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Industrial Chemicals (Notification and Assessment) Amendment (Rotterdam Convention) Bill 2004

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2002-2003-2004 3

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT (ROTTERDAM CONVENTION) BILL 200 3 4

 

 

 

 

 

 

 

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 (ROTTERDAM CONVENTION) BILL 200 3 4

 

OUTLINE

 

The Industrial Chemicals (Notification and Assessment) Amendment (Rotterdam Convention Bill 200 3 4 makes amendments to the Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) to give effect to Australia’s obligations under the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (-“ the Convention”- ).  The Act establishes a system of notification and assessment of industrial chemicals to protect health, safety and the environment, provides for registration of certain persons proposing to introduce industrial chemicals into Australia and provides for Australia to comply with obligations under international agreements.

 

Australia is in the process of ratifying the Convention.  The objective of the Convention is to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous pesticide and industrial chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics.  Following ratification of the Convention, the National Industrial Chemicals Notification and Assessment Scheme (NICNAS), , will be implementing Australia’s obligations under the Convention as they relate to industrial chemicals, except in relation to direct liaison with the Convention Secretariat.  International liaison, and in particular, information exchange with the Convention Secretariat and regulatory authorities of other countries , which that are Parties to the Convention, is the responsibility of the Designated National Authority (DNA).  The DNA for industrial chemicals is currently the Department of the Environment and Heritage.

 

The main purpose of the Bill is to implement Australia’s obligations under the Convention, and in particular, Articles 5(1) and 14(1).  Article 5(1) obliges Australia as a Party to notify the Convention Secretariat of a final regulatory action, which is an action taken by a Party, which does not require subsequent regulatory action by that Party, the purpose of which is to ban or severely restrict the use of a chemical ” as defined in Article 2 .  The Bill obliges the Director of NICNAS to notify the DNA of final regulatory actions taken by the Commonwealth, States and the Territories, which have the effect of banning or severely restricting the use of industrial chemicals in Australia.  Paragraph 1(a) of Article 14 of the Convention obliges a p P arty to facilitate the exchange of scientific, technical, economic and legal information concerning chemicals within the scope of the Convention , including toxicological, ecotoxicological and safety information .  The Bill requires the Director within a specified time to provide information of the kind mentioned in paragraph 1(a) of Article 14 about a notified industrial chemical.  The Bill will also allow the Director to obtain the information required under the Convention from relevant persons. The Director of NICNAS will provide the information to the DNA, and the DNA must then provide that information to the Secretariat.

 

The Bill will extend the present notification, information exchange and information gathering powers in the Act.

 

Currently, section 106 of the Act gives the Minister the power to inform a country, the appropriate authority of a country or a relevant international organisation regarding the movements (importation into or exportation) from and to Australia of industrial chemicals that are the subject of prescribed international agreements.  Section 48 of the Act also allows information to be gathered, by the Director, for chemicals that are being considered for recommendation as a Priority Existing Chemical (PEC).  These powers are not sufficient to allow Australia to fully meet its obligations under the Convention.

 

 

Financial Impact Statement

 

The financial impact is low.  The changes facilitate implementation of the Convention in relation to information exchange, and are not expected to be a significant burden for industry or government.

 

Importers of chemicals under the Convention would be unaffected by ratification and would incur no additional costs, as there would be no changes to the domestic regulatory scheme.

 

All exporters of industrial chemicals would need to establish procedures to determine whether an export authorisation is necessary (i.e. whether their exports contain any chemicals covered by the Convention).  The initial costs to exporters for this familiarisation are expected to range from approximately $500 per company for major exporters (with many chemicals and preparations), down to $50 for companies exporting a simple range of chemicals.  Exporters of chemicals covered by the Convention would be required to ensure that their exports meet the requirements of the Convention and incur ongoing costs ranging from approximately $150 to $170. 

 

Regulation Impact Statement

 

States and Territories and relevant interest groups such as the chemical industry and other non-governmental organisations have been consulted.  The Office of Regulation Review (ORR) has been consulted, and the Regulation Impact Statement (RIS) and t he National Interest Analysis (NIA) were prepared in consultation with the Attorney General’s Department and ORR.  The NIA and RIS were tabled in both Houses of   Parliament on 9 September 2003.

 



INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT (ROTTERDAM CONVENTION) BILL 200 3 4

 

NOTES ON CLAUSES

 

Clause 1: Short Title

The short title of the legislation is the Industrial Chemicals (Notification and Assessment) Amendment (Rotterdam Convention) Act 200 3 4 .

 

Clause 2: Commencement

 

The commencement date for Sections 1 to 3 of the legislation is the day on which the Act receives Royal Assent.

 

The commencement date for Schedule 1 is the later of the following: (a) the day on which the Act receives Royal Assent and (b) the day on which the Convention enters into force for Australia.  If the commencement date is the day on which the Convention enters into force for Australia, the Minister must announce through a notice in the Chemical Gazette the day of commencement of the provision or provisions in Schedule 1 .

 

Clause 3 : Schedule(s)

 

Clause 3 has the effect of stating that the Act will be amended in the manner specified in Schedule 1.

 

Schedule 1 - Amendments

 

Industrial Chemicals (Notification and Assessment) Act 1989

 

Item 1 - Insertion of new Part 5A to the Act

 

A new Part 5A (sections 100D - 100K) is inserted in to the Act which relates to information exchange under the Convention.  This Part amendment essentially incorporates the legislative requirements relating to the notification of final regulatory actions, information exchange required under the Convention and the gathering of information in relation to industrial chemicals.

 

Section 100D - Definitions

Section 100D provides definition s of new terms referred inserted in to in the Act and which are consistent with those used in the Convention.  Section 100D provides the definitions of Australia’s designated national authority , Convention , notified industrial chemical and Secretariat which are consistent with the Convention and which are referred to in new Part 5A.  As there are two designated national authorit ies y in Australia for the purposes of Article 4 of the Convention (one for veterinary chemicals and one for industrial chemicals), the definition of Australia’s designated national authority   makes it clear it is the designated national authority for industrial chemicals.

 

Section 100E- Notification of a final regulatory action

Section 100E relates to Australia’s obligations under paragraph 1 of Article 5 of the Convention.  Paragraph 1 of Article 5 obliges a Party to notify the Convention Secretariat of final regulatory action, which is an action taken by a Party, which does not require subsequent regulatory action from that Party, the purpose of which is to ban or severely restrict the use of a chemical.  The final regulatory action must be notified as soon as possible and not later than 90 days after the action has taken effect. In addition, the Party is also required to provide the information contained in Annex 1 to the Convention, where available.

 

NICNAS assesses new industrial chemicals before they are imported into or manufactured in Australia.  It also assesses substances listed on the Australian Inventory of Chemical Substances (AICS) through the Priority Existing Chemicals Program, on its own initiative or in response to concerns raised by other jurisdictions, industry and or the community about the effects of the industrial c hemical on public health, occupational health and safety, or the environment al effects .  NICNAS makes recommendations to other Federal and State and Territory regulatory bodies .  The majority of legislation that enables use of industrial chemicals to be banned or severely restricted severely restricts or bans the use of industrial chemicals is enacted and administered by under the jurisdiction of State s and Territor y governments ies .  There are also a number of Commonwealth enactments which authorise the banning or severe ly restricti on ng of the use of an industrial chemical in by the Commonwealth.

 

Subsection 100E(2) provides that the Director must notify Australia’s DNA in writing if he or she is satisfied that the Commonwealth has one or more laws banning or severely restricting the use of an industrial chemical in Australia. 

 

Subsection 100E(3) provides that the Director must notify Australia’s DNA if the Director is satisfied that if both of the following apply:

 

(a)     one or more of a State, the ACT and the Northern Territory have one or more laws banning or severely restricting the use of an industrial chemical in their jurisdiction; and

(b)     the law or those laws have the effect of banning or severely restricting the use of the industrial chemical in Australia.

 

As a final regulatory action is defined in the Convention as an action taken by a Party, that does not require subsequent regulatory action by that Party, a regulatory action in one or more States or Territories would not necessarily constitute a final regulatory action unless the law has the effect of severely restricting or banning the use of the chemical in Australia. For example, if only Victoria and NSW manufacture and use an industrial chemical ( and no other States or Territories manufacture and use th e at chemical) and both States enact a law banning the use of that industrial chemical, the ban would have the effect of banning the use of the industrial chemical in Australia.  In this situation, the Director may be satisfied that the laws have the effect of banning the use of the industrial chemical in Australia, and would be required to notify the DNA under subsection 100E(3).

 

Subsection 100E(4) provides that the notification must specify the industrial chemical and specify the relevant provision of the law or those laws, and contain the information set out in Annex 1 to the Convention to the extent that it is available .  Notification must , and occur as soon as practicable after the Director is satisfied that the law or laws have the effect of banning or severely restricting the use of the industrial chemical in Australia.

 

Subsections 100E(5) and (6) stipulate that the information is to be provided by the DNA to the Convention Secretariat as soon as possible but no later than 90 days after the first day on which all the relevant provisions of the law or laws are in force. Accordingly, if there are two or more laws which have the effect of severely restricting or banning the use of an industrial chemical, the 90 days will only commence when the last of those provisions come into force.  Subsection 100E(7) also requires allows the information relating to the final regulatory action to be published in the Chemical Gazette.  The Director must , as soon as practicable after the Director’s notification to the DNA, publish a notice setting out the information referred to in paragraphs 100E(4)(a) and (b).  However, the Director is given a discretion whether to publish the information referred to in paragraph 100E(4)(c) (refer to subsection 100E(8) ) .

 

Section 100F - Exchange of certain information about industrial chemicals

Section 100F relates to Australia’s obligations under paragraph 1(a) of Article 14 of the Convention.  Paragraph 1(a) of Article 14 provides that each Party shall, as appropriate and in accordance with the objective of the Convention , facilitate the exchange of scientific, technical, economic and legal information concerning the chemicals within the scope of the Convention, including toxicological, ecotoxicological and safety information.  Section 100F broadens the scope of the Act and require s s allows provision to the DNA, by the Director, of scientific, technical, economic and legal information referred to in Article 14.1(a) concerning industrial chemicals within the scope of the Convention .  The Director must , as soon as practicable after 1 February each year , give to the DNA such information that the Director considers appropriate about a notified industrial chemical that was obtained during the preceding 12 month period.  The DNA must then forward the information to the Secretariat as soon as practicable after receiving it.  The DNA can also give a country that is a P p arty to the Convention, or the appropriate authority of such a country, all or some of the information provided by the Director.

 

Section 100G Director may obtain information and documents

Subsection 100G (1) allows the Director to obtain any information or document from a person, if the Director believes on reasonable grounds that the person has particular information or a particular document and it is necessary to obtain the information or document to allow Australia to comply with the obligations under the Convention. A Memorandum of Understanding will be negotiated with State and Territory Governments to ensure that required information under the Convention is provided within the required time limits.

 

Subsection 100G (2) specifies how the request is to be made by the Director, the minimum timeframe for the information to be provided (which gives the person at least must be at 14 days after the request to give or produce the information or document ) and that the Director is to specify what and how the information is to be provided and include a statement that failure to provide the specified information is an offence.

 

Subsection 100G (3) provides that failure to comply with a request for information is an offence and establishes a penalty of 60 penalty units.

 

Section 100H - Self-incrimination

Subsection 100H(1) provides that an individual is not excused from complying with a request under section 100G on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.  However, subsection 100H(2) provides that any information given or documents produced, or the giving of information or producing the document, or any information, document or thing obtained as a consequence of giving the information or producing the document, is not admissible in evidence against the individual in criminal proceedings, other than proceedings for an offence against subsection 100G(3) or an offence against section 137.1 or 137.2 of the Criminal Code that relate d s to Division 4 of Part 5A of the Act.

 

Section 100J - Copies of documents

Section 100J enables the Director to inspect any document s produced under section 100G.  Section 100J also allows the Director to make and retain copies of the document or extracts from the document.

 

Section 100K - Director may retain documents

This section allows the Director to retain a document produced under section 100G for as long as necessary. A person entitled to possession of the document is entitled to be supplied, as soon as practicable, with a certified true copy.  The certified copy can be used in all courts and tribunals as if it were the original.   Until a certified copy is supplied the person, the Director will permit a person or a person authorised by the supplier of information to inspect the document and make copies of it or take extract from it.

 

Item 2 - Application

 
This item makes it clear that section 100E, as inserted into the Act by Item 1, only applies in relation to provisions of laws that come into force after the commencement of Item 1.