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Schedule 1—Amendments

Schedule 1 Amendments

   

Product Stewardship Act 2011

1  Section 6

Insert:

container includes (without limitation) any cup, drinkware, pack, carton, box, tin, packet, bag, pouch, tube or other container.

engag e in conduct includes omitting to perform an act.

filter tip of a cigarette has the same meaning as in the Tobacco Plain Packaging Act 2011 .

financial contribution requirement means a requirement specified in regulations made for the purposes of subsection 40U(1).

labelled plastic : see subsection 40R(1).

packaging includes:

                     (a)  a container, wrapper, confining band or other thing in which a good is packed, or 2 or more goods are packed; and

                     (b)  anything around which a good is wound or wrapped, or 2 or more goods are wound or wrapped; and

                     (c)  a container that is designed to contain a liquid for human consumption (whether for the purposes of transporting or storing the liquid, or for the use or consumption of the liquid).

packaging and plastics scheme : see subsection 40B(1).

packaging and plastics scheme member : see section 40C.

packaging and plastics targets : see subsection 40B(2).

plastics exempt act : see section 40N.

prohibited plastic : see section 40M.

sanitary products has the meaning prescribed by the regulation s.

scheme product : a scheme product is one of the following:

                     (a)  packaging;

                     (b)  a product made of, or containing, plastic if the product is within the following classes of products:

                              (i)  balloons;

                             (ii)  sanitary products;

                            (iii)  wet wipes;

                            (iv)  filter tips of cigarettes;

                             (v)  products specified in regulations made for the purposes of this subparagraph;

                     (c)  a product made of, or containing, plastic if the product consists of microbeads;

                     (d)  a product made of, or containing, oxo-degradable plastic.

scheme requirement means a requirement specified in regulations made for the purposes of subsection 40D(1).

scheme return payment : see subsection 40D(4).

wet wipes has the meaning prescribed by the regulations.

2  After Part 4

Insert:

Part 4A Mandatory product stewardship—packaging and plastics

Division 1 Guide to this Part

40A   Guide to this Part

This Part provides for the mandatory product stewardship of packaging and plastics.

Division 2 of this Part establishes the packaging and plastics scheme and specifies the packaging and plastics scheme members of the scheme.

The scheme is directed towards achieving the packaging and plastics targets by:

       (a)     establishing scheme requirements in relation to packaging (see Division 3); and

      (b)     monitoring packaging and plastics scheme members (see sections 40H and 40J); and

       (c)     directing a packaging and plastics scheme member to take, or not to take, certain actions (see sections 40K and 40L).

The scheme also:

       (a)     prohibits certain plastics (Division 5); and

      (b)     requires the packaging of labelled plastics to include certain matters (Division 6); and

       (c)     requires financial contributions to be made by certain persons in relation to certain plastics (Division 7).

Division 2 Establishment and membership of the packaging and plastics scheme

40B   Packaging and plastics scheme

             (1)  This Part establishes a scheme (the packaging and plastics scheme ):

                     (a)  that is directed towards achieving the packaging and plastics targets by doing the following:

                              (i)  establishing scheme requirements in relation to packaging (see Division 3);

                             (ii)  monitoring packaging and plastics scheme members (see sections 40H and 40J);

                            (iii)  directing a packaging and plastics scheme member to take, or not to take, certain actions (see sections 40K and 40L); and

                     (b)  that prohibits certain plastics (Division 5); and

                     (c)  that requires the packaging of labelled plastics to include certain matters (Division 6); and

                     (d)  requires financial contributions to be made by certain persons in relation to certain plastics (Division 7).

             (2)  The packaging and plastics targets are the following targets:

                     (a)  all packaging used in Australia will be reusable, recyclable or compostable by 2025;

                     (b)  70% of all packaging used in Australia will be recycled or composted by 2025;

                     (c)  70% of all plastic packaging used in Australia will be recycled or composted by 2025;

                     (d)  all packaging used in Australia will include, on average, 30% recycled content by 2025;

                     (e)  problematic and unnecessary plastic packaging will be phased out through design, innovation or the introduction of alternatives;

                      (f)  in relation to single-use food containers, and beverage cups, made of plastic—by 2025, the consumption of such containers or cups will have been reduced by 25% from the level of consumption that existed in 2019;

                     (g)  in relation to beverage containers (other than containers that are cups):

                              (i)  beginning on 1 January 2025, 80% of such containers used in a calendar year will be recycled in that year; and

                             (ii)  beginning on 1 January 2023, any plastic caps or lids for such containers must remain attached to the container during its use as a beverage container; and

                            (iii)  the creation of a national deposit scheme for such containers by 1 January 2021 that refunds at least 20 cents for each deposited container;

                     (h)  any other target prescribed in the regulations for the purposes of this paragraph.

40C   Membership of the packaging and plastics scheme

                   A person is a packaging and plastics scheme member of the packaging and plastics scheme if:

                     (a)  the person is:

                              (i)  a constitutional corporation; or

                             (ii)  a body corporate that is incorporated in a Territory; and

                     (b)  the person manufactures, imports, distributes or uses packaging for commercial purposes.

Division 3 Scheme requirements

40D   Scheme requirements

             (1)  The regulations may require a specified person to take, or not to take, specified action in relation to a specified scheme product.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (2)  Without limiting subsection (1), regulations made for the purposes of that subsection in relation to a scheme product may do any or all of the following:

                     (a)  prohibit (either absolutely or subject to conditions), limit, restrict or otherwise affect the manufacture, import, export, distribution or use of a scheme product;

                     (b)  prohibit (either absolutely or subject to conditions), limit or restrict substances from being contained in a scheme product;

                     (c)  require a scheme product to be labelled or marked in accordance with the regulations;

                     (d)  specify requirements in relation to communicating information, in accordance with the regulations, in connection with distributing, reusing, recycling, recovering, treating or disposing of a scheme product;

                     (e)  require a person to make a scheme return payment in relation to a scheme product (see subsection (4));

                      (f)  specify other requirements in relation to reusing, recycling, recovering, treating or disposing of a scheme product;

                     (g)  require a person to keep records relating to a scheme product in accordance with the regulations;

                     (h)  require a person to give the Minister specified information relating to a scheme product in accordance with the regulations;

                      (i)  provide for the Minister to exempt a specified person from a requirement specified in regulations made for the purposes of that subsection.

             (3)  The paragraphs of subsection (2) do not limit each other.

Meaning of scheme return payment

             (4)  A scheme return payment is a payment, of an amount specified in the regulations in relation to scheme products, that a person is required to make to another person if the other person returns the scheme products for reuse, recycling, recovery, treatment or disposal.

Scheme return payment must not amount to taxation

             (5)  Regulations made for the purposes of subsection (1) that require a person to make a scheme return payment must not amount to taxation.

40E   Matters the Minister must be satisfied of before scheme requirements are made

                   Before the Governor-General makes regulations that prescribe scheme requirements, the Minister must:

                     (a)  be satisfied that the requirements will further the objects of this Act (see section 4); and

                     (b)  be satisfied that the requirements are directed towards achieving the packaging and plastics targets (if applicable); and

                     (c)  have done the following:

                              (i)  published a draft of the requirements and invited packaging and plastics scheme members to make submissions on the draft;

                             (ii)  considered any submissions that are received within the time limit specified by the Minister when the Minister published the draft.

40F   Scheme requirements—constitutional connection

             (1)  One or more of the following must apply in relation to scheme requirements in relation to scheme products:

                     (a)  the requirements are expressed only to apply in relation to action taken, or not taken, by a constitutional corporation;

                     (b)  the requirements are expressed only to apply in relation to the taking of action in the course of constitutional trade or commerce;

                     (c)  the requirements are expressed only to apply in relation to an action taken, or not taken, in a Territory.

             (2)  The scheme requirements in relation to scheme products must specify whether they are made in accordance with paragraph (1)(a),(b) or (c).

40G   Compliance with scheme requirements

             (1)  A person contravenes this subsection if:

                     (a)  the person is subject to a scheme requirement; and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes the requirement.

Fault-based offence

             (2)  A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:   100 penalty unit s.

Strict liability

             (3)  A person commits an offence of strict liability if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  20 penalty units.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          200 penalty units.

Division 4 Monitoring of, and issuing directions to, packaging and plastics scheme members

40H   Report from certain packaging and plastics scheme members

             (1)  A packaging and plastics scheme member must provide a writt en report in accordance with subsection (2) to the Minister if the member has had a reportable financial year.

Civil penalty:          200 penalty units.

             (2)  The report must:

                     (a)  be in the approved form ; and

                     (b)  be provided within 2 months after the end of the reportable financial year to which the report relates; and

                     (c)  set out:

                              (i)  the actions taken, or not taken, by the member to help achieve the packaging and plastics targets during the reportable financial year; and

                             (ii)  the actions the member will take to help achieve those targets; and

                     (d)  include information about the actions taken, or not taken, by the member in compliance with any scheme requirements; and

                     (e)  include any matters specified in regulations made for the purposes of this paragraph.

Reportable financial year

             (3)  A financial year is a reportable financial year for a packaging and plastics scheme member if the member had an annual turnover of $5 million or more in the previous financial year.

Publishing reports

             (4)  As soon as reasonably practicable after receiving a report from a packaging and plastics scheme member, the Minister must, in such manner as the Minister thinks appropriate, cause to be published or made available the following information from the report:

                     (a)  the actions taken, or not taken, by the member to help achieve the packaging and plastics targets during the reportable financial year to which the report relates;

                     (b)  the actions the member will take to help achieve those targets;

                     (c)  the actions taken, or not taken, by the member in compliance with any scheme requirements;

                     (d)  information relating to a matter specified for the purposes of paragraph (2)(e) that is specified in regulations made for the purposes of this paragraph.

Annual turnover

             (5)  For the purposes of this section, the annual turnover of a packaging and plastics scheme member, during a financial year, is the sum of the values of all the supplies that the member, and any body corporate related to the member, have made, or are likely to make, during that year, other than the following supplies:

                     (a)  supplies made from any of those bodies corporate (including the member) to any other of those bodies corporate;

                     (b)  supplies that are input taxed;

                     (c)  supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999 );

                     (d)  supplies that are not made in connection with an enterprise that the member carries on.

             (6)  Expressions used in subsection (5) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.

             (7)  The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001 .

40J   Requests for information from packaging and plastics scheme members

             (1)  The Minister may, in writing, request a packaging and plastics scheme member to give the Minister information relating to the actions taken, or not taken, by the member towards achieving the packaging and plastics targets within a period specified in the request.

             (2)  If a packaging and plastics scheme member receives a request from the Minister under subsection (1), the member must provide the information requested within the period specified in the request.

Civil penalty:          50 penalty units.

40K   Minister may give directions to packaging and plastics scheme members

             (1)  This section applies if:

                     (a)  the Minister has received:

                              (i)  a report from a packaging and plastics scheme member under section 40H; or

                             (ii)  information from such a member as requested by the Minister under section 40J; and

                     (b)  the Minister is reasonably satisfied, on the basis of the report or information, that the actions taken, or not taken, by the member are not sufficient in helping to achieve the packaging and plastics targets.

             (2)  The Minister may, in writing, direct the member to take, or not to take, actions specified in the direction.

             (3)  A direction under subsection (2) is not a legislative instrument .

Notifying packaging and plastics scheme member of proposed direction

             (4)  Before giving a direction, the Minister must give the member written notice that the Minister is proposing to give the member the direction.

             (5)  The notice to the member must:

                     (a)  set out the reasons the Minister is proposing to give the direction; and

                     (b)  invite the member to respond, in writing, to the notice within a period specified in the notice.

             (6)  The Minister must consider any response given to the Minister within the specified period.

40L   Packaging and plastics scheme member must comply with directions

             (1)  A packaging and plastics scheme member who is given a direction under subsection 40K(2) must comply with the direction.

Fault-based offence

             (2)  A packaging and plastics scheme member commits an offence if:

                     (a)  the member is given a direction under subsection 40K(2); and

                     (b)  the member engages in conduct; and

                     (c)  the conduct contravenes the direction.

Penalty:  300 penalty units.

Civil penalty provision

             (3)  A packaging and plastics scheme member is liable to a civil penalty if the member contravenes subsection (1).

Civil penalty:          1,000 penalty units.

Division 5 Prohibition of certain plastics

40M   Prohibited plastics

             (1)  On and after 1 January 2021, a product made of, or that contains, plastic is a prohibited plastic if the product:

                     (a)  is a lightweight carrier bag; or

                     (b)  consists of microbeads.

             (2)  On and after 1 January 2023, a product made of, or that contains, plastic is a prohibited plastic if:

                     (a)  the product is manufactured to be principally used by a person only once before being disposed of; and

                     (b)  the product is one of the following:

                              (i)  a set of connected rings to hold things;

                             (ii)  a cotton bud;

                            (iii)  a stick for balloons;

                            (iv)  a product specified in regulations for the purposes of this subparagraph.

             (3)  On and after 1 January 2023, a product made of, or that contains, non-compostable plastic is a prohibited plastic if:

                     (a)  the product is manufactured to be principally used by a person only once before being disposed of; and

                     (b)  the product is:

                              (i)  a straw or stirrer; or

                             (ii)  cutlery or a kitchen utensil; or

                            (iii)  a plate, bowl or other dish.

             (4)  On and after 1 January 2023, a product is a prohibited plastic if:

                     (a)  the product is manufactured to be principally used by a person only once before being disposed of; and

                     (b)  the product is:

                              (i)  a food or beverage container made of, or that contains, expanded polystyrene; or

                             (ii)  made of, or that contains, oxo-degradable plastic.

             (5)  Regulations may exempt a product from being a prohibited plastic.

40N   Plastics exempt act

             (1)  An act in relation to a prohibited plastic is a plastics exempt act if:

                     (a)  the prohibited plastic is a straw; and

                     (b)  the act is to supply the straw to a person, or a class of person, who has a disability (within the meaning of the Disability Discrimination Act 1992 ); and

                     (c)  the disability is such that, a failure to supply the straw, would cause inconvenience for, or potential harm to, the person, or class of person, with the disability.

             (2)  The regulations may provide that a specific act in relation to a prohibited plastic is a plastics exempt act (including by providing that an act is a plastics exempt act if specified conditions are met).

             (3)  Before the Governor-General makes regulations that provide that a specified act in relation to a prohibited plastic is a plastics exempt act, the Minister must be satisfied of one or more of the following in relation to the act:

                     (a)  the act is necessary to satisfy food safety requirements;

                     (b)  the act is necessary to ensure the access needs of one or more specified persons, or classes of person, are being met;

                     (c)  the act relates to medical purposes, therapeutic purposes or other purposes relating to health;

                     (d)  the act relates to providing or ensuring the security or personal safety of one or more specified persons, or classes of person.

40P   Prohibited plastics—constitutional corporations

             (1)  A person contravenes this subsection if:

                     (a)  the person is a constitutional corporation; and

                     (b)  the person manufactures, imports, distributes or uses a prohibited plastic for commercial purposes; and

                     (c)  the manufacture, importation, distribution or use is not a plastics exempt act.

Fault-based offence

             (2)  A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  100 penalty units.

Strict liability

             (3)  A person commits an offence of strict liability if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  20 penalty units.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          1,000 penalty units.

40Q   Prohibited plastics—persons other than constitutional corporations

             (1)  A person contravenes this subsection if:

                     (a)  the person manufactures, imports, distributes or uses a prohibited plastic; and

                     (b)  the manufacture, importation, distribution or use of the prohibited plastic was:

                              (i)  in the course of, or for the purposes of, constitutional trade and commerce; or

                             (ii)  in a Territory for commercial purposes; or

                            (iii)  on behalf of a constitutional corporation for commercial purposes; or

                            (iv)  for the purposes of supplying goods to a constitutional corporation; and

                     (c)  the manufacture, importation, distribution or use is not a plastics exempt act.

Fault-based offence

             (2)  A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  100 penalty units.

Strict liability

             (3)  A person commits an offence of strict liability if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  20 penalty units.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          200 penalty units.

Division 6 Packaging of labelled plastics

40R   Packaging of labelled plastics

             (1)  This section applies in relation to a product (a labelled plastic ) that is made of, or contains, plastic if:

                     (a)  the product is a sanitary product; or

                     (b)  the product is a wet wipe; or

                     (c)  the product is a balloon; or

                     (d)  the product is a filter tip of a cigarette; or

                     (e)  the product is specified in regulations made for the purposes of this paragraph.

             (2)  On and after 1 January 2021, the packaging of a labelled plastic must state, in a prominent location on the packaging:

                     (a)  that the product is harmful to the environment if the product is released or incorrectly disposed of; and

                     (b)  any other matter specified in regulations made for the purposes of this paragraph.

40S   Packaging of labelled plastics—constitutional corporations

             (1)  A person contravenes this subsection if:

                     (a)  the person is a constitutional corporation; and

                     (b)  the person distributes a labelled plastic for commercial purposes; and

                     (c)  the packaging of the labelled plastic does not comply with subsection 40R(2).

Fault-based offence

             (2)  A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  100 penalty units.

Strict liability

             (3)  A person commits an offence of strict liability if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  20 penalty units.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          1,000 penalty units.

40T   Packaging of labelled plastics—persons other than constitutional corporations

             (1)  A person contravenes this subsection if:

                     (a)  the person distributes a labelled plastic:

                              (i)  in the course of, or for the purposes of, constitutional trade and commerce; or

                             (ii)  in a Territory for commercial purposes; or

                            (iii)  on behalf of a constitutional corporation for commercial purposes; or

                            (iv)  for the purposes of supplying goods to a constitutional corporation; and

                     (b)  the packaging of the labelled plastic does not comply with subsection 40R(2).

Fault-based offence

             (2)  A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  100 penalty units.

Strict liability

             (3)  A person commits an offence of strict liability if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  20 penalty units.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          200 penalty units.

Division 7 Financial contribution requirements

40U   Financial contributions towards costs relating to certain plastics

             (1)  The regulations may require one or more covered persons, or classes of covered person, to make a financial contribution of a specified amount towards one or more of the following:

                     (a)  the cost of specified measures that raise awareness of appropriate ways of disposing of a specified covered plastic;

                     (b)  the cost that disposing of a specified covered plastic imposes on specified waste management services;

                     (c)  the cost related to cleaning up litter resulting from a specified covered plastic.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (2)  A person is a covered person if:

                     (a)  the person is:

                              (i)  a constitutional corporation; or

                             (ii)  a body corporate that is incorporated in a Territory; and

                     (b)  the person manufactures, imports, distributes or uses a covered plastic.

             (3)  A thing that is made of, or contains, plastic is a covered plastic if the thing falls into the following classes of things:

                     (a)  beverage containers;

                     (b)  food containers;

                     (c)  packaging:

                              (i)  made of flexible material; and

                             (ii)  that is intended to be used to pack food;

                     (d)  balloons;

                     (e)  sanitary products;

                      (f)  wet wipes;

                     (g)  filter tips of cigarettes;

                     (h)  a class of things specified in regulations made for the purposes of this paragraph.

             (4)  Regulations made for the purposes of subsection (1) that require a person to make a financial contribution must not amount to taxation.

40V  Compliance with financial contribution requirements

             (1)  A person contravenes this subsection if:

                     (a)  the person is subject to a financial contribution requirement; and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes the requirement.

Fault-based offence

             (2)  A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  100 penalty units.

Strict liability

             (3)  A person commits an offence of strict liability if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  20 penalty units.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          200 penalty units.

3  Subparagraph 51(1)(a)(ii)

Omit “and”, substitute “or”.

4  At the end of paragraph 51(1)(a)

Add:

                            (iii)  subsection 40G(1) (contravention of scheme requirement); or

                            (iv)  subsection 40H(1) (report from certain packaging and plastics scheme members); or

                             (v)  subsection 40J(2) (packaging and plastics scheme member must provide information requested by the Minister); or

                            (vi)  subsection 40L(1) (packaging and plastics scheme member must comply with directions); or

                           (vii)  subsection 40P(1) (prohibited plastics—constitutional corporations); or

                          (viii)  subsection 40Q(1) (prohibited plastics—persons other than constitutional corporations); or

                            (ix)  subsection 40S(1) (packaging of labelled plastics—constitutional corporations); or

                             (x)  subsection 40T(1) (packaging of labelled plastics—persons other than constitutional corporations); or

                            (xi)  subsection 40V(1) (compliance with financial contribution requirements); and