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Industrial Chemicals Bill 2017

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8631

2016-2017-2018-2019

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Industrial Chemicals Bill 2017

 

 

(1)     Page 25 (after line 28), after clause 24, insert:

24A  Introductions not authorised as exempted or reported introductions—strict liability offence and civil penalty provision

             (1)  A person contravenes this subsection if:

                     (a)  the person introduces an industrial chemical on the basis the introduction is authorised by section 26 or 27; and

                     (b)  the introduction is not authorised by section 26 or 27.

             (2)  Subsection (1) does not apply if the introduction of the industrial chemical is otherwise authorised under this Act.

Note:          A person who wishes to rely on this subsection bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).

Strict liability offence

             (3)  A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty:  120 penalty units.

Civil penalty provision

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

Civil penalty:          1000 penalty units.

24B  Introductions not authorised as exempted or reported introductions—fault-based offence

             (1)  A person commits an offence if:

                     (a)  the person introduces an industrial chemical on the basis the introduction is authorised by section 26 or 27; and

                     (b)  the introduction is not authorised by section 26 or 27; and

                     (c)  the person knew, or was reckless or negligent as to the fact, the introduction was not authorised by section 26 or 27.

             (2)  Subsection (1) does not apply if the introduction of the industrial chemical is otherwise authorised under this Act.

Note:          A person who wishes to rely on this subsection bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code ).

Penalty for individuals

             (3)  An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 5 years, a fine not more than 2,000 penalty units, or both.

Penalty for body corporate

             (4)  An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:

                     (a)  4,000 penalty units;

                     (b)  2% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the industrial chemical was introduced.

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

                     (a)  supplies made from any of those bodies corporate 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 body corporate 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 .

Alternative verdict

             (8)  In a trial for an offence against subsection (1), the trier of fact may find the defendant not guilty of that offence but guilty of an offence under section 24A if:

                     (a)  the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (1); and

                     (b)  the trier of fact is satisfied that the defendant is guilty of the offence under section 24A; and

                     (c)  the defendant has been accorded procedural fairness in relation to that finding of guilt.

24C  Criminal liability of executive officers of bodies corporates in relation to introductions of industrial chemicals

             (1)  An executive officer of a body corporate contravenes this subsection if:

                     (a)  the body corporate commits an offence under section 24A or 24B; and

                     (b)  the executive officer knew that, or was reckless or negligent as to whether, the offence would be committed; and

                     (c)  the officer was in a position to influence the conduct of the body corporate in relation to the commission of the offence; and

                     (d)  the officer failed to take all reasonable steps to prevent the commission of the offence.

             (2)  The maximum penalty for an offence against subsection (1) is the maximum penalty that a court could impose in respect of an individual for the offence committed by the body corporate.

             (3)  An executive officer of a body corporate means a person (whether or not a director of the body) who is concerned in, or takes part in, the management of the body.

[exempted or reported introductions]

(2)     Clause 97, page 81 (after line 14), after paragraph (2)(b), insert:

                   (ba)  contain information the person had regard to in determining that the proposed introduction would be a reported introduction; and

[pre-introduction reports for reported introduction]

(3)     Clause 97, page 81 (lines 22 to 24), omit paragraphs (3)(b) and (c), substitute:

                     (b)  the proposed end use for the industrial chemical.

[pre-introduction reports for reported introduction]

(4)     Page 82 (after line 7), after subclause 97(5), add:

             (6)  The Executive Director must, as soon as reasonably practicable after receiving the report, publish on the AICIS website the information mentioned in paragraph (2)(ba).

[pre-introduction reports for reported introduction]

(5)     Page 82 (after line 13), after clause 98, insert:

98A  Reports for exempted introduction

             (1)  If a person introduces an industrial chemical on the basis the introduction is an exempted introduction, the person must give the Executive Director a report in accordance with subsection (2) as soon as reasonably practicable after the industrial chemical’s introduction.

             (2)  The report must:

                     (a)  be in the approved form; and

                     (b)  contain information the person had regard to in determining that the introduction would be an exempted introduction; and

                     (c)  be accompanied by any fee prescribed by the rules for the purposes of this paragraph.

             (3)  The Executive Director must, as soon as reasonably practicable after receiving the report, publish the report on the AICIS website.

             (4)  A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty:  60 penalty units.

[report for exempted introduction]

(6)     Page 86 (after line 4), after clause 101, insert:

101A  Publication of information relating to risks of an industrial chemical to human health or the environment

             (1)  The Executive Director must cause to be published, as soon as reasonably practicable, on the AICIS website any information relating to the risks of an industrial chemical to human health or the environment that was relied on in determining:

                     (a)  whether the industrial chemical is to be listed on the Inventory; or

                     (b)  whether the introduction of the industrial chemical is an exempted introduction; or

                     (c)  whether the introduction of the industrial chemical is a reported introduction; or

                     (d)  whether an assessment certificate, commercial evaluation authorisation or exceptional circumstances authorisation for the introduction of the industrial chemical should be issued.

Note:          The Executive Director may disclose protected information if the information is disclosed in the course of exercising powers, or performing functions or duties, under this Act (see section 116).

             (2)  To avoid doubt, the Executive Director is to publish the information even if the information is protected information.

[publication of information relating to risks of an industrial chemical to human health or the environment]