical assessment services provided under the Act.  The proposed changes will not impact on Government revenue.

 

Economic Costs

The chemical industry pays for the notification and assessment of new industrial chemicals, including applications made under the CEP system, via an application fee.  No immediate changes to the CEP application fee are envisaged as a result of these considerations.  NICNAS will monitor the impact of any changes to the CEP system over a reasonable period of implementation, say 12 months.  NICNAS does not envisage the proposed changes to the Act will themselves result in changes to the application fee.

 

Indirect cost benefit - not possible to estimate under this exercise.  Industry has indicated that this type of reform is needed to facilitate introduction of new chemical technology to Australia and has the potential to reap higher profits associated with the new technology.  Small and large business would benefit by the reduced regulatory burden associated with the proposed volume change.

 

Small business impacts

There is no special adverse impact on small business.

 

Consultation

Industry members of the NICNAS IGCC formally tabled a paper outlining special areas for NICNAS reform, including CEP, in August 1999.

 

NICNAS conducted an initial analysis of NICNAS data on the use of the CEP system by industry since its inception, in 2000.

 

NICNAS engaged an external consultant with chemical industry experience, to conduct the survey of industry practices concerning NICNAS and the CEP (commenced 2000).  Interviews were conducted with approximately 57 separate companies, across small, medium and large enterprises and industry sectors.  Two case studies were included.  NICNAS analysed and collated the results and released the survey report Report on Commercial Evaluation Practices for Industrial Chemicals (April 2001).

 

NICNAS compiled the Public Discussion Paper Reform of the Commercial Evaluation Category (CEC) Permit - National Industrial Chemicals Notification and Assessment Scheme and sought in-house comment (NICNAS, Department of Employment and Workplace Relations, the Therapeutic Goods Administration, Environment Australia, September - October 2001).  The document was released for a three (3) month public comment period (December 2001 - February 2002), advertised in the Commonwealth of Australia Chemical Gazette, NICNAS website and national press.

 

Three comments were received on the Public Discussion Paper.  Two of these were from the chemical industry.  One of general support from Plastics and Chemicals Industries Association (PACIA) which represents more than 260 companies involved in the plastics, chemicals, adhesive and sealants industries in Australia.  PACIA was involved with the paper tabled by NICNAS IGCC industry members in August 1999 and has closely monitored the progress of the project since its inception.  A second industry submission was comprised of more technical comments from one company experienced in dealing with NICNAS.  It saw the proposals as positive, while not always going far enough towards industry self regulation, and provided some alternative concepts relating to toxicity hazard.  NICNAS recognises some merit in these concepts, but is not able to take them further in this reform because, (1) hazard assessment takes the CEP outside its existing data requirements and framework and, (2) a NICNAS project underway called Low Regulatory Concern Chemicals will focus on low hazard chemicals and reduced risk assessment and will be the more appropriate forum to progress the suggestions made.  The remaining comment came from the Worksafe WA (Department of Consumer and Employment Protection) itemising support for two of the proposals.

 

Since the inception of the project, NICNAS has provided update reports and requested comment where appropriate, at each meeting of the IGCC and NICNAS State and Territory MOU Members.

 

Conclusion and Recommended Options

 

NICNAS initiated a review of the CEP system in response to ad hoc requests from industry and a formal request from IDCC industry members.  Reform of the CEP system was given high priority by the IGCC.  NICNAS conducted an in-house analysis of use of the CEP since its inception in 1992 and commissioned a consultant with experience in the chemical industry to conduct a survey of industry practices in relation to industry use of CEP.  Analysis of the survey findings revealed that the main concern or barriers to use of the CEP by industry were:

.           chemical volume;

.           time periods of permits; and

.           customer agreements.

NICNAS considers that a legislation change to the Act was needed to address the issue of chemical volume, but that time periods of permits and customer agreements would be effectively covered by in-house administrative changes and by providing improved guidance for the chemical industry on how to use the CEP category.

 

NICNAS consulted widely for this reform, particularly within the chemical industry via the Industry Survey and through the IGCC, and more broadly through the in-house and 3-month public comment period.  Few comments were received on the draft proposals for change.

 

The Recommended Options are:

 

­Chemical Volume Limits

Option (2) Increase the maximum volume to 4000kg over 2 years [Section 21E(1) the Act to be amended to increase the maximum quantity (volume) up to 4000kg]

 

This option would increase industry access to the CEP.  NICNAS maintains that the risk in allowing introduction to Australia of the higher volume of chemical not supported by a full data package (currently set at 2000kg under the CEP system), is offset by the capacity under the Act to assign CEP conditions.  Penalties apply for applicants and downstream users who do not adhere to permit conditions.  Administration changes initiated by NICNAS to clarify applicants’ responsibilities in providing the Final Report and including information from users, will be a means for NICNAS to monitor and report on outcomes of CEP granted under Option (2).

 

Implementation and Review

 

Recommended options for legislative change would be incorporated in the Act and the administrative changes and other non-regulatory changes will be incorporated into NICNAS procedures and implemented by NICNAS.  NICNAS will make the necessary amendments to CEP notification forms, checklist and template, NICNAS brochures and the NICNAS Handbook for Notifiers.  There is no special timeline to review or revoke the changes.

 

NICNAS will monitor industry applications for CEP to assess the frequency with which industry takes advantage of the increased volume.  In addition, NICNAS will monitor the volumes of chemical ultimately used under each CEP, via the Final Report the CEP applicant provides to NICNAS.

 

At this time no formal review of proposed legislation changes is planned.  However, NICNAS would expect to receive feedback directly from chemical companies dealing with NICNAS, through IGDD industry members and through chemical industry organisations such as PACIA.

 

NICNAS is currently undertaking a separate project on chemicals of low regulatory concern.  This will include the development of low regulatory-risk criteria, which would need to be consistent with existing requirements for notification and assessment of new chemicals under the Act.  Depending on outcomes from this project, NICNAS may be able to consider case-by-case applications for higher volumes.

 

 



INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT BILL 2003

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

The short title of the legislation is the Industrial Chemicals (Notification and Assessment) Amendment Act 2003 .

 

Clause 2: Commencement

 

The commencement date for the legislation is the day on which the Bill receives Royal Assent.

 

Clause 3: Schedule(s)

 

Clause 3 has the effect of amending the Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) in the manner specified in Schedule 1.

 

Schedule 1 - Industrial Chemicals (Notification and Assessment) Act 1989

 

Part 1 - Amendments related to commercial evaluation permits

 

Item 1

 

This item amends Part 3 Division 1A subsection 21E(1) of the Act by omitting “2,000 kilograms” and substituting “4,000 kilograms”.  The effect of this item is that the maximum quantity of new industrial chemicals that may be specified in applications for a commercial evaluation permit is doubled.

 

Part 2 - Amendments related to registration

 

Item 2

 

This item replaces existing section 80B.  The amendment reflects the revision of the registration renewal provision in item 8.  A penalty of 300 penalty units applies for persons who fail to register, as required, under section 80B.  Currently a penalty unit is $110 and can be five times as much for a body corporate.

 

Section 80B prohibits the introduction of relevant industrial chemicals by a registrable person (defined in section 5) if that person is not registered in the registration year to which the introduction relates.  This provision applies whether the registration in question is a new registration or renewal of registration; thus it is also an offence for a renewable person who has not renewed for the next registration year to introduce any relevant industrial chemical in that registration year.  All late renewals (those lodged after the start of the registration year) therefore may carry the risk of such an offence.  A registrable person who does not have a registration in force must not introduce any relevant industrial chemical.

 

Item 3

 

This item replaces existing subsection 80E(2) with new subsections 80E(2) and 80E(3).  New subsection 80E(2) provides that an application for registration by a registrable person in relation to a registration year may be made at any time before or during the registration year concerned.  However, subclause 80E(3) provides that, if a person’s registration stops being in force because no application for renewal has been made and the person applies to be registered in the next registration year after its start, then the application must be treated as a late renewal application rather than a new application.   Renewal applications no longer have to be made on or before 1 August but late renewal penalties will apply to applications made after the start of the next registration year (ie. on or after 1 September). This amendment supports the provision for late renewal applications referred to in item 8 and prevents a late renewal from being treated as a new registration, thereby avoiding payment of the late renewal penalty.

 

Item 4

 

This item repeals paragraph 80F(d), thereby removing the urgent handling fee provision that allowed applicants to have their registration applications considered urgently provided an urgent handling fee was paid.  Payment of this fee was not mandatory and could not be enforced.  Furthermore, the need to expedite the processing of a registration is no longer necessary with the insertion of new subsection 80G(4) whereby registration is deemed to be in effect from the time of application ( see item 6).

 

Item 5

 

This item replaces existing paragraph 80F(e).  It removes the setting of the actual amount of the registration charge from the Act and provides for this amount to be prescribed in the Regulations.   This will allow for, among other things, indexation of the registration charges to the CPI (Consumer Price Index).

 

Item 6

 

This item inserts a new subsection 80G(4) which provides, in relation to new registration applications, that an applicant is taken to be registered from the time the application is made until a decision to grant or refuse application is made.  This is consequential to the repeal of both the urgent handling fee ( see item 4) and the maximum 7-day processing period required for an application accompanied by this fee ( see item 9).  For new registrations, urgent processing is no longer required as registration is deemed to be in force once an application is received, until the application is granted or refused by the Director. 

 

Item 7

 

This item replaces the reference to paragraph 80K(4)(b) with reference to subsections 80G(4), 80KA(4) and 80KB(5) and (6) in subsection 80J(2).  Under subsection 80J(2) an application for registration made after 1 September of the registration year to which the application relates, and which is not covered by subsections 80G(4), 80KA(4) and 80KB(5) and (6) (which deal with situations where an applicant is taken to be registered from the time an application is made until that application is refused or granted), comes into force from the day of registration until the end of that registration year.

 

Item 8

 

This item provides for a revised scheme for the renewal of registration.  It replaces existing section 80K and creates new sections 80KA, 80KB and 80KC.

 

Section 80K specifies who may apply for renewal of registration and how and when the application for renewal must be made.

 

Subsection 80K(1) provides that a person who is already registered, and who, on the facts known to the person, is a registrable person in relation to the next registration year, may apply for renewal of registration for the next registration year. 

 

Subsection 80K(2) replaces the existing deadline (1 August) with a new deadline (31 August, i.e. before the start of the registration year which is defined to commence on 1 September) for renewal of registration.  Registrants have a positive obligation to apply for renewal by 31 August.  This is supported by the introduction of the late renewal penalty, under new paragraph 80KB(1).

 

New section 80KA sets out the form and manner in which an application for renewal is to be made, and the requirements which must be met before a renewal is granted.  It also provides that, if a decision on the application is not made before 1 September, the applicant will be taken to be registered until the Director grants or refuses the application (subsection 80KA(4)).

 

New section 80KB deals with late renewal applications.

 

Subsection 80KB(1) provides that a late renewal application is one that is made after the start of the registration year to which the renewal applies, and where this occurs, the person must pay the late renewal penalty prescribed under new subsection 110A ( see item 21).

 

Subsection 80KB(2) sets out the form and manner in which a late application for renewal of registration is to be made.  It also requires the application to be accompanied by the late renewal penalty.  This penalty, in addition to the usual application fee and registration charge, must be paid for late renewal applications.

 

Subsection 80KB(3) sets out the requirements which must be met before a late renewal application can be granted.

 

Subsection 80KB(4) provides that if the Director is not satisfied about the matters specified in subsection 80KB(3), then he or she must refuse the late renewal application.

 

Subsection 80KB(5) provides that an applicant’s registration is deemed to be in place from the time the late renewal application is made, until the Director grants or refuses the application.  Once the late renewal application is granted, the subsection further provides for the continuity of registration, by deeming registration to be in place from the start of the registration year to which the renewal relates.

 

Subsection 80KB(6) has the effect of providing that where, at any time, charges are laid against a person for a breach of section 80B, that is for introducing relevant industrial chemicals without being registered as required, 80KB(5) does not apply.  This means if a registrable person who fails to renew is prosecuted under section 80B, subsection 80K(5) cannot be invoked to deem that person to be registered retrospectively.

 

New section 80KC provides that the Director must notify the applicant of the decision on a renewal application or a late renewal application.  Where an application is refused, the Director must specify the reasons for the refusal and must refund the registration charge to the applicant.

 

Item 9

 

This item replaces existing section 80M.  It specifies the time within which registration and renewal applications must be dealt with, subject to the Director requiring further information about the application under section 80N.  If an application relates to the registration year in which the application is made or a previous registration year the application must be processed as soon as possible but in any event within 30 days of the receipt of the application.  If the application relates to the next registration year it must be processed as soon as possible but in any event not later than the later of 30 days after the start of the next registration year or 30 days after the receipt of the application.  Accordingly, if the application is for renewal in the following registration year and is lodged before expiry of the current registration, the application does not have to be processed within 30 days of its receipt, but must be processed within 30 days of the start of the following registration year, or if the application is a late renewal, within 30 days of that application.

 

Consequential to the removal of the urgent handling fee in item 4, the 7-day processing timeframe required by the payment of the urgent handling fee is removed.

 

Item 10

 

This item removes the reference in subsection 80N(2) to “the period of 30 days or 7 days” and replaces it with a reference to “a period of 30 days”.  This is a consequential amendment to ensure consistency with the changed time limits in section 80M, referred to in item 9.

 

Item 11

 

This item replaces existing subsection 80P(4) and specifies 31 August as the date by which a registered person is to inform the Director if that person considers it is unlikely to be required to register in the following year.  As this Bill has extended the renewal deadline to the registration expiry date (31 August), registrants should by then be in a position to tell whether registration is required for the next year.  This provision is necessary as otherwise, when a registration is not renewed by the renewal deadline, it cannot be ascertained whether renewal is late or registration is no longer required.

 

Item 12

 

Subsection 80Q(1) is amended to add references to subparagraphs 80KA(1)(e)(ii) (renewals) and KB(2)(c)(ii) (late renewals) to cover amounts paid on account of renewal applications.  This makes it clear that the provision of final statements concerning the actual value of relevant industrial chemicals introduced by a person who has paid an amount on account of registration applies to both new registrations and renewals.

 

Item 13

 

This item replaces existing paragraph 80QD(1)(a).  This amendment parallels the amendment to 80Q(1) in item 12 and covers amounts paid on account of renewal applications.  This makes it clear that the “retention of records” requirement applies to both new registrations and renewals where payments on account of the registration charge have been made.

 

Items 14, 15, 16

 

These items replace existing paragraphs 80T(2)(a), (b) and (c).  The actual amount of registration charge payable by a registrable person in relation to a registration year (currently $1,200 or $7,000, depending on the value of chemicals introduced in relation to the registration year) is removed from the Act.  As with other fees and charges, the different amounts payable in respect of registration charges will be prescribed in the regulations.

 

Item 17

 

This item is a consequential amendment to paragraph 100B(1)(b) to include registration charge or amount on account of registration charge paid under new sections 80KA and 80KB as amounts that must be credited to the Industrial Chemicals Account established under section 100A of the Act.  Reference to section 80K is replaced with reference to new sections 80KA and 80KB, following amendment to section 80K ( see item 8).

 

Item 18

 

Reference to subsection 80K(5) in paragraph 102(1)(b) is replaced with reference to subsections 80KA(3) and 80KB(4), following amendment to section 80K ( see item 8).  An application may be made to the AAT for review of a decision made by the Director to refuse a renewal or a late renewal application made under new sections 80KA or 80KB.

 

Item 19

 

This is a consequential amendment following the replacement of subsection 80K(2) with new subsections 80KA(1) and 80KB(2).  The effect of this amendment to paragraph 110(1)(ub) is to enable regulations to be made to prescribe application fees for renewal of registration including late renewals.

 

Item 20

 

This item repeals existing paragraph 110(1)(uc).  Reference to the urgent handling fee should no longer appear in subsection 110(1) as the urgent handling fee is removed by amendments to registration renewal provisions under this Bill.  This fee is no longer necessary in view of the introduction of the late renewal penalty under new section 80KB.

 

Item 21

 

This item creates new section 110A and establishes late renewal penalties.

 

Subsection 110A(1) enables the making of regulations prescribing late renewal penalties, or a formula for calculating such penalties, for late renewal applications covered by new section 80KB.

 

Subsection 110A(2) provides that a late renewal penalty is due and payable in the manner prescribed.  This relates to section 80KB, which stipulates that a late renewal application must be accompanied by the appropriate late renewal penalty.

 

Subsection 110A(3) provides that a late renewal application is not duly made if it is not accompanied by the late renewal penalty.  This has a bearing on the administration of section 80M, which stipulates that an application must be processed within 30 days.  This 30-day determination period applies only to applications that are duly made.

 

Subsection 110A(4) enables the making of regulations prescribing circumstances in which the Director may waive or remit late renewal penalties.

 

 

Part 3 - Application and transition

 

Item 22 - Application of registration-related changes

 

This item ensures amendments made to the company registration provisions by Part 2 of this Schedule will apply to registrations relating to registration years which start on or after 1 September 2003.  Any change to fees and charges (including the proposed late renewal penalty) made prior to the start of the registration year commencing on 1 September 2003 will apply to registrations for that registration year.  To avoid doubt it is specified that any changes made to registration charges before 1 September 2003 will apply to any application for registration or renewal of registration for the registration year commencing on that date regardless of when application for the registration is made.

 



Item 23 - Saving - existing regulations

 

This item ensures that regulations made under paragraph 80T(2)(a) or (b) of the Act that are in force before the commencement of items 14 and 15 and that regulations made under paragraph 110(1)(ub) of the Act that are in force before the commencement of item 19 continue in force as if they had been made for the purposes of those paragraphs as amended by the respective items.  The effect of these provisions is that the fees and charges stipulated in these regulations remain in force until the regulations are amended, whereupon new fees and charges will apply.