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Industrial Chemicals Bill 2017

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2016-2017

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

INDUSTRIAL CHEMICALS BILL 2017

 

 

 

ADDENDUM TO THE

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

This addendum responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 8, dated 9 August 2017.  

 

 

(Circulated by authority of the Assistant Minister for Health, the Hon Dr David Gillespie MP)

 



 





CLAUSE 166 - RECONSIDERATION AND REVIEW OF DECISIONS

 

After third paragraph - add:

 

Certain decisions that could be made under the Industrial Chemicals Bill 2017, which are not included in the list of 'reviewable' decisions in clause 166, have intentionally been excluded from the clause. This is because, for example, the decision will have no adverse impact on the applicant, will not change the status quo or is automatic. All decisions that could adversely affect the interests of an applicant are reviewable. The tables below list the non-reviewable decisions included in the bill and the reasons why, due to their nature, they will not be reviewable.

 

Table 1: Decisions which are in favour of the applicant or do not change the status quo

 

Provision

Decision

Reason for not including in clause 166

17(2)(a)

To grant an application for registration

These are decision that:

·         are in favour of the applicant, such that there is no adverse impact on a person (i.e. the Executive Director grants an application), or

·         do not change the status quo and as such do not result in an adverse  outcome for the person affected by the decision. For example, an assessment certificate holder makes submissions as to why the terms of the assessment certificate should not be varied at the Executive Director's initiative, and the Executive Director subsequently decides not to vary the terms.

19(6)(b)

Not to cancel a person's registration (on Executive Director's initiative)

37(1)(a)

To issue an assessment certificate

42(5)(b)

Not to remove a person from an assessment certificate (on Executive Director's initiative)

49(1)(a)

To vary the terms of an assessment certificate (on application)

50(5)(b)

Not to vary the terms of an assessment certificate (on application)

52(5)(b)

Not to cancel an assessment certificate (on Executive Director's initiative)

58(1)(a)

To issue a commercial evaluation authorisation

61(5)(b)

To not remove a person from a commercial evaluation authorisation (On Executive Director's initiative)

63(4)(a)

To vary the terms of a commercial evaluation authorisation (on application)

64(5)(b)

Not to vary the terms of a commercial evaluation authorisation (on Executive Director's initiative)

66(5)(b)

Not to cancel a commercial evaluation authorisation (on Executive Director's initiative)

93(1)(a)

To vary the terms of an Inventory listing (on application)

108(1)(a)

To approve an application for protected information

111(8)(b)

To approve an application for protected information on review

114(2)(a)

To approve an application for protected information

Table 2: Decisions that are automatic or mandatory

 

Provision

Decision

Reason for not including in clause 166

40(2)

Add person covered by an assessment certificate (at certificate holder's request)

These decisions are automatic or mandatory decisions in that they arise where there is a statutory obligation on the Executive Director at act in a certain way upon the occurrence of a specified set of circumstances. These decisions are therefore made on the basis of objective matters (i.e. the application complies with requirements for an application and the appropriate person's consent to the application). These provisions support the applicant to initiate certain limited changes to their authorisation to introduce industrial chemicals into Australia. The process is initiated by the applicant and there are no subjective considerations to which the Executive Director must turn their mind. It is proposed that these decisions will be automated through an electronic process to minimise regulatory burden.

40(5)

Remove a person covered by an assessment certificate (at person's request)

41(2)

Add person to an assessment certificate (at person's request)

41(5)

1.       Remove a person from an assessment certificate (at person's request

51(2)

Cancel an assessment certificate (at person's request)

60(2)

Add person to a commercial evaluation authorisation (at person's request)

60(5)

Remove a person from commercial evaluation authorisation (at person's request)

65(2)

Cancel commercial evaluation authorisation (at person's request)

Table 3: Decision made at the initiative of the Minister

 

Provision

Decision

Reason for not including in clause 166

67(1)

Enables the Minister to issue an exceptional circumstances authorisation for the introduction of an industrial chemical

This decision is made at the initiative of the Minister, and not on application. It is exercised by the Minister personally, in the public interest, in order to address significant risks to human health or the environment. It is essentially an emergency power (in the public interest).

CLAUSE 175- SELF-INCRIMINATION

 

After second paragraph - add:

 

The abrogation of the privilege against self-incrimination is limited in two important ways:

 

·            The self-incrimination provision in clause 175 is limited to the circumstances described in clause 161. Clause 161 relates to information or a document requested by the Executive Director that is reasonably necessary to be obtained in order for Australia to comply with its obligations under the Rotterdam Convention.

·            Any information given or document produced is not admissible in evidence against the individual in criminal or civil proceedings (other than in very limited circumstances described in the provision).

The provision relating to self-incrimination (in these very limited circumstances) was first included in the Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act) in 2004, in order to ensure Australia meets its obligations (refer section 100H of the ICNA Act).

 

The provision has been included in the Industrial Chemicals Bill 2017 (and limited to clause 161) so that there is no change or disruption in the arrangements described in the new law, as they relate to Australia's international obligations.

 

CLAUSE 180- RULES

 

After fourth paragraph - add:

 

The type of international lists that it is envisaged may be applied, adopted or incorporated by reference include :

 

·            European Chemicals Agency (ECHA) Harmonised Classificat ion and Labelling of Hazardous Substances (Annex VI to the CLP Regulation);

·            European Union Substances of Very High Concern (EU SVHC);

·            United States National Toxicology Program (US NTP) Report on Carcinogens; and

·            International Agency for Research on Cancer (IARC) Monographs.

Any materials to be incorpor a ted by reference are readily accessible (at no cost) and links to the materials will be made available on the AICIS website.