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Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2009

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2009

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2009

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator S Ludlam)

 

 

 

 

 

 



ENVIRONMENT PROTECTION (BEVERAGE CONTAINER DEPOSIT AND RECOVERY SCHEME) BILL 2009

 

 

Background

 

The purpose of this Bill is provide for the environmentally sustainable use of resources and best practice in waste management by establishing a national beverage container deposit and recovery scheme.

 

 

Part 1 - Preliminary

 

Part 1 of the Bill, Clauses 1-8, relates to preliminary matters including the Bill’s commencement, objects, constitutional basis, application and relationship with State and Territory law.  It also provides for definitions.  The Bill is intended to commence on the day on which it receives the Royal Assent.  The Bill relies on the Commonwealth’s legislative powers under paragraphs 51(xx) (foreign and trading or financial corporations), 51(xxix) (external affairs), 51(xxxix) (matters incidental to the execution of powers vested by the Constitution).  The Bill is not intended to exclude or limit the concurrent operation of any law of a State or Territory, unless the contrary intention appears. 

 

The Bill defines the terms authorised collection depot, authorised transfer station, beverage, beverage container, beverage container environmental deposit, department, import, labelled, penalty unit, refund amount, reverse vending machine and Scheme .

 

Part 2 - Beverage Container Deposit and Recovery Scheme

 

Clause 9 establishes a beverage Container Deposit and recovery Scheme.

 

Clause 10 sets out the functions of the Department in administering the scheme.  The department will manage the operation of the Scheme, collect the beverage container environmental levy, grant exemptions for products that will not require the levy, authorise collection depots and transfer stations to participate in the scheme, enter into agreements with authorised transfer stations and depots, facilitate and promote the Scheme and provide information and advice to the Minister in relation to the operation of the Scheme.  It enables levy funds to be used via grants and other financial incentives to encourage the use of recyclable and reusable containers and the increased use of recycled material from beverage containers. It enables levy funds to be used for supporting kerbside recycling services, offsetting the collection industry costs for the operation of the Scheme, product development to improve the recyclability and reusability of beverage containers and other activities and programs connected with recycling which facilitate environmentally sustainable uses of resources and promote best practices in waste management. Payment for the purposes of facilitating and promoting the Scheme and providing grants or financial incentives under paragraph (h) are to meet from funds appropriate by the Parliament for those purposes.

 

Clause 11 provides that an importer or producer of a beverage container is liable to pay the beverage container environmental levy, unless they are granted an exemption. Clause 11 is a civil penalty provision. Penalty: 2000 penalty units for an individual and 10,000 penalty units for a body corporate.

Clause 12 sets the amount of the beverage container environmental levy at 10 cents.  It enables a higher amount to be set by regulation.  This section is consistent with the 10 cent levy in the South Australian container deposit scheme.

 

Clause 13 provides that a producer or importer must pay the levy within 14 days after the end of the month in which the beverage container was sold to a wholesaler, retailer or individual, or to a producer or distributor of beverages in beverage containers.  This section enables the funds to be received by the department before refunds are reimbursed to authorised depots and transfer stations.  Clause 13 is a civil penalty provision. Penalty: 100 penalty units for individual and 500 penalty units for a body corporate.

 

Clause 14 provides that all beverage containers must be labelled as refundable.  The labelling requirements are similar to those required by the South Australian beverage container scheme.  Clause 14 is a civil penalty provision. Penalty: 100 penalty units for individual and 500 penalty units for a body corporate.

 

Clause 15 prescribes that a person must not sell a beverage container unless the container is labelled in accordance with the relevant labelling requirements.  Clause 15 is a civil penalty provision. Penalty: 100 penalty units for an individual and 500 penalty units for a body corporate.

 

Clause 16 (1), (2) and (3) provides for the department to approve a premises to be an authorised collection depot.  The department may enter into an agreement with the operation of such depot in respect of the location, operation, and functions of the authorised collection depot.  The agreement may include provisions relating to delivery of sorted empty beverage containers to an authorised transfer station, payment by the department of refund value paid by the depot, payment of any penalty by the operator for failure to comply with the agreement.

 

Clause 16 (4) sets out (but does not limit) the types of collection depots that may be authorised.  Depots may involve manual or mechanised handling, including reverse vending machines.  Depots may be at council sites, community centres and community based facilities, shopping centres and centre car parks, service stations or other retailers, schools, "drive through" recycling centres and at authorised transfer stations.  Depots are intended to collect used beverage containers directly from the public, and to issue refunds under the Scheme.  Depots are intended to sort the used containers and deliver to an authorised transfer station.

 

Clause 17 (1), (2) and (3) provides for the department to approve a premises to be an authorised transfer station.  Authorised transfer stations are intended to receive used containers from authorised depots and other large collectors.  They will generally not deal directly with the public except via an authorised collection depot on their premises.  The department may enter into an agreement with the operation of such transfer station in respect of the location, operation, and functions of the authorised collection depot.  The agreement may include provisions relating to receiving and processing empty beverage containers, payment by the department of refund value paid by the authorised transfer station, sale of processed materials, payment of any penalty by the operator of the authorised transfer station for a failure to comply with the agreement, the submission of a monthly report to the department on the number and types of empty beverage containers received and processed. The reports from authorised transfer stations will provide the department with data for reporting to the Minister under clause 10(1)(i).  Any fees or agreements between authorised depots and authorised transfer stations are not part of this legislation.

 

Clause 17(4) provides for an agreement to be entered into under subsection (2) provisions relating to accepting and paying a refund on crushed and broken empty beverage containers using an estimate of refund value. 

 

Clause 18(1) prohibits the claim of a refund of the levy on a beverage container which the person knows or has reason to believe was not purchased in Australia. Clause 18(1) is a civil penalty provision. Penalty: 100 penalty units.  Clause 18(2)  enables the operator of a collection depot to request a person presenting a beverage container for the purpose of claiming a refund of the levy to complete a declaration stating that the person has no reason to believe that the beverage container was not purchased in Australia.  Such declaration is mandatory under clause 18(3) for any person presenting 3000 or more beverage containers within a 48 hour period.  Clause 18(3) is a civil penalty provision. Penalty: 100 penalty units for an individual and 500 penalty units for a body corporate. Clause 18(4) provides that where a person has not complied with a request for a declaration, the depot may not refund the levy.  Clause 18(4) is a civil penalty provision. Penalty: 100 penalty units for an individual and 500 penalty units for a body corporate. Clause 18(5) provides that the authorised depot must keep any declaration for three years and make it available for inspection.  Penalty: 300 penalty units for an individual and 1,500 penalty units for a body corporate.  These provisions are consistent with the South Australian container deposit scheme.

 

Clause 19 provides that an authorised collection depot or authorised transfer station must pay a refund of the levy to a person returning a used beverage container.  Clause 19(2) provides that the operator of an authorised collection depot must not unreasonably refuse to accept any unbroken labelled empty beverage containers. Clause 19(2) is a civil penalty provision.  Penalty: 300 penalty units for an individual and 1,500 penalty units for a body corporate. A depot may refuse to accept the container if the container is in an unsafe condition, or the operator has reason to believe that the beverage container was not sold in Australia, or a request to complete a declaration under clause 18 has not been complied with.  Reverse vending machine depots may reject containers which are returned in a condition which prevents the machine from reading the label.

 

Clause 20 provides that the department must review the amount of the refund value at least once every 5 years.  The Authority must have regard to the minimum refund value necessary to maintain the appropriate level of incentive to reuse or recycle, ensure high rates of recovery, reduce litter and litter-related costs, reduce waste, disposal and recycling costs and conserve resources.

 

Clause 21 enables the department to grant exemptions from the requirement in clause 11 to pay a beverage container environmental deposit.  This is intended to provide an exemption for beverages sold in containers that are intended for re-use or re-filling by the producer or retailer, and for which a separate deposit and refund scheme is provided. Clause 22(5) provides that if an exemption has been revoked the person must begin to comply with the Act within the period specified in the notice revoking the exemption. Clause 21(5) is a civil penalty provision. Penalty: 2,000 penalty units for an individual and 10,000 penalty units for a body corporate.

 

Clause 22 provides that this Act does not extend to existing beverage containers imported into Australia or produced in Australia before the commencement of the Act.

 

Part 3 - Enforcement

 

Part 3 of the Bill relates to enforcement.

 

Division 1 of Part 3 relates to civil penalties.

 

Clause 23 identifies the civil penalty provisions of the Bill.

 

Clause 24 provides that under a civil penalty provision, where an act or thing is required to be done within a particular period or before a particular time then the obligation to do that act or thing continues until the act or thing is done. Clause 24(2) specifically provides that a person is liable for a civil penalty for each day a person fails to comply with a requirement under clauses 11 and 13 or subclause 21(5). Clause 24(2) is a civil penalty provision. Penalty: 1,000 penalty units for an individual and 5,000 penalty units for a body corporate.

 

Clause 25 provides that, within 6 years of a contravention of a civil penalty provision, the department may apply, on behalf of the Commonwealth, to a Court for an order that a wrongdoer pay the Commonwealth a pecuniary penalty.  Further, it provides that where a Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order that person to pay to the Commonwealth the pecuniary penalty that the Court determines appropriate for each contravention but not more than the relevant amount specified for the provision. 

 

In determining the pecuniary penalty, the court must have regard to all relevant matters including, the nature and extent of the contravention, the nature and extent of any loss or damage suffered as a result of the contravention, the circumstances in which the contravention took place and whether the person has previously been found to have engaged in any similar conduct in other proceedings under the Bill.

 

Clause 26 provides that for the purposes of this Bill, contravening a civil penalty is not an offence. 

 

Clause 27 provides that a person must not aid, abet, counsel or procure or, induce by threats, promises or otherwise, or, be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision, or conspire to contravene a civil penalty provision. 

 

Clause 28 provides that if a Court orders a person to pay a pecuniary penalty, the penalty is payable to the Commonwealth and the Commonwealth may enforce the order as if it were a judgment of the Court.

 

Division 2 of Part 3 deals with infringement notices and provides for the department to issue an infringement notice in respect of a contravention of the Act.  

 

Clause 29 provides for the Secretary if the department to issue an infringement notice within 12 months of a contravention of the Act. A single infringement notice may be given in respect of more than one contravention. However, the notice must not require the person to pay more than one penalty in respect of the same conduct.

 

Clause 30 provides for the matters that must be included in an infringement notice, including the identify of the person to whom the notice is given, details of the alleged contravention including the date of the alleged contravention and the civil penalty provisions that were allegedly contravened, a statement that proceedings will not be brought in relation to the alleged contravention if the penalty in the notice is paid with 28 days, a statement that the person may choose not to pay the penalty, an explanation of how payment of the penalty can be made, and other matters as set out in regulations.

 

Clause 31 provides that the amount of penalty in an infringement notice must be a pecuniary penalty equal to one-fifth of the maximum penalty a court could impose for the contravention.

 

Clause 32 provides for the withdrawal of an infringement notice and the refund of a penalty already paid under a withdrawn infringement notice.

 

Clause 33 provides that where a penalty under an infringement notice has been paid the liability of the person for an alleged contravention has been discharged and proceedings may not be brought against the person for the alleged contravention. It also provides that payment is not taken as an admission by the person of liability for the alleged contravention.

 

Clause 34 provides that there is no requirement for an infringement notice to be given and that a person is liable for proceedings to be brought if they do not comply with an infringement notice or a notice is not given or the notice is withdrawn.

 

Division 3 of Part 3 deals with enforceable undertakings relating to contraventions of civil penalty provisions.

 

Clause 35 provides that the secretary of the department may, instead of instituting proceedings in a Court, accept a written undertaking given by a person that the person will take, or refrain from taking, specified action to comply with the Act. It also provides that a person may withdraw or vary the undertaking at any time with the consent of the department. The secretary may cancel the undertaking. It also provides the undertaking may be published on an appropriate website.

 

Clause 36 provides that if the secretary of the department considers that a person who gave an undertaking has breached any of the terms of that undertaking, the secretary may apply to a court for an order. The Court may the person to comply the undertaking, direct the person to pay an amount up to the amount of any financial benefit the person has obtained attributable to the breach, direct the person to compensate any other person who has suffered loss or damage as a result of the breach or make any other order the Court considers appropriate.

 

Division 4 of Part 3 deals with the liability of executive officers of corporations.

 

Clause 37(1) provides that a chief executive officer contravenes this clause if a corporation contravenes a civil penalty provisions and the chief executive officer knew or was reckless or negligent as to whether the contravention would occur and the officer was in a position to influence the conduct of the corporation in relation to the contravention and the office failed to take all reasonable steps to prevent the contravention. Clause 37(1) is a civil penalty provision. The penalty is not more than the penalty a court could order a corporation to pay for the contravention.

 

Clause 38 sets out the matters the Court is to have regard to in determining whether the chief executive officer took all reasonable steps to prevent the contravention. The matters include any action the officer took to ensure the corporation regularly assesses its compliance with the Act and regulations, that the corporation implements appropriate recommendations from such assessments and that the corporation’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements of the Act. The court is also to have regard to what action the officer took when they became aware the corporation was breaching the Act or regulations.  

 

 

Part 4 - Miscellaneous

 

Part 4 of the Bill provides for the preparation of an annual report by the Minister and the tabling of the report before each House of the Parliament. Part 4 also provides for the making of regulations prescribing matters required or permitted by the Bill or necessary or convenient to be prescribed for carrying out or giving effect to the Bill.