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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.