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Industrial Chemicals (Notification and Assessment) Amendment Bill 2012

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2010-2011-2012

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

Industrial Chemicals (Notification and Assessment) Amendment Bill 2012

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Parliamentary Secretary to the Minister for Health and Ageing, the Honourable Catherine King MP)



 

 



INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT BILL 2012

 

OUTLINE

 

The Industrial Chemicals (Notification and Assessment) Amendment Bill 2012 (the Bill) amends the Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act).  The amendments to the ICNA Act are intended to:

 

-            implement specific measures arising from the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) Cost Recovery Impact Statement (CRIS) conducted in accordance with the Government’s Cost Recovery Guidelines.  These measures are to:

·           change the current three-tier NICNAS registration structure to a four-tier structure to deliver a more equitable charging arrangement for business;

·           introduce an application fee for businesses seeking authorisation from NICNAS to import or export industrial chemicals under the Prior Informed Consent (PIC) procedure of the Rotterdam Convention;

·           remove an obsolete fee for the transfer of a chemical from the non-confidential section of the Australian Inventory of Chemical Substances (AICS) to the confidential section of AICS;

 

-            make two minor technical amendments concerning payment of NICNAS registration charges and differential fees for applications made under the ICNA Act;

 

-            make minor consequential technical amendments arising from the new Model Work Health and Safety Regulations 2011 (Model Regulations); and

 

-            make a minor consequential amendment to the Agricultural and Veterinary Chemicals Code Act 1994 (the Agvet Code) which refers to the ICNA Act.

 

FINANCIAL IMPACT STATEMENT

 

The initiatives implemented through this Bill are cost neutral.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Industrial Chemicals (Notification and Assessment) Amendment Bill 2012

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Overview of the Bill

The National Industrial Chemicals Notification and Assessment Scheme (NICNAS) undertook a review of cost recovery arrangements as recommended by the Australian Government Cost Recovery Guidelines (the Cost Recovery Guidelines).  The review examined the appropriateness of cost recovery, the design of cost recovery charges to minimise any under/over recovery, and the adequacy of monitoring arrangements.

The purpose of the NICNAS Cost Recovery Impact Statement 2012-13 to 2015-16 (CRIS) was to transparently demonstrate compliance with the Australian Government Cost Recovery Guidelines and to outline proposed changes to the existing cost recovery arrangements based on review outcomes.

Consistent with the Government’s decision on the recommendations from the review, the Industrial Chemicals (Notification and Assessment) Amendment Bill 2012 amends the Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act) to:

·           change the thresholds and tier structure for annual registration charges to make the annual registration charges more equitable

·           introduce an application fee for businesses seeking authorisation from NICNAS to import or export certain hazardous industrial chemicals under the Rotterdam Convention

·           remove an obsolete provision which enables a fee to be levied for an application process that no longer exists.

The Bill also makes minor, technical amendments to ensure that terminology in the ICNA Act is consistent with the new work health and safety laws that commenced in the Commonwealth, and various state and territory jurisdictions, on 1 January 2012. These new laws are based on the model Work Health and Safety Regulations 2011 (Model Regulations) developed by Safe Work Australia.  The Bill also amends the Agricultural and Veterinary Chemicals Code Act 1994 which cross-references the ICNA Act.

Human rights implications

Under the NICNAS cost recovery structure, fees and charges are confined to the introducers of industrial chemicals, that is, manufacturers and importers of industrial chemicals.  While the amendments to the ICNA Act will have an impact on costs for a small number of manufacturers and importers, there is no impact on the human rights of these introducers or on other persons or organisations.

The minor technical amendments are machinery in nature and will have no impact on human rights.

Overall, the Bill does not engage any of the applicable human rights or freedoms.

Conclusion

The Bill is compatible with human rights as it does not raise any human rights issues.

The Honourable Catherine King, Parliamentary Secretary for Health and Ageing

 



 

INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT BILL 2012

 

NOTES ON CLAUSES

 

Clause 1 - Short title

This clause provides that the Bill, once enacted, may be cited as the Industrial Chemicals (Notification and Assessment) Amendment Act 2012 .

 

Clause 2 - Commencement

This clause provides that the amendments to the ICNA Act in Schedule 1 of the Bill are to commence on 1 July 2013 and that the other amendments (in Schedule 2) commence on the day the Bill receives Royal Assent. 

 

Clause 3 - Schedule(s)

This clause provides that each Act that is specified in a Schedule to this Bill is amended or repealed as set out in the relevant Schedule.  Any other item operates according to its terms.

 

Schedule 1 - Amendments relating to cost recovery

 

Part 1 - Amendments

 

Items 1 to 9 - NICNAS Registration

 

Replacement of the current three-tier structure for annual registration with a four-tier structure requires amendment of section 80T, which describes the different levels of registration, and amendment of various registration-related sections of the ICNA Act that refer to section 80T.

 

Currently NICNAS has a three-tier structure for annual registration, with:

 

·          registrants in all tiers subject to an annual registration fee, which is an administrative fee; and

·          registrants in tiers 2 and 3 (chargeable persons) subject to an annual registration charge, which supports all NICNAS activities except new chemicals assessments.

 

Currently the threshold value (in relation to relevant industrial chemicals introduced by a person) above which the annual registration charge is payable is $500,000.

 

Section 80T currently provides that the rate of registration charge payable by a chargeable person in relation to a registration year is an amount worked out in accordance with the tier values in subsection 80T(2). 

 

In accordance with CRIS outcomes, the Bill amends the definition of threshold value in subsection 5(1) of the ICNA Act to be a threshold value of $100,000 ( Item 1 ).

 

Section 80A provides an overview of NICNAS registration, with subsection 80A(3) summarising who must pay the registration charge.  However, due to a drafting error, the current subsection 80A(3) incorrectly provides that, broadly speaking, those persons who introduced chemicals of at least the threshold value in the last financial year OR who propose to introduce chemicals of at least the threshold value in the current financial year must pay a registration charge.  In fact, in accordance with the definition of a chargeable person as defined in section 5 of the ICNA Act, persons who propose to introduce industrial chemicals of at least the threshold value during the current registration year (1 September to 31 August), rather than the current financial year, are liable to a registration charge.  Subsection 80A(3) is therefore amended as an editorial correction ( Item 2 ).

 

Items 3 to 9

 

In the CRIS, the number of tiers subject to the annual registration charge is increased from two to three (from the current tiers 2 and 3 to new tiers 2, 3 and 4).  The table below compares the proposed tier arrangements for NICNAS registration in the Bill with the tier arrangements currently in the ICNA Act.  Persons in tier 1, currently and under the proposed change, are not subject to the registration charge as the value of relevant industrial chemicals introduced is below the threshold value.

 

Current Tier

Current introduction value ($)

New tier

Proposed introduction value ($)

1

1 - 499 999

1

1 - 99 999

2

500 000 - 4 999 999

2

100 000 - 499 999

3

5 000 000 +

3

500 000 - 4 999 999

 

 

4

5 000 000 +

 

In effect, current tier 1 is split into two new tiers (1 and 2).  For practical purposes, no amendments to the tier structure are made for current tiers 2 and 3 in the table above (which become new tiers 3 and 4). 

 

Section 80T is amended to reflect this change ( Items 8 and 9 ), with the text-based subsection 80T(2) being replaced by a table to describe the new tiers subject to the annual registration charge and the introduction values for each new tier.  Table items 1 to 4 in Item 9 of the Bill (which amends subsection 80T(2)) denote the scenarios for which the annual registration charge is payable .  Specifically, comparing each item in Item 9 to the new tiers in the table above:

 

·          item 1 reflects the new tier 2

·          item 2 reflects the new tier 3

·          items 3 and 4 reflect the new tier 4.

 

As a result of the changes to section 80T, consequential amendments to the following sections, which cross-reference section 80T, are made:

 

·          paragraph 80F(e) - application for new registration ( Item 3 )

The paragraph has been amended to include the additional tier for which an annual registration charge is payable.

 

·          paragraph 80KA(1)(e) - renewal of application for registration ( Item 4 )

The paragraph has been amended to include the additional tier for which an annual registration charge is payable.

 

·          paragraph 80KB(2)(c) - late renewal of application for registration ( Item 5 )

The paragraph has been amended to include the additional tier for which an annual registration charge is payable.

 

·          subsection 80Q(1) - final statements from registered persons ( Item 6 )

As subparagraphs 80F(e)(ii), 80KA(1)(e)(ii) and 80KB(2)(c)(ii) are amended, this subsection must be amended.

 

·          subsection 80QD(1) - retention of records by registrants ( Item 7 )

As section 80T is amended, this subsection must be amended.

 

Item 10

 

One of the CRIS outcomes was to repeal redundant provisions of the ICNA Act, particularly those associated with fees and charges.  Section 18A of the ICNA Act refers to the possible transfer of a chemical from the non-confidential section of the Australian Inventory of Chemical Substances (AICS) to the confidential section during a transitional period in 1997 (56 days commencing on 7 August 1997).  Any application for such a transfer attracted a fee, provided for as paragraph 110(1)(c) of the ICNA Act.  However, as provision for this transfer no longer applies, paragraph 110(1)(c) is repealed.

 

However, other provisions in the ICNA Act associated with this transfer process are not being repealed as they in fact may not be redundant.  A chemical transferred onto the confidential section of AICS under section 18A has a holder of confidence about the chemical, as defined in subsection 17(2A).  Section 18 requires that particulars about chemicals on the confidential section of the AICS cannot be disclosed without the consent of the holder of confidence about that chemical.  As the confidential section of AICS may still contain chemicals transferred during the transitional period in 1997, it is necessary to retain section 18A and these other sections referring to the holder of confidence about a chemical, to ensure the rights of the holder of confidence in subsection 17(2A) are maintained should an enquiry be received regarding a chemical transferred onto the confidential section of the AICS under section 18A.

 

Items 11 to 13

 

Section 106 (in combination with the Regulations) enables applications to be made for written permission to import or export certain chemicals that are subject to international conventions.  A CRIS outcome was to introduce a fee to recover the cost from the direct beneficiaries of processing an application for authorisation of the import or export of certain hazardous chemicals listed under the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention).  Currently, the cost of this service is recovered from all chargeable persons.

 

To enable NICNAS to charge a fee for this service, new paragraph 110(1)(v) has been added to the ICNA Act.  The fee is for an application for authorisation for the Rotterdam Convention only ( Item 12 ).  Item 11 is an editorial amendment to enable the addition of new paragraph 110(1)(v) after paragraph 110(1)(ub).

 

The CRIS found that the resources required in providing an export authorisation vary depending on the destination of the proposed export.  Therefore, for the purposes of cost recovery, PIC export authorisations can be further classified into two groups:

 

·          Category A - representing exports to countries whose status regarding the Rotterdam Convention is unambiguous; and

 

·          Category B - includes any country where additional resources will be required to determine the destination country’s acceptance of the proposed exported chemicals.

 

There were no PIC annual authorisation applications for the importation of chemicals during the period of the CRIS.  However it was estimated in the CRIS that the resources required to process import authorisations would be similar to those required for Category B export authorisations and the fee would be the same.

 

To enable separate fees for applications for export authorisations under Category A or Category B above, new subsections 110(1A) and 110(1B) have been inserted into the ICNA Act ( Item 13 ) to replace the existing subsection 110(1A).  These new subsections will allow for the provision of different fees in the regulations for different chemicals and classes of chemicals and/or different countries or classes of countries.

 

The previous subsection 110(1A), which provided for different fees for self-assessment applications for different classes of chemicals, for example, polymers and non-polymers, has been repealed by Item 13 as it implied a contrary intention in relation to some other services listed in subsection 110(1) for which differential fees are charged, yet which do not rely on an analogous 110(1A) provision.

 

In fact, the provision of differential fees in relation to applications concerning different classes of chemicals relies on subsection 33(3A) of the Acts Interpretation Act 1901 , hence the current subsection 110(1A) is unnecessary.  The new subsection 110(1A) specifies that NICNAS may charge differential fees for different countries or classes of countries as it is not certain the ICNA Act can rely on subsection 33(3A) of the Acts Interpretation Act 1901 to provide a country-related basis for charging differential fees.  The new subsection 110(1B) and the note of emphasis inserted after the new subsection clarify the application of subsection 33(3A) of the Acts Interpretation Act 1901 to the ICNA Act even further.

 

Part 2 - Application provision

 

Item 14

 

The amendments for items 1 and 3 to 9 apply to registration years beginning on or after 1 September 2013.  As a result of the definition of chargeable person in section 5, these items automatically apply to financial years beginning on or after 1 July 2012.

 

 



 

 

Schedule 2 - Other amendments

 

Part 1 - Amendments

 

New work health and safety laws commenced in the Commonwealth and various state and territory jurisdictions on 1 January 2012.  These new laws are based on the model Work Health and Safety Regulations 2011 developed by Safe Work Australia.  In the new work health and safety laws, the term ‘Material Safety Data Sheet’ has been replaced by ‘Safety Data Sheet’.

 

For the purposes of national consistency in the regulation of industrial chemicals across the various jurisdictions, the term ‘Material Safety Data Sheet’ is replaced with ‘Safety Data Sheet’ where it occurs in the ICNA Act.  Accordingly Items 2 and 3 replace the definition of a ‘Material Safety Data Sheet’ with the definition of a ‘Safety Data Sheet’ as a consequential amendment.  However, the substance of the definition is not amended - there is only an editorial correction to format the text after paragraph (f) in the current ICNA Act as a paragraph (g).

 

Items 4 to 9 list consequential changes which amend ‘Material Safety Data Sheet’ to ‘Safety Data Sheet’ throughout the ICNA Act.

 

The Agricultural and Veterinary Chemicals Code Act 1994 (the Agvet Code) makes reference to the definition of ‘Material Safety Data Sheet’ in the ICNA Act.  Therefore, as the term ‘Material Safety Data Sheet’ is being amended to ‘Safety Data Sheet’ in the ICNA Act, a consequential amendment to the Agvet Code is required for regulatory consistency ( Item 1) .

 

Part 2 - Transitional provisions

 

Item 10 ensures that, if any regulations or guidelines which refer to ‘Material Safety Data Sheet’ are in force, they are to be taken to refer to ‘Safety Data Sheet’ for the purposes of the ICNA Act.