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2019-2020

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

RECYCLING AND WASTE REDUCTION BILL 2020

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for the Environment, the Hon. Sussan Ley MP)

CONTENTS

GENERAL OUTLINE .. 2

FINANCIAL IMPACT STATEMENT . 4

REGULATION IMPACT STATEMENT . 5

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS . 6

NOTES ON CLAUSES . 7

Chapter 1—Introduction . 7

Chapter 2—Regulating the export of waste material 14

Chapter 3—Product stewardship . 60

Chapter 4—Administration . 92

Chapter 5—Other matters . 140

 

 



 

RECYCLING AND WASTE REDUCTION BILL 2020

GENERAL OUTLINE

The Recycling and Waste Reduction Bill 2020 (the Bill) will establish a legislative framework to enable Australia to more effectively manage the environmental and human health and safety impacts of products and waste material. This includes, in particular, impacts associated with the disposal of waste materials and products.

The Bill will implement the 2020 commitment of the Australian Governments (through the former Council of Australian Governments (COAG)) to ban the export of waste glass, plastics, tyres and paper. It does so by regulating the export of regulated waste materials such that only those that have been processed into a value-added material, which will be reused or remanufactured overseas, would be permitted for export.

The commitment to ban the export of certain waste materials featured as Target 1 within the National Waste Policy Action Plan 2019. The Action Plan includes actions aimed at driving change in industry, businesses, governments and the community to turn waste into a reusable commodity. COAG’s Response Strategy for Phasing Out Exports of Waste Plastic, Paper, Glass and Tyres, released in March 2020, sets out the system-level and material-specific challenges and opportunities that are central to the effective implementation of the waste export ban, and to the longer term transformation of Australia’s waste and recycling sector.

The Bill will replace the framework in the Product Stewardship Act 2011 which was recently reviewed. Product stewardship involves the shared responsibility for reducing the environmental, health and safety footprint of manufactured goods and materials across the life cycle of a product stream (including material streams). The Bill will encourage a circular economy for waste in Australia by enhancing voluntary product stewardship, supporting businesses to realise the full value of recyclable materials and to work towards more sustainable resource use. The Product Stewardship Act 2011 will be repealed by the Recycling and Waste Reduction (Consequential and Transitional Provisions) Bill 2020.

The intention of regulating the export of waste material is to stop the export of untreated and unprocessed waste which is likely to have a negative impact on the environment or human health in the receiving country. This will maximise the ability of our waste management and recycling sector to collect, recover, recycle, reuse, and convert waste into new products.

The review of the Product Stewardship Act 2011 found that whilst the existing legislative framework provides an appropriate framework for enabling product stewardship outcomes, there is scope to improve and broaden its reach and impact. The recommendations of the review included promoting product design and reparability within the objects of the Act, expanding product stewardship regimes to a broader range of products (including materials), addressing issues with free-riding in voluntary product stewardship schemes, increasing transparency with the Minister’s product list, and improving the administration of co-regulatory schemes.

It is in Australia’s interest to ensure appropriate regulation is in place to support recycling and waste reduction. The administration of this legislative framework should not be burdensome for government, businesses, community organisations, and individuals involved in the export of waste material and product stewardship schemes. The Bill will establish a flexible framework enabling the Australian Government to be responsive to change and issues as they arise.

Objects of the Bill

The objects of the Bill will include reducing the impact that products and waste material have on human and environmental health and realising community and economic benefits by taking responsibility for products and waste material. The objects will be achieved by regulating the export of waste material to promote its management in an environmentally sound way, encouraging reuse, recycling and recovery of products, as well as responsible product design.

Export of waste materials

Under the Bill, the export of ‘regulated waste material’ will be prohibited unless the prescribed export conditions set out in the rules are met. ‘Regulated waste material’ is waste material that is prescribed as regulated for export by the rules, for example in the rules that are anticipated to be made in relation to the export of waste glass.

The Bill and the rules will set out the requirements for the export of certain waste material from Australia. The rules will be able to prescribe conditions that must be complied with depending on the waste material being exported. For example, the rules may require that:

·          a person must hold an export licence; and

·          for each consignment of regulated waste material, an export declaration has been given.

Product stewardship

The Bill will also set out obligations for manufacturers, importers and distributors of certain products identified in rules made under the co-regulatory or mandatory provisions of the Bill. The Bill will also provide for the accreditation of voluntary product stewardship arrangements.

There are several key drivers for a national approach to product stewardship. These include a need to have the regulatory tools to respond to the growing, complex and potentially hazardous streams of waste from rapidly changing or evolving products and encourage responsible product management by producers, businesses and consumers.

There is also a lack of information that prevents consumers and producers from understanding the impacts of certain products, and related issues around their reparability and reusability. Accreditation of voluntary product stewardship schemes can help Australian consumers make better choices when purchasing and disposing of products, and to have confidence that the products they are choosing meet government accreditation requirements. 

Compliance, enforcements and audits

The Bill will make provision for the authorisation of persons to exercise certain powers and perform certain functions under the Bill. These powers will include conducting audits of export operations and product stewardship arrangements and giving directions that must be complied with by regulated businesses and individuals.

In order to deter conduct that contravenes the conditions and requirements of the Bill, and to ensure swift and effective enforcement, the Bill will provide for a range of powers that can be exercised by the Minister, Secretary or authorised officers, including those triggered from the Regulatory Powers (Standard Provisions) Act 2014 . These powers will include actions such as revocation and suspension of an export licence and cancellation of an approval of a co-regulatory arrangement as well as administrative remedies of injunctions, enforceable undertakings, and infringement notices. For more serious compliance issues, the Bill will provide for a number of civil penalty provisions as well as criminal offences.

The Bill will also provide for the Minister to make a number of decisions, some of which may affect the interests of individuals. The Bill provides for merits review to be available in relation to decisions by the Minister that affect individuals. Decisions will also be able to be reviewed externally by the Administrative Appeals Tribunal.

Fees will be able to be imposed under the Bill, on a cost-recovery basis, in relation to activities carried out by, or on behalf of, the Commonwealth (for example, by authorised officers) in the performance of functions or the exercise of powers under the Bill. The administration of any waste material export charge is also provided for under the Bill.

Finally, the Bill will delegate the power to make rules to the Minister. The rules will be legislative instruments and will be subject to the requirements of the Legislation Act 2003 , including parliamentary scrutiny, oversight, disallowance and sunsetting. The existing regulations made under the Product Stewardship Act 2011 , that is, the Product Stewardship (Televisions and Computers) Regulations 2011 , the Product Stewardship (Voluntary Arrangements) Instrument 2012 and the Product Stewardship Regulation 2012 will be repealed and there will be new rules proposed to be made in respect of these product stewardship arrangements.

FINANCIAL IMPACT STATEMENT

The measures in the Bill are estimated to have a minimal financial impact on the Australian Government Budget. The product stewardship measures in the Bill do not introduce any new financial impacts as these are a continuation of the framework of the Product Stewardship Act 2011 .  The initial costs of regulating the export of waste material have been funded by the measure ‘Taking Forward a Ban on Waste Exports’ which provided $15.1m for 2019/20 and 2020/21. The Government intends to introduce cost recovery arrangements under this Bill in the future.

REGULATION IMPACT STATEMENT

A consultation Regulatory Impact Statement (RIS) and decision RIS were prepared for the Commonwealth, States and Territories’ consideration in early 2020. The final decision RIS is attached ( Attachment B ) to this explanatory memorandum. This RIS process considered the implementation of the ban on exports of waste plastic, paper, glass and tyres as proposed by Australian Governments.

A further RIS was not required for the measures included in the Recycling and Waste Reduction Bill 2020 (OBPR ID Number 42699).



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The 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 .

The full statement of compatibility with human rights is attached to this explanatory memorandum ( Attachment A ).



 

NOTES ON CLAUSES

C hapter 1—I ntroduction

GENERAL OUTLINE

Chapter 1 will deal with how the Bill is to be cited (when enacted), when its provisions commence and the objects of the Bill. Chapter 1 will also set out the Bill’s application to the Crown and external Territories and its relationship with State and Territory laws, contain a dictionary listing every term defined in the Bill and contain substantive definitions for a number of key terms that are signposted in the dictionary.

NOTES ON INDIVIDUAL CLAUSES

PART 1 PRELIMINARY PROVISIONS

Clause 1          Short title

Clause 1 will provide that the Bill may be cited as the Recycling and Waste Reduction Act 2020 .

Clause 2          Commencement

Clause 2 will provide that the Recycling and Waste Reduction Act 2020 will commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of three months, beginning on the day the Act receives the Royal Assent, they will commence on the day after the end of that period.

Clause 3          Objects of this Act

Clause 3 will set out the objects of the Bill. Subclause 3(1) will provide that the objects of the Bill will be:

·          to reduce the impact on human and environmental health of products, waste from products and waste material, including by reducing the amount of greenhouse gases emitted, energy and resources used and water consumed in connection with products, waste from products, and waste material;

·          to realise the community and economic benefits of taking responsibility for products, waste from products, and waste material;

·          to promote a circular economy that maximises the continued use of products and waste material over their life cycle and accounts for their environmental impacts;

·          to contribute to Australia meeting its international obligations concerning the impact referred to in the first paragraph.

Subclause 3(2) will then provide how the objects are to be achieved. The objects are to be achieved by:

·          regulating the export of waste material to promote its management in an environmentally sound way; and

·          encouraging and regulating the reuse, recycling and recovery of products, waste from products and waste material in an environmentally sound way; and

·          encouraging and regulating those responsible for using, designing, manufacturing and distributing products to take responsibility for those products, including by taking action that relates to:

o    reducing or avoiding generating waste through improvements in product design; and

o    improving the durability, reparability and reusability of products; and

o    managing products throughout their life cycle.

The objects are directly relevant to a number of powers and functions under the Bill. For example, the Minister must have regard to the objects of the Bill when deciding whether to grant or renew an export licence in relation to regulated waste material.

In the product stewardship context, the rules may only specify outcomes of co-regulatory arrangements that relate to the objects of the Bill, and must require the accrediting authority to refuse to accredit a voluntary arrangement if satisfied that an outcome of the arrangement will not further the objects of the Bill. The public interest tests in both the voluntary and co-regulatory product stewardship provisions will also require the Minister to have regard to the objects of the Bill.

Clause 4          Minister to have regard to certain matters in exercising powers and functions

Clause 4 will require the Minister to take a precautionary approach in relation to protecting human and environmental health when performing functions and exercising powers under the Bill. The term ‘precautionary’ in this clause is intended to have its ordinary meaning. The purpose of this clause is to ensure that the Minister performs their functions and exercises their powers under the Bill in a manner that minimises any potential harm to human and environmental health.

Clause 5          Simplified outline of this Act

Clause 5 will provide a simplified outline of the Bill. The simplified outline is included to assist readers to understand the regulatory schemes in relation to the export of waste material and product stewardship that will be established by the Bill. The outline is not intended to be comprehensive. It is intended that readers will rely on the substantive clauses of the Bill.

Clause 6          Act binds the Crown

Clause 6 will provide that the Bill binds the Crown in each of its capacities. This will mean that all Australian Governments will be required to comply with the provisions of the Bill. However, in line with usual practice, subclause 6(2) makes it clear that the Crown is not liable to a pecuniary penalty or to be prosecuted for an offence.

Subclause 6(3) will clarify that these protections do not extend to an authority of the Crown.

Clause 7          Extension to external Territories

Clause 7 will provide that the Bill extends to every external Territory of Australia. Chapter 4 of the Bill will clarify that the Regulatory Powers (Standard Provisions) Act 2014 , as it applies in relation to the Bill, also extends to every external Territory.

However, rules will be able to have the effect that the waste export regime, or a product stewardship regime, does not apply in external Territories or a particular external Territory. As an example, co-regulatory schemes requiring product collection points at certain locations may be expressed not to apply to external territories (or a particular external territory) on the basis that the requirement may not be practical for some external territories due to their size, population, and remoteness. This will give the Minister the flexibility to ensure product stewardship schemes have appropriate scope in external territories.

This clause is also intended to ensure that the transit of waste material between external Territories and mainland Australia will not be subject to any of the regulatory controls that apply to the export of waste material in the Bill.

Clause 8          Extraterritorial application

Clause 8 will provide that the Bill extends to acts, omissions, matters and things outside Australia.

This is intended to clarify that activities by an export licence holder outside Australia may be used, for example, to justify varying, suspending or revoking an export licence. However, it is not generally intended that the Bill will directly regulate activities outside Australia.

Clause 9          Concurrent operation of State and Territory laws

Clause 9 will provide that the Bill is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the Bill.

PART 2 INTERPRETATION

Clause 10         The Dictionary

Clause 10 will provide definitions of key terms that are used throughout the Bill. As the definition of this Act includes the rules and the Regulatory Powers (Standard Provisions) Act 2014 as it applies to this Bill, the definitions outlined in clause 10 will also apply in relation those instruments.

This clause will also include some ‘signpost’ definitions that refer readers to the clauses in which terms are substantively defined. These include definitions that are relevant for the export of waste material and definitions that are relevant for product stewardship.

Some key concepts for the regulatory framework established by the Bill in relation to the export of waste material are an export licence and an export declaration . An export licence will be defined in clause 10 as an export licence granted under Part 4 of Chapter 2. An export declaration will be defined in clause 10 to mean a written declaration of an intention to export regulated waste material that complies with the requirements of clause 19 of the Bill. It is intended that exports of regulated waste material will only be able to be made by a person who holds an export licence and gives an export declaration to the Minister in respect of each consignment to be exported (unless the person has been granted an exemption under clause 26).

A key concept for the regulatory framework established by the Bill and in relation to product stewardship is product . This term will be defined in clause 10 to mean a thing, including a substance, or mixture of substances, that is manufactured or that is prescribed by the rules. The definition is deliberately broad to provide flexibility for the Bill to apply to the full range of manufactured goods, materials and other things for which it may be considered appropriate to impose product stewardship requirements. A reference to product also includes a class of such things.

Clause 10 will also define the concept of waste in relation to a product. This concept is primarily relevant to the product stewardship provisions, as the export provisions use the broader concept of waste material (as defined in clause 15).

Clause 10 will also define terms relevant to both the export of waste material and product stewardship. For example, relevant Commonwealth liability will be defined to include a fee or charge payable under the Bill or an associated charging Bill, penalties for late payments, pecuniary penalties, or other liabilities imposed by or under a prescribed law.

Clause 11        Definition of associate

Clause 11 will define the term associate . This term is primarily used in the context of the fit and proper person test in clause 175 of the Bill, where the Minister is required to have regard to a number of factors concerning the person in question, and may also have regard to those same matters in relation to an associate of that person. The fit and proper person test applies to both exporters of regulated waste material and administrators of product stewardship arrangements. The term associate is also relevant to other decision-making powers in relation to the export of waste material, such as the power to refuse to grant an export licence to a person who is an associate of another person who has had a licence refused (see clause 63).

The definition will allow the Minister to take into account the association between a person who has made certain applications or to which certain decisions under the Bill may relate, and another person. This is intended to ensure that the Bill’s objects are not undermined by a person using his or her associations to circumvent the requirements of the Bill in circumstances where there is a question as to the person’s suitability to hold an export licence, or to be the administrator of an accredited voluntary arrangement or approved co-regulatory arrangement.

Subclause 11(1) will provide that an associate of a person (the first person ) includes:

·          a spouse, de facto partner, child (who must be at least 18 years old) or parent of the first person;

·          a person who is or was directly or indirectly concerned in, or in a position to control or influence the conduct of, a business or undertaking of the first person or a corporation:

o    of which the first person is an officer or employee; or

o    in which the first person holds shares;

·          a corporation of which the first person or any of other persons mentioned above is an officer or employee;

·          if the first person is a body corporate, another body corporate that is a related body corporate (which has the same meaning as in the Corporations Act 2001 ) of the first person.

Subclause 11(2) will clarify that the reference to child in subclause 11(1) includes a stepchild or adopted child of the first person, or a child of the person within the meaning of the Family Law Act 1975. Subclause 11(3) will further clarify that the reference to a stepchild in subclause 11(2) includes a child of the first person’s de facto partner.

Subclause 11(4) will clarify that the reference in subclause 11(1) to the parent of the first person includes the stepparent or adopted parent of that person.

Clause 12        Definition of entered for export

Clause 12 will set out when waste material is entered for export for the purposes of the Bill. This concept is relevant to a number of offences and civil penalties under the Bill.

Waste material will be entered for export if, in the course of export operations:

·          it is presented to the Minister, an authorised officer or another person who is authorised to exercise powers or perform functions under the Bill in relation to the waste material; or

·          if information about the waste material is given to the Minister, an authorised officer or another person who is authorised to exercise powers or perform functions under the Act in relation to the waste material.

An example is when an exporter gives an export declaration concerning a proposed export of waste material to the Minister, or where an exporter presents waste material to an auditor for the purposes of an audit.

Clause 13        Definition of export operations

Clause 13 will define the term export operations . Export operations will be defined to mean operations to export waste material, operations to produce, or prepare, waste material for export, or other operations in relation to waste material before it is exported.

The concept of carrying out export operations will be an integral part of regulating the export of waste material under the Bill. For example, the granting of an export licence will be in relation to carrying out a kind of export operations in relation to regulated waste material.

Operations to export waste material is intended to include the entirety of export. This includes, for example, operations to export waste material to its final destination, such as a recycling facility in an importing country. This will allow such operations to be subject to conditions on an export licence.

Clause 14        When the product stewardship criteria are satisfied

Clause 14 will set out when the product stewardship criteria are satisfied.

The product stewardship criteria are relevant to Chapter 3 of the Bill, which deals with product stewardship. The Minister must be satisfied that the product stewardship criteria are satisfied for a product before accrediting a voluntary product stewardship arrangement for that product, or making rules under the co-regulatory or mandatory product stewardship provisions in relation to that product (see clauses 70, 77 and 93).

Clause 14 will provide that the product stewardship criteria will be satisfied in relation to a product if:

·          the product is sold in more than one State or Territory; and

·          at least one of the following applies in relation to the product:

o    the product contains hazardous substances;

o    there is the potential to significantly increase the conservation of materials used in the product or the recovery of resources (including materials and energy) from waste from the product;

o    there is the potential to significantly reduce the impact that the product has on the environment, or that substances in the product have on the environment, or on the health or safety of humans.

The requirement that the product is sold in more than one State or Territory at paragraph 14(a) recognises that it may be more appropriate for the Commonwealth Government to regulate a product with wider reach, rather than in one State or Territory.

It is intended that most products regulated under the product stewardship provisions of the Bill will be sold throughout Australia. Where products are in a national market, a national approach will avoid inefficiencies and inconsistencies associated with different approaches being adopted by State and Territory governments.

However, it may be appropriate for particular products that are not sold throughout Australia, but are sold in two or more jurisdictions, to be regulated under the product stewardship provisions of the Bill. This is particularly the case in the context of voluntary product stewardship. The criterion at paragraph 14(a) provides the Minister with sufficient flexibility in this respect.

The hazardous substance criterion (subparagraph 14(b)(i)) will be enlivened if the product contains hazardous substances. This criterion is relevant as hazardous substances in products can increase the impact that products have on environmental and human health and safety, including at the end of the product’s life.

The material conservation and resource recovery criterion (subparagraph 14(b)(ii)) recognises the benefits of conserving materials and recovering resources. This criterion may be satisfied, for example, where reuse or recycling requires less energy or water than the production of a new product.

The impact criterion (subparagraph 14(b)(iii)) recognises the potential to significantly reduce the impact that the product has on the environment or on the health or safety of humans. This criterion may be satisfied, for example, by designing products to be easily repaired, rather than disposed of when a part malfunctions.

Clause 15        Definition of waste material

Clause 15 will define the term waste material . The term will be central to the application and scope of Chapter 2 of the Bill, which will regulate the export of waste material.

Subclause 15(1) will define waste material as any substance or thing that is:

·          discarded, rejected, or left over from an industrial, commercial, domestic or other activity; or

·          surplus to or a by-product of an industrial, commercial, domestic or other activity; or

·          prescribed by the rules.

Subclause 15(2) will clarify that waste material can be a gas, liquid, solid or energy, or a combination of any of these. Subclause 15(3) will further clarify that a thing can be waste material whether or not it is of value, and whether or not it is or may be processed, recycled, re-used or recovered.

The definition of waste material is intended to be sufficiently broad to capture all types of waste. However, the Bill will only regulate those kinds of waste materials that are prescribed for the purpose of clause 17 and which are referred to in the Bill as regulated waste materials .

C hapter 2—R egulating the export of waste material

GENERAL OUTLINE

Chapter 2 will establish a framework to regulate the export of waste materials. It is intended that this framework will be used to regulate different waste materials consistently with Commonwealth Government policy and applicable international obligations.

NOTES ON INDIVIDUAL CLAUSES

PART 1 INTRODUCTION

Clause 16        Simplified outline of this Chapter

Clause 16 will provide a simplified outline of Chapter 2 of the Bill. The outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of Chapter 2, rather than to replace these provisions. It is intended that readers will rely on the substantive clauses of the Chapter 2.

PART 2 EXPORTING WASTE MATERIAL

Overview of Part

Part 2 will specify how waste materials may be regulated under the Bill. The rules may prescribe kinds of waste material to be regulated, called regulated waste material. Rules may also be made to prohibit the export of regulated waste materials unless prescribed export conditions are complied with. Part 2 will also set out a number of offences and civil penalty provisions relating to the export of regulated waste material.

Clause 17        Rules may prescribe waste material for the purposes of this Act

Clause 17 will operate in conjunction with clause 18 of the Bill and will allow the Minister to make rules to prescribe kinds of waste material for the purposes of the Bill. A kind of waste material prescribed in the rules will be a regulated waste material (subclause 17(2)). The Bill will only regulate the export of waste material that is regulated waste material.

In other words, only waste material that is prescribed in rules made for the purposes of clause 17 will be subject to the regulatory controls set out in the Bill.

Allowing the Minister to use the rules to set the kinds of waste material that will be regulated will give the Minister flexibility to regulate different kinds of waste material as appropriate from time to time. It also allows the regulatory controls to adapt to changing circumstances, including updates in waste processing technologies and new human and environmental health challenges. It is intended that the first waste material to be prescribed will be waste glass. It is also intended that rules will be made in the future to prescribe waste plastic, waste paper and cardboard and waste tyres in accordance with the timeline agreed by the Commonwealth, State and Territory Governments. However, clause 17 will be sufficiently broad to allow for any kind of waste material to be prescribed.

The note following subclause 17(1) will explain that the waste material may be prescribed for the purposes of clause 17 by reference to a class of waste material, consistently with the ordinary operation of subsection 13(3) of the Legislation Act 2003 .

Waste material prescribed as regulated waste material for the purpose of this clause may be defined broadly in the rules. However, to ensure the appropriate kinds of waste material are regulated, clause 17, in conjunction with subclause 188(2), will allow the rules to exclude a kind of waste material from a broader kind of regulated waste material prescribed in the rules. This includes exclusions by reference to a kind of waste material, the places to which the waste material is to be exported, or the circumstances in which the waste material is to be exported. For instance, waste glass may be prescribed as a regulated waste material, however it might be considered appropriate to exclude waste glass exported solely for household or personal use (as may be specified in the rules), from the regulatory controls in the Bill. Waste material excluded from a broader kind of regulated waste material prescribed in the rules will not be regulated for the purposes of the Bill.

Rules excluding a kind of waste material from being regulated waste material will differ from the concept of exemptions in Part 3 of this Chapter, as the relevant waste material will be excluded from regulatory controls on an on-going basis for all exporters. This is in contrast to exemptions, which will be based on an application for an exemption from an individual, will be assessed on a case-by-case basis, and will only apply to that individual.

Clause 18        Rules may prohibit export of regulated waste material subject to                                   conditions

Clause 18 will operate in conjunction with clause 17 of the Bill and will allow the rules to prohibit the export of regulated waste material unless it complies with certain conditions. It is intended that this will be a key provision used to regulate the export of waste material from Australia. For instance, it is anticipated that rules will be made to prohibit the export of waste glass if certain conditions are not complied with. Consistent with the decision of Commonwealth, State and Territory Governments, rules are also anticipated to be made in the future for other waste materials relating to waste plastic, tyres, paper and cardboard.

Conditions prescribed by rules made under clause 18 will be known as prescribed export conditions . Setting the prescribed export conditions in the rules will give the Minister the flexibility to regulate the export of regulated waste material to suit the requirements of a particular waste stream. For instance, it may not be appropriate for exports of waste glass to be subject to the same prescribed export conditions as exports of waste plastics, given the different properties of the waste material concerned.

The note following subclause 18(1) explains that failure to comply with prescribed export conditions prior to exporting regulated waste material is both an offence and contravention of a civil penalty provision under clause 20. For the purposes of subclause 20(5), waste material is exported when the conveyance transporting the waste material from Australia starts its journey to a place outside Australia (whether or not that place is the intended final overseas destination for the waste material).

Subclause 18(2) will provide a non-exhaustive list of examples of types of prescribed export conditions that may be included in rules made for the purposes of clause 18. These include conditions that:

·          require waste material to be exported in accordance with an export licence or in any other way prescribed by the rules;

·          require export operations to be carried out in relation to the waste material in accordance with an export licence or in any other way prescribed by the rules;

·          require the exporter to give an export declaration to the Minister within a specified period before the waste material is exported;

·          require the exporter to hold another kind of permission, consent or approval, granted as prescribed by the rules, to export the waste material.

Allowing the rules to identify other matters that may form part of the prescribed export conditions will also provide the Minister with flexibility to respond to changes in Government or international requirements concerning the regulation of waste exports.

Prescribed export conditions can be distinguished from conditions on an export licence under clause 35. For example, a prescribed export condition could require that an exporter of a particular kind of regulated waste material hold an export licence. The export of that kind of regulated waste material will therefore be prohibited unless the exporter holds an export licence covering the waste material (or the person has been granted an exemption under clause 26). Prescribed export conditions must be complied with by the time the conveyance transporting the waste material from Australia starts its journey to a place outside Australia (whether or not that place is the intended final overseas destination for the waste material) (see clause 20). In contrast, rules made for the purposes of clause 35 of the Bill might impose certain conditions on the export licence itself, such as the standard to which the waste must be processed, or that regulated waste material be exported to a specific place such as a recycling facility in an importing country. Conditions imposed on an export licence are continuous whilst the licence is in force and may apply to export operations both before and after the conveyance transporting the waste material from Australia starts its journey to a place outside Australia. Different offence and civil penalty provisions will apply to a person who exported regulated waste material in contravention of a prescribed export condition, such as not holding an export licence (see clause 20), compared to a person who exported regulated waste material in breach of a condition of their export licence (see clause 59).

Clause 19        Export declaration - general requirements

Clause 19 will set out the general requirements that must be met for an export declaration.

Clause 18 will make it clear that a prescribed export condition may include a requirement that the exporter provide an export declaration to the Minister in respect of each consignment of regulated waste material that is proposed to be exported from Australia. The first note after subclause 19(1) draws attention to this.

It is intended that a requirement for an export declaration will be a prescribed export condition for most, if not all, regulated waste materials.

Subclause 19(1) will require an export declaration to be made in the approved form (if any) and include the information and documents required by the approved form. The export declaration must also include any information or documents required by the rules and must be signed and dated by the exporter.

The second note after clause 19(1) will explain that a person may commit an offence or be liable to a civil penalty if they provide false or misleading information or documents (clauses 146 and 147 of the Bill, and sections 137.1 and 137.2 of Schedule 1 to the Criminal Code Act 1995 ). This will include providing false or misleading information or documents in an export declaration. Additional offences and civil penalty provisions for making false or misleading representations in relation to an export declaration are set out under clauses 23 and 24.

Subclause 19(2) will clarify that if the export declaration does not meet the requirements in subclause 19(1), the declaration is taken not to have been given.

Subclause 19(3) will clarify that the Minister will be able to approve different forms for an export declaration for different kinds of waste materials, or a single form for an export declaration for more than one kind of regulated waste material. This is intended to be an avoidance of doubt provision.

Clause 20        Exporting regulated waste material - non-compliance with prescribed export conditions

Clause 20 will create an offence and civil penalty provision that will apply to a person who exports regulated waste material and fails to comply with the relevant prescribed export conditions.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 20 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The maximum penalty is five years imprisonment or 300 penalty units (or both) for the offence, and 600 penalty units for the civil penalty provision. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

The size of the maximum penalty for both the offence and the civil penalty provision is considered appropriate as a deterrent to reflect the seriousness of failing to comply with the prescribed export conditions. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill, which could in turn result in harm to human and environmental health . This conduct may also erode the confidence of trading partners in the Government’s regulation of exported waste material and may therefore adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Subclause 20(3) will provide that strict liability will apply to the elements of the offence in paragraph 20(1)(b) and (c) (that the waste material is regulated waste material, and that the export of the waste material is prohibited unless prescribed export conditions are complied with). This means the prosecution will only be required to prove the physical elements in paragraphs 20(1)(b) and (c) beyond reasonable doubt and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of Schedule 1 to the Criminal Code Act 1995 ).

The elements of the offence in paragraphs 20(1)(b) and (c) concern the legal status of the waste material in question and the content of the prohibition set out in rules made for the purpose of clause 18. It is appropriate for these elements to be strict liability because they do not involve any conduct by the exporter. The use of strict liability in paragraphs 20(1)(b) and (c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, including that the exporter did not comply with the prescribed export conditions.

Subclause 20(5) will have the effect of narrowing the ordinary meaning of when an export is concluded for the purposes of the offence and civil penalty provision in clause 20. For the purposes of clause 20, waste material will be considered exported when the conveyance transporting the waste material from Australia starts its journey to a place outside Australia (whether or not that place is the intended final overseas destination for the waste material). This is intended to operate as a timing point to ensure exporters comply with all prescribed export conditions prior to leaving Australia. For example, if an export declaration is a prescribed export condition, a person must make that declaration prior to the regulated waste material leaving Australia, not after the conveyance transporting the waste material from Australia starts its journey. This will also make it clear that the offence and contravention of civil penalty provision is committed as soon as the conveyance (such as a ship) has commenced its journey, without having to wait until the waste material is landed in the importing country.

This is considered appropriate for the offence against clause 20 because it is intended that a person comply with prescribed export conditions, which may include that the exporter hold an export licence, prior to the conveyance transporting the regulated waste material from Australia starting its journey to a place outside of Australia. This will allow greater opportunity for compliance action to be taken prior to the regulated waste material leaving Australia, if necessary. Further, depending on the circumstances, it may be appropriate to commence action for breach of the offence and civil penalty provision under this clause prior to the regulated waste material being landed in the importing country. 

Clause 21        Knowingly making false or misleading representation about regulated waste material that is entered for export

Clause 21 will create an offence and civil penalty provision that will apply to a person who enters regulated waste material for export and represents (either expressly or by necessary implication) that the relevant prescribed export conditions have been complied with, knowing that the representation is false or misleading.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 21 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The maximum penalty is five years imprisonment or 300 penalty units (or both) for the offence, and 600 penalty units for the civil penalty provision. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

The size of the maximum penalty for both the offence and the civil penalty provision is considered appropriate as a deterrent. It reflects the seriousness of knowingly making a false or misleading representation that prescribed export conditions have been complied with, which could in turn result in harm to human and environmental health. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also erode the confidence of trading partners in the Government’s regulation of exported waste material and may therefore adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Subclause 21(3) will provide that strict liability will apply to the elements of the offence in paragraph 21(1)(b) and (c) (that the waste material is regulated waste material, and that the export of the waste material is prohibited unless prescribed export conditions are complied with). This means the prosecution will only be required to prove the physical elements in paragraph 21(1)(b) and (c) beyond reasonable doubt and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of Schedule 1 to the Criminal Code Act 1995 ).

The elements of the offence in paragraphs 21(1)(b) and (c) concern the legal status of the waste material in question and the content of the prohibition set out in rules made for the purpose of clause 18. It is appropriate for these elements to be strict liability because they do not involve any conduct by the exporter. The use of strict liability in paragraphs 21(1)(b) and (c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, including that the person knew the representation that the prescribed export conditions had been complied with was false or misleading.

Subclause 21(5) will have the effect that the offence and civil penalty provision will not apply if the representation is not false or misleading in a material particular. The note after subclause 21(5) will explain that the defendant bears an evidential burden in relation to showing that the representation is not false or misleading in a material particular. This is because section 13.3 of Schedule 1 to the Criminal Code Act 1995 and section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provide that if a defendant wishes to rely on an exception to, respectively, an offence or a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person .

Clause 22        Recklessly making false or misleading representation about regulated waste material that is entered for export

Clause 22 will create an offence and civil penalty provision that will apply to a person who enters regulated waste material for export and represents (either expressly or by necessary implication) that the relevant prescribed export conditions have been complied with, reckless as to whether that the representation is false or misleading.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 22 and is at the more serious end of the spectrum, or that involves a higher degree of malfeasance.

The maximum penalty is 3 years imprisonment or 180 penalty units (or both) for the offence, and 360 penalty units for the civil penalty provision. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

The size of the maximum penalty for both the offence and the civil penalty provision is considered an appropriate  deterrent to reflect the seriousness of recklessly making a false or misleading representation that prescribed export conditions have been complied with. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill, which could in turn result in harm to human and environmental health. This conduct may also erode the confidence of trading partners in the Government’s regulation of exported waste material and may therefore adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 360 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Subclause 22(3) will provide that strict liability will apply to the elements of the offence in paragraph 22(1)(b) and (c) (that the waste material is regulated waste material, and that the export of the waste material is prohibited unless prescribed export conditions are complied with). This means the prosecution will only be required to prove the physical elements in paragraph 22(1)(b) and (c) beyond reasonable doubt and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of Schedule 1 to the Criminal Code Act 1995 ).

The elements of the offence in paragraphs 22(1)(b) and (c) concern the legal status of the waste material in question and the content of the prohibition set out in rules made for the purpose of clause 18. It is appropriate for these elements to be strict liability because the elements do not involve any conduct by the exporter. The use of strict liability in paragraphs 22(1)(b) and (c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, including that the person was reckless as to whether the representation that the prescribed export conditions had been complied with was false or misleading.

Subclause 22(5) will have the effect that the offence and civil penalty provision will not apply if the representation is not false or misleading in a material particular. The note after subclause 22(5) will explain that the defendant bears an evidential burden in relation to showing that the representation is not false or misleading in a material particular. This is because section 13.3 of Schedule 1 to the Criminal Code Act 1995 and section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provide that if a defendant wishes to rely on an exception to, respectively, an offence or a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person.

Clause 23        Knowingly making false or misleading representation in relation to an export declaration

Clause 23 will create an offence and civil penalty provision that will apply to a person who enters regulated waste material for export and knowingly makes a representation (either expressly or by necessary implication) in an export declaration that is false or misleading.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 23 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The maximum penalty is five years imprisonment or 300 penalty units (or both) for the offence, and 600 penalty units for the civil penalty provision. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

The size of the maximum penalty for both the offence and the civil penalty provision is considered appropriate as a deterrent to reflect the seriousness of knowingly making a false or misleading representation in an export declaration. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill, which could in turn result in harm to human and environmental health. This conduct may also erode the confidence of trading partners in the Government’s regulation of exported waste material and may therefore adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 600 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure that it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Subclause 23(3) will provide that strict liability will apply to the element of the offence in paragraph 23(1)(b) (that the waste material is regulated waste material). This means the prosecution will only be required to prove the physical element in paragraph 23(1)(b) beyond reasonable doubt and will not be required to prove fault for this element. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of Schedule 1 to the Criminal Code Act 1995 ).

The element of the offence in paragraph 23(1)(b) concerns the legal status of the waste material in question. It is appropriate for this element to be strict liability because it does not involve any conduct by the exporter. The use of strict liability in paragraph 23(1)(b) will not affect the need for the prosecution to prove fault elements for other parts of the offence, including that the person knew the representation in the export declaration was false or misleading.

Subclause 23(5) will have the effect that the offence and civil penalty provision will not apply if the representation is not false or misleading in a material particular. The note after subclause 23(5) will explain that the defendant bears an evidential burden in relation to showing that the representation is not false or misleading in a material particular. This is because section 13.3 of Schedule 1 to the Criminal Code Act 1995 and section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provide that if a defendant wishes to rely on an exception to, respectively, an offence or a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person.

Clause 24        Recklessly making false or misleading representation in relation to an export declaration

Clause 24 will create an offence and civil penalty provision that will apply to a person who enters regulated waste material for export, makes a representation (either expressly or by necessary implication) in an export declaration that is false or misleading, and is reckless as to whether that representation is false or misleading.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 24 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The maximum penalty is 3 years imprisonment or 180 penalty units (or both) for the offence, and 360 penalty units for the civil penalty provision. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

The size of the maximum penalty for both the offence and the civil penalty provision is considered appropriate as a deterrent to reflect the seriousness of recklessly making a false or misleading representation in an export declaration. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill, which could in turn result in harm to human and environmental health. This conduct may also erode the confidence of trading partners in the Government’s regulation of exported waste material and may therefore adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 360 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Subclause 24(3) will provide that strict liability will apply to the element of the offence in paragraph 24(1)(b) (that the waste material is regulated waste material). This means the prosecution will only be required to prove the physical element in paragraph 24(1)(b) beyond reasonable doubt and will not be required to prove fault for this element. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of Schedule 1 to the Criminal Code Act 1995 ).

The element of the offence in paragraph 24(1)(b) is a matter of law as it concerns the legal status of the waste material in question. It is appropriate for this element to be strict liability because it does not involve any conduct by the exporter. The use of strict liability in paragraph 24(1)(b) will not affect the need for the prosecution to prove fault elements for other parts of the offence, including that the person was reckless as to whether the representation in the export declaration was false or misleading.

Subclause 24(5) will have the effect that the offence and civil penalty provision will not apply if the representation is not false or misleading in a material particular. The note after subclause 24(5) will explain that the defendant bears an evidential burden in relation to showing that the representation is not false or misleading in a material particular. This is because section 13.3 of Schedule 1 to the Criminal Code Act 1995 and section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provide that if a defendant wishes to rely on an exception to, respectively, an offence or a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person.

PART 3 EXEMPTIONS

Overview of Part

Part 3 will provide for exemptions from specified provisions of Chapter 2. A person will need to apply to the Minister for an exemption. An exemption may be granted (for a maximum of 12 months) subject to conditions and revoked. Only the conditions of an exemption may be varied.

Clause 25        Application for exemption

Clause 25 will provide that an application for an exemption to one or more provisions of Chapter 2 of the Bill may be made by:

·          a person who wishes to export regulated waste material; or

·          a person prescribed by the rules.

Clause 25 will include a limitation that an application for an exemption may only be applied for in relation to the provisions set out in Chapter 2 of the Bill (concerning the regulation of waste exports). Part 3 will not allow for an exemption from provisions contained elsewhere in the Bill (including compliance and enforcement-related provisions, or product stewardship provisions).

For example, a person may apply for an exemption to a condition of an export licence that the holder of the export licence has a commercial relationship with the importer of the regulated waste material. Alternatively, a person may apply for an exemption to a particular prescribed export condition (such as a requirement to hold an export licence).

Allowing the rules to prescribe other persons that may apply for an exemption provides the Minister with flexibility to determine the types of persons that should be able to apply for an exemption depending on the circumstances involved (in addition to those persons proposing to export regulated waste material).

An exemption will only apply to a particular person following an individual application, rather than being granted to all exporters of regulated waste material of that type. The purpose of an exemption is to allow a reduced level of regulatory oversight in circumstances where it is appropriate to grant the exemption, and where the risk posed to human and environmental health by exporting the waste material is minimal.

The note after clause 25 will explain that the general application requirements set out at clauses 172, 173 and 174 of the Bill will apply in relation to an application for an exemption.

Clause 26        Minister must decide whether to grant exemption

Subclause 26(1) will require the Minister, on receiving an application for an exemption under clause 25, to decide whether to grant or refuse to grant the exemption.

The note following this subclause advises that a decision to refuse an exemption under clause 26 will be a reviewable decision and will refer the reader to clauses 151 and 152 of the Bill.

Subclause 26(2) will set out the circumstances in which the Minister may decide to grant the exemption. The Minister may grant the exemption if satisfied that the requirements prescribed by the rules are met and it is appropriate to grant the exemption. In making this decision, the Minister must have regard to any matter prescribed by the rules and any other matter the Minister considers relevant. It is anticipated that there may be additional guidance published on the Department’s website regarding the types of circumstances where the Minister may grant an exemption.

Allowing the rules to prescribe the requirements that must be met before an exemption is granted will provide the Minister with the flexibility to determine in what circumstances it is appropriate to allow exemptions in relation to the specific regulated waste material. It may be appropriate for these requirements to differ for different kinds of regulated waste material. This will not limit the requirement to also take into account any other matters the Minister considers relevant.

A note after subclause 26(2) will explain that an exemption generally must not be varied. Clause 30 will, however, allow any conditions attached to the exemption to be varied.

Subclause 26(3) will clarify that when considering whether it is appropriate to grant an exemption, the Minister must have regard to the objects of the Bill and may have regard to any other matter. This will ensure that, among other things, human and environmental health-related factors are taken into account. It will also enable the Minister to have regard to matters such as the history of environmental compliance by the exporter or the importer, or if the exported waste material will be further processed or reused in the destination country (if relevant).

Subclause 26(4) will set out requirements relating to the period an exemption is in effect.

There will be two types of exemptions:

·          exemptions that are in effect until a specified event occurs. This event cannot be more than 12 months after the exemption takes effect. It is intended that this type of exemption will be used for one-off exports of regulated waste material, and that the specified event will generally be the export of the regulated waste material. Such exemptions will remain in force until the specified event occurs, unless revoked earlier under the Bill.

·          exemptions that are in effect for a specified period. It is intended that this type of exemption will be used for persons who intend to make multiple or regular exports of regulated waste materials, for a particular purpose. Such exemptions will be in force until their expiry date, unless revoked under the Bill. The expiry date may be set by the rules (for a category of exemptions, or all exemptions) or by the Minister (for the particular exemptions). However, the expiry date cannot be more than 12 months from the date the exemption takes effect.

Subclause 26(5) will clarify that the Minister may set an expiry date for an exemption under subclause 26(4) even if there is an expiry date prescribed in the rules that would otherwise apply to the exemption.

Clause 27        Exemption may be granted subject to conditions

Subclause 27(1) will allow an exemption to be granted subject to any conditions the Minister considers necessary.

A note following subclause 27(1) will explain that any conditions attached to an exemption may be varied under clause 30.

Conditions will be attached on a case-by-case basis and will be specific to a particular circumstance or kind of waste material. For example, an exemption from a prescribed export condition to have an export licence for the export of a trade sample of regulated waste material may be granted subject to the condition that the trade sample is processed in accordance with a relevant industry standard. Allowing the Minister to set conditions on an exemption will assist in achieving the objects of the Bill.

Subclause 27(2) will require the Minister, when considering whether to impose conditions on an exemption, to have regard to the objects of the Bill and any matters prescribed by the rules. Setting additional mandatory considerations in the rules will provide the Minister with the flexibility to determine different factors that are relevant to exemptions relating to the export of different kinds of regulated waste materials.

Subclauses 27(3), 27(4) and 27(5) will have the combined effect that a person who holds an exemption and engages in conduct that contravenes a condition of their exemption will be both committing an offence and contravening a civil penalty provision. The maximum penalty is five years imprisonment or 300 penalty units (or both) for the offence, and 600 penalty units for the civil penalty.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 27 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The size of the penalty is considered appropriate to act as a deterrent and to reflect the seriousness of the conduct involved, which may result in the export of waste material that does not comply with requirements or objects of the Bill, which could in turn result in harm to human and environmental health. Such conduct may also impact Australia’s trading reputation through eroding the confidence of trading partners in the Government’s regulation of exported waste material, and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export from Australia in the future.

The maximum civil penalty of 600 penalty units is higher than the penalty available for the criminal offence. This will ensure the penalty will be set at a high enough level to act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Clause 28        Notice of decision

Subclause 28(1) will provide that if the Minister grants an exemption in relation to regulated waste material, the Minister must give the applicant an instrument of exemption. The instrument must state the following:

·          the kind of regulated waste material covered by the exemption;

·          if applicable, each place to which the regulated waste material is to be exported under the exemption;

·          the reasons why the Minister is satisfied that it is appropriate to grant the exemption;

·          the provisions of the Bill covered by the exemption;

·          the day (which must not be before the grant) when the exemption takes effect;

·          whether the exemption remains in force until a specified event occurs or for a specified period (and the specified event or period, as the case may be)

·          any conditions of the exemption;

·          any other information prescribed by the rules.

Allowing the rules to prescribe additional information that must be included in the instrument of exemption will provide the Minister with the flexibility to determine what information is appropriate for the particular exemption and applicant.

The note after subclause 28(1) refers to the fact that an exemption cannot be in force for more than 12 months (see subclause 26(4)).

Subclause 28(2) will provide that the instrument of exemption is not a legislative instrument for the purposes of the Legislation Act 2003 . This is declaratory of the law and is included to assist readers. It is not intended to be an exemption to the Legislation Act 2003 .

Subclause 28(3) will provide that if the Minister refuses to grant an exemption, they must notify the applicant, in writing, of the decision. The notice must include the reasons for the decision.

Clause 29        Period of effect of exemption

Subclause 29(1) will provide that an exemption takes effect on the day stated in the instrument of exemption and remains in force until the earliest of:

·          if the exemption remains in force until a specified event occurs - when the event occurs;

·          if the exemption remains in force for a specified period - the end of the period;

·          if applicable - the end of the period prescribed by the rules;

·          the exemption is revoked under clause 31 of the Bill.

Subclause 29(2) will allow the rules to prescribe the period during which an exemption remains in force. The rules may apply to exemptions generally, exemptions for a kind of regulated waste material or exemptions in relation to a place where regulated waste material may be exported. However, the rules may not prescribe a period longer than 12 months.

Enabling the rules to prescribe the period that an exemption remains in force will provide the Minister with discretion to determine the appropriate period (that is 12 months of less) for exemptions to remain in force in relation to a particular kind of waste material or a particular a place to which regulated waste material may be exported.

Clause 30        Variation of conditions of exemption

Subclause 30(1) will set a general rule that an exemption cannot be varied. A note to subclause 30(1) will explain that if changes to an exemption are required, a new application must be made.

Subclause 30(2) will provide an exception to this general rule for the conditions of an exemption. The Minister may vary the conditions of an exemption if they consider it is necessary to do so. The variation may include imposing new conditions on the exemption.

Subclause 30(3) will require the Minister to have regard to the objects of the Bill and the matters prescribed by the rules when considering whether it is necessary to vary the conditions of an exemption. Setting additional mandatory considerations in the rules will provide the Minister with the flexibility to determine different factors that are relevant to exemptions relating to the export of particular kinds of regulated waste materials.

Subclause 30(4) will provide that if the Minister varies the conditions of an exemption, the Minister will be required to give the holder of the exemption a written notice stating the varied conditions and any new conditions, the reason for varying the conditions, the date the varied conditions take effect, and any other information prescribed by the rules.

Clause 31        Revocation of exemption

Subclause 31(1) will enable the Minister to revoke an exemption that is in force.

Subclause 31(2) will require the Minister, in deciding whether to revoke an exemption, to have regard to the objects of the Bill and any matters prescribed by the rules. Setting additional mandatory considerations in the rules will provide the Minister with the flexibility to determine different factors that are relevant to exemptions relating to the export of particular kinds of regulated waste materials.

Subclause 31(3) will provide that if the Minister decides to revoke an exemption, they must give the holder of the exemption a written notice stating that the exemption is revoked, the reasons for the revocation, and the day the revocation takes effect.

Clause 32        Effect of exemption

Clause 32 of the Bill will clarify that if an exemption from one or more provisions of the Bill (the exempted provisions) is in force for a person in relation to particular regulated waste material, the exempted provisions do not apply in relation to the export of that waste material by that person.

Any provision that is not an exempted provision will continue to apply. For example, a person who is exempt from requiring an export licence for the export of particular regulated waste material will still be required to comply with all any other export controls that relate to the relevant waste material. This would include other prescribed export conditions, such as requirements to give the Minister an export declaration in respect of each proposed export.

PART 4 GRANT OF EXPORT LICENCE

Overview of Part

Part 4 will deal with the granting of export licences. It is intended that a prescribed export condition will be that the exporter must hold an export licence. An export licence may be granted subject to conditions. An export licence may be in effect until a specified event occurs or for a specified period but cannot be in effect for more than three years unless it is renewed.

Clause 33        Application for export licence

Subclause 33(1) will provide that a person may apply to the Minister for an export licence to carry out a kind of export operations in relation to a kind of regulated waste material. Export operations will be defined in clause 13.

It is intended that holding an export licence covering the relevant export operations will be a prescribed export condition (under clause 18) to export regulated waste material. This is reflected in the note following clause 33.

A note following subclause 33(1) will explain that there are additional requirements relating to applications at clauses 172, 173 and 174 of the Bill. These requirements will apply to applications for export licences.

Subclause 33(2) will clarify that an application may relate to more than one kind of regulated waste material, export operation or place that the regulated waste material is to be exported. This will, for example, allow an exporter of multiple kinds of regulated waste materials to hold one export licence covering all relevant kinds of waste material, rather than having to obtain multiple licences.

Clause 34        Minister must decide whether to grant export licence

Subclause 34(1) will require the Minister, on receiving an application for an export licence, to decide whether to grant, or refuse to grant, the licence.

Four notes will be included following subclause 34(1). Note 1 will direct readers to clauses 172, 173 and 174 of the Bill for additional matters relating to applications. Notes 2 and 3 will explain that where an application concerns multiple kinds of regulated waste material, export operations, or places to which the waste material is to be exported, the Minister may grant a licence for only some of those waste materials, places or export operations. Note 4 will explain that a decision to refuse to grant an export licence is a reviewable decision (see clause 151) and the Minister must give the applicant written notice of the decision (see clause 152).

Subclause 34(2) will set out the mandatory considerations for the Minister when deciding whether to grant an export licence. These are:

·          the objects of the Bill;

·          whether the applicant is a fit and proper person;

·          whether all relevant Commonwealth liabilities of the applicant have been paid, and if not, whether unpaid liabilities are due to exceptional circumstances;

·          whether the applicant is, and is likely to continue to be, able to comply with the conditions to which the export licence will be subject if granted; and

·          any other requirements prescribed by the rules.

Note 1 at the end of subclause 34(2) will explain that the Minister must have regard to the matters in section 175 in considering whether the applicant is a fit and proper person. Note 2 will direct readers to clause 181 which will provide that a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances.

Subclause 34(3) will provide that, in addition to the mandatory considerations specified in subclause 34(2), the Minister may also have regard to any other matter that the Minister considers relevant.

Subclause 34(4) will require the Minister to decide that the export licence is in effect until a specified event occurs or to set an expiry date for the licence. Neither the specified event nor the expiry date can be more than three years after the date the export licence takes effect (see clause 37).

Subclause 34(5) will clarify that the Minister may set an expiry date for the export licence under subclause 34(4) even if there is an expiry date prescribed in the rules that will otherwise apply to the licence.

Clause 35        Conditions of export licence

Subclause 35(1) will provide that an export licence is subject to conditions.

An export licence will be subject to:

·          conditions specified in the Bill. These conditions will apply to all export licences;

·          conditions prescribed by the rules. It is intended that the rules will prescribe conditions that will apply to all export licences for a particular kind of regulated waste material (for example, waste glass export licences). The Minister may also decide that certain conditions prescribed by the rules do not apply to a particular export licence.

·          conditions specified in the export licence. The Minister may specify additional conditions in an export licence if they consider it appropriate. Such conditions will apply only to that export licence.

The first note after subclause 35(1) will give subclause 64(4) as an example of an export licence condition that is specified in the Bill. Notes 2 and 3 will alert the reader to the fact that if the holder of an export licence contravenes a condition of their licence, they may be committing an offence or liable to a civil penalty, and their export licence may be suspended or revoked, under the relevant provisions of the Bill.

Note 4 after subclause 35(1) will explain that the decision to attach additional conditions to an export licence is a reviewable decision under clause 151 and the Minister must give the holder written notice of the decision under clause 152 .

Subclauses 35(2) and (3) will clarify that export licence conditions prescribed by the rules:

·          may relate to the holder of the export licence, a kind of regulated waste material or a kind of export operations (or all of these); and

·          may be required to be complied with before or after the relevant export; and

·          may relate to the objects of the Bill.

Subclause 35(4) will clarify that, for the purposes of the Bill, conditions to which an export licence is subject under subclause 35(1) or clause 40 are conditions of the licence.

Clause 36        Matters to be stated in export licence

Subclause 36(1) will require an export licence to be in writing and given to the applicant to whom it was granted.

Subclause 36(2) will set out the requirements of an export licence. An export licence must state:

·          the number allocated to the licence;

·          each kinds of regulated waste material covered by the licence;

·          each kind of export operations covered by the licence;

·          each place to which a kind of regulated waste material covered by the licence may be exported (if applicable);

·          the day the licence takes effect;

·          whether the licence remains in force for a specified period or until a specified event occurs;

·          if the licence is in force until a specified event occurs - that event;

·          if the licence is in force for a specified period - the expiry date;

·          any conditions prescribed by the rules that the Minister has decided should not be conditions of the licence;

·          any additional conditions of the licence;

·          any other information prescribed by the rules.

Allowing the rules to prescribe additional information that must be included in an export licence will provide the Minister with the flexibility to determine what information is appropriate for the particular kind of licence.

The note after clause 36 will explain that the expiry date for an export licence cannot be more than three years after the licence comes into force (see subclause 34(4)).

Clause 37        Period of effect of export licence

Clause 37 will set out requirements relating to the period an export licence is in effect.

There will be two types of export licences:

·          Export licences that are in effect until a specified event occurs. It is intended that this type of licence will be used for one-off exports of regulated waste material, and that the specified event will generally be the export of the regulated waste material. Such licences will remain in force until the specified event occurs, unless revoked earlier under the Bill (subclause 37(1)).

·          Export licences that are in effect for a specified period. It is intended that this type of licence will be used for persons who intend to make multiple or regular exports of regulated waste materials. Such export licences will be in force until their expiry date, unless revoked or renewed under the Bill (subclause 37(2)). The expiry date may be set by the rules (for a category of export licences, or all licences) or by the Minister (for the particular licence). However, the expiry date cannot be more than 3 years from the date the licence takes effect (subclauses 37(3)-(5)).

PART 5 RENEWAL OF EXPORT LICENCE

Overview of Part

Part 5 will deal with the renewal of export licences. Only export licences that are in effect for a specified period (rather than until a specified event occurs) will be able to be renewed. While the intention is that an export licence renewal will involve a more streamlined application form, the Minister must make a new decision having regard to all mandatory considerations.

Clause 38        Application to renew export licence

Clause 38 will allow the holder of an export licence with an expiry date (a licence that is in effect for a specified period, rather than until a specified event occurs) to apply to the Minister to renew that licence. The intention is that an export licence renewal will involve a more streamlined application form, which will take account of information previously provided. This will reduce the regulatory burden on regular exporters.

An export licence that is in force until a specified event occurs (for example, a one-off export) will not be able to be renewed. An export licence that is suspended will not be able to be renewed while it is suspended.

Subclause 38(3) will clarify that an application to renew an export licence can relate to more than one kind of waste material, more than one kind of export operations, and specify one or more destinations to export waste material.

Subclause 38(4) will provide that an application for renewal must be made within the period prescribed by the rules, or a longer period if the Minister allows. Subclause 38(5) will have the effect that an application for renewal made outside of this timeframe will be taken to be an application for a new export licence and will be assessed as such.

The note after subclause 38(1) will refer the reader to clause 37, which deals with expiry of export licences. The note after subclause 38(2) will refer the reader to clauses 172, 173 and 174, which deal with general matters relating to applications.

Clause 39        Minister must decide whether to renew export licence

Subclause 39(1) will require the Minister, on receiving an application to renew an export licence, to decide whether to renew, or refuse to renew, the licence.

Four notes will be included following subclause 39(1). Note 1 will direct readers to clauses 172, 173 and 174 of the Bill for additional matters relating to applications. Notes 2 and 3 will explain that where an application for renewal concerns multiple kinds of regulated waste material, export operations, or places to which the waste material is to be exported, the Minister may renew the export licence for only some of those materials or places or export operations. Note 4 will explain that a decision to refuse to renew an export licence is a reviewable decision (see clause 151) and the Minister must give the applicant written notice of the decision (see clause 152).

Subclause 39(2) will provide that an export licence for which an application for renewal has been made will continue in force until a decision has been made on the renewal application. This is to ensure the licence does not expire before the application for renewal has been dealt with.

Subclause 39(3) will set out the mandatory considerations for the Minister when deciding whether to renew an export licence. These are:

·          the objects of the Bill;

·          whether the holder of the export licence is a fit and proper person;

·          whether all relevant Commonwealth liabilities of the holder have been paid, and if not, whether any unpaid liabilities are due to exceptional circumstances;

·          whether the holder of the export licence is, and is likely to continue to be, able to comply with the conditions to which the renewed export licence will be subject;

·          any other matters prescribed by the rules.

Note 1 at the end of subclause 39(3) will explain that the Minister must have regard to the matters in section 175 in considering whether the applicant is a fit and proper person. Note 2 will direct readers to clause 181 which will provide that a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances.

Subclause 39(4) will also allow the Minister, when deciding whether to renew an export licence, to also have regard to any other matter they consider relevant.

Subclause 39(5) will require the Minister to decide that a renewed export licence remains in force until a specified event occurs or to set an expiry date for the renewed licence. Neither the specified event nor the expiry date can be more than three years after the date the renewed export licence takes effect. A note after this subclause will provide that a decision by the Minister to set an expiry date for a renewed export licence is a reviewable decision (see clause 151) and that the Minister must give the person written notice of the decision (see clause 152).

Subclause 39(6) will clarify that the Minister may set an expiry date for the renewed export licence under subclause 39(5) even if there is an expiry date prescribed in the rules that would otherwise apply to the licence.

Clause 40        Conditions of renewed export licence

Clause 40 will have the effect that a renewed export licence will be subject to any or all of:

·          the conditions that will be specified in the Bill; and

·          the conditions in the rules that are relevant to the export licence (other than those conditions which the Minister decides do not apply to the export licence); and

·          any additional conditions the Minister considers are appropriate and that are specified in the export licence.

This is the same as for export licences granted under clause 33.

The first note after subclause 40(1) will give subclause 64(4) as an example of an export licence condition that is specified in the Bill. Notes 2 and 3 will alert the reader to the fact that if a licence holder contravenes a condition of their export licence, they may be committing an offence or be liable to a civil penalty, and their export licence may be suspended or revoked, under the relevant provisions of the Bill.

Note 4 after subclause 40(1) will explain that the decision to impose additional conditions on a renewed export licence is a reviewable decision under clause 151 and the Minister must give the holder written notice of the decision under clause 152.

Subclause 40(2) will clarify that the additional conditions specified by the Minister:

·          may be required to be complied with before or after the relevant export; and

·          may relate to the objects of the Bill.

Clause 41        Matters to be stated in renewed export licence

Clause 41 will make it clear that if an export licence is renewed, the Minister must give the applicant a new export licence stating the information set out in subclause 36(2).

This means a renewed export licence will contain the same information as required for a new export licence and will ensure that the holder of the licence is aware of all relevant matters regarding the renewed licence, including any additional conditions the licence is subject to.

PART 6 VARIATION OF EXPORT LICENCE 

Overview of Part

Part 6 will deal with the variation of export licences. An export licence may be varied on application from the holder of the licence or, in certain circumstances, on the initiative of the Minister.

Division 1 Application by holder

Clause 42        Application by holder to vary export licence

Clause 42 will allow the holder of an export licence to apply to the Minister to vary the export licence. This will enable the Minister to respond to the changing needs and requirements of the holder and, where appropriate, allow a flexible approach to the regulation of export licences.

Subclause 42(1) will provide that the holder of an export licence may apply to the Minister to:

·          vary the conditions of the licence (including by imposing new conditions);

·          vary the kinds of export operations or waste material covered by the licence or, if applicable, the places to which the waste material may be exported (including by adding or removing any of these matters);

·          if the licence is expressed to be in force until a specified event - vary the specified event (which must not occur more than three years after the day the licence took effect);

·          if there is an expiry date for the licence - vary the licence by setting a different expiry date for the licence (which must not be more than three years after the day the licence took effect);

·          make minor changes to a matter stated in the licence (including to correct a minor or technical error); or

·          vary any other aspect of the licence.

The note following subclause 42(1) will direct readers to clauses 172, 173 and 174 of the Bill for additional requirements relating to applications. These requirements will apply to applications to vary an export licence.

Subclause 42(2) will make it clear that an application cannot be made for a variation that will extend the period in which the licence is in force beyond three years from the day the licence took effect. This will ensure that licences will only be able to extend beyond three years where the licence is renewed.

Subclause 42(3) will require the Minister, on receiving an application, to decide either to make the variation or to refuse to make the variation.

Two notes will be included at the end of subclause 42(3). Note 1 will refer the reader to clause 174 of the Bill, which sets out matters relating to dealing with applications. Note 2 will advise that a decision to vary an export licence will be a reviewable decision under clause 151, and that the Minister must give the person written notice of the decision under clause 152.

Subclause 42(4) will set out the mandatory considerations for the Minister when deciding whether to make the variation. These are:

·          the objects of the Bill;

·          whether all relevant Commonwealth liabilities of the applicant have been paid, or if they have not been paid, whether the non-payment is due to exceptional circumstances;

·          whether the applicant is, and is likely to continue to be, able to comply with the conditions to which the export licence, if varied, will be subject;

·          any other matters prescribed by the rules.

Allowing the rules to prescribe any other mandatory consideration will provide the Minister with the flexibility to tailor such factors to the particular types of variations requested and the kinds of regulated waste material covered by the export licence.

The note following subclause 42(4) will refer the reader to clause 181 of the Bill, which will provide that a relevant Commonwealth liability of a person will be taken to have been paid in certain circumstances.

Subclause 42(5) will be an exception to subclause 42(4). Its effect will be that the Minister will not be required to have regard to the mandatory considerations listed in subclause 42(4) when making certain minor variations to an export licence on the request of the export licence holder. This is considered appropriate because of the nature of the variation.

Subclause 42(6) will permit the Minister, when deciding whether to vary an export licence, to also have regard to any other matters they consider relevant.

Clause 43        Notice of variation

Subclause 43(1) will provide that if the Minister varies an export licence on the request of the holder of the licence, the Minister must give the holder written notice of the variation.

Subclause 43(2) will set out the requirements of the notice. The notice must include:

·          details of the variation;

·          the varied conditions of the export licence (if any);

·          the date the variation takes effect; and

·          any other information prescribed by the rules.

The purpose of the notice is to inform the holder of the export licence of the Minister’s decision to make the variation, as well as the terms under which the variation is given.

Allowing the rules to prescribe other information that must be included in the notice will provide the Minister with the flexibility to ensure that the holder of the export licence receives all relevant information in relation to the variation.

Subclause 43(3) will provide that if the export licence needs to be changed because there has been a variation, the Minister must give the holder a new export licence that includes the variation.

The note following subclause 43(3) will explain that an export licence, as varied, remains in force as provided by clause 37 of the Bill.

 

Division 2 Variation by Minister

Clause 44        Minister may vary export licence

Clause 44 will allow the Minister to vary an export licence on the Minister’s own initiative, (without having received an application from the holder of the licence). This will be an important safeguard if, for example, a matter is brought to the attention of the Minister that is considered relevant to the licence. It is also intended to be available as a compliance-related tool.

Subclause 44(1) will set out the types of variations the Minister can make under clause 44. These will be:

·          to vary the conditions of the licence (including by imposing new conditions);

·          to vary the kinds of export operations or waste material covered by the licence or, if applicable, the places to which the waste material may be exported (including by adding or removing any of these matters);

·          if the licence is expressed to be in force until a specified event - to vary the specified event (which must not occur more than three years after the day the licence took effect);

·          if there is an expiry date for the licence - to vary the licence by setting a different expiry date for the licence (which must not be more than three years after the day the licence took effect);

·          to make minor changes to a matter stated in the licence (including to correct a minor or technical error); or

·          to vary any other aspect of the licence.

The note following subclause 44(1) will explain that certain decisions to vary an export licence on the Minister’s own initiative will be reviewable decisions under clause 151.

Subclause 44(2) will provide that the Minister may vary the licence under subclause 44(1) only if the Minister reasonably believes that any of the following grounds exist:

·          it is necessary to do so to ensure compliance with the requirements of this Act in relation to the regulated waste material and the export operations covered by the licence;

·          it is necessary to do so to prevent or lessen a threat to human or environmental health;

·          the holder is not a fit and proper person;

·          a condition of the licence has been, or is being, contravened;

·          it is necessary to do so:

o    to take account of an event notified under clause 61; or

o    to correct a minor or technical error;

·          the licence needs to be varied for any other reason prescribed by the rules.

A note following subclause 44(2) will explain that the Minister must have regard to the matters in clause 175 in considering whether the holder is a fit and proper person.

Subclauses 44(3) and 44(4) will prevent the Minister from varying an export licence on their own initiative unless:

·          the Minister has given a notice of the proposed variation to the holder of the licence; and

·          the notice:

o    contains the information required by subclause 44(4), including the grounds for the proposed variation and a request that the holder provide a written statement within 14 days showing cause why their licence should not be varied; and

o    include a statement setting out the person’s review rights; and

·          either the Minister has received the requested written statement from the holder of the licence, or the 14-day period has ended.

These subclauses will specify a natural justice requirement, which is consistent with both administrative law principles and Commonwealth policy. Natural justice (also known as procedural fairness) applies whenever an administrative decision might adversely affect the rights, interests or legitimate expectations of a person. It requires the decision maker to give persons whose interests may be adversely affected by the decision an opportunity to see the evidence on which the decision-maker proposes to rely and have their views on that evidence taken into account by the decision maker.

Subclause 44(5) will provide that the notice in subclause 44(4) will not be required to include the request for the licence holder to provide a written statement if the Minister reasonably believes the proposed variation is necessary to prevent or lessen a serious and imminent threat to human or environmental health. While this provision is intended to have the effect of excluding natural justice in such circumstances, it is considered appropriate as it will only apply in exceptional circumstances where there is credible and relevant evidence of a threat to human or environmental health that is both serious and imminent.  

Subclause 44(6) will have the effect that the reasonable belief in subclause 44(2) and the notice in subclause 44(3) will not apply to variations to an export licence to extend the expiry date of the licence, or to correct a minor or technical error. This is appropriate as such variations will not adversely affect the interests of the licence holder.

Clause 45        Notice of variation

Subclause 45(1) will provide that if the Minister varies an export licence under subclause 44(1) (a variation on the Minister’s initiative), the Minister must give the holder of the licence written notice of the variation.

Subclause 45(2) will set out the requirements of the notice. The notice must include:

·          the details of the variation;

·          if the variation is of the licence conditions - the varied conditions;

·          if the variation is of the period of effect - the new expiry date or new specified event;

·          the date the variation takes effect;

·          any other information prescribed by the rules.

Allowing the rules to prescribe any other information that must be set out in a variation notice will provide the Minister with the flexibility to tailor notices to the particular type of variations and the kinds of regulated waste material covered by the export licence.

Subclause 45(3) will provide that, unless subclause 44(5) applies, the variation must not take effect until the earlier of:

·          the day after any response by the holder of the export licence to the notice given under subclause 44(3) (requesting the licence holder give a written statement within 14 days showing cause why the licence should not be varied as proposed) is received; or

·          the end of the 14-day period after the show cause notice was given.

The effect is that the Minister will be prevented from taking any action to vary the export licence during the 14-day period. If the licence holder responds within the 14-day period, natural justice requirements will mean the Minister must consider the licence holder’s response when deciding whether to vary the licence.

In circumstances where the export licence needs to be changed to take account of the variation, subclause 45(4) will require the Minister to provide the licence holder with a new licence that includes the variation.

A note following subclause 45(4) will explain that the export licence, as varied, remains in force as provided by clause 37 of the Bill.

 

 

PART 7 SUSPENSION OF EXPORT LICENCE

Overview of Part

Part 7 will deal with the circumstances in which an export licence can be suspended and the process for doing so.

Clause 46        Grounds for suspension - general 

Clause 46 will set out the grounds on which the Minister may suspend an export licence, and the process for doing so. The suspension of an export licence may relate to the whole or part of the licence.

Subclause 46(1) will provide that the Minister may revoke an export licence if the Minister reasonably believes:

·          a condition of the licence has been, or is being, contravened;

·          the holder of the licence has contravened a requirement of this Bill in relation to the licence;

·          it is necessary to do so to prevent or lessen a threat to human or environmental health;

·          the holder of the licence is no longer a fit and proper person;

·          the holder of the licence:

o    failed to comply with a direction given to the holder by an authorised officer or the Minister; or

o    failed to comply with a request by an authorised officer to provide information or a document; or

o    failed to provide facilities and assistance to an auditor as required by clause 115; or

o    failed to comply with a request made by an auditor under clause 113;

·          the holder of the licence:

o    intimidated a person performing functions or exercising powers under this Bill. Intimidation in this context is not merely making the person’s task difficult but it is conduct that deters another person from performing their functions or exercising their powers under the Bill by inducing fear in the person. Engaging in such conduct is a serious act. It may compromise export operations covered by the export licence and on this basis will require an appropriate regulatory response; or

o    hindered a person, or prevented a person from, performing functions or exercising powers under this Bill;

·          the holder of the licence or any other person who participates in the management or control of the licence holder’s export business (as provided by clause 62):

o    made a false, misleading or incomplete statement in an application under this Bill; or

o    gave false, misleading or incomplete information or documents to the Minister or to another person performing functions or exercising powers under this Bill; or

o    gave false, misleading or incomplete information or documents to the Minister or the Department under a prescribed law;

·          the holder of the licence is or was an associate of a person referred to in paragraph 63(1)(a), (b), (c) or (d);

·          a ground prescribed by the rules exists.

These are the same grounds as for revocation in subclause 54(1) of the Bill.

The Minister’s discretion to suspend an export licence will only be enlivened whether the Minister reasonably believes that one or more grounds set out in subclause 46(1) exists. The Minister’s belief must be based on reasonable evidence and more than a mere suspicion.

Allowing the rules to prescribe any additional grounds on which the export licence may be suspended will provide the Minister with the flexibility to both address the wide range of matters that relate to an export licence and prescribe different grounds for different kinds of export licences as appropriate.

Note 1 following subclause 46(1) explains that the Minister must have regard to the matters in clause 175 when applying the fit and proper person test.

Note 2 refers to clause 49, which limits a suspension of an export licence to no more than 12 months.

Note 3 at the end of subclause 46(1) advises that a decision to suspend an export licence under clause 46 will be a reviewable decision and will refer the reader to clauses 151 and 152 of the Bill.

Subclauses 46(2) and (3) will prevent the Minister from suspending an export licence under clause 46 unless:

·          the Minister has given a notice of the proposed suspension to the holder of the licence; and

·          the notice:

o    contains the information required by subclause 46(3), including the grounds for suspension and a request that the licence holder provide a written statement within 14 days showing cause why their licence should not be suspended; and

o    include a statement setting out the person’s review rights; and

·          either the Minister has received the requested written statement from the holder of the licence, or the 14-day period has ended.

These subclauses will specify a natural justice requirement, which is consistent with both administrative law principles and Commonwealth policy.

Subclause 46(4) will provide that the notice in subclause 46(3) will not be required to include the request for the licence holder to provide a written statement if the Minister reasonably believes the suspension of the export licence is necessary to prevent or lessen a serious and imminent threat to human or environmental health. While this provision is intended to have the effect of excluding natural justice in such circumstances, it is considered appropriate as it will only apply in exceptional circumstances where there is credible and relevant evidence of a threat to human or environmental health that is both serious and imminent.

Clause 47        Grounds for suspension - overdue relevant Commonwealth liability

Clause 47 will provide an additional ground to suspend an export licence.

Subclause 47(1) will allow the Minister to suspend an export licence if:

·          a relevant Commonwealth liability of the holder of the licence is more than 30 days overdue; and

·          the Minister has given a written notice to the licence holder; and

·          within eight days after the notice is given:

o    the relevant Commonwealth liability has not been paid; or

o    the licence holder has not entered into an arrangement with the Minister to pay the relevant Commonwealth liability.

A relevant Commonwealth liability will be defined in clause 10 of the Bill.

Subclause 47(2) will set out the requirements for the written notice given under subclause 47(1).

Three notes will be included at the end of subclause 47(1). Note 1 will refer the reader to clause 49 of the Bill, which will limit a suspension to a maximum of 12 months. Note 2 will explain that a decision to suspend an export licence will be a reviewable decision and will refer the reader to clauses 151 and 152 of the Bill. Note 3 will explain that if the Minister suspends an export licence under clause 47, the Minister may revoke the export licence in certain circumstances, including in relation to an overdue Commonwealth liability.

Subclause 47(3) will permit the Minister, in the event of a suspension of an export licence on the grounds of an overdue relevant Commonwealth liability, to refuse to carry out, or direct a person (for example, an authorised officer) not to carry out, specified activities or kinds of activities under the Bill in relation to the licence holder until the relevant Commonwealth liability has been paid. As an example, the Minister might refuse to assess another application the licence holder has made under the Bill until the relevant Commonwealth liability is paid. This will have the effect of encouraging the licence holder to pay the relevant Commonwealth liability at the earliest possible opportunity.

A note will be included at the end of subclause 47(3) that will refer to clause 107 of the Bill, which will deal with general provisions relating to directions.

Subclause 47(4) will provide that any action taken by the Minister under clause 47 will not remove the liability of the licence holder to pay the relevant Commonwealth liability. This will mean that, for example, if the Minister suspends an export licence under clause 47(1) because the licence holder has an overdue relevant Commonwealth liability, the holder will still be liable to pay the overdue amount to the Commonwealth.

Clause 48        Notice of suspension

Subclause 48(1) will provide that, if the Minister decides to suspend an export licence (or part of an export licence) under the Bill, they must give the holder of the licence a written notice of the suspension. The notice must include:

·          a statement that the licence is to be suspended in relation to all, or specified kinds of, export operations, regulated waste material or places to which regulated waste material may be exported;

·          the reasons for the suspension;

·          the date the suspension is to start; 

·          the period of the suspension (if the suspension is time-based) or the specified event or action (if the suspension is until a specified event or action).

The note after subclause 48(1) will explain that the notice must also state the matters referred to in clause 152 of the Bill (regarding review rights).

Subclause 48(2) will provide that, unless subclause 46(4) applies, the suspension must not start until the earlier of:

·          the date after any response by the licence holder to the notice given under subclause 46(2) (requesting the holder give a written statement within 14 days showing cause why the licence should not be suspended) is received; or

·          the end of the 14-day period after the show cause notice was given.

The effect is that the Minister will be prevented from taking any action to suspend the export licence during the 14-day period. If the licence holder responds within the 14-day period, natural justice requirements will mean the Minister must consider the licence holder’s response when deciding whether to suspend the licence.

Clause 49        Period of suspension

Subclause 49(1) will limit the period of suspension of an export licence to no more than 12 months.

Subclause 49(2) will allow the Minister to vary the period of a suspension by written notice to the holder of the export licence. However, the total period of suspension must not be more than 12 months.

The purpose of this provision is to provide certainty to the holder of the export licence about the period of the suspension and prevent an export licence from being suspended indefinitely. If the reason for the suspension is not resolved in 12 months to the Minister’s satisfaction, then the intention is that the Minister will consider whether there are sufficient grounds to revoke the export licence.

The note after subclause 49(2) will advise the reader that a decision to extend the period of suspension will be a reviewable decision under clause 151 and that the Minister must give the person written notice of the decision under clause 152.

Clause 50        Revocation of suspension

Clause 50 will allow the Minister to revoke a suspension of an export licence by written notice to the holder of the licence.

It is intended that revocation of a suspension may occur, for example, in circumstances where the Minister is satisfied that the grounds for the suspension no longer exists or has been rectified. If a suspension is not revoked under this provision, it will remain in place for the entire period set out in the suspension notice given to the holder under clause 48.

Clause 51        Effect of suspension

Clause 51 will make it clear that the effect of a suspension of an export licence is that the licence will remain in force and the requirements of the Bill in relation to that licence will continue to apply (including any licence conditions) unless the rules provide otherwise.

This will allow, for example, activities such as an audit to be undertaken while the licence is suspended. It will also mean the licence holder must continue to comply with any relevant reporting and record keeping requirements.

However, clause 51 will also make it clear that export operations covered by the licence must not be carried out when the suspension is in effect.

Subclause 51(2) will allow the rules to prescribe requirements of the Bill (including conditions of the licence) that will not apply during the period of suspension. This will provide the Minister with the flexibility to reduce the regulatory burden on the holder of a suspended export licence by removing any requirements that are not considered relevant or appropriate while the licence is suspended. The requirements (if any) that it is appropriate to turn off will need to be assessed on a case-by-case basis.

Clause 52        Export operations must not be carried out if export licence is suspended

Clause 52 will have the effect that a person who carries out export operations while their export licence is suspended will be both committing an offence and contravening a civil penalty provision. The maximum penalty is two years imprisonment or 120 penalty units (or both) for the offence, and 240 penalty units for the civil penalty. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 52 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The amount of the penalties for both the offence and the civil penalty provision reflect the seriousness of conducting export operations after an export licence has been suspended and is considered appropriate as a deterrent. This conduct may also adversely impact on the confidence of trading partners in the Government’s regulation of waste material and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 240 penalty units is twice as high as the maximum penalty available for the criminal offence. This is intended to ensure it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

PART 8 REVOCATION OF EXPORT LICENCE

Overview of Part

Part 8 will deal with the circumstances in which an export licence can be revoked and the process for doing so.

Division 1 Revocation requested by holder

Clause 53        Holder may request revocation

Subclause 53(1) will allow the holder of an export licence to request the Minister revoke the licence. This can include an export licence that is suspended.

Subclause 53(2) will require the request to be in writing and include the information (if any) prescribed by the rules.

Subclause 53(3) will require the Minister, on receiving an application, to revoke the licence by written notice to the holder. The revocation will take effect on the day specified in the notice.

Subclause 53(4) will provide that the Minister does not have to revoke the export licence under this provision if the Minister had given the holder of the export licence a notice under clause 54(2) proposing to revoke the licence and the Minister had not made a decision as to whether to revoke the licence. In these circumstances, it is intended that the Minister will decide under clause 54 whether to revoke the export licence consistently with the requirements in that provision.

Division 2 Revocation by Minister

Clause 54        Grounds for revocation - general

Clause 54 will set out the grounds on which the Minister may revoke an export licence on their own initiative (without receiving an application from the holder of the licence) and the process for doing so. The revocation of an export licence will relate to the whole licence and could not be in relation to only some of the matters covered by the licence. This will reflect the likely seriousness of the circumstances necessitating a revocation by the Minister, which may be of such gravity that it is not considered appropriate to deal with them by other means (such as varying or suspending the export licence).

Subclause 54(1) will provide that the Minister may revoke an export licence if the Minister reasonably believes that:

·          a condition of the licence has been, or is being, contravened;

·          the holder of the licence has contravened a requirement of this Bill in relation to the licence;

·          it is necessary to do so to prevent or lessen a threat to human or environmental health;

·          that holder of the licence is no longer a fit and proper person;

·          the holder of the licence:

o    failed to comply with a direction given to the holder by an authorised officer or the Minister; or

o    failed to comply with a request by an authorised officer to provide information or a document; or

o    failed to provide facilities and assistance to an auditor as required by clause 115; or

o    failed to comply with a request made by an auditor under clause 113;

·          the holder of the licence:

o    intimidated a person performing functions or exercising powers under this Bill. Intimidation in this context is not merely making the person’s task difficult but it is conduct that deters another person from performing their functions or exercising their powers under the Bill by inducing fear in the person. Engaging in such conduct is a serious act. It may compromise export operations covered by the export licence and on this basis will require an appropriate regulatory response; or

o    hindered a person, or prevented a person from, performing functions or exercising powers under this Bill;

·          the holder of the licence or any other person who participates in the management or control of the licence holder’s export business (as provided by clause 62):

o    made a false, misleading or incomplete statement in an application under this Bill; or

o    gave false, misleading or incomplete information or documents to the Minister or to another person performing functions or exercising powers under this Bill; or

o    gave false, misleading or incomplete information or documents to the Minister or the Department under a prescribed law;

·          the holder of the licence is or was an associate of a person referred to in paragraph 63(1)(a), (b), (c) or (d);

·          the holder of the licence has contravened a requirement of this Bill in relation to the licence;

·          a ground prescribed by the rules exists.

These are the same grounds as for suspension in subclause 46(1) of the Bill.

The Minister’s discretion to revoke an export licence will only be enlivened whether the Minister reasonably believes that one or more grounds set out in subclause 54(1) exists. The Minister’s belief must be based on reasonable evidence and more than a mere suspicion.

Allowing the rules to prescribe any additional grounds on which the export licence may be revoked will provide the Minister with the flexibility to both address the wide range of matters that relate to an export licence and prescribe different grounds for different kinds of export licences as appropriate.

The first note following subclause 54(1) will reference clause 175, which sets out the matters the Minister must have regard to when applying the fit and proper person test. The second note at the end of subclause 54(1) will advise the reader that a decision to revoke an export licence under clause 54 will be a reviewable decision and will refer the reader to clauses 151 and 152 of the Bill.

Subclauses 54(2) and (3) will prevent the Minister from revoking an export licence under clause 54 unless:

·          the Minister has given a notice of the proposed revocation to the holder of the licence; and

·          the notice:

o    requested the licence holder provide a written statement within 14 days showing cause why their licence should not be revoked; and

o    include a statement setting out the person’s review rights; and

·          either the Minister has received the requested written statement from the holder of the licence, or the 14-day period has ended.

These subclauses will specify a natural justice requirement, which is consistent with both administrative law principles and Commonwealth policy.

Subclause 54(4) will provide that the notice in subclause 54(2) will not be required to include the request for the licence holder to provide a written statement if the Minister reasonably believes revoking the export licence is necessary to prevent or lessen a serious and imminent threat to human or environmental health. While this provision is intended to have the effect of excluding natural justice in such circumstances, it is considered appropriate as it will only apply in exceptional circumstances where there is credible and relevant evidence of a threat to human or environmental health that is both serious and imminent.

Clause 55        Grounds for revocation - overdue relevant Commonwealth liability

Clause 55 will provide an additional ground to revoke an export licence.

Subclause 55(1) will allow the Minister to revoke an export licence if:

·          the licence is suspended for non-payment of a relevant Commonwealth liability; and

·          within 90 days after the start of the suspension:

o    the relevant Commonwealth liability has not been paid; or

o    the licence holder has not entered into an arrangement with the Minister to pay the relevant Commonwealth liability.

A relevant Commonwealth liability will be defined in clause 10 of the Bill.

The note after subclause 55(1) will explain that the decision to revoke an export licence is a reviewable decision under clause 151 and the Minister must give the person a notice under clause 152.

Subclause 55(2) will permit the Minister, in the event of a revocation of an export licence on the grounds of an overdue relevant Commonwealth liability, to refuse to carry out, or direct a person (for example, an authorised officer) not to carry out, specified activities or kinds of activities under the Bill in relation to the licence holder until the relevant Commonwealth liability has been paid. As an example, the Minister might refuse to assess another application the licence holder has made under the Bill until the relevant Commonwealth liability is paid. This will have the effect of encouraging the licence holder to pay the relevant Commonwealth liability at the earliest possible opportunity.

A note will be included at the end of subclause 55(2) that will refer the reader to clause 107 of the Bill, which will deal with general provisions relating to directions.

Subclause 55(3) will provide that any action taken by the Minister under clause 55 will not remove the liability of the licence holder to pay the relevant Commonwealth liability. This will mean that, for example, if the Minister revokes the export licence under subclause 55(1) because the licence holder has an overdue relevant Commonwealth liability, the licence holder will still be liable to pay the overdue amount to the Commonwealth.

Clause 56        Notice of revocation

Clause 56 will provide that if the Minister decides to revoke an export licence, the Minister must give the holder of the licence a written notice stating:

·          that the licence is to be revoked;

·          the reasons for the revocation;

·          the day the revocation is to take effect.

Subclause 56(2) will provide that, unless subclause 54(4) applies, the revocation must not start until the earlier of:

·          the date after any response by the holder to the notice given under subclause 54(2) (requesting the licence holder give a written statement within 14 days showing cause why the licence should not be revoked) is received; or

·          the end of the 14-day period after the show cause notice was given.

The effect is that the Minister will be prevented from taking any action to revoke the export licence during the 14-day period. If the holder responds within the 14-day period, natural justice requirements will mean the Minister must consider the licence holder’s response when deciding whether to revoke the licence.

A note following clause 56(1) will advise readers that the notice must also state the matters referred to in clause 151 (concerning review rights).

Division 3 Other provisions

Clause 57        Export operations must not be carried out after export licence revoked

Clause 57 will have the effect that a person who carries out export operations that were covered by an export licence that has been revoked will be both committing an offence and contravening a civil penalty provision. The maximum penalty is two years imprisonment or 120 penalty units (or both) for the offence, and 240 penalty units for the civil penalty. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 57 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The amount of the penalties for both the offence and the civil penalty provision reflect the seriousness of conducting export operations after an export licence has been suspended and is considered appropriate as a deterrent. This conduct may also adversely impact on the confidence of trading partners in the Government’s regulation of waste material and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 240 penalty units is higher than the maximum penalty available for the criminal offence. This is intended to ensure it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction .

Clause 58        Minister may require action to be taken after export licence revoked

Clause 58 will allow the Minister to direct a person to take specified actions after their export licence has been revoked.

The directions may be in relation to export operations or regulated waste material that was covered by the revoked licence and may require the person to take the specified action within a specified period of time. The specified action must be an action that is necessary for the purpose of achieving one or more objects of the Bill.

Subclause 58(3) will require the direction to state that the person could commit an offence or be liable to a civil penalty if the person fails to comply with the direction.

The note following subclause 58(3) will direct readers to clause 107, which will contain general provisions relating the directions.

Subclauses 58(4), (5) and (6) will have the combined effect that a person who engages in conduct that contravenes a direction the person has been given under clause 59 will be both committing an offence and contravening a civil penalty provision. The maximum penalty is two years imprisonment or 120 penalty units (or both) for the offence, and 240 penalty units for the civil penalty. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 58 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The amount of the penalties for both the offence and the civil penalty provision reflect the seriousness of the conduct and are considered appropriate as a deterrent. This conduct may adversely impact on the confidence of trading partners in the Government’s regulation of waste material and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 240 penalty units is twice as high as the maximum penalty available for the criminal offence. This is intended to ensure it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

PART 9 OBLIGATIONS OF HOLDERS OF EXPORT LICENCES

Overview of Part

Part 9 will set out a number of obligations that are imposed on the holder of the export licence, including disclosing relevant changes to their business and correcting inaccurate information provided in applications under the Bill.

 

 

Clause 59        Condition of export licence must not be contravened

Clause 59 will create two offences and mirror civil penalty provisions relating to contravening conditions of an export licence.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 59 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Subclauses 59(1), 59(2) and 59(3) will have the combined effect of making it an offence and a contravention of a civil penalty provision for a person who is the holder of an export licence that is not suspended to contravene a condition of that licence. The maximum penalty is five years imprisonment or 300 penalty units (or both) for the offence, and 600 penalty units for the civil penalty. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

Subclauses 59(4), 59(5), 59(6) and 59(7) will have the combined effect of making it an offence and a contravention of a civil penalty provision for a person who is the holder of an export licence that is suspended to contravene a condition of that licence that is required to be complied with during the suspension. The maximum penalty is five years imprisonment or 300 penalty units (or both) for the offence, and 600 penalty units for the civil penalty. A body corporate will be liable for five times this amount as a maximum penalty (see subsection 4B(3) of the Crimes Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 ).

Subclause 59(6) will provide that strict liability will apply to the element of the offence in paragraphs 59(4)(d) (that the condition is required to be complied with during the period of the suspension). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 59(4)(d) beyond reasonable doubt and will not be required to prove fault for this element. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 59(4)(d) is a matter of law. It concerns whether a particular condition is required to be complied with during a period of suspension. It is appropriate for this element to be strict liability because the element does not involve any conduct by the holder of the export licence. The use of strict liability in paragraph 59(4)(d) will not affect the need for the prosecution to prove fault elements for other parts of the offence, including that the person contravened the relevant licence condition.

The maximum penalties for both the offences and the civil penalty provisions are high, particularly for body corporates. However, the large amounts are considered appropriate as a deterrent to reflect the seriousness of failing to comply with the conditions of an export licence, irrespective of whether the export licence is, or is not, suspended. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also erode the confidence of trading partners in the Government’s regulation of exported waste material and may therefore adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export from Australia in the future.

The maximum civil penalty of 600 penalty units is higher as the maximum penalty available for the criminal offence. This is intended to ensure it will act as a deterrent, particularly for body corporates, and also recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Clause 60        Additional or corrected information in relation to application for licence                      etc.

Clause 60 will require a person who is the holder of an export licence to correct any information or document that was provided in any application they made under Chapter 2 of the Bill, once they become aware is incomplete or incorrect, or to provide any additional information prescribed by the rules. The additional or corrected information must be provided as soon as practicable.

Failure to comply with the obligation in clause 60 will be a contravention of a civil penalty provision, with a penalty of 60 penalty units. The purpose of this provision is to ensure the Minister has all the relevant, correct information before them to assess any relevant applications made under the Bill and to facilitate compliance with the person’s export licence and other requirements of the Bill.

The note after clause 60 will alert the reader that a person may commit an offence or be liable to a civil penalty if they provides false or misleading information or documents (clauses 145, 146 and 147 of the Bill, and sections 136.1, 137.1 and 137.2 of Schedule 1 to the Criminal Code Act 1995 ).

Clause 61        Holder of export licence must notify the Minister of certain events

Subclause 61(1) will require the holder of an export licence to notify the Minister in writing as soon as practicable after any of the following events occurs:

·          there is a change in the holder’s business structure;

·          if the holder is an individual—the individual enters into a personal insolvency agreement under Part X of the Bankruptcy Act;

·          if the holder is a corporation—the corporation enters into administration (within the meaning of section 435C of the Corporations Act 2001 ) or is to be wound up;

·          there is a change in the trading name, business address or contact details of the holder;

·          any other event prescribed by the rules.

It is necessary for the Minister to be notified of such changes to the licence holder’s operations so the Minister can determine whether it is appropriate for the export licence to remain in force or whether it should be varied.

Allowing the rules to prescribe other events for which the holder will be required to notify the Minister will provide flexibility to respond to changes that may impact on the suitability of the export licence holder to carry out export operations, which are not otherwise covered by subclause 61(1). The ability to prescribe these changes also reflects the likelihood that they may be specific to a kind of regulated waste material, export operations, or place of export.

Subclause 61(3) will have the effect that the failure of a person to comply with the requirement in subclause 61(2) is an offence of strict liability of 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, the strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty unit of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if the holder of an export licence fails to notify the Minister of an event specified in subclause 61(1) or rules made for the purpose of clause 61;

·          offences relating to the provision of information to the Minister need to be dealt with efficiently to ensure industry confidence in the regulatory regime;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not disclosure the required information to the Minister is a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

Subclause 61(4) will establish a mirror civil penalty provision which is contravened in circumstances where the holder of an export licence fails to notify the Minister of an event specified in subclause 61(1) or rules made for the purpose of clause 61. The maximum penalty is 250 penalty units.

The combination of a strict liability offence and civil penalty provision will ensure that there is an adequate deterrent for administrators seeking to avoid their obligations to notify the Minister. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 61 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

PART 10 OTHER MATTERS

Overview of Part

Part 10 will deal with a number of miscellaneous matters concerning exporting regulated waste material, including powers in relation to associates of licence holders, ministerial directions and publishing information about export licences.

Clause 62        Persons who participate in the management or control of another person’s export business

Clause 62 will provide that, for the purposes of Chapter 2 of the Bill, a person (the first person ) is taken to be a person who participates or will participate in the management or control of an export business or proposed export business of another person if:

·          the first person has authority to direct the export operations, or an important or substantial part of the export operations, carried out or to be carried out, by or in connection with, the other person’s export business; or

·          the first person has authority to direct another person who has authority of the kind referred to in paragraph 62 (a) in the exercise of that authority.

This concept is relevant to the suspension or revocation of an export licence (under clauses 46 and 54 respectively). This is because a false, misleading or incomplete statement made, or false, misleading or incomplete information or documents provided, by a person who participates in the management or control of the licence holder’s business will be a ground for suspension or revocation.

 

Clause 63        Minister’s powers in relation to associates of holder of export licence

Clause 63 will set out the Minister’s powers in relation to persons who are associates of the holder of an export licence. The term associate will be defined in clause 10 of the Bill.

Under subclause 63(1), clause 63 will apply if the Minister:

·          varies an export licence

·          refuses to grant an export licence to a person; or

·          decides not to renew a person’s export licence; or

·          suspends a person’s export licence (wholly or in part); or

·          revokes a person’s export licence.

Subclause 63(2) will provide the Minister may do either or both of the following, on one or more occasions:

·          refuse to grant an export licence to an associate of a person referred to in subclause 63(1);

·          if an associate of a person referred to in subclause 63(1) of the Bill is or becomes the holder of an export licence—give the associate a written notice in accordance with subclause 63(3).

Subclause 63(3) will provide that a notice under paragraph 63(2)(b) must:

·          specify the grounds on which the notice is given; and

·          request the associate to give the Minister, within 14 days after the day the notice is given, a written statement showing cause why an export licence held by the associate:

o    should not be suspended, or further suspended, under Part 7 of Chapter 2 the Bill; or

o    should not be revoked under Division 2 of Part 8 of Chapter 2 of the Bill; and

·          include a statement setting out the associate’s right to seek review of a decision:

o    to suspend, or further suspend, under Part 7 of Chapter 2 of the Bill an export licence held by the associate; or

o    to revoke under Division 2 of Part 8 of Chapter 2 of the Bill an export licence held by the associate.

This will mean that the associate may be required to show cause as to why their export licence should not be suspended or revoked because they are an associate of a person referred to in subclause 63(1).

Clause 63 is intended to ensure that the integrity of the regulatory regime is maintained by subjecting a person who is associated with a person referred to in subclause 63(1) to additional control and oversight.

Clause 64        Minister may give directions to holder of export licence

Subclause 64(1) will allow the Minister to give written directions to the holder of an export licence.

Two notes will be included at the end of subclause 64(1). Note 1 will advise that an authorised officer may also give a direction to the holder of an export licence in certain circumstances (see clause 106). Note 2 will refer the reader to clause 107 of the Bill which will set out the general provisions relating to directions.

Subclause 64(2) will set out a non-exhaustive list of examples of directions that may be given under subclause 64(1). These are:

·          a direction to require the holder of an export licence to give the Minister specified information or documents relating to a kind of export operations carried out in relation to a kind of regulated waste material; and

·          a direction to require the holder of an export licence to allow the Minister, or a person with appropriate qualifications or expertise, to enter premises where a kind of export operations is being carried out in relation to a kind of regulated waste material covered by the licence.

Subclause 64(3) will require the Minister, in considering whether to give a direction under subclause 64(1), to have regard to the objects of the Bill and any matters prescribed by the rules.

Subclause 64(4) of the Bill will make it clear that a condition of an export licence is that the holder of the licence must comply with any directions given to the holder under clause 65.

A note following subclause 64(4) will refer the reader to clause 59 of the Bill, which will provide that the holder of an export licence may commit an offence or be liable to a civil penalty if a condition of the licence is contravened.

Subclause 64(5) will clarify that if a direction given to the holder of an export licence under subclause 64(1) is inconsistent with the rules or a condition of the licence, the direction prevails and the rules or condition, to the extent of the inconsistency, do not have any effect.

 

Clause 65        Publishing information about export licences

Clause 65 deals with the publication of certain information about export licences.

Subclause 65(1) will require the Minister to publish on the Department’s website the following information in relation to each export licence granted:

·          the name of the holder of the export licence;

·          each kind of regulated waste material covered by the licence;

·          the day the licence takes effect;

·          whether the licence remains in force for a specified period or until a specified event occurs.

However, subclause 65(2) will prevent the Minister from publishing any information under subclause 65(1) if the Minister is satisfied that:

·          there is a risk that publishing the information might substantially prejudice the commercial interests of a person; and

·          publishing the information is not in the public interest.

The publishing of this information is intended to provide transparency and assist the waste export industry in understanding who holds an export licence and the regulated waste materials covered by the licences.

It is acknowledged that, to the extent that any licence holders are individuals rather than body corporates, this clause will require the Minister to publish personal information within the meaning of the Privacy Act 1988 . However, it is anticipated that most holders of export licences will be body corporates, for which the protections in the Privacy Act 1988 will not apply. In addition, the fact that publishing the names of holders of export licences can assist entities to find a licensed exporter, as well as provide assurance that they are dealing with a licensed exporter, is considered to outweigh the potential adverse consequences to the individuals concerned.

C hapter 3 —P roduct stewardship

GENERAL OUTLINE

Chapter 3 of the Bill will deal with product stewardship. It will establish a framework providing the basis for those who design, import, manufacture and distribute products to take greater responsibility for their impacts on the environment. Product stewardship involves shared responsibility for reducing the environmental, health and safety footprint of manufactured goods and materials (and other things) across the life cycle of a product.

Chapter 3 will provide a framework for voluntary, co-regulatory and mandatory product stewardship.

NOTES ON INDIVIDUAL CLAUSES

PART 1 INTRODUCTION

Clause 66        Simplified outline of this Chapter

Clause 66 will provide an outline to Chapter 3 of the Bill. The outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of Chapter 3, rather than to replace these provisions. It is intended that readers will rely on the substantive clauses of Chapter 3.

PART 2— Minister’s priority list

Overview of Part

Part 2 will provide for the Minister’s priority list. The list will be a mechanism by which the Minister can communicate to industry which products they are considering regulating under the co-regulatory or mandatory product stewardship provisions in this Bill. The published list will also detail recommended actions the relevant industries can take to reduce the possibility of future government regulation of such products. 

Clause 67        Minister’s priority list

Clause 67 will provide for the Minister’s priority list. This list will allow the Minister to set out the products (which is defined broadly in clause 10 and can include a broad range of materials) which they have identified as a priority for product stewardship. It is intended to provide clarity to the community and industry about the products being considered for product stewardship approaches under the Bill. The mechanism for the Minister to make recommendations in relation to a product and set timeframes is intended to allow industry to act on those recommendations voluntarily (including by setting up voluntary product stewardship schemes), which may result in the product no longer being considered a priority for more stringent regulation under the Bill.

Publication of products on the Minister’s priority list will also constitute notification for the purposes of making rules for co-regulatory or mandatory product stewardship. A product must have been included in a Minister’s priority list for at least 12 months before rules for co-regulatory or mandatory product stewardship can be made, unless special circumstances justify the making of rules without the 12 month notification period being satisfied (see paragraphs 77(3)(c) and 93(1)(d)).

Subclause 67(1) will require the Minister to publish on the Department’s website, before the end of each financial year, a Minister’s priority list setting out the following:

·          a list of products for which the Minister is proposing to consider, during the next financial year, whether some form of regulation under the Bill might be appropriate;

·          reasons why the Minister is proposing to give that consideration;

·          the actions that the Minister recommends be taken in relation to each listed product;

·          the times within which the Minister recommends the actions be taken.

The note to this subclause will alert the reader to the fact that ‘some form of regulation’ could include whether to make rules requiring specified persons to be a liable party of an approved co-regulatory arrangement (under clause 77) or whether to make rules setting up mandatory product stewardship for a product (under clause 92).

In preparing a Minister’s priority list, the Minister may consult with a number of different persons including persons or organisations involved in product stewardship best practice (for instance, any relevant Centres of Excellence that are established), industry and consumer groups, environmental groups, State, Territory and local government authorities and any other person or organisation the Minister considers should be consulted.

Subclause 67(3) will provide that, in deciding what products should be included on the Minister’s priority list, the Minister may have regard to any matter the Minister considers relevant. Subclause 67(3) will also provide a non-exhaustive list of relevant matters, being:

·          whether a product was previously included in a Minister’s priority list and if so, whether the recommended actions were taken;

·          whether the product stewardship criteria are satisfied;

·          any information obtained from consultation;

·          whether there will be a significant cost to the Commonwealth, State, Territory or local governments to reuse, recycle, recover, treat or dispose of the products;

·          whether consumers are willing to pay for action that reduces potential human or environmental health impacts of the product; and

·          whether taking action will offer business opportunities to make a contribution to the economy.

It is intended that the Minister will have regard to a broad range of matters and consult with a broad range of persons so that listings reflect community and industry concerns.

Subclause 67(4) will require the Minister to review, for each listed product, whether the recommended action has been taken after the recommended timeframe has expired. While there is no legal requirement for any person to take the recommended action in relation to the listed product, if no or inadequate action has been taken to implement the Minister’s recommendations, the result of the review may be that the Minister makes further recommendations or decides that some form of regulation under the Bill (such as co-regulatory or mandatory product stewardship) is appropriate for the product.

Clause 68        Tabling of Minister’s priority list and statement relating to product stewardship arrangement

Subclause 68(1) will require the Minister to cause the Minister’s priority list to be tabled in both Houses of Parliament within 15 sitting days after the publication of the list.

Subclause 68(2) will make it clear that the Minister may, at any time, to cause a statement to be tabled in each House of Parliament regarding the operation, performance and coverage of accredited voluntary arrangements.

The statement made under subclause 68(2) may include the names of persons who are authorised to use the Commonwealth’s product stewardship logo; the names of persons who the Minister considers could be, but are not currently, authorised to use the Commonwealth’s product stewardship logo; and the Minister’s views in relation to the performance of an accredited voluntary arrangement.

This subclause is not intended to limit the Minister’s general ability to make statements in Parliament or the Minister’s immunities under parliamentary privilege.

PART 3 VOLUNTARY PRODUCT STEWARDSHIP

Overview of Part

Part 3 will set out the framework for accreditation of voluntary product stewardship arrangements. The purpose of voluntary accreditation is to encourage and recognise product stewardship without the need to regulate and to provide assurance to the community that a voluntary product stewardship arrangement is operating to achieve the outcomes it has committed to achieve.

Accredited voluntary product stewardship arrangements are arrangements designed to further the objects of the Bill by achieving one or more measurable outcomes in relation to a product or class of products, including material streams. Under these provisions it will be possible, for example, for an industry association or non-government organisation to put forward a proposal for the ongoing collection and recycling of a product: for instance, the collection and recycling of mobile phones.

Much of the detail concerning voluntary product stewardship will be set out in rules made by the Minister. The rules will deal with matters such as who may apply for accreditation, the circumstances in which an application may be made, and who makes accreditation decisions (as the accrediting authority). It is intended that accreditation of a voluntary arrangement will be for a period of five years.

The Part provides for the use of a government product stewardship logo in connection with accredited voluntary product stewardship arrangements. Use of the logo will allow schemes to promote the recognition and credibility that comes from government accreditation. This will provide an incentive for industry to seek accreditation of their schemes and will provide a basis for consumers to identify accredited voluntary schemes.

The Part does not provide special protection to a product stewardship logo. The relevant sanctions for misuse of the logo and misleading or deceptive conduct will be the normal sanctions in the Copyright Act 1968 , Trade Marks Act 1995 and Competition and Consumer Act 2010 .

The Minister is required to publish information on each accredited voluntary product stewardship arrangement on the Department’s website, including reports on the operation of the arrangement.

Audits of accredited voluntary arrangements will be covered in Chapter 4 of the Bill.

Clause 69        Exercising rights in product stewardship logo in accordance with accredited voluntary arrangement

Clause 69 will provide that a person is authorised to exercise the Commonwealth’s intellectual property rights in a product stewardship logo if the exercise of those rights is in accordance with an accredited voluntary arrangement. Use of a Commonwealth product stewardship logo is intended to be an incentive for voluntary product stewardship arrangements to become accredited.

What constitutes a product stewardship logo is set out in clause 73, which includes that the logo is required to be published on the Department’s website for the purpose of this clause. The Commonwealth’s intellectual property rights in a product stewardship logo are defined in clause 74 by reference to its rights under the Copyright Act 1968 and the Trade Marks Act 1995 .

Clause 70        Accreditation of voluntary arrangements

Subclause 70(1) will define the term accredited voluntary arrangement as a voluntary arrangement that is accredited in relation to a product in accordance with rules made for the purposes of clause 70. The term product will be defined in clause 10.

The first note following subclause 70(1) will explain that obligations under the Bill only apply to voluntary arrangements that are accredited. The second note following subclause 70(1) will explain that only a voluntary arrangement that meets the conditions in clause 71 can be accredited, and the Minister must refuse to accredit a voluntary arrangement in certain circumstances.

Subclause 70(2) will enable the rules to provide for or in relation to matters concerning the accreditation of voluntary arrangements in relation to a product.

Subclause 70(3) will set out a non-exhaustive list of matters for which the rules can provide under subclause 70(2), including:

·          who may apply for accreditation of a voluntary arrangement in relation to a product;

·          the circumstances in which a person may apply for such an accreditation;

·          who may make a decision on such an application (the accrediting authority);

·          matters in relation to which the accrediting authority must be satisfied before accrediting a voluntary arrangement in relation to a product;

·          grounds on which the accrediting authority may or must refuse to accredit a voluntary arrangement in relation to a product;

·          the imposition of conditions by the accrediting authority on a voluntary arrangement’s accreditation in relation to a product;

·          the cancellation by an accrediting authority of a voluntary arrangement’s accreditation in relation to a product;

·          the giving of information in relation to an accredited voluntary arrangement.

Note 1 to subclause 70(3) will refer the reader to clauses 172, 173 and 174 of the Bill for general matters relating to applications. These requirements will apply to applications for accreditation of a voluntary arrangement.

Note 2 to subclause 70(3) will provide examples of conditions the accrediting authority may impose on a voluntary arrangement’s accreditation in relation to a product.

Note 3 to subclause 70(3) will explain that the rules may also provide for the making and retention of records in accordance with clause 142. If a person is required to make or retain records under the rules and the person fails to comply with the requirement, the person may be liable to a strict liability offence or a civil penalty (see notes for clause 142).

Subclause 70(4) will provide that the rules must require the accrediting authority to refuse to accredit a voluntary arrangement in certain circumstances. These circumstances are where the accrediting authority is satisfied that:

·          an outcome of the arrangement in relation to the product will not further the objects of the Bill; or

·          the arrangement is unlikely to achieve one or more of those outcomes; or

·          the product stewardship criteria are not satisfied in relation to the product; or

·          the persons authorised by the arrangement to exercise the Commonwealth’s intellectual property rights in a product stewardship logo in connection with the product, or the circumstances in which those persons are authorised, are not appropriate; or

·          it is not in the public interest to accredit the arrangement.

The purpose of this provision is to ensure that the rules do not allow for voluntary product stewardship arrangements that are not appropriate to meet the policy objectives of the Bill to be accredited.

Subclause 70(5) will provide that the accrediting authority must have regard to the objects of the Bill (and may also have regard to any other matter) when determining whether it is satisfied that:

·          the exercise of the Commonwealth’s intellectual property rights in a product stewardship logo are not appropriate, or

·          it is not in the public interest to accredit the arrangement.

Clause 71        Only certain kinds of voluntary arrangements can be accredited

Clause 71 will have the effect that a voluntary arrangement cannot be accredited unless it meets the conditions in this clause.

Paragraph 71(a) will require the arrangement to be designed to further the objects of the Bill by achieving one or more measurable outcomes in relation to a product. This means a voluntary arrangement may be directed, for example, towards reducing human health and environmental impacts that fall within subclause 3(1) of the Bill. This could include environmental impacts associated with the design, manufacture or distribution of a product, as well as the human and environmental health impacts associated with the disposal of a product.

Paragraph 71(b) will require the arrangement to have a written document setting out the persons who would be (if the arrangement is accredited) authorised to exercise the Commonwealth’s intellectual property rights in a product stewardship logo in connection with the product and the circumstances in which those persons would be authorised by the arrangement to exercise those rights. This written document may be varied over time as the arrangement evolves to include other parties who may be authorised to use a logo.

Paragraph 71(c) will require the arrangement to provide for there to be a person (the administrator) who is responsible for ensuring the outcomes referred to in paragraph 71(a) are achieved. Paragraph 71(d) requires the administrator to be a body corporate. This requirement is intended to promote continuity and good governance.

Clause 72        Administrator of accredited voluntary arrangement must notify Minister of certain events

Subclause 72(1) will require the administrator of an accredited voluntary arrangement to notify the Minister of any of the following:

·          there is a change to who the administrator of the arrangement is;

·          an event that may affect whether the administrator is a fit and proper person;

·          an event that hinders the ability of the arrangement to achieve its outcomes;

·          an event prescribed by the rules.

The notification must be in writing and provided as soon as practicable after the relevant event occurs.

Subclauses 72(2) and 72(3) will have the combined effect that the failure of person to comply with the requirement in subclause 72(1) is also an offence of strict liability of 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty unit of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if the administrator of an accredited voluntary arrangement does not notify the Minister of a relevant event;

·          offences relating to the provision of information to the Minister need to be dealt with efficiently to ensure industry confidence in the regulatory regime;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Requiring administrators of accredited voluntary arrangements notify the Minister of the events specified in subclause 72(1) is integral to the operation of the overarching product stewardship framework set out in this Bill. Whether or not a defendant intentionally or negligently did not notify the Minister of the relevant event is a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

Subclause 72(4) will establish a mirror civil penalty provision which is contravened in circumstances where the administrator of an accredited voluntary arrangement does not notify the Minister of an event specified in subclause 72(1). The maximum penalty is 250 penalty units.

It is considered that the combination of a strict liability offence and civil penalty provision will provide an adequate deterrent from undertaking conduct which has the potential to cause such harm. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes subclause 72(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Clause 73        What is a product stewardship logo

Clause 73 will set out what is a product stewardship logo. As set out above, one of the benefits of being an accredited voluntary arrangement is that members of that arrangement are authorised to use the product stewardship logo in accordance with the arrangement.

Subclauses 73(2) and (3) will clarify that both artistic works and trademarks can be a product stewardship logo, provided that both the Commonwealth owns the relevant intellectual property and it has been reproduced (in the case of an artistic work) or represented (in the case of a trademark) on the Department’s website.

Clause 74        What are the Commonwealth’s intellectual property rights in a product stewardship logo

Clause 74 will define the Commonwealth’s intellectual property rights in a product stewardship logo as the rights it holds under the Copyright Act 1968 (for artistic works) and the Trade Marks Act 1995 (for trade marks).

Generally, the Commonwealth’s right under the Copyright Act 1968 , as an owner of copyright in an artistic work, is the exclusive right to, or to authorise other persons to, reproduce the work in a material form, publish the work, or communicate the work to the public.

Generally, the Commonwealth’s right under the Trade Marks Act 1995 , as a registered owner of a trade mark, is the right to use, or to authorise other persons to use, the trade mark in relation to goods and/or services dealt with or provided in the course of trade, and in respect of which the trade mark is registered.

Clause 75        Commonwealth’s intellectual property rights not limited

For the avoidance of doubt, clause 75 provides that Part 2 of this Chapter 3 of the Bill does not limit the Commonwealth’s intellectual property rights in a product stewardship logo or the operation of the Copyright Act 1968 or the Trade Marks Act 1995.

PART 4 CO-REGULATORY PRODUCT STEWARDSHIP

Overview of Part

Part 4 will deal with co-regulatory arrangements. The co-regulatory provisions of the Bill use a combination of industry action and supporting Government regulation to achieve outcomes specified in rules, such as recycling outcomes for products.

The co-regulatory provisions will only apply where rules have been made with respect to a product. Before rules may be made the Minister will have to be satisfied that the rules will further the objects of the Bill and that the product meets the product stewardship criteria specified in the Bill (clause 14). As a matter of government policy, the usual regulatory impact assessment requirements will also apply.

Liable parties in relation to a product (as defined in rules) will be required to be members of an approved product stewardship arrangement. This is intended to ensure a level playing field for the relevant industry, and that there are no ‘free riders’ (persons who take benefit from a scheme without contributing to that scheme). Both criminal and civil penalties, including daily penalties, may apply for liable parties who do not join an approved co-regulatory arrangement.

Co-regulatory product stewardship arrangements are operated by administrators. Proposed administrators apply to the Minister to approve an arrangement. The administrator of an approved co-regulatory arrangement will be required to take all reasonable steps to ensure that outcomes specified in rules are achieved. A failure to do so may be an offence or contravention of a civil penalty provision or may result in the Minister issuing an improvement notice or cancelling the arrangement’s approval. The rules may also establish reporting obligations for administrators.

The outcomes that are specified in the rules for a co-regulatory arrangement must relate to one or more of the objects of the Bill. This means that, without limiting the objectives of a co-regulatory arrangement, the outcomes may be directed at things like:

·          avoiding generating waste from products;

·          designing products to be more easily repaired;

·          reducing or eliminating hazardous substances in products and in waste from products;

·          managing waste from products as a resource;

·          ensuring that products and waste from products are designed, reused, recycled, recovered, treated and disposed of in a safe and environmentally sound way.

In considering possible product stewardship arrangements, parties will be required to comply with any other laws which may be applicable. For example, an arrangement could be prohibited under the competition provisions in Part IV of the Competition and Consumer Act 2010 .

It is intended that rules will be made requiring certain importers or manufacturers of televisions, computers or computer parts to join a co-regulatory arrangement. This will continue in effect the existing arrangements in relation to the National Television and Computer Recycling Scheme.

Division 1 Requirements for liable parties and administrators of co-regulatory arrangements

Subdivision A Requirement for liable party to be member of approved co-regulatory arrangement

Clause 76        Liable party to be member of approved co-regulatory arrangement

Clause 76 will require a liable party to be a member of an approved co-regulatory arrangement. This requirement is central to the operation of co-regulatory arrangements as it seeks to ensure that non-participants in an industry arrangement do not gain an advantage over participants by not adhering to requirements of the co-regulatory arrangement. This is intended to ensure fairness between members of a relevant industry. A liable party in relation to a product is defined at clause 77.

Subclause 76(2) will have the effect that the failure of a liable party to be a member of an approved co-regulatory arrangement is an offence of strict liability of 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a liable party in relation to a product is not a member of an approved co-regulatory arrangement;

·          offences relating to non-membership of co-regulatory schemes need to be dealt with efficiently to ensure industry confidence in the regulatory regime;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Requiring liable parties to be members of a co-regulatory product stewardship arrangement is integral to the operation of co-regulatory product stewardship and the overarching product stewardship framework set out in this Bill. Whether or not a defendant intentionally or negligently did not become a member is a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of the Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of the Schedule 1 to the Criminal Code Act 1995 ).

Subclause 76(3) will establish a mirror civil penalty provision which is contravened in circumstances where a liable party in relation to a product is not a member of an approved co-regulatory arrangement in relation to that product. The maximum penalty is 250 penalty units.

In some cases, there will be a substantial incentive for a liable party to contravene the requirement to join an approved co-regulatory arrangement. For example, where the rules require the administrators of those arrangements to meet collection and recycling targets, in order to achieve these targets, it is likely that administrators will charge fees to members. This could provide a significant incentive for avoidance of the requirement in subclause 76(1). However, the combination of a strict liability offence and civil penalty provision, along with the daily penalty for ongoing contraventions in subclause 76(11), will ensure that there is an adequate deterrent for liable parties seeking to avoid their product stewardship obligations and obtaining an unfair competitive advantage.

It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes subclause 76(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Subclauses 76(4) and (5) will provide that the Minister cannot apply for a civil penalty order under clause 101 unless the Minister first issues a written notice to the liable party which provides the liable party with at least 14 days to become a member of an approved co-regulatory arrangement and the person fails to comply with the notice. This gives the liable party an opportunity to become a member of an approved co-regulatory arrangement before civil penalty proceedings are instituted.

Subclause 76(6) will allow a person who was given a notice by the Minister to apply to the Minister to vary the notice to specify a later day or to revoke the notice. The application must be in writing and must be made before the day specified in the notice (see subclause 76(7)).

Subclause 76(8) will provide for the Minister, by written notice, to vary the notice to specify a later day or to revoke the notice. The note to this subclause will explain that the Minister’s decision is a reviewable decision under clause 151 and the Minister must give the person written notice of the decision in accordance with clause 152.

Subclauses 76(6) and 76(8) will not affect the operation of subsection 33(3) of the Acts Interpretation Act 1901 , which relates to the power to make, vary or revoke etc. instruments (see subclause 76(10)). This makes it clear that the Minister has the power to revoke or vary (among other powers) a notice on their own initiative rather than only on the application of the person who was given the notice.

Subclause 76(11) will clarify that section 4K of the Crimes Act 1914 and section 93 of the Regulatory Powers (Standard Provisions) Act 2014 apply in relation to a contravention of subclause 76(1) as if the liable party were required to be a member of an approved co-regulatory arrangement before the day specified in the notice issued by the Minister.

The effect of this subclause will be that liable parties who do not join a co-regulatory arrangement may be liable for a daily penalty for a continuing contravention of subclause 76(1), including in relation to the time period prior to the notice under subclause 76(4) being given to the person. 

Clause 77        Who is a liable party in relation to a product

Clause 77 will deal with who is a liable party in relation to a product. This is a key concept in co-regulatory product stewardship as it is only liable parties that can be, and are indeed required to be, members of an approved co-regulatory arrangement.

Subclause 77(1) will define a liable party , in relation to a product, as a person specified in the rules as a liable party in relation to that product. Subclause 77(2) will clarify that the rules can only specify a person to be a liable party in relation to a product if the person is a constitutional corporation and has, at any time, manufactured, distributed or used the product in Australia, or imported the product into Australia.

As an example, the rules may define a liable party by reference to a particular threshold. For example, a liable party may be a constitutional corporation that imported over a certain number of products in a specified period. It will also be possible for the rules to provide that such a threshold is exceeded where imports of a corporation, together with related parties, exceed the threshold. The rules could also set a threshold based on the turnover of a company.

This is intended to allow for sufficient flexibility to cater for different products and approaches to product stewardship. Reference to a person ‘who has at any time’ been in any of these categories is preferable to limiting the subclause to persons who are currently in those categories, as it may be appropriate to impose a continuing obligation to be a member of an approved co-regulatory arrangement on a person depending on the product, the approach to product stewardship or other factors.

As a liable party will be defined in relation to a product, it will be possible to have different liable parties for different products. A particular person may also be a liable party in relation to more than one product.

Subclause 77(3) will provide that the Minister cannot make rules specifying liable parties in relation to a product unless the Minister is satisfied that both making the rules in relation to the product will further the objects of the Bill and that the product stewardship criteria (see clause 14) are satisfied in relation to the product.

Furthermore, if rules specifying liable parties are not already in force in relation to the product, the product must have been included in a Minister’s priority list (see clause 67) at least 12 months beforehand, unless there are special circumstances justifying the making of the rules without that requirement being satisfied. This is to ensure that industry have been given adequate time to adjust their business practices to accommodate the regulation of the product.

If there are special circumstances justifying the making of the rules without 12 months notification on the Minister’s priority list, then subclause 77(4) will require the explanatory statement for the rules to include a statement setting out the special circumstances.

Subclause 77(5) will allow the rules to provide for the Minister to effectively exempt persons from being a liable party by determining that the Bill has effect as if a particular person, who will otherwise have been a liable party, were not a liable party in relation to a product. This may be for a specified period or indefinitely.

Clause 78        What is an approved co-regulatory arrangement

Clause 78 will define the term approved co-regulatory arrangement for the purposes of the Bill as a co-regulatory arrangement that is approved by the Minister under clause 85 in relation to a product.

The first note following clause 78 will explain that obligations under this Bill in relation to co-regulatory arrangements and their administrators will only apply to approved co-regulatory arrangements.

The second note following clause 78 will refer to clause 85, which deals with the circumstances in which the Minister is required or permitted to refuse to approve a co-regulatory arrangement.

Clause 79        Outcomes for approved co-regulatory arrangements

Clause 79 will deal with outcomes of co-regulatory arrangements. This is a key concept in the co-regulatory context, because the achievement of outcomes that reflect the objects of the Bill and the product stewardship criteria are critical to success of the co-regulatory regime. For that reason, the approval (both initial and ongoing) of the co-regulatory arrangement is dependent on the arrangement’s ability to achieve the specified outcomes for the relevant product. 

Subclause 79(1) will require the rules to specify one or more outcomes which must be achieved by approved co-regulatory arrangements and which must relate to the objects of the Bill.

Subclause 79(2) will provide that the rules may also do one or more of the following:

·          specify a method or formula by reference to which an outcome may be determined, or for working out whether such an outcome has been achieved;

·          require different outcomes to be achieved by the end of different periods;

·          specify requirements for achieving those outcomes with which the administrator must comply.

For example, a formula could allocate a national recycling target to different co-regulatory arrangements based on the market share of their members. Outcomes could also be expressed by a reference to a published figure or document. Different recycling targets could also be set for different periods, such as for each financial year.

Clause 80        Matters to be dealt with by co-regulatory arrangements

Clause 80 will provide for the rules to specify matters to be dealt with by a co-regulatory arrangement that relates to a specified product.

Matters must relate to one or more of the following:

·          the governance of the arrangement (including resolving disputes and replacing the administrator);

·          the membership of the arrangement (including requirements for becoming or ceasing to be a member of the arrangement);

·          communicating information to the public about the arrangement;

·          any other matter relevant to the operation of the arrangement or the achievement of the outcomes.

The note to subclause 80(2) explains that approval of a co-regulatory arrangement may be refused or may be cancelled if the Minister is not satisfied the arrangement adequately deals with these matters (see paragraphs 85(2)(c) and 87(1)(c)).

While these matters are likely to be common across different products, it is intended that the rules could specify different matters for different products.

Subdivision B Requirements for administrators of approved co-regulatory arrangements

Clause 81        Administrator to achieve outcomes for co-regulatory arrangement

Subclause 81(1) will require the administrator of an approved co-regulatory arrangement to take all reasonable steps to ensure that the arrangement achieves the outcomes specified in rules made for the purposes of clause 79. This requirement is placed on the administrator, as the administrator is responsible for the operation of the approved co-regulatory arrangement. The requirement to ‘take all reasonable steps’ recognises that in some circumstances outcomes may not be entirely within the control of the administrator. For example, the ability to achieve collection and recycling targets for a product may depend in part upon how many of those products are delivered by members of the public to collection points.

Subclause 81(1) will also require the administrator to comply with any requirements prescribed by the rules for achieving those outcomes.

The notes to this clause explain that if the administrator does not comply, the Minister may give an improvement notice (clause 88), require an audit to be carried out (clause 109) or cancel the arrangement’s approval (clause 87).

Subclause 81(2) will have the effect that the failure of a person to comply with the requirement in subclause 81(1) is also an offence of strict liability of 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if the administrator of an approved co-regulatory arrangement does not take all reasonable steps to ensure the arrangement achieves the specified outcomes, or does not comply with requirements specified in the rules;

·          offences relating to achieving the outcomes of co-regulatory schemes need to be dealt with efficiently to ensure industry confidence in the regulatory regime;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Requiring administrators of approved co-regulatory arrangements to take all reasonable steps to ensuring the specified outcomes for that arrangement is integral to the operation of co-regulatory product stewardship and the overarching product stewardship framework set out in this Bill. Whether or not a defendant intentionally or negligently did not take all reasonable steps is a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

Subclause 81(3) will establish a mirror civil penalty provision which is contravened in circumstances where the administrator of an approved co-regulatory arrangement does not take all reasonable steps to ensure the arrangements achieves the specified outcomes in relation to that product. The maximum penalty is 250 penalty units.

The combination of a strict liability offence and civil penalty provision will ensure that there is an adequate deterrent for administrators seeking to avoid their product stewardship obligations. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes subclause 81(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Clause 82        Administrator must notify the Minister of certain events

Subclause 82(1) will require the administrator of an approved co-regulatory arrangement to notify the Minister of any of the following:

·          an event that hinders the ability of the arrangement to achieve its outcomes;

·          when a liable party becomes, or ceases to be, a member of the arrangement;

·          an event prescribed by the rules.

The notification must be in writing and provided as soon as practicable after the relevant event occurs.

Subclauses 82(2) and (3) will have the effect that the failure of person to comply with the requirement in subclause 82(1) is also an offence of strict liability of 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty unit of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if the administrator of an approved co-regulatory arrangement does not notify the Minister of a relevant event;

·          offences relating to the provision of information to the Minister need to be dealt with efficiently to ensure industry confidence in the regulatory regime;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Requiring administrators of approved co-regulatory arrangements notify the Minister of the events specified in subclause 82(1) is integral to the operation of co-regulatory product stewardship and the overarching product stewardship framework set out in this Bill. Whether or not a defendant intentionally or negligently did not notify the Minister of the relevant event is a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

Subclause 82(4) will establish a mirror civil penalty provision which is contravened in circumstances where the administrator of an approved co-regulatory arrangement does not notify the Minister of an event specified in subclause 82(1). The maximum penalty is 250 penalty units.

It is considered that the combination of a strict liability offence and civil penalty provision will provide an adequate deterrent from undertaking conduct which has the potential to cause such harm. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes subclause 82(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Subdivision C Requirements for liable parties and administrators

Clause 83        Requirement to give reports to the Minister

Subclause 83(1) will allow the rules to require a person who is a liable party, or the administrator of an approved co-regulatory arrangement, to give the Minister specified reports. The note to subclause 83(1) also references that rules may provide for the making and retention of records in accordance with clause 142.

Subclause 83(2) will provide some examples of matters which rules made under subclause 83(1) may cover. These are:

·          the matter to which a report relates (which may be determined by the Minister);

·          the manner in which a report must be given (which may be determined by the Minister);

·          the timing of giving of reports (which may be determined by the Minister);

·          the circumstances in which a report must be given (which may depend on a request by the Minister).

It is not intended that the list of examples in subclause 83(2) should be exhaustive.

A person who is subject to a requirement under the rules and fails to comply with the requirement, commits an offence of strict liability (see subclauses 83(3) and 83(4)). The penalty is 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty unit of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person who is required to give the Minister specified reports does not comply. Any requirements will be specified in the rules which will be legislative instruments for the purposes of the Legislation Act 2003 and therefore available on the Federal Register of Legislation. The rules will also be subject to Parliamentary scrutiny and disallowance processes through the ordinary operation of the Legislation Act 2003 ;

·          offences relating to the provision of information to the Minister need to be dealt with efficiently to ensure the integrity of, and industry confidence in the regulatory regime;

·          the offence will be subject to an infringement notice (see clause 102); and

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Requiring liable parties and administrators to provide information to the Minister is integral to the operation of co-regulatory product stewardship and the overarching product stewardship framework set out in this Bill. Whether or not a defendant intentionally or negligently did not provide the Minister with the required reports is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defences unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

Subclause 83(5) will establish a mirror civil penalty provision which is contravened in circumstances where a liable party or administrator of an approved co-regulatory arrangement fails to provide the Minister with the specified reports. The maximum penalty is 250 penalty units.

It is considered that the combination of a strict liability offence and civil penalty provision will provide an adequate deterrent from undertaking conduct which has the potential to cause such harm. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes subclause 83(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Division 2 Approving co-regulatory arrangements

Clause 84        Approving co-regulatory arrangements application

Clause 84 will set out who can apply for approval of a co-regulatory arrangement and the requirements for such an application.

Subclause 84(1) will provide that the administrator of a co-regulatory arrangement may apply for the Minister to approve the arrangement in relation to a product.

Subclause 84(2) will provide that the application must be accompanied by a written description of the arrangement that sets out how the arrangement proposes to achieve the outcomes for the co-regulatory arrangement (specified by rules made for the purpose of clause 79), matters dealt with by the arrangement and any other matter prescribed by the rules.

Note 1 to this clause refers the reader to clauses 172, 173 and 174 for general requirements for relating to applications made under the Bill. These requirements will also apply to applications for the approval of a co-regulatory arrangement, in addition to the requirements at clause 84.

Clause 85        Approving co-regulatory arrangements - decision

Subclause 85(1) will require the Minister, on receiving an application under clause 84, to decide whether to approve or refuse to approve the co-regulatory arrangement.

The note to this subclause explains that a decision to refuse to approve the co-regulatory arrangement is a reviewable decision under clause 151 and Minister must give the administrator written notice of the decision in accordance with clause 152.

Subclause 85(2) will set out when the Minister must refuse to approve the co-regulatory arrangement. The Minister will be required to refuse to approve the co-regulatory arrangement if satisfied that:

·          a condition in subclause 85(3) is not satisfied in relation to the arrangement;

·          the arrangement is unlikely to achieve one or more of the outcomes (as specified by rules made for the purpose of clause 79) for the product;

·          the arrangement does not adequately deal with any matters specified for the product in rules (see clause 80);

·          the administrator is not a fit and proper person, having regard to the matters set out in clause 175; or

·          it is not in the public interest to approve the arrangement.

Subclause 85(3) will set a number of conditions for co-regulatory arrangements. If these conditions are not satisfied, paragraph 85(2)(a) will require the Minister to refuse to approve the co-regulatory arrangement. The conditions are:

·          the arrangement is designed to achieve the outcomes specified by rules made for the purpose of clause 79 in relation to the product;

·          the arrangement deals with the matters prescribed by rules (if any) made for the purposes of clause 80 in relation to the product;

·          the arrangement provides for there to be one or more members of the arrangement, but that only a liable party may be a member;

·          the arrangement provides for there to be a person (the administrator) who is a body corporate and who is responsible for ensuring the outcomes are achieved and may also be a member of the arrangement. This is intended to ensure continuity and good governance.

In determining whether it is in the public interest to approve the co-regulatory arrangement, subclause 85(4) will require the Minister to have regard to the objects of the Bill and will also allow the Minister to have regard to any other relevant matter.

The mandatory refusal requirements in subclause 85(2) are intended to ensure that approved co-regulatory arrangements will function as intended consistently with the objects of the Bill and will achieve the outcomes for the product that are specified by the rules.

Subclause 85(5) will give the Minister a discretionary power to refuse to approve a co-regulatory arrangement in certain circumstances. The Minister may decide to refuse to approve the arrangement if:

·          the Minister has requested further information or documents from the application under clause 174 and the applicant fails to provide the information; or

·          information or a document provided in the application, or under clause 174, is false or misleading.

Subclause 85(5) will require the Minister to give the applicant written notice of the decision on the application.

Division 3 Reviewing co-regulatory arrangements and cancelling approvals

Clause 86        Reviewing approved co-regulatory arrangements

Clause 86 will require the Minister to review the operation of an approved co-regulatory arrangement before the end of five years from when the arrangement is approved and before the end of each successive five year period. Examples of matters that a review could consider include (but are not limited to) the effectiveness of the arrangement in achieving one or more of the specified outcomes (see clause 79) or whether the administrator remains a fit and proper person.

If, following the review, the Minister is satisfied that one of the matters in clause 87 are satisfied, the Minister will have the power to cancel the approval of the arrangement.

Subclause 86(2) will make it clear that this review requirement does not limit the Minister’s ability to review the operation of an approved co-regulatory arrangement at any other time; nor does it limit the Minister’s power under clause 87 to cancel the approval.

Clause 87        Cancelling approvals of co-regulatory arrangements

Clause 87 will set out the grounds on which the Minister may cancel the approval of a co-regulatory arrangement.

Subclause 87(1) will provide the grounds on which the Minister may cancel the approval of a co-regulatory arrangement on the Minister’s own initiative. These grounds include where the Minister is satisfied that the arrangement has not achieved, or is unlikely to achieve, one or more of the outcomes specified for the product, that the administrator is no longer a fit and proper person, that false or misleading information has been provided, or that there has been a material change of circumstances since the arrangement was approved. Other grounds for cancellation include non-compliance with any of:

·          an improvement notice;

·          a requirement to take reasonable steps to achieve the outcomes specified for the relevant product;

·          a requirement to provide an auditor with facilities and assistance, or a recording keeping requirement in the rules. 

Note 1 to this subclause references the fit and proper person test in clause 175. Note 2 to this subclause explains that the Minister’s decision to cancel the approval of a co-regulatory arrangement is a reviewable decision under clause 151 and that the Minister must give the administrator written notice of the decision in accordance with clause 152.

Subclause 87(2) will allow the Minister to cancel the approval of a co-regulatory arrangement on application by the administrator.

Note 1 to this subclause refers the reader to clauses 172, 173 and 174 for additional matters relating to applications. These requirements will apply to applications to the Minister to cancel the approval of a co-regulatory arrangement. Note 2 to this subclause explains that the Minister’s decision to cancel the approval of a co-regulatory arrangement is a reviewable decision under clause 151 and that the Minister must give the administrator written notice of the decision in accordance with clause 152.

Division 4 Improvement notices

Clause 88        Improvement notices

Subclause 88(1) will provide for the Minister to give an improvement notice to an administrator of an approved co-regulatory arrangement. The Minister may do so if they believe on reasonable grounds that the administrator has not complied, or is unlikely to comply, with the requirement for the administrator to take reasonable steps to achieve outcomes (see clause 81) and that it is in the public interest to do so.

Subclause 88(2) will require the notice to specify the grounds on which the Minister believes that the administrator has not complied, or is unlikely to comply, with the requirement in clause 81, and to specify a reasonable period within which the administrator must take the necessary action to comply. The notice may also specify action that the administrator must take during the stated period. The Minister may extend the period in writing before the end of the period.

The improvement notice is intended to be a regulatory tool to ensure both that administrators of approved co-regulatory arrangements comply with the requirements of the Bill and that the approved co-regulatory arrangement’s intended outcomes are achieved. The giving of an improvement notice is not intended to limit other compliance action (including requiring an audit in accordance with clause 109). 

Subclause 88(5) will allow the Minister to vary or revoke an improvement notice if the Minister is satisfied that it is in the public interest to do so. This may be done by giving a written notice to the administrator. If the original notice is varied, the new notice must set out the text of the original notice and the variations to it (see subclause 88(6)).

Subclause 88(7) will require an administrator to comply with an improvement notice. Subclause 88(8) will have the effect that failure to comply with an improvement notice is an offence of strict liability of 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty unit of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if the administrator does not comply with the improvement notice;

·          offences relating to non-compliance of an administrator of a co-regulatory scheme need to be dealt with efficiently to ensure the integrity of, and industry confidence in, the regulatory regime. This is because administrators are the persons responsible for the approved co-regulatory arrangement achieving the outcomes specified for the relevant product, which is the primary mechanism for the co-regulatory regime to achieve the objects of the Bill;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Requiring administrators to comply with the requirements of the regulatory scheme is integral to the operation of co-regulatory product stewardship and the overarching product stewardship framework set out in this Bill. Whether or not a defendant intentionally or negligently did not comply is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

Subclause 88(9) will establish a mirror civil penalty provision which is contravened in circumstances where the administrator of an approved co-regulatory arrangement fails to comply with an improvement notice. The maximum penalty is 250 penalty units.

It is considered that the combination of a strict liability offence and civil penalty provision will provide an adequate deterrent from undertaking conduct which has the potential to cause such harm. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes subclause 88(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Division 5 Other matters relating to co-regulatory product stewardship

Clause 89        Co-regulatory product stewardship anti-avoidance

Clause 89 is intended to ensure that persons that would otherwise be identified as a liable party do not engage in behaviour specifically designed to avoid the costs of being a liable party. An example of such behaviour could be where an importer of products covered by a co-regulatory arrangement redirects imports through several subsidiaries in order to avoid the liability threshold.

Subclause 89(1) will provide that the Minister may make a written determination to identify a person as a prospective liable party. A prospective liable party will be subject to the same obligations as a liable party under clause 77 and the Bill is taken always to have had effect as if the person were a liable party. This is intended to ensure fairness and that the same product stewardship requirements apply between members of a relevant industry.

The note to this subclause will explain that a determination by the Minister under subclause 89(1) is a reviewable decision under clause 151 and Minister must give the person written notice of the decision in accordance with clause 152.

Subclause 89(2) will impose limits on when the Minister can make a determination under subclause 89(1). The Minister may make the determination only if one or more persons enters into, begins to carry out, or is carrying out, a scheme that the Minister believes, on reasonable grounds, has the purpose of enabling a person to avoid being a liable party. A scheme will be defined in subclause 89(6) as:

·          any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or

·          any scheme, plan, proposal, action, course of action or course of conduct, whether there are two or more parties or only one party involved.

This definition is deliberately broad in order to capture the wide range of activities that a person may engage in for the purpose of avoiding being a liable party.

Further, subclause 89(2) will make it clear that the prospective liable party must be a constitutional corporation.

Subclause 89(4) will provide that the determination takes effect on the day specified in the determination, which must not be before the day the rules specifying the liable parties in relation to the product came into force. The determination remains in effect until the day specified in the determination. If no day is specified, then it will remain in effect indefinitely.

Subclause 89(5) will clarify that a determination issued under subclause 89(5) is not a legislative instrument for the purposes of the Legislation Act 2003 . This is declaratory of the law and included to assist readers. It is not intended to be an exemption from the operation of the Legislation Act 2003 .

Clause 90        Additional or corrected information in relation to approved co-regulatory arrangements

Clause 90 will require a person who is the administrator of an approved co-regulatory arrangement holder to correct any information or document that was provided in, or in relation to, any application they made under clause 84 of the Bill (applying for the approval of a co-regulatory arrangement). The person must do so once they become aware the information or document is incomplete or incorrect, or to provide any additional information prescribed by the rules. The additional or corrected information must be provided as soon as practicable. Failure to comply with the obligation in clause 90 will be a contravention of a civil penalty provision, with a penalty of 60 penalty units. The purpose of this provision is to ensure the Minister has all the relevant, correct information before them to assess any relevant applications made under the Bill and to facilitate compliance with the requirements of the Bill.

The note after clause 90 will alert the reader that a person may commit an offence or be liable to a civil penalty if they provide false or misleading information or documents (clauses 145, 146 and 147 of the Bill, and sections 136.1, 137.1 and 137.2 of Schedule 1 to the Criminal Code Act 1995 ).

Clause 91         Co-regulatory product stewardship - replacing administrator

Subclause 91(1) will make it clear that the Minister’s approval is required before a person can be appointed to replace an administrator. This ensures that the Minister can assess whether the new person meets the requirements of an administrator.

Note 1 to the subclause refers the reader to clauses 172, 173 and 174 for general matters relating to applications, which will apply to applications to replace an administrator.

Note 2 to the subclause explains that if an administrator is replaced without first obtaining the Minister’s approval, this is a ground for the Minister to cancel the arrangement’s approval in accordance with clause 87.

Subclause 91(2) requires the Minister, on receiving an application to approve the appointment of a replacement administrator under subclause 91(1), must either approve the appointment or refuse to approve the appointment.

The note to this subclause explains that a decision to refuse to approve the appointment of a replacement administrator is a reviewable decision under clause 151 and Minister must give the person written notice of the decision in accordance with clause 152.

Subclause 91(3) and 91(4) will have the combined effect that, in deciding whether to approve the appointment of a replacement administrator, the Minister must have regard to:

·          whether the Minister would have approved the co-regulatory arrangement if the person had been the administrator at the time the application for approval of the co-regulatory arrangement was made;

·          if a request has been made under clause 174 requesting additional or documents  - whether that information or documents were provided in the specified time;

·          whether any information or documents provided with the application or in response to a request under clause 174 were false or misleading

·          any other matter prescribed by the rules.

Approval requirements specifically relating to administrators include the administrator being a body corporate and the administrator being a fit and proper person (see paragraphs 85(2)(d) and 85(3)(f)). Alternatively, the Minister may not be satisfied that general requirements for an approved co-regulatory arrangement (such as that the arrangement will achieve the outcomes specified in the rules for the product) will be met if the new person was the administrator.

Subclause 91(4) will also allow the Minister, when deciding whether to approve the appointment of a replacement administrator, to have regard to any other matters they consider relevant.

Subclause 91(5) will require the Minister to give the person written notice of their decision.

PART 5 MANDATORY PRODUCT STEWARDSHIP

Overview of Part

The purpose of Part 5 is to make provision for imposing product stewardship obligations through requiring specified persons to take or not take specified action in relation to a specified product. It is envisaged that mandatory product stewardship will be used where other types of product stewardship have been considered and found unsuitable, or where mandatory arrangements would deliver greater benefit to the community than other options.

Rules may require persons or organisations involved in the life of a product to take, or not take, actions that relate to the objects of the Bill.

Before rules can be made, the Minister will have to be satisfied that the rules will further the objects of the Bill and that the product stewardship criteria specified in the Bill (clause 14) are satisfied. Further, in order to be regulated under mandatory product stewardship arrangements, a product will need to have been listed on the Minister’s priority list for 12 months. As a matter of government policy, the usual regulatory impact assessment requirements would also apply, and consideration would be given to ensuring consistency with Australia’s international obligations.

Clause 92        Mandatory product stewardship requirements may be prescribed by                            rules

Subclause 92(1) will allow rules to be made requiring one or more specified persons to take, or not to take, specified action in relation to a specified product. Subclause 92(2) will clarify that the specified action must relate to the objects of the Bill.

This rule-making power is deliberately broad so that it allows the Minister the flexibility to target appropriate actions to different products and different specified persons in order to achieve the objects of the Bill to the greatest possible extent.

However, the note to subclause 92(2) will alert readers to the fact that there are limitations on this rule-making power, including requirements relating to satisfying the product stewardship criteria and furthering objects of the Bill (see clause 93) and having a constitutional connection (see clause 94).

Subclause 92(3) will provide a non-exhaustive list of matters in relation to a product that may be addressed in the rules. These matters are:

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

·          prohibit (either absolutely or subject to conditions), limit or restrict substances from being contained in the product;

·          require the product to be labelled or marked in accordance with the rules;

·          specify requirements in relation to packaging the product;

·          specify requirements in relation to the durability, reparability and reusability of the product;

·          specify requirements in relation to communicating information, in accordance with the rules, in connection with distributing, reusing, recycling, recovering, treating or disposing of the product;

·          require a person to make a product return payment in relation to the product;

·          specify requirements in relation to product design for the product;

·          specify other requirements in relation to reusing, recycling, recovering, treating or disposing of the product;

·          provide for the Minister to exempt a specified person from a requirement in rules made for mandatory product stewardship.

For example, rules could be made for the purposes of mandatory product stewardship to prohibit, limit or restrict hazardous substances in products manufactured in, imported into or sold in Australia. This power could potentially be used where Australia has international obligations to control particular hazardous substances.

Another example is that rules could be made requiring producers of identified products to take specified action to deal with those products at end of life or to design the product in a way that maximises the use of recyclable materials.

Any such rules will only be made following regulatory impact analysis and consideration of any relevant international obligations.

Subclause 92(8) will define product return payment to be a payment, of an amount prescribed by the rules, that a person is required to make to another person if the other person returns that kind of product for reuse, recycling, recovery, treatment or disposal. The note to this subclause explains that clause 93 sets matters the Minister must be satisfied of before rules requiring a person to pay a product return payment are made. Furthermore, rules requiring a person to make a product return payment must not amount to taxation (subclause 92(9)).

A product return payment will provide an additional regulatory tool which may be adopted in cases where there is a need for an incentive to be provided for the return of a product in order to more effectively provide for the reuse, recycling or safe disposal of that product. As ‘product’ is defined broadly, this may include packaging. For example, a product return payment may be used to create incentives for the general public to use a container deposit scheme.

A person who is subject to a requirement under the rules made for the purposes of clause 92 (regarding mandatory product stewardship) and fails to comply with the requirement, commits an offence (see subclauses 92(5) and (6)). The penalty is 120 penalty units or two years imprisonment, or both, for individuals or 600 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Subclause 92(7) will establish a mirror civil penalty provision which is contravened in circumstances where a person is subject to a mandatory product stewardship requirement and fails to comply with that requirement. The maximum penalty is 240 penalty units.

It is considered that the combination of an offence and civil penalty provision will provide an adequate deterrent from undertaking conduct which has the potential to cause such harm. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 92 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Clause 93        Mandatory product stewardship - satisfying product stewardship criteria and furthering objects etc

Clause 93 will set out the matters of which the Minister must be satisfied before making rules prescribing mandatory product stewardship. This means that the Minister will not be able to make rules under clause 92 in relation to a product unless the Minister is satisfied that:

·          making the rules will further the objects of the Bill (at clause 3); and

·          the product stewardship criteria at clause 14 are satisfied in relation to the product; and

·          if the rules will require a person to make a product return payment, then making the rules will encourage reusing, recycling, recovering, treating or disposing of that product in a safe, scientific and environmentally sound way; and the person required to make the product return payment are likely to be appropriately compensated; and

·          if there are not already rules in force for mandatory product stewardship for that product, the product has been notified in a Minister’s priority list at least 12 months beforehand or there are special circumstances justifying the making of the rules without the 12-month notification period being satisfied.

This criteria will ensure that rules prescribing mandatory product stewardship requirements in relation to a product are appropriately adapted to achieve the policy objectives of the Bill and that the relevant industry is given adequate time to adjust their business practices to accommodate the regulation of the product.

Mandatory product stewardship will generally be used as a last resort for products that have been listed on the Minister’s priority list for at least 12 months and for which industry has not voluntarily implemented the Minister’s recommendations concerning that product (see clause 67) and regulation is considered appropriate to achieve the objects of the Bill. However, the Bill will provide the Minister with flexibility to make rules prescribing mandatory product stewardship in other circumstances should it be considered appropriate for the product, provided that the criteria in clause 93 are met.

The note to subclause 93(1) clarifies that persons will be appropriately compensated if they are able to pass the costs of the payments on to consumers or will be reimbursed for the payments by other participants in the supply chain for the product. This is to explain that product return payments are not intended to put a financial burden on the persons required to make the payments, but rather to create incentives for consumers to return used products for reuse, recycling or other end of life management.

If there are special circumstances justifying the making of mandatory product stewardship rules for a product that has not been listed on the Minister’s priority list for at least 12 months, the explanatory statement for the rules made must include a statement setting out the special circumstances (subclause 93(2)).

Clause 94        Mandatory product stewardship - constitutional connection

Clause 94 will require rules providing for mandatory product stewardship requirements to be underpinned by at least one specified constitutional head of power, being:

·          the corporations power (section 51(xx) of the Constitution). If relying on the corporations power, the rules must be expressed to apply in relation to acts and omissions of constitutional corporations. A constitutional corporation is a trading or financial corporation formed within the limits of the Commonwealth, or a foreign corporation; or

·          the trade and commerce power (section 51(i) of the Constitution). If relying on the trade and commerce power, the rules must be expressed to apply in relation to acts and omissions in the course of constitutional trade or commerce. Constitutional trade and commerce refers to international or interstate trade or commerce; or

·          the external affairs power (section 51(xxix) of the Constitution). If relying on the external affairs power, the rules must be appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.

The rules must specify which of the above constitutional heads of power they are made in accordance with. If that is the external affairs power, then the rules must identify the relevant international agreement.

The purpose of this provision is to ensure that any rules providing for mandatory product stewardship requirements are supported by the Constitution.

PART 6 OTHER MATTERS

Overview of Part

Part 6 will deal with the publishing of information concerning voluntary and regulated product stewardship arrangements.

Clause 95        Publishing information about arrangements

Clause 95 will require the Minister to publish on the Department’s website information relating to each accredited voluntary arrangement and each approved co-regulatory arrangement. This information must include:

·          a summary of the arrangement;

·          the name of the arrangement’s administrator;

·          the contact details for the arrangement’s administrator that are prescribed in the rules;

·          a copy of any report on the operation of the arrangement given to the Minister;

·          for an accredited voluntary arrangement, the persons authorised by the arrangement to exercise the Commonwealth’s intellectual property rights in a product stewardship logo.

However, subclause 95(2) will prevent the Minister from publishing any information if the Minister is satisfied that there is a risk that publishing the information might substantially prejudice the commercial interests of a person and publishing the information is not in the public interest.

The publishing of the information mentioned in clause 95 will assist in providing transparency to industry and the public on the operations of each arrangement and whether they are achieving their intended outcomes. Including the administrator’s details on the website will also provide a clear avenue for potential members to seek out the relevant arrangements and potentially join.

Chapter 4—Administration

GENERAL OUTLINE

Chapter 4 will deal with the administration of the Bill. This includes compliance and enforcement-related provisions (including the application of the Regulatory Powers (Standard Provisions) Act 2014 to this Bill, which reflects Commonwealth policy for Commonwealth regulators). This Chapter also includes provisions concerning audits, authorised officers, record keeping, information management, review of decisions, fees and charges and other miscellaneous administrative matters.

NOTES ON INDIVIDUAL CLAUSES

PART 1 INTRODUCTION

Clause 96        Simplified outline of this Chapter

Clause 96 provides an outline to Chapter 4 of the Bill. The outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of Chapter 4, rather than to replace these provisions. It is intended that readers will rely on the substantive clauses of the Chapter 4.

PART 2 COMPLIANCE AND ENFORCEMENT

Overview of Part

Part 2 will deal with compliance and enforcement-related powers. The standard provisions of Parts 2-7 of the Regulatory Powers (Standard Provisions) Act 2014 would be triggered to provide a comprehensive compliance and enforcement regime that is supplemented by directions powers, a framework for audits and other miscellaneous compliance and enforcement-related provisions. Part 2 will also provide for a number of additional monitoring and investigation powers, concerning the use of reasonable force on things, the power to take, test and analyse samples, and the power to secure premises and secure things on premises. Unless otherwise provided, the compliance and enforcement-related provisions in Part 2 will apply to both the waste export and product stewardship components of the Bill.

Division 1 Powers of investigation and enforcement 

Clause 97        General monitoring powers

Clause 97 will trigger the standard monitoring powers in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 , which creates a framework for monitoring compliance with the Bill. This will include powers of entry and inspection. Subclause 97(2) will clarify that the monitoring powers in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 will also apply to information given in compliance or purported compliance with a provision of the Bill.

The monitoring powers triggered under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 will allow an authorised government enforcement officer to enter a premises for the purpose of:

·          monitoring compliance with provisions in the Bill and offence provisions of the Crimes Act 1914 or Schedule 1 to the Criminal Code Act 1995 , and

·          determining whether information given in compliance, or purported compliance with the Bill, is correct (subsection 18(1) of the Regulatory Powers (Standard Provisions) Act 2014 ).

Unlike the exercise of inspection powers, authorised government enforcement officers will not need to suspect on reasonable grounds that there may be material on the premises related to a contravention of an offence or civil penalty provision before exercising relevant monitoring powers.

An authorised government enforcement officer will need to have the consent of the occupier or a monitoring warrant to enter premises to exercise the monitoring powers under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (subsection 18(2) of the Regulatory Powers (Standard Provisions) Act 2014 ).

The general monitoring powers set out in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 will also permit an authorised government enforcement officer to, among other things:

·          search premises, measure or test anything on the premises;

·          photograph things or make copies of documents;

·          take necessary equipment onto the premises;

·          operate electronic equipment and secure electronic evidence for 24 hours in order to obtain expert assistance.

Paragraph 97(3)(a) will provide that, for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 , there are no related provisions. Paragraphs 97(3)(b) and 97(3)(c) will provide that a reference to an authorised applicant and a reference to an authorised person in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 will be a reference to an authorised government enforcement officer under the Bill. An authorised government enforcement officer will be defined in clause 10.

Subclause 97(4) will have the effect that an authorised government enforcement officer may be assisted by other persons when exercising powers or performing functions or duties under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 as it applies to the Bill.

Subclause 97(5) will extend the operation of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 to every external territory. This is necessary because the Regulatory Powers (Standard Provisions) Act 2014 does not apply to external territories of its own accord.

Clause 98        Additional monitoring powers etc.

Clause 98 will provide for additional monitoring powers beyond those provided for under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 . The clause will also modify some provisions in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014.

Subclause 98(2) will provide for the following additional monitoring powers:

·          the power to take, test and analyse samples of any thing on premises entered in the course of exercising the monitoring powers triggered by clause 97;

·          the power to secure premises entered in the course of exercising the monitoring powers triggered by clause 97;

·          the power to secure things on premises entered in the course of exercising the monitoring powers triggered by clause 97.

These additional monitoring powers are considered appropriate because it may be necessary to secure things and premises, and to take and test samples of things, in order to facilitate compliance with the Bill. For instance, if regulated waste material proposed for export is required, by the rules or a licence condition, to be processed to a certain standard, testing and analysing a sample of that waste may be necessary to determine whether the required standard has been met.

Subclauses 98(3) to (5) will modify powers in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 for the purposes of their application to the Bill.

Subclauses 98(3) and (4) will have the combined effect of turning off the provisions in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 that provide for identity cards, and providing that other references to identity cards in that Part are taken to refer to an identity card issued under clause 123 of this Bill. This is necessary because clause 123 of the Bill will contain different requirements and processes for issuing identity cards than the Regulatory Powers (Standard Provisions) Act 2014 .

Subclause 98(5) will have the effect that an authorised government enforcement officer, or a person assisting an authorised government enforcement officer, when executing a monitoring warrant, may use necessary and reasonable force against things. This will ensure that authorised government enforcement officers can take the necessary measures to monitor compliance with the Bill and takes into consideration the special requirements that may be needed for effective monitoring. An example of where use of force may be necessary is opening locked cabinets to access records relating to export of regulated waste materials, or opening locked containers of regulated waste material that is proposed to be exported (in order to ascertain whether the regulated waste material was processed to the standard required by the rules or a licence condition). This clause does not authorise the use of force against a person in executing a monitoring warrant.

As is the case for the general monitoring powers in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 , the additional monitoring powers will only be able to be exercised with the consent of the occupier or under an investigation warrant.

Clause 99        General investigation powers

Clause 99 will trigger the standard investigation powers in Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 . Part 3 of that Act creates a framework for investigating compliance with the offence and civil penalty provisions in the Bill or an offence against the Crimes Act 1914 or Schedule 1 to the Criminal Code Act 1995 that relates to the Bill.

The investigation powers triggered under Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 will allow an authorised government enforcement officer to enter a premise to exercise investigation powers if they suspect on reasonable grounds that there is evidential material on the premises (subsection 48(1) of the Regulatory Powers (Standard Provisions) Act 2014 ). However, they can only do so with the consent of the occupier or under an investigation warrant (subsection 48(2) of the Regulatory Powers (Standard Provisions) Act 2014) .

The investigation powers set out in Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 will also permit an authorised government enforcement officer to, among other things:

·          search the premises and seize evidential material;

·          inspect, test and copy evidential material;

·          take necessary equipment onto the premises;

·          operate electronic equipment found on the premises and secure electronic evidence for 24 hours in order to obtain expert assistance.

These investigation powers will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Bill. This will support better management of the risks arising from non-compliant regulated waste material, unlawful exports of regulated waste material and other regulated products overall.

Paragraph 99(2)(a) will provide that, for the purposes of Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 , there are no related provisions. Paragraphs 99(2)(b) and 99(2)(c) will provide that a reference to an authorised applicant and a reference to an authorised person in Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 will be a reference to an authorised government enforcement officer under the Bill. Subclause 99(3) will have the effect that an authorised government enforcement officer under the Bill may be assisted by other persons when exercising powers or performing functions or duties under Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 .

Subclause 99(4) will extend the operation of Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 to every external territory. This is necessary because the Regulatory Powers (Standard Provisions) Act 2014 does not apply to external territories of its own accord.

Clause 100      Additional investigation powers etc.

Clause 100 will provide for additional investigation powers beyond those provided for under Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 . The clause will also modify some provisions in Part 3 of the Regulatory Powers (Standard Provisions) Act 2014.

Subclause 100(2) will provide for the following additional monitoring powers:

·          the power to take, test and analyse samples of anything on premises entered in the course of exercising the investigation powers triggered by clause 99;

·          if the authorised person has the power seize a thing under Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 , the power to seize a container that contains the seizable thing, and any other thing contained in the container, if the authorised person reasonably believes it is not reasonably practicable to seize the seizable thing without also seizing the container.

These additional investigation powers are considered appropriate because it may be necessary to seize containers containing things, and to take and test samples of things, in order to facilitate compliance with the Bill. For instance, if regulated waste materials proposed for export are required, by the rules or a licence condition, to be processed to a certain standard, testing and analysing a sample of that waste may be necessary to determine whether the required standard has been met. It also may not be reasonably practicable to extract the waste material from the container it is in.

Subclauses 100(3) to (5) will modify powers in Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 for the purposes of their application to the Bill.

Subclauses 100(3) and (4) will have the combined effect of turning off the provisions in Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 that provide for identity cards, and providing that other references to identity cards in that Part are taken to refer to an identity card issued under clause 123 of this Bill. This is necessary because clause 123 of the Bill will contain different requirements and processes for issuing identity cards than the Regulatory Powers (Standard Provisions) Act 2014 .

Subclause 100(5) will have the effect that an authorised government enforcement officer, or a person assisting an authorised government enforcement officer, when executing an investigation warrant, may use necessary and reasonable force against things. This will ensure that authorised government enforcement officers can take the necessary measures to monitor compliance with the Bill and takes into consideration the special requirements that may be needed for effective monitoring. An example of where use of force may be necessary is opening locked cabinets to access records relating to the export of regulated waste materials, or opening locked containers of regulated waste material that is proposed to be exported (in order to ascertain whether the regulated waste material was processed to the standard required by the rules or a licence condition). This clause does not authorise the use of force against a person in executing a monitoring warrant.

As is the case for the general investigation powers in Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 , the additional investigation powers will only be able to be exercised with the consent of the occupier or under an investigation warrant.

Clause 101      Civil penalty provisions

Clause 101 will trigger the standard provisions of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 . Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 creates a framework for allowing the civil penalty provisions of the Bill to be enforced by obtaining an order for a person to pay a pecuniary penalty.

Subclause 101(2) will provide that the Secretary is the ‘authorised applicant’ for the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 . This means it is the Secretary who will be able to apply to a court for an order for a person to pay a civil penalty in relation to a contravention of this Bill.

Subclause 101(4) will extend the operation of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 to every external territory. This is necessary because the Regulatory Powers (Standard Provisions) Act 2014 does not apply to external territories of its own accord.

Clause 102      Infringement notices

Clause 102 will trigger the standard provisions of Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 . Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 creates a framework under which infringement notices can be issued for specified strict liability offences and civil penalty provisions. Those offences and civil penalty provisions are set out in subclause 102(1).

A person who is given an infringement notice may choose to pay an amount as an alternative to having court proceedings brought against them for the contravention. The infringement notice amount is one fifth of the maximum penalty for the contravention.

Subclause 102(1) will list the strict liability offences and civil penalty provisions for which infringement notices could be issued.

Subclauses 102(2) and (3) will provide that the Secretary is the ‘infringement officer’ and the ‘relevant chief executive’ for the purposes of Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 .

Subclause 102(4) will extend the operation of Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 to every external territory. This is necessary because the Regulatory Powers (Standard Provisions) Act 2014 does not apply to external territories of its own accord.

Clause 103      Enforceable undertakings

Clause 103 will trigger the standard provisions of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 . Triggering Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 allows an enforceable undertaking to be sought, agreed to, and enforced in relation to provisions of the Bill. An enforceable undertaking is a written undertaking agreed to by a person (for example, to take a specified action) that can be enforced in a relevant court.

The clause will provide that the Secretary is the ‘authorised person’ for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 . This means it is the Secretary who can seek an enforceable undertaking under Part 6 in relation to a provision of this Bill.

Subclause 103(4) will extend the operation of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 to every external territory. This is necessary because the Regulatory Powers (Standard Provisions) Act 2014 does not apply to external territories of its own accord.

Clause 104      Injunctions

Clause 104 will trigger the standard provisions of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 . Triggering Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 enables an injunction to be sought in relation to the provisions of the Bill. An injunction (including an interim injunction) is a court order that may be used to restrain a person from contravening a provision of the Bill or to compel compliance with a provision of the Bill.

The clause will provide that the Secretary is the ‘authorised person’ for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 . This means it is the Secretary who will be able to apply to a court for an injunction under Part 7 in relation to a provision of this Bill.

Subclause 104(4) will extend Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 to every external territory. This is necessary because the Regulatory Powers (Standard Provisions) Act 2014 does not apply to external territories of its own accord.

Division 2 Power to give directions

Clause 105      Direction to assist persons performing functions etc. under this Act

Clause 105 will allow an authorised officer who is performing functions or exercising powers under this Bill to direct a person to provide reasonable assistance or facilities to either the authorised officer or to any other person who is performing functions or exercising powers under the Bill. The direction can only be given if the authorised officer reasonably believes the person is able to provide reasonable assistance or facilities to the authorised officer or other person.

An example of a direction that might be given under clause 105 is to require a person to provide passwords for access to computer files or to provide a key to a locked cabinet. The overriding requirement is that the assistance sought must be reasonable.

The note following subclause 105(1) will direct readers to clause 107, which deals with general requirements relating to directions under the Bill.

Subclauses 105(2), 105(3) and 105(4) will have the combined effect that a person who contravenes a direction given under clause 105 will be committing both an offence and the contravention of a civil penalty provision. The maximum penalty for the offence is six months imprisonment or 30 penalty units (or both). The maximum civil penalty for a contravention is 60 penalty units. These penalties are considered appropriate to provide a deterrent against non-compliance.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes a direction given under subclause 105(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

This provision is not intended to override the common law privilege against self-incrimination. Accordingly, it will not be an offence or breach of a civil penalty provision for a person to contravene a direction if the direction will require the person to reveal information that will tend to incriminate that person as having committed an offence.

An authorised officer is defined in clause 10 of the Bill.

Clause 106      Direction to deal with non-compliance with the requirements of this Act etc.

Clause 106 will deal with directions that may be given to deal with non-compliance with the requirements of the Bill.

Subclause 106(1) will provide that an authorised officer may give a direction to a relevant person if the authorised officer reasonably believes that a ground for giving a direction exists.

The grounds for giving a direction, and the relevant persons to whom the direction may be given, are set out in the table in subclause 106(1). The table covers grounds, and persons, related to both the export of regulated waste material and the product stewardship components of the Bill and generally permit a direction to be given if the relevant person has not complied, or is not likely to comply, with a requirement of the Bill. In the case of the holder of an export licence, a direction can also be given if a licence condition has been, or is likely to be, contravened, or if the particular regulated waste material itself does not comply, or is not likely to comply, with a relevant requirement of the Bill.

Subclauses 106(2), 106(3), 106(4) and 106(5) will place limits on the content of a direction given under subclause 106(1).

Specifically, subclause 106(2) will limit the directions that can be lawfully given under subclause 106(1) to those that require the relevant person to take specified action within a specified period to deal with the ground for giving the direction.

The Bill will not provide power for an authorised officer to give a direction for a purpose other than dealing with the relevant ground listed in the table in subclause 106(1) for the relevant person.

The first note after subclause 106(2) will reference subsection 33(1) of the Acts Interpretation Act 1901 and draws the reader’s attention to the fact that, relying on that section, an authorised officer may give more than one direction relating to a ground specified in the table in subclause 106(1).

The second note will alert readers to clause 107, which deals with general requirements for directions under the Bill.

Subclauses 106(3) and 106(4) will have the combined effect that a direction made under subclause 106(1) may require the relevant person to cease carrying out export operations in relation to particular regulated waste material or a kind of regulated waste material. However, a direction to this effect may only be lawfully made if the authorised officer reasonably believes that the regulated waste material does not, or likely does not, comply with a requirement in the Bill (or a ground prescribed by the rules exists) and there is no other way to deal with the ground than by ceasing the relevant export operations. The intention here is that a direction requiring export operations to cease will only be used as a last resort when there is no other option reasonably available.

Subclause 106(5) will require a written direction to state that the relevant person may be liable to a civil penalty if the person fails to comply with the direction.

Subclauses 106(6), 106(7) and 106(8) will have the combined effect that a person who contravenes a direction given under subclause 106(1) will be committing both an offence and a contravention of a civil penalty provision. The maximum penalty for the offence is six months imprisonment or 30 penalty units (or both). The maximum civil penalty for a contravention is 60 penalty units. These penalties are considered appropriate to provide a deterrent against non-compliance.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes a direction given under subclause 106(1) and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Subclause 106(9) will have the effect that a person will not be liable for an offence or civil penalty under this clause if the direction did not include the statement in subclause 106(5) (for written directions) or the authorised officer did not take reasonable steps to inform the person that they may be liable for an offence/civil penalty if they fail to comply with the direction (for oral directions).

The note after subclause 106(9) will explain that the defendant bears an evidential burden in relation to showing that the authorised officer did not take reasonable steps to inform the person that they may be liable for an offence/civil penalty. This is because section 13.3 of Schedule 1 to the Criminal Code Act 1995 and section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provide that if a defendant wishes to rely on an exception to, respectively, an offence or a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person.

Clause 107      General provisions relating to directions

Subclause 107(1) will provide that, unless otherwise provided in the Bill, directions made under the Bill may be given orally or in writing. However, subclause 107(2) will then clarify that a direction given orally must be also given in writing as soon as practicable after the oral direction is given.

The purpose of this provision is to ensure that all directions are recorded in writing to provide sufficient clarity as to the direction’s content. This will assist both the person who was given the direction, and the Commonwealth for compliance related functions and powers.

Subclause 107(3) will provide that unless otherwise provided in the Bill, a direction given under the Bill is not a legislative instrument. This provision is merely declaratory of the law and included to assist readers. It is not intended to be an exemption from the Legislation Act 2003 .

Subclause 107(4) will make it clear that a later direction overrides an earlier direction to the extent of any inconsistency. This is to allow changing circumstances to be accommodated. Subclause 107(5) will be an exception to the general rule in subclause 107(4) and makes it clear that a direction given by a Commonwealth authorised officer will always override a direction given by a State or Territory authorised officer or a third party authorised officer. This is appropriate, as the Bill will be Commonwealth legislation and the Commonwealth has the responsibility for administering it as a whole.

Division 3 Audits

Auditors will be able to conduct audits in relation to product stewardship arrangements, export operations and the performance of functions and the exercise of powers under the Bill.

Subdivision A             — Minister may require audits to be conducted

Clause 108      Audit of export operations

Clause 108 will deal with audits relating to export operations. Auditing will be an important compliance tool in this context. Among other things, the rules may require exporters to make export declarations for each consignment of regulated waste material exported. An audit will allow the Minister to assess whether the matters declared in an export declaration (including that the regulated waste material being exported meets the conditions of the export licence and other requirements of the Bill and rules) are accurate. In addition, audits will be able to assess a person’s compliance with record-keeping requirements under the Bill.

Subclause 108(1) will provide that the Minister may require an audit to be conducted of:

·          regulated waste material covered by an export licence or exemption;

·          export operations covered by an export licence or exemption;

·          export operations proposed to be carried out in relation to a kind of regulated waste material by a person who has applied for an export licence or exemption;

·          export operations carried out in relation to a kind of regulated waste material by a person who has had an export licence suspended or who has had an export licence or exemption revoked.

·          export operations of a kind prescribed by the rules.

Clause 108(2) will set out the matters to which the audit must relate.

If the audit is in relation to an export licence, the audit must relate to whether the kind of export operation or kind of regulated waste material has complied, or will comply, with the relevant requirements of the Bill, or whether the conditions of the export licence are being, have been or are likely to be complied with.

If the audit is in relation to an exemption, the audit must relate to whether the kind of export operation or kind of regulated waste material has complied, or will comply, with the relevant requirements of the Bill, or whether the conditions of the exemption are being, have been or are likely to be complied with.

The rules may prescribe matters to which certain kinds of audits must also relate .

Subclause 108(3) will clarify that the audit may include an audit of financial statements conducted in accordance with any standard issued by the Auditing and Assurance Standards Board that applies to the audit, as in force from time to time. It is necessary to incorporate such standards as in force from time to time, as these standards may be updated or changed, and it is appropriate to ensure the most relevant and up to date standard is followed by auditors. The requirement to be aware of the appropriate standard for the audit applies to the person conducting the audit, not the person being audited.

Subclause 108(4) will make it clear that the scope of the audit is broad and may deal with anything reasonably necessary to ensure its effective conduct and anything incidental to the matter to which the audit relates.

Subclause 108(5) will clarify that an audit may include inspections of regulated waste material.

Subclause 108(6) will mandate that an audit be conducted by an authorised officer or an approved auditor. Both the terms authorised officer and approved auditor will be defined in clause 10. Subdivision B deals with matters relating to approved auditors.

Clause 109      Audit of product stewardship arrangements

Clause 109 will deal with auditing of product stewardship arrangements. Auditing is an important compliance tool in the product stewardship context. It will generally be one of the primary mechanisms by which the Minister will be able to identify potential non-compliance, particularly in the case of voluntary and co-regulatory product stewardship, which are subject to more indirect regulation.

Under subclause 109(1), the Minister may require an audit to be conducted in relation to an accredited voluntary arrangement, an approved co-regulatory arrangement or persons required by mandatory product stewardship rules to take specified action in relation to a product. Where the accrediting authority (for the accreditation of voluntary arrangements) is not the Minister, the Minister may also require an audit of that accrediting authority.

Subclause 109(2) will set out the matters to which the audit must relate. For accredited voluntary arrangements, the audit must relate to whether the administrator is ensuring the relevant outcomes are, or are likely to be, achieved. For an approved co-regulatory arrangement, the audit must relate to whether the administrator is complying, or is likely to comply with, clause 81 (which requires the administrator to take reasonable steps to ensure the relevant outcomes are achieved and any requirements specified for those outcomes are complied with). For mandatory product stewardship, the audit must relate to whether the person is taking, or is likely to take, the required action in relation to the product. For an audit of an accrediting authority, the audit must relate to whether the accrediting authority is complying with, or is likely to comply with, rules made for the purpose of clause 70.

The audit must also relate to any other matter prescribed by the rules that is relevant to the audit.

Subclause 109(3) will clarify that the audit may include an audit of financial statements conducted in accordance with any standard issued by the Auditing and Assurance Standards Board that applies to the audit, as in force from time to time. It is necessary to incorporate such standards as in force from time to time, as these standards may be updated or changed, and it is appropriate to ensure the most relevant and up to date standard is followed by auditors. The requirement to be aware of the appropriate standard for the audit applies to the person conducting the audit, not the person being audited.

Subclause 109(4) will make it clear that the scope of the audit is broad and may deal with anything reasonably necessary to ensure its effective conduct and anything incidental to the matter to which the audit relates.

Subclause 109(5) will clarify that an audit may include inspections of the relevant products.

Subclause 109(6) will mandate that an audit be conducted by an authorised officer or an approved auditor. Both the terms authorised officer and approved auditor will be defined in clause 10. Subdivision B deals with matters relating to approved auditors.

Clause 110      Audit in relation to persons performing functions or exercising powers under this Act

Clause 110 will allow the Minister to require an audit to be conducted into the performance of a person performing or exercising functions and powers under the Bill, including an approved auditor.

The audit may include the extent to which the person has complied with conditions on their appointment or authorisation, or any conditions attached to the use of the power or function itself.

Clause 111       Single audit or program of audits may be required

Clause 111 will clarify that the Minister may require a single audit or a program of audits in relation to a specified matter. This will provide flexibility to assist with ongoing compliance matters.

A note following clause 111 will inform readers that, if the Minister has required a program of audits to be conducted in relation to a matter, the Minister may also require additional audits to be conducted in relation to the matter. It will direct readers to subsection 33(1) of the Acts Interpretation Act 1901 .

Clause 112      Matters relating to audit

Clause 112 will deal with matters relating to an audit.

Subclause 112(2) will allow the rules to make provision for and in relation to audits. Subclause 112(3) will provide a non-exhaustive list of matters that may be covered by rules made for the purpose of subclause 112(2). These include (but are not limited to):

·          requirements relating to giving a description of the scope of an audit to the relevant person before the audit starts;

·          requirements relating to showing identity cards;

·          processes to be followed after an audit has been completed;

·          information that must be provided to the relevant person during the audit and after the audit has been completed;

·          reporting requirements and actions the Minister may require the relevant person to take after the audit is completed.

Clause 113      Powers of auditors

Clause 113 will make clear that an auditor, for the purposes of conducting an audit under this Division, has a broad power to do anything the auditor considers necessary.

Clause 113 will also provide a non-exhaustive list of examples of powers that are included in an auditor’s powers, such as requesting a person to provide relevant information or documents or answer relevant questions, taking samples of relevant products or regulated waste material or from equipment used in export operations and taking, testing or analysing samples (or arranging for another person with appropriate qualifications to do so if the auditor is not an authorised officer).

The first note after subclause 113(1) will note that an auditor who is an authorised officer may also give a direction under clause 106.

The second note after subclause 113(1) will further note for that a person may commit an offence or be liable to a civil penalty under clauses 146 or 147 of the Bill, or under clauses 137.1 and 137.2 of Schedule 1 to the Criminal Code Act 1995 , if the person provides false or misleading information or documents to an auditor.

Subclause 113(2) will clarify that an auditor may make copies or take extracts from a document or record produced under subclause 113(1) and, for that purpose, may remove the document or record from the place it was produced.

Clause 114      Relevant person for an audit

Clause 114 will set out who is the relevant person for a particular kind of audit. This will be relevant to clauses 112 and 115 which concern how the audit is conducted, and which impose specific requirements on the relevant person for the audit.

In the product stewardship context, the relevant person will be the administrator (for audits of accredited voluntary arrangements and approved co-regulatory arrangements), the person required to take the specified action (for audits of mandatory product stewardship requirements) and the accrediting authority (for audits of accrediting authorities).

In the waste export context, the relevant person will be the holder of the export licence or exemption (for audits of export operations covered by an export licence, a suspended export licence or an exemption), the former holder of the export licence or exemption (for audits of export operations that were covered by an export licence or exemption that has been revoked), the applicant (for audits of persons who have applied for a licence or exemption), the person prescribed by the rules (for audits prescribed by the rules) and the person to whom the audit relates (for audits under clause 110).

Clause 115      Relevant person for an audit must provide facilities and assistance

Clause 115 will require the relevant person for an audit to provide the auditor with the facilities and assistance that are reasonably necessary for the conduct of the audit. This is necessary to ensure that the audit is able to be conducted efficiently and effectively.

The relevant person for an audit will be defined in clause 114.

Subdivision B Approved auditors

Clause 116      Minister may approve persons to conduct audits

Subclause 116(1) will allow the Minister to approve, in writing, a person to conduct audits under this Division. Such a person is defined in clause 10 as an approved auditor .

The Minister will not be permitted to approve a person to be an approved auditor unless:

·          the Minister is satisfied that the person has the knowledge, training or experience necessary to properly exercise the powers of an auditor ; or

·          the person is a registered company auditor (within the meaning of the Corporations Act 2001 ); or

·          the person is an authorised audit company (within the meaning of the Corporations Act 2001).

Subclause 116(2) will clarify that an instrument of approval under subclause 116(1) is not a legislative instrument. This is declaratory of the law and included to assist readers. It is not intended to be an exemption from the operation of the Legislation Act 2003 .

Subclauses 116(4) and (5) will have the effect that the Minister has a broad power to make rules providing for matters in relation to the approval of auditors under subclause 116(1).

Clause 117      Approved auditors may charge fees

Clause 117 will make it clear that an auditor may charge a fee in relation to things done in the course of performing their powers and functions under the Bill. That fee must not amount to taxation .

Division 4 Miscellaneous

Clause 118      Physical elements of offences

Clause 118 will clarify that where a provision in the Bill provides that a person contravening another provision of the Bill (the conduct provision ) commits an offence, the physical elements of the offence are set out in the conduct provision. This is for the purposes of applying Chapter 2 of Schedule 1 to the Criminal Code Act 1995 . The note after clause 118 explains that Chapter 2 of Schedule 1 to the Criminal Code Act 1995 sets out general principles of criminal responsibility. This includes requiring all criminal offences to have physical elements and fault elements. The purpose of clause 118 is to make clear what constitutes the physical elements of offences under the Bill.

Clause 119      Contravening an offence provision or a civil penalty provision

Clause 119 will clarify that where a provision in the Bill provides that a person contravening another provision of the Bill commits an offence or civil penalty provision, the reference to the contravention of an offence or civil penalty provision includes a reference to a contravention of the conduct provision. This is because the conduct provision will set out the relevant physical elements of the offence or civil penalty provision that is being referenced.

Clause 120       Notification of conviction of offence, order to pay pecuniary penalty etc.—                  participants in product stewardship arrangements, export licence holders                    and applicants for licences

Subclauses 120(2), 120(3) and 120(4) will have the combined effect of requiring certain persons in both the waste export and product stewardship contexts to notify the Minister if:

·          they or an associate are convicted of an offence against, or ordered to pay a civil penalty under, an Australian law for a contravention involving fraud or dishonesty, or an environmental matter; or

·          they are given a notice under a State or Territory law that relates to an environmental matter, and requires the person to take, or not take, specified remediation action.

The notification must be in writing and must be given as soon as practicable after the person is convicted or the order made, or the person is given a relevant notice.

Subclause 120(1) will set out who the notification requirements in subclauses 120(2), 120(3) and 120(4) apply to. The notification requirement will apply to persons who are an accrediting authority (other than the Minister) in the context of voluntary product stewardship arrangements, an administrator of an accredited voluntary arrangement or an approved co-regulatory arrangement, an applicant for an export licence or the holder of an export licence.

The notification requirement is considered necessary as it will be relevant to the Minister’s assessment of whether the person is a fit and proper person under clause 175, which is an ongoing requirement for applicants and holders of export licences, and administrators of product stewardship arrangements.

Subclause 120(5) will allow the rules to prescribe additional matters in relation to which the person must notify the Minister, and the period within which the notification must be given. This will allow the Minister flexibility to adapt to changing circumstances, and to potentially prescribe different notification requirements for different persons if they consider it appropriate.

Subclause 120(6) will create a civil penalty provision that will apply if a person fails to comply with the notification requirement. The maximum civil penalty is 60 penalty units. The amount of the penalty is considered appropriate to reflect the conduct involved and the need for the penalty to be a deterrent from such conduct, given its potential to undermine the integrity of the regulatory regime.

Subclause 120(7) clarifies that nothing in clause 120 affects the operation of Part VIIC of the Crimes Act 1914 (dealing with spent convictions).

Clause 121      Notification of conviction of offence or order to pay pecuniary penalty -                      third party authorised officers etc.

Clause 121 will require a third party authorised officer, or another person prescribed by the rules, to notify the Minister in the event that they are convicted of an offence against, or ordered to pay a civil penalty under, an Australian law for a contravention involving fraud or dishonesty.

The notification must be in writing and must be given as soon as practicable after the person is convicted or the order made.

Subclause 121(3) will create a civil penalty provision that will apply if a person fails to comply with the notification requirement. The maximum civil penalty is 60 penalty units.

Subclause 121(4) clarifies that nothing in clause 121 affects the operation of Part VIIC of the Crimes Act 1914 (dealing with spent convictions).

Clause 122      Minister may publicise certain offences, contraventions and decisions

Subclause 122(1) will allow the Minister to publish a list of certain compliance-related matters, and the name of the affected persons. Specifically, the Minister will be able to publish:

·          an offence against the Bill of which a person has been convicted, and the person’s name;

·          a contravention of a civil penalty provision of the Bill where a civil penalty order has been made against a person, and the person’s name;

·          the acceptance of an undertaking given under section 114 of the Regulatory Powers (Standard Provisions) Act 2014 (as it applies to this Bill), the terms of the undertaking, and the person’s name;

·          a breach of an undertaking given under section 114 of the Regulatory Powers (Standard Provisions) Act 2014 (as it applies to this Bill) in relation to which an order has been made against a person under subsection 115(2) of the Regulatory Powers (Standard Provisions) Act 2014 (as it applies to this Bill), the terms of the order and the person’s name;

·          the granting or varying of an injunction under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 (as it applies to this Bill) restraining a person from engaging in conduct, or requiring a person to do an act or thing, the nature of the conduct, act or thing and the person’s name;

·          a decision to:

o    give the administrator of an approved co-regulatory arrangement an improvement notice, the reasons for it and the name of the administrator;

o    require an audit of an approved co-regulatory arrangement to be conducted, the reasons for it and the name of the administrator;

o    cancel the accreditation of a voluntary arrangement or the approval of a co-regulatory arrangement, the reasons for it and the name of the administrator.

It is intended that publishing these matters, particularly the relevant person’s name, will act as a deterrent to contravention and therefore assist with ensuring the integrity of the regulatory regime. While it is acknowledged that this clause authorises the Minister to publish personal information and also sensitive information within the meaning of the Privacy Act 1988 (namely, part of a person’s criminal record):

·          it is expected that most persons who names will be published will be body corporates, for which the Privacy Act 1988 will not apply (noting that a product stewardship administrator is required to be a body corporate and it is likely to be rare for an individual, rather than a body corporate, to export regulated waste material under the Bill);

·          to the extent that any information published under clause 122 constitutes personal or sensitive information under the Privacy Act 1988 , the deterrence effect of publishing the information, and the need to ensure the integrity of the regulatory regime, is considered to outweigh the potential adverse consequences to the individuals concerned;

·          the power in clause 122 is discretionary, and as such the Minister retains the ability to decide not to publish any of the information set out above if they consider that, in the particular circumstances, the potential adverse consequences of publishing the information outweigh the intended deterrence effect.

Subclause 122(2) will clarify that this clause does not limit the power of any person (including the Minister) to publicise a matter or a person’s name.  It also does not prevent any person from publicising a matter or a person’s name, or otherwise affect any obligation (however imposed) on any person to publicise a matter or a person’s name. 

Clause 123      Identity cards

Clause 123(1) will allow the Secretary to issue an identity card to an authorised officer, an approved auditor or any other person prescribed by the rules who performs functions or duties or exercises powers under this Bill. The person must carry the identity card at all times when exercising their powers and functions under the Bill, except in circumstances prescribed by the rules (see subclauses 123(3), 123(4), 123(5) and 123(6)).

Clause 123(2) will make it clear that an identity card issued to a person must be in the approved form and contain a recent photo of the person.

Clause 124      Offence failure to return identity card

Clause 124 will create a strict liability offence that will apply if a person does not return their identity card to the Secretary within 14 days of ceasing to be an authorised officer, approved auditor or other person prescribed by rules made for the purposes of clause 123.

Subclause 124(2) will make it clear that the offence will not apply to an authorised officer whose authorisation has been suspended, or where the identity card has been lost or destroyed.

The note after subclause 124(2) will alert the reader to the fact that the defendant bears an evidential burden in relation to the matters in subclause 124(2). This is because section 13.3 of Schedule 1 to the Criminal Code Act 1995 provides that, if a defendant wishes to rely on an exception to an offence, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person.

The maximum penalty for the offence in clause 124(3) is 1 penalty unit. Having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation , the use of strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty of one penalty unit for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person does not return their identity card to the Secretary within 14 days of ceasing to be a person listed in clause 123(1);

·          the offences need to be dealt with efficiently to ensure industry confidence in the regulatory regime;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not return their identity card are matters peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

PART 3 AUTHORISED OFFICERS

Division 1 Authorisation

Clause 125      Authorisation of persons to be authorised officers

Clause 125 will set out who may be authorised to be an authorised officer for the purposes of this Bill, and the process for such authorisations. An authorised officer is able to perform a number of functions and powers under this Bill including, for some authorised officers, compliance and enforcement-related functions and powers.

Subclauses 125(1) and (3) will allow the Secretary to, in writing, authorise the following persons to be authorised officers for the purposes of this Bill:

·          an officer or employee of the Commonwealth or a Commonwealth authority;

·          an officer or employee of a State or Territory or a State or Territory authority;

·          a third party (i.e. a person who is not an officer or an employee of the Commonwealth, a Commonwealth authority, a State or Territory, or a State or Territory authority).

Subclause 125(2) will clarify that the Secretary may only authorise an officer or employee of a State or Territory, or a State or Territory authority, to be an authorised officer if there is an arrangement in force under clause 128 between the Secretary and that State or Territory. This is to ensure that the relevant State or Territory has agreed to its officers and employees taking on this role.

Subclauses 125(3) to (9) will set out the process for authorising a third party to be an authorised officer. A third party may apply to the Secretary to be authorised as a third party authorised officer. On receiving such an application, the Secretary must decide whether to authorise the person to be a third party authorised officer. However, the Secretary may only grant the authorisation if the requirements in subclauses (5) and (6) are met. These requirements include that the Secretary is satisfied that the person has the relevant training and qualification requirements and has given the Secretary a written notice of their potential conflicts of interests (pecuniary or otherwise) or a statement to the effect that the person has no such interests. The rules may also set additional requirements.

The relevant training and qualification requirements for third party authorised officers are those the Secretary determines under subclause 125(7).

Subclause 125(8) will provide that a determination under subclause 125(7) is not a legislative instrument. This is declaratory of the law and included to assist readers. It is not intended to be an exemption for the purposes of the Legislation Act 2003 .

Subclause 125(9) will set out what must be included in an authorised officer’s instrument of authorisation. The instrument of authorisation must specify the powers and functions the authorised person may perform under this Bill, any additional conditions the authorisation is subject to, and any conditions prescribed by the rules that the Secretary has decided not to be conditions of the authorisation. The instrument of authorisation may also specify the period for which the authorisation has effect.  

Clause 126      Conditions of authorisation

Subclause 126(1) will set out the conditions that an authorisation granted under clause 125 is subject to. These are:

·          any relevant conditions prescribed by the rules (other than any of those conditions the Secretary decides are not to be conditions of the authorisation);

·          any additional conditions the Secretary considers appropriate;

·          for third party authorised officers - the condition that the person comply with the requirements in subclauses 126(2) and (3).

Note 1 after subclause 126(1) will alert the reader to clause 127, which will provide that a third party authorised officer who contravenes a condition of their authorisation may commit an offence or be liable for a civil penalty.

Note 2 after subclause 126(1) explains that a Commonwealth authorised officer or a State or Territory authorised officer who contravenes a condition of their authorisation may breach a code of conduct that applies to that person.

Subclauses 126(2) and 126(3) will require a third party authorised officer to notify the Secretary of any interests (pecuniary or otherwise) that they acquire that conflict or could conflict with the proper performance of the person’ powers and functions as an authorised officer. The notice must be in writing and must be given to the Secretary as soon as practicable after the person acquires the interest.

The note after subclause 126(2) will explain that a Commonwealth authorised officer or a State and Territory authorised officer may be required under legislation to disclose relevant conflicts of interest. It is therefore not necessary for such authorised officers to be subject to subclauses 126(2) and (3).

Clause 127      Third party authorised officers must not contravene conditions of authorisation

Clause 127 will create both an offence and a civil penalty provision for a third party authorised officer who engages in conduct that contravenes a condition of the person’s authorisation. The maximum penalty is imprisonment for two years or 120 penalty units (or both) (for the offence) and 240 penalty units (for the civil penalty provision). These penalties are considered appropriate to ensure the integrity of the regulatory regime.

Clause 128      Arrangements for State or Territory officers or employees to be authorised officers

Clause 128 will allow the Secretary to enter into an arrangement with a State or Territory (or a State or Territory authority) for State or Territory employees to be authorised as authorised officers for the purposes of the Bill. An arrangement under this clause is a necessary pre-condition to the Secretary authorising officers or employees from that State or Territory, or an authority of that State or Territory, to be authorised officers (see subclause 125(2)).

Subclause 128(2) clarifies that an arrangement made under subclause 128(1) is not a legislative instrument. This is declaratory of the law and included to assist readers. It is not intended to be an exemption for the purposes of the Legislation Act 2003 .

Clause 129      Training and qualification requirements for authorised government enforcement officers

Clause 129 will require the Secretary to determine, in writing, training and qualification requirements for authorised government enforcement officers in relation to the performance of functions and powers under Division 1 of Part 2 of the Bill or under the Regulatory Powers (Standard Provisions) Act 2014 (as it applies to this Bill).

An authorised government enforcement officer is a Commonwealth authorised officer or a State or Territory authorised officer who meets the requirements determined under clause 128 (see definition in clause 10). Authorised government enforcement officers are the only category of authorised officers who may perform compliance and enforcement functions and powers (other than audits) under the Bill or under the Regulatory Powers (Standard Provisions) Act 2014 as it applies to this Bill. This is because it is not considered appropriate for third party authorised officers to exercise compliance and enforcement functions, other than audits.

Subclause 129(2) clarifies that a determination made under subclause 129(1) is not a legislative instrument. This is declaratory of the law and included to assist readers. It is not intended to be an exemption for the purposes of the Legislation Act 2003 .

Division 2 Variation, suspension and revocation of authorisation

Subdivision A Variation, suspension and revocation on Secretary’s own initiative

Clause 130      Variation of authorisation

Subclause 130(1) will allow the Secretary to vary any aspect of an authorised officer’s authorisation at any time by notice in writing given to the person. This includes:

·          varying the functions and powers that the person may perform;

·          varying any conditions that the authorisation is subject to (including by imposing new conditions);

·          varying the period for which the authorisation has effect (including specifying a period of effect where there is none);

Clause 130 is subject to the natural justice requirements in clause 133 in respect of third party authorised officers. Variations of the authorisation of a third party authorised officer must not take effect before the earlier of:

·          the day after the response to the notice provided under clause 133 was received by the Secretary; or

·          14 days after the notice provided under clause 133 was provided to the third party authorised officer.

The note after subclause 130(1) explains that the decision to vary the authorisation of a third party authorised officer is a reviewable decision under clause 151.

Subclause 130(3) will provide that if the Secretary decides to vary the authorisation, they must vary the instrument of authorisation to include the variation and give the varied instrument to the authorised officer.

Clause 131      Suspension of authorisation

Subclause 131(1) will allow the Secretary to suspend an authorised officer’s authorisation at any time by notice in writing given to the person. The suspension must not be for more than 12 months (subclause 131(2)).

Clause 131 is subject to the natural justice requirements in clause 133 in respect of third party authorised officers. Suspensions of the authorisation of a third party authorised officer must not take effect before the earlier of:

·          the day after the response to the notice provided under clause 133 was received by the Secretary; or

·          14 days after the notice provided under clause 133 was provided to the third party authorised officer.

The note after subclause 131(1) explains that the decision to suspend the authorisation of a third party authorised officer is a reviewable decision under clause 151.

Subclause 131(4) will allow the Secretary to vary the period of a suspension by written notice to the person, provided that the total suspension is not more than 12 months. The note after subclause 131(4) explains that the decision to vary the period of suspension for the authorisation of a third party authorised officer is a reviewable decision under clause 151.

Subclause 131(5) will clarify that while their authorisation is suspended, the person is taken not to be an authorised officer. The note after subclause 131(5) draws the reader’s attention to the consequences of suspension in clauses 110 and 137.

Subclause 131(6) will allow the Secretary to revoke the suspension of an authorised officer’s authorisation by written notice.

The note after subclause 131(6) will draw the reader’s attention to clause 137, which allows the Secretary to require the person whose authorisation has been suspended to notify them of certain notifiable events for the purposes of the Secretary deciding whether to revoke the suspension.

Clause 132      Revocation of authorisation

Subclause 132(1) will allow the Secretary to revoke an authorised officer’s authorisation at any time by notice in writing given to the person.

Clause 132 is subject to the natural justice requirements in clause 133 in respect of third party authorised officers. Where the revocation will revoke the authorisation of a third party authorised officer, it must not take effect before the earlier of:

·          the day after the response to the notice provided under clause 133 was received by the Secretary; or

·          14 days after the notice provided under clause 133 was provided to the third party authorised officer.

The note after subclause 132(1) explains that the decision to revoke the authorisation of a third party authorised officer is a reviewable decision under clause 151.

Clause 133      Notice of proposed action must be given to third party authorised officer

Clause 133 is a natural justice provision. It will require the Secretary, before taking action to unilaterally vary, suspend or revoke a third party authorised officer’s authorisation, to:

·          provide a written notice of the proposed action, and the reasons for it, to the third party authorised officer; and

·          request the person provide a written statement within 14 days setting out why the proposed action should not be taken; and

·          include a statement in the written notice setting out the person’s right to seek a review of the decision to take the proposed action.

The purpose of this provision is to allow the affected third party authorised officer to be heard before a decision is made that is adverse to their interests. This reflects the common law requirement to provide natural justice in relation to such decisions.

Subclause 133(2) has the effect that the natural justice requirements in this clause do not apply if the Secretary reasonably believes that the proposed action is necessary to prevent or lessen a serious and imminent threat to human or environmental health. While this provision is intended to have the effect of excluding natural justice in such circumstances, it is considered appropriate as it will only apply in exceptional circumstances where there is credible and relevant evidence of a threat to human or environmental health that is both serious and imminent.

Subdivision B Variation, suspension and revocation on application or request by third party authorised officer

Clause 134      Application for variation of authorisation

Subclause 134(1) will provide for a third party authorised officer to apply to the Secretary to vary an aspect of their authorisation, including the powers and functions the person may perform or any conditions to which the authorisation is subject (including imposing new conditions).

Subclause 134(2) will provide that on receiving an application under subclause 134(1), the Secretary must decide whether or not to vary the authorisation. Subclause 134(3) will provide that if the Secretary decides to vary the authorisation, they must vary the instrument of authorisation to include the variation and give the varied instrument to the third party authorised officer.

The note after subclause 134(2) will explain that a decision to refuse to vary an authorisation is a reviewable decision under clause 151 and the Secretary must give the applicant notice of the decision (clause 152).

Clause 135      Request for suspension of authorisation

Subclause 135(1) will allow a third party authorised officer to request the Secretary suspend their authorisation. The request must be in writing. On receiving such a request, the Secretary must suspend the authorisation, by written notice, with effect on the day specified in the notice (see subclause 135(2)).

Subclause 135(3) will clarify that while their authorisation is suspended, the person is taken not to be third party authorised officer.

The note after subclause 135(3) will draw the reader’s attention to the consequences of suspension in clauses 137 and 110.

Subclause 135(4) will allow a person whose authorisation has been suspended under subclause 135(2) to request the Secretary to revoke the suspension. The request must be in writing.

On receiving a request under subclause 135(4), the Secretary may, under subclause 135(5), revoke the suspension if satisfied there is no reason not to do so.

Otherwise, the Secretary must either suspend or revoke the person’s authorisation under subclauses 131(1) or 132(1) respectively. The effect is to essentially transfer the suspension from one initiated by the holder of the authorisation to a suspension or revocation initiated by the Secretary.

Note 1 after subclause 135(5) will draw the reader’s attention to clause 137, which allows the Secretary to require the person whose authorisation has been suspended to notify them of certain notifiable events for the purposes of the Secretary deciding whether to revoke the suspension.

Note 2 after clause 135(5) will explain that the decision to suspend or revoke the person’s authorisation under subclauses 131(1) or 132(1) (respectively) is a reviewable decision under clause 151.

Clause 136      Request for revocation of authorisation

Clause 136 will allow a third party authorised officer to request the Secretary revoke their authorisation. The request must be in writing. On receiving such a request, the Secretary must revoke the authorisation, by written notice, with effect on the day specified in the notice .

Subdivision C Other provisions

Clause 137      Secretary may request notification of certain events by suspended third party authorised officer

Clause 137 will allow the Secretary to request, in writing, certain information from a person whose authorisation as a third party authorised officer has been suspended, for the purpose of deciding whether to revoke the suspension. The third party authorised officer will be required to provide the requested information in writing within 14 days.

The information that may be requested by the Secretary under clause 137 pertains to notifiable events. A notifiable event means any of the following events:

·          the person has been convicted of an offence against, or ordered to pay a penalty under, an Australian law for a contravention involving fraud or dishonesty;

·          the person has acquired an interest, pecuniary or otherwise, that conflicts or could conflict with the proper performance of the authorised officer’s powers and functions;

·          a pecuniary penalty imposed on the person for a contravention of a provision of a law that is administered by the Minister became due and payable;

·          a liability of the person for an amount under a Commonwealth law prescribed by the rules became due and payable.

If no notifiable event has occurred since their authorisation was suspended, the person must report that fact to the Minister. 

The purpose of this provision is to enable the Secretary to have all relevant information before them in order to assess whether to revoke the suspension of the person’s authorisation.

The note following subclause 137(2) explains that a person may commit an offence or be liable to a civil penalty under clauses 146 or 147 of the Bill, or under clauses 137.1 and 137.2 of Schedule 1 to the Criminal Code Act 1995 , if the person provides false or misleading information or documents.

Division 3 Functions and powers

Clause 138      Rules may confer functions or powers on authorised officers

Clause 138 will allow the rules to confer functions or powers on authorised officers that are necessary or convenient to be performed or exercised for the purposes of achieving the objects of the Bill. The purpose of this provision is to provide flexibility in how the Bill is administrated and its objects achieved. The power and functions conferred on authorised officers under rules made for the purposes of clause 138 will be in addition to the powers and functions that are conferred on authorised officers by the Bill and set out in clause 139.

Clause 139      Functions and powers of authorised officers

Clause 139 will set out the powers and functions of an authorised officer under this Bill.

Subclause 139(1) will provide that an authorised officer has the powers and functions that are:

·          conferred on the authorised officer by this Bill; and

·          set out in the authorised officer’s instrument of authorisation.

Subclause 139(2) will make it clear that the Secretary may give any authorised officer a direction about the performance of their functions and powers.

Subclause 139(3) will allow a Commonwealth authorised officer to give a direction to a third party authorised officer about the performance of their functions and powers.

The notes after subclauses 139(2) and (3) will draw the reader’s attention to clause 107, which concerns general requirements regarding directions.

Subclause 139(4) will require an authorised officer to comply with any directions given to them under subclauses 139(2) or 139(3).

Clause 140      Third party authorised officer must not contravene direction

Clause 140 will create both an offence and a civil penalty provision for a third party authorised officer who engages in conduct that contravenes a direction given to the person under clause 139. The maximum penalty is imprisonment for two years or 120 penalty units (or both) (for the offence) and 240 penalty units (for the civil penalty provision). These penalties are considered appropriate to ensure the integrity of the regulatory regime.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes a direction given under clause 139 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

Clause 141      Certain authorised officers may charge fees

Clause 141 will make it clear that a State or Territory authorised officer or a third party authorised officer may charge a fee in relation to things done in the course of performing their powers and functions under the Bill. The fee must not amount to taxation.

The note following subclause 141(1) alerts the reader to the fact that fees may also be charged in relation to the performance of functions and powers by Commonwealth authorised officers under the rules made for the purposes of clause 155.

PART 4 RECORD-KEEPING

Clause 142      Requirements to make and retain records

Clause 142 will set out requirements relating to record-keeping. The making and retention of records is an important compliance mechanism to ensure that those who are regulated under the Bill, or who perform functions or exercise powers under the Bill, may be held accountable for their actions or omissions. Records kept pursuant to requirements under this Bill will be assessed through other compliance tools such as audits and regulatory investigations.

Subclause 142(1) will allow the rules to make provision for and in relation to requiring records to be made and retained by certain persons in both the waste export and product stewardship contexts such as:

·          holders, or former holders, of export licences;

·          persons who carry out, or have carried out, export operations in relation to regulated waste material;

·          accrediting authorities;

·          administrators of accredited voluntary arrangements;

·          liable parties in relation to products;

·          administrators of approved co-regulatory arrangements in relation to products;

·          persons who are required to take, or not to take, specified action in relation to products under rules made for the purposes of mandatory product stewardship (as provided for at clause 92);

·          any person who has performed, or is performing, functions or exercising powers under the Bill, or

·          any person prescribed by the rules.

Subclause 142(2) will provide a non-exhaustive list of matters that rules made for the purposes of subclause 142(1) may cover, including:

·          the kind of records that must be made and retained;

·          the form in which records must be made and retained;

·          the period for which records must be retained;

·          the secure retention of records.

As this list is not intended to be exhaustive, the Minister may also make rules for the purposes of subclause 142(1) on other relevant matters concerning the making and retaining of records.

Providing the details of record-keeping requirements in rules rather than the Bill will give flexibility to prescribe specific record-keeping requirements for different regulatory regimes. For example, an administrator of a co-regulatory arrangement may need to keep records relating to how its arrangement outcomes are being achieved, while an export licence holder may need to keep records relating to the export of regulated waste materials. It is anticipated that most records required to be kept will be of the type that are likely to be made or retained in the normal course of business for those required to make and retain records, to minimise the imposition of additional regulatory obligations on industry.

The rules are also intended to be flexible enough to allow these records to be kept in a variety of forms and specific requirements will be able to be updated with changes in technology.

Subclauses 142(3) and (4) will have the combined effect of that a person will commit a strict liability offence if the person is required to make and retain records under rules made for the purposes of subclause 142(1), and the person fails to comply with the requirement.  The maximum penalty for the offence is 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty unit of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person who is required to make or keep a record fails to do so. The rules that will specify the record-keeping requirements will be a legislative instrument for the purposes of the Legislation Act 2003 and therefore available on the Federal Register of Legislation. The rules will also be subject to Parliamentary scrutiny and disallowance processes through the ordinary operation of the Legislation Act 2003 ;

·          it is necessary to ensure the integrity of the regulatory regime;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not comply with record keeping requirements is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

Subclause 142(5) establishes a mirror civil penalty provision which will be contravened in circumstances where a person is subject to record keeping requirements under the rules and does not comply with those requirements. The maximum penalty is 250 penalty units.

It is considered that the combination of a strict liability offence and civil penalty provision will provide an adequate deterrent from undertaking conduct which has the potential to cause such harm. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 142 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

PART 5 INFORMATION MANAGEMENT

Overview of Part

Part 5 will deal with how information and documents are managed under the Bill. This will include providing the Minister with the power to require a person to provide information or documents concerning the export of regulated waste material or a product stewardship arrangement regulated by the Bill. The Minister would also have a broader power to make rules requiring certain persons to provide information concerning specified matters related to waste material or products. Part 5 will also provide for offences and civil penalties relating to the provision of false or misleading information or documents under the Bill, and set out how information obtained for the purpose of exercising powers and functions under the Bill can be used or disclosed.

Division 1 Information gathering powers

Clause 143      Power to require information or documents

Clause 143 will allow the Minister to require a person to provide specified information or documents to the Minister. The information or documents must relate to one of the following:

·          regulated waste material that has been, or is intended to be, exported;

·          waste material export charge;

·          an accredited voluntary arrangement;

·          an approved co-regulatory arrangement;

·          mandatory product stewardship requirements;

·          a matter prescribed by the rules.

The request must be made by notice in writing and the required information or documents must be specified in the notice.

Subclauses 143(2), 143(3) and 143(4) will have the combined effect that a person who fails to comply with a notice given under clause 143 will be committing both an offence and a contravention of a civil penalty provision. The maximum penalty for the offence is two years imprisonment or 120 penalty units (or both). The maximum civil penalty for a contravention is 240 penalty units. Given the critical function that the provision of relevant information plays in ensuring the integrity of the regulatory regime, these penalties are considered appropriate to provide a deterrent against non-compliance.

It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 143 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The purpose of this provision is to ensure that the Minister can obtain necessary information to effectively administer the regimes set out in the Bill and monitor whether the objects of the Bill are being achieved.

However, this provision is not intended to override the common law privilege against self-incrimination. Accordingly, it will not be an offence or breach of a civil penalty provision for a person to fail to provide information or documents to the Minister if the information or documents would tend to incriminate that person as having committed an offence.

Clause 144      Providing and disseminating information

Clause 144 will allow the rules to require certain persons to provide specified information to the Minister.

Subclause 144(1) will allow the rules to require a person to provide information to the Minister for statistical purposes (including purposes in connection with the collation, analysis and dissemination of statistical information).  The information required must relate to the objects of the Act, which focus on the human and environmental health benefits of managing waste material, products and waste from products in an environmentally sound manner.

Subclause 144(2) will allow the rules to require a constitutional corporation to provide certain information relating to products and waste from products connected with the corporation, and relevant activities of the corporation (including activities taken to reduce or avoid generating waste and activities relating to reuse, recycling and recovery of materials).

Subclause 144(3) will allow the rules to require a person to provide information to the Minister relating to activities conducted by the person in relation to the importing or exporting of waste material, waste from products or products that contain, or are derived from, recycled waste material.

Subclause 144(4) will permit the Minister to collate, analyse and disseminate information collected under clause 144, including by publishing reports and papers. Subclause 144(5) clarifies that any dissemination of information collected by the Minister under clause 144 (including by publishing reports and papers) must comply with any requirements prescribed by the rules.

Subclauses 144(6), 144(7) and 144(8) will have the combined effect that a person who fails to comply with a requirement under rules made for the purposes of subclauses 144(1), 144(2) or 144(3) that applies to that person will be committing both a strict liability offence and the contravention of a civil penalty provision.

The maximum penalty for the offence is 60 penalty units for individuals or 300 penalty units for a body corporate (using the body corporate multiplier rule at subsection 4B(3) of the Crimes Act 1914 ).

Strict liability is proposed for this offence having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation . Consistent with these documents, strict liability is considered appropriate as:

·          the offence is not punishable by imprisonment;

·          the offence is subject to a maximum penalty unit of 60 penalty units for an individual;

·          the actions which trigger the offence are simple, readily understood and easily defended. The offence is triggered if a person who is required to provide information to the Minister under subclauses 144(1), 144(2) or 144(3) fails to do so. The content of the offence, being requirements prescribed in rules made for the purposes of subclauses 144(1), 144(2) or 144(3) will be confined by the parameters in those subclauses and contained in a legislative instrument that is subject to Parliamentary scrutiny and disallowance through the ordinary operation of the Legislation Act 2003 ;

·          the offence will be subject to an infringement notice (see clause 102);

·          the absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally or negligently did not comply with the requirements in rules made for the purposes of clause 144 is a matter peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence;

·          the information collected under clause 144 will play an important role in informing the Commonwealth in relation to those matters covered by the objects of the Bill, which is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to realise its intended human and environmental benefits; and

·          the person affected will be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code Act 1995 ) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code Act 1995 ).

Subclause 144(8) establishes a mirror civil penalty provision which will be contravened in circumstances where a person who is required to provide information to the Minister under subclauses 144(1), 144(2) or 144(3) fails to do so. The maximum penalty is 250 penalty units.

It is considered that the combination of a strict liability offence and civil penalty provision will provide an adequate deterrent from undertaking conduct which has the potential to cause such harm. It is also considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 144 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

This provision is not intended to override the common law privilege against self-incrimination. Accordingly, it will not be an offence or breach of a civil penalty provision for a person to fail to provide information or documents to the Minister if the information or documents would tend to incriminate that person as having committed an offence.

Division 2 False or misleading information or documents

Clause 145      False or misleading statements in applications

Clause 145 will create a civil penalty provision for knowingly providing false or misleading statements (or a statement that omits a thing without which the statement is misleading) in connection with an application made under the Bill. For example, an application for an export licence.

A statement may be made orally, in a document or in any other way.

The civil penalty will not apply if the statement is not false or misleading in a material particular (or if the statement did not omit a thing without which the statement is misleading in a material particular).

The maximum civil penalty that will be able to be imposed under clause 145 is 600 penalty units. This is a high penalty, particularly for a body corporate who will be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 , which applies to this Bill). However, the large amount of the penalty is considered appropriate to reflect the gravity of making a false or misleading statement in an application and the need for the penalty to be a deterrent from such conduct, given the potential to undermine the integrity of the regulatory regime. For example, such conduct could lead to waste material being exported which can lead to environmental harm in the importing country.

The notes after subclauses 145(2) and 145(3) will alert the reader to the fact that the defendant bears an evidential burden in relation to showing that the statement is not false or misleading in a material particular (or that the statement did not omit a thing without which the statement is misleading in a material particular). This is because section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provides that if a defendant wishes to rely on an exception to a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person.

Clause 146      False or misleading information

Clause 146 will create a civil penalty provision for knowingly providing false or misleading information (or information that omits a thing without which the information is misleading) in compliance or purported compliance with the Bill.

The civil penalty will not apply if the information is not false or misleading in a material particular (or if the information did not omit a thing without which the information is misleading in a material particular). The civil penalty will also not apply if reasonable steps had not been taken to inform the person that they may be liable for a civil penalty knowingly providing false or misleading information (or information that omits a thing without which the information is misleading).

The maximum civil penalty that will be able to be imposed under clause 146 is 600 penalty units. This is a high penalty, particularly for a body corporate who will be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 , which applies to this Bill). However, the large amount of the penalty is considered appropriate to reflect the gravity of the conduct involved and the need for the penalty to be a deterrent from such conduct, given its potential to undermine the integrity of the regulatory regime. For example, such conduct could lead to potential non-compliance not being identified in the context of an audit.

The notes after subclauses 146(2), 146(3) and 146(4) will alert the reader to the fact that the defendant bears an evidential burden in relation to showing that the information is not false or misleading in a material particular (or that the information did not omit a thing without which the information is misleading in a material particular), or that reasonable steps were not taken to inform the person that they may be liable for a civil penalty. This is because section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provides that if a defendant wishes to rely on an exception to a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person.

Clause 147      False or misleading documents

Clause 147 will create a civil penalty provision for knowingly producing a false or misleading document in compliance or purported compliance with the Bill.

The civil penalty will not apply if the document is not false or misleading in a material particular. The civil penalty will also not apply if the document is accompanied by a signed written statement stating that the document is false and misleading in a material particular and setting out the false and misleading material particular.

The maximum civil penalty that will be able to be imposed under clause 147 is 600 penalty units. This is a high penalty, particularly for a body corporate who will be liable for five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 , which applies to this Bill). However, the large amount of the penalty is considered appropriate to reflect the gravity of the conduct involved and the need for the penalty to be a deterrent from such conduct, given its potential to undermine the integrity of the regulatory regime.

The notes after subclauses 147(2) and (3) will alert the reader to the fact that the defendant bears an evidential burden in relation to showing that the document is not false or misleading in a material particular. This is because section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provides that if a defendant wishes to rely on an exception to a civil penalty provision, the defendant bears an evidential burden of proof in relation to that matter. This is appropriate on the basis that knowledge of that matter would be peculiar to that person.

Division 3       Protecting information

Clause 148      Offence - using or disclosing commercially sensitive information

Subclause 148(1) will make it an offence for a person to use or disclose protected information obtained in the course of, or for the purposes of, performing functions or duties or exercising powers under the Bill where there is a risk that the use or disclosure might substantially prejudice the commercial interests of another person.

Subclause 148(3) will define protected information to mean information that was disclosed or obtained under or for the purposes of the Bill. 

This means that, while all information disclosed or obtained under or for the purposes of the Bill is protected information, it is only an offence to use or disclose the subset of that information that is commercially sensitive (i.e. where there is a risk the use or disclosure might substantially prejudice the commercial interests of another person). This will need to be assessed on a case-by-case basis in the context of each proposed use or disclosure.

The maximum penalty for the offence in clause 148 will be imprisonment for two years or 120 penalty units or both for an individual; or 600 penalty units for a body corporate (using the body corporate multiplier rules at subsection 4B(3) of the Crimes Act 1914 ). This level of penalty is consistent with other similar Commonwealth offences such as the Export Control Act 2020 and is intended to deter the use or disclosure of commercially sensitive protected information in circumstances that are not reasonable, necessary or proportionate.

Subclause 148(2) will have the effect that the offence at subclause 148(1) does not apply if the use or disclosure is authorised by clause 149. It is intended that the authorisations in clause 149 make clear what are considered to be reasonable, necessary and proportionate uses and disclosures.

Clause 149      Authorised uses and disclosures

Clause 149 will set out the exceptions to the offence at clause 148. If protected information is used or disclosed in accordance with one of the authorisations set out in this clause, the offence at clause 148 will not apply even if there is a risk that the disclosure will substantially prejudice the commercial interests of another person.

Examples of authorised uses and disclosures include, but are not limited to:

·          for the purposes of performing a duty or function, or exercising a power, under this Bill;

·          for the purposes of enabling another person to perform a duty or function, or exercise a power, under this Bill;

·          for the purposes of assisting in the administration or enforcement of another Australian law;

·          where the disclosure is authorised or required under a Commonwealth law or a prescribed State or Territory law;

·          where the information is already publicly available, or where the person has consented to the use or disclosure;

·          where the use or disclosure is, or is a kind of use or disclosure that is, certified in writing by the Minister to be in the public interest and the use or disclosure is made in accordance with any requirements prescribed by the rules;

·          where the person believes on reasonable grounds that the use or disclosure is necessary to prevent or lessen a serious threat to human or environmental health and the use or disclosure is for the purposes of preventing or lessening that threat;

·          the information used or disclosed is a summary of, or statistics derived from, protected information and the information is not likely to enable the identification of a person.

It is not expected that information covered by the authorised uses and disclosures set out in clause 149 will generally include personal information within the meaning of the Privacy Act 1988. However, should that be the case, the circumstances set out in this clause are intended to constitute an authorisation for the purposes of Australian Privacy Principle 6.1 (see Schedule 1 to the Privacy Act 1988 ) and other relevant laws including common law and equitable protections for confidentiality (because the clause will authorise the use or disclosure by or under an Australian law).

It is considered that the authorised uses and disclosures in clause 149 are reasonable, necessary and proportionate. This is because they are generally directed at the performance of functions and powers under legislation (including this Bill) or the enforcement of Australian laws, or are matters of public interest with a high bar to satisfaction (such as being necessary to prevent or lessen a serious threat to human or environmental health, or being certified as in the public interest by the Minister).

Subclause 149(2) will provide that an instrument made by the Minister certifying that a particular use or disclosure is in the public interest is not a legislative instrument for the purposes of the Legislation Act 2003 . This is declaratory of the law and is included to assist readers. It is not intended to be an exemption from the operation of the Legislation Act 2003.

Subclause 149(3) will provide that an instrument made by the Minister certifying that a kind of use or disclosure is in the public interest is a legislative instrument. This is appropriate because the instrument will have legislative character, as it is of general application and not confined to a particular use or disclosure. This will ensure that if particular kinds of use or disclosure of protected information are authorised in the public interest, then it will be subject to Parliamentary scrutiny and disallowance processes in accordance with the Legislation Act 2003 .

Clause 150      Disclosing commercially sensitive information to courts and tribunals etc

Clause 150 will apply if information is disclosed to, or obtained by a person (the public official) in the course of the person exercising a power or function under or in relation to the Bill and there is a risk that disclosure of the information or document might substantially prejudice the commercial interests of a person other than the public official.

Subclause 150(2) will provide that the public official must not, except for the purposes of this Bill, be required to disclose the information, or produce the document, to a court, tribunal, authority or other person having power to require the production of documents or the answering of questions.

This clause will only apply to commercially sensitive information and will not preclude a person from being required to disclose other protected information to a court, tribunal, authority or other person.

PART 6 REVIEW OF DECISIONS

Part 6 will set out which decisions under the Bill are merits reviewable, and who may apply for an internal and external review of the decision. It will also provide for the process for internal review of decisions.

Clause 151      Persons affected by reviewable decisions

Clause 151 will specify the decisions made under the Act which will be merits reviewable and who is the affected person in relation to each reviewable decision.

The table at subclause 151(1) will list the reviewable decisions and set out each person affected by each decision. The person affected will generally be the primary person whose interests are affected by the decision, or the person who applied for, or requested, an approval or permission under a provision in the Bill.

Subclause 151(2) will have the effect that the rules may also add to the list of reviewable decisions and may also specify who is a person affected by the additional reviewable decisions. This will ensure that decisions made under rules or other instruments under the Bill may be made merits reviewable.

Internal review and external merits review will be available in relation to reviewable decisions detailed in the table or in rules (see clauses 153 and 154). However, this will not limit the right of a person who is affected by a decision under the Bill from seeking judicial review of a decision under the Administrative Decisions (Judicial Review) Act 1977 .

Clause 152      Notice of decision and review rights

Clause 152 will require a person who made a reviewable decision to give a written notice to each person affected by the decision as soon as practicable. The notice must contain the terms of the decision, the reasons for the decision and a statement setting out particulars of the person’s review rights.

The requirement to give a written notice will ensure that an affected person has an opportunity to understand the reasons for the decision and is aware of their review rights.

Clause 153      Internal review

Clause 153 will provide for the internal review process for reviewable decisions. This is a review of the merits of the decision. Providing merits review of administrative decisions is consistent with Commonwealth policy.

A person affected by a reviewable decision will be able to apply in writing to the Minister for review of the decision, unless the decision was personally made by the Minister. The application must be made within 30 days after the day on which the decision first came to the notice of the applicant, or a further period if allowed by the Minister. Clause 151 will set out who is a person affected by a reviewable decision.

On receiving the application, the Minister must review the reviewable decision. The Minister may decide to affirm, vary or revoke the reviewable decision. If the Minister revokes the decision, they may make such other decision as the Minister thinks appropriate. This means that if the Minister revokes the original decision, the Minister may make a new decision that takes the place of the original decision.

Clause 154      Review of decisions by the Administrative Appeals Tribunal

Clause 154 will provide that applications may be made to the Administrative Appeals Tribunal for review of a reviewable decision made by the Minister personally or an internal review decision made under clause 153.

Subclause 154(2) will provide that an application may only be made by, or on behalf of, a person affected by the reviewable decision. As the persons affected by a reviewable decision are expressly set out in clause 151, this clause has the effect of overriding the operation of subsection 27(1) of the Administrative Appeals Tribunal Act 1975 , which allows a broader category of persons to apply to the Administrative Appeals Tribunal for review of a decision. This intention is confirmed in subclause 154(3).

PART 7 FEES AND CHARGES

Part 7 will set out matters relating to fees and charges in relation to activities performed under the Bill.

Division 1 Fees

Clause 155      Charging of fees

Subclause 155(1) will enable the Minister to make rules for, and in relation to, the charging of fees for services carried out by the Commonwealth in relation to the performance of functions or the exercise of powers under the Bill. Fees charged for services will be in line with the Australian Government Charging Framework.

It is necessary to have flexibility to prescribe the detail of the fees in the rules as different fees may be prescribed for different services provided by the Commonwealth under the Bill. Consistent with Australian Government policy, the amount of any fee will be determined on a case-by-case basis through a Cost Recovery Implementation Statement. The amount of the fee will be set at a level that is designed to recover no more than the estimated cost of the service provided by the Commonwealth.

It is intended that fees will be charged for services provided in relation to both the waste export and product stewardship components of the Bill.

The note following subclause 155(1) will alert readers to the fact that fees for service may also be charged by approved auditors (see clause 117 of the Bill), as well as State or Territory authorised officers and third party authorised officers (see clause 141 of the Bill) in relation to activities these persons are authorised to carry out under the Bill.

Subclause 155(2) will provide a non-exhaustive list of examples of matters rules made for the purpose of subclause 155(1) may cover. This includes prescribing who is liable to pay a specified fee, the prescribing of fees to be paid in relation to a specified application, and prescribing a fee by either specifying the amount of the fee or a method for working out the fee. This will allow for flexibility in setting different fees to more accurately and appropriately reflect the service being provided.

Other examples listed in subclause 155(2) include that the rules may prescribe fees to be charged that recover the costs the Commonwealth has incurred in arranging and paying for another person to carry out an activity, and may make provision for and in relation to deposits, late payments (including penalties), refunds, waivers and remissions of fees.

Subclause 155(3) will clarify that the rules may provide for the Minister to make decisions in relation to paragraphs 155(2)(e) and (g), which concern when a specified fee is due and payable, and the refund, remission or waiver of specified fees or penalties for late payment. This will provide additional flexibility for the Minister to be able to consider cases and requests on their individual merits.

Subclause 155(4) will provide that a fee prescribed under subclause 155(1) must not be such as to amount to taxation.

Clause 156      Commonwealth not liable to pay a fee

Subclause 156(1) will provide that the Commonwealth will not be liable to pay a fee payable under this Bill.

However, the Commonwealth will be notionally liable to pay such fees if it is the legal person for whom services are provided. An example will be if the Commonwealth applied for an export licence to export regulated waste materials and a relevant application fee had been prescribed. Subclause 156(2) will enable the Finance Minister administering the Public Governance, Performance and Accountability Act 2013 to give written directions to give effect to this notional liability, including for the notional transfer of money between or within Commonwealth financial accounts.

Subclause 156(3) will provide that directions made under subclause 156(2) have effect and must be complied with, despite any other Commonwealth law. Subclause 156(4) will provide that a direction that may be given by the Finance Minister in accordance with subclause 156(2) will not be a legislative instrument for the purposes of the Legislation Act 2003 . This is declaratory of the law and included to assist readers. It is not intended to be an exemption from the Legislation Act 2003 .

Subclause 156(5) will define Commonwealth for the purpose of subclauses (1) and (2). It will provide that the Commonwealth includes a Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013 that cannot be made liable to taxation by a Commonwealth law. This includes all non-corporate Commonwealth entities (including Departments of State) that do not have a separate legal identity from the Commonwealth. Requiring such entities to be notionally liable for fees and taxes is consistent with Commonwealth policy .

Clause 157      Recovery of fees

Clause 157 will provide that any fee that is due and payable under the Bill may be recovered as a debt due to the Commonwealth in a relevant court. The term relevant court will be defined in clause 10 to mean the Federal Court, the Federal Circuit Court or a Supreme Court of a State or Territory. The recovery of fees through a relevant court will ensure the Commonwealth can recover costs for services provided from a person who is liable to pay a fee but fails to do so.

Clause 158      Minister may direct that activities not be carried out

Under clause 158 of the Bill, the Minister will be able to refuse to carry out, and direct a person not to carry out, specified activities or kinds of activities until the fee has been paid.

The refusal to carry out activities may be used as a compliance tool to encourage payment of fees on time and ensure that the Commonwealth can recover costs for services already provided.

Division 2 Waste material export charge

Clause 159      Rules relating to waste material export charge

Clause 159 will enable the Minister to make rules for, or in relation to, certain matters concerning the collection and recovery of the waste material export charge. The waste material export charge will be imposed under the Recycling and Waste Reduction Charges (Customs) Bill 2020, the Recycling and Waste Reduction Charges (Excise) Bill 2020 or the Recycling and Waste Reduction Charges (General) Bill 2020 because of the constitutional requirement to impose taxes and levies in separate taxing legislation.

Rules will be able to make provision for, and in relation to, any of the following:

·          when a specified waste material export charge is due and payable;

·          the issuing of notices setting out the amount of waste material export charges payable by persons who are liable to pay the charges;

·          the issuing of notices extending the time for payment of waste material export charges;

·          penalties for late payment of waste material export charges;

·          who is liable to pay waste material export charges and any penalties for late payment;

·          the refund, remission or waiver of waste material export charges or penalties for late payments;

·          the review of decisions made under rules in relation to the collection or recovery of waste material export charges;

·          the giving of information and keeping of records relating to a person’s liability to pay waste material export charges;

·          any other matters relating to the collection or recovery of waste material export charges.

It is necessary to prescribe the requirements for collection and recovery of the waste material export charge and associated matters in the rules, to ensure there is flexibility to prescribe different requirements for the different waste material export charges that may be imposed for different services provided by the Commonwealth under the Bill. Consistent with the Australian Government Charging Framework, the amount of the waste material export charges imposed under the relevant charges Bill will be determined on a case-by-case basis through a Cost Recovery Implementation Statement. The amount will also be required to recover no more than the Commonwealth’s likely costs and, as such, will be limited in amount to the approximate cost of services rendered by the Commonwealth.

Clause 160      Recovery of waste material export charge and late payment penalty

Clause 160 will provide that a waste material export charge, or a penalty for late payment of the waste material export charge, may be recovered as a debt due to the Commonwealth in a relevant court. The term relevant court will be defined in clause 10 to mean the Federal Court, the Federal Circuit Court or a Supreme Court of a State or Territory. The recovery of charges and penalties through a relevant court will ensure the Commonwealth can recover costs for services provided from a person who is liable to pay such amounts but fails to do so.

Clause 161      Minister may direct that activities not be carried out

Under clause 161 of the Bill, the Minister will be able to refuse to carry out, or direct a person not to carry out, specified activities until the waste material export charge that the person is liable for has been paid.

The refusal to carry out activities may be used as a compliance tool to encourage payment of waste material export charges on time and ensure that the Commonwealth can recover costs for services already provided.

Clause 162      Commonwealth liable to pay waste material export charge and late payment penalties

Subclause 162(1) will provide that the Commonwealth will not be liable to pay the waste material export charge or any penalty for late payment of the waste material charge that is payable under this Bill.

However, the Commonwealth will be notionally liable to pay such amounts in the event that it would otherwise have been liable. For example, if the Commonwealth proposed to export waste material under the Bill, the Commonwealth will be notionally liable for any waste material export charge and late penalties that will ordinarily be associated with the proposed export. Subclause 162(2) will enable the Finance Minister to give written directions to give effect to this notional liability, including for the notional transfer of money between or within Commonwealth financial accounts.

Subclause 162(3) will provide that directions made under subclause 162(2) have effect and must be complied with, despite any other Commonwealth law. Subclause 162(4) will provide that a direction that may be given by the Finance Minister subclause 162(2) will not be a legislative instrument for the purposes of the Legislation Act 2003 . This is declaratory of the law and included to assist readers. It is not intended to be an exemption from the Legislation Act 2003 .

Subclause 162(5) will define Commonwealth for the purpose of subclauses (1) and (2). It will provide that the Commonwealth includes a Commonwealth entity within the meaning of Public Governance, Performance and Accountability Act 2013 that cannot be made liable to taxation by a Commonwealth law. This includes all non-corporate Commonwealth entities (including Departments of State) that do not have a separate legal identity from the Commonwealth. Requiring such entities to be notionally liable for fees and taxes is consistent with Commonwealth policy. 

PART 8 OTHER MATTERS

Part 8 will set out provisions in relation to a number of miscellaneous administrative matters, including testing and sampling.

Clause 163      Methods for taking, testing and analysing certain samples

Clause 163 will provide how samples of waste material must be taken, tested or analysed.

This clause will apply in relation to a sample of waste material or any other thing that is taken, tested or analysed under the Bill. However, this clause will not apply in the performance of functions or duties or the exercise of powers under Part 2 of Chapter 4 (compliance and enforcement) or the Regulatory Powers (Standard Provisions) Act 2014 (as it applies to this Bill).

A sample will be required to be taken, tested or analysed in accordance with:

·          if a method is prescribed by the rules for that kind of sample, the prescribed method; or

·          in any other case, an applicable method specified in an Australian Standard published by, or on behalf of, Standards Australia; or any other appropriate, validated and science-based method approved by the Secretary.

This recognises that different methods may be required for different types of samples of waste material. For example, the method for taking samples from waste glass may vary from the method for taking samples from waste material that is liquid.

Clause 164      Storage of samples

Clause 164 will allow the Minister to make rules for and in relation to the storage of samples that may be tested or analysed under this Bill. For example, the rules could require samples be stored in specified containers or at a specific location to ensure that any human or environmental health risks are properly contained.

It is appropriate that this detail is in the rules rather than the Bill as it will likely be appropriate to have different requirements for samples of different materials.

Clause 165      Test or analysis may result in destruction or reduction in value of sample

Clause 165 will provide that a person who is required or permitted to test or analyse a sample of waste material or any other thing under Bill may carry out tests or analyses that results in the destruction, or a reduction in the value, of the sample or a package or waste material associated with the sample.

This will provide for circumstances where for example, testing or taking a sample may require cutting open a product’s packaging or changing the waste in a way that will make it unsuitable for sale. The purpose is to ensure that testing or analysing samples for the purpose of ensuring investigating compliance related matters under this Bill is not unduly hindered by a need to ensure the waste or product maintains its pre-testing value.

Clause 166      Appointment of analyst

Clause 166 will allow the Secretary to appoint a person to be an analyst for the purposes of the Bill.

The purpose of appointing an analyst is to have an appropriately trained and qualified person to give a written certificate on a number of matters if a person is alleged to have contravened the Bill, including details of testing or analysis conducted, and other details relating to waste material (see clause 167). An analyst’s certificate will be admissible in proceedings for contraventions of the Bill as prima facie evidence of the matters in the certificate and the correctness of the result of the analysis to which the certificate relates (see clause 168).

Subclause 166(3) will require the Secretary to determine, in writing, training and qualification requirements for analysts. Under subclause 166(2), the Secretary will not be able to appoint a person to be an analyst unless the Secretary is satisfied that the person satisfies these training and qualification requirements, or that the person will satisfy those training and qualification requirements before the person exercises any powers as an analyst. This is to ensure that an analyst appointed under this Bill is appropriately qualified to perform the function.

Subclause 166(4) will clarify that a determination in relation to training and qualification requirements for analysts under subclause 166(3) is not a legislative instrument for the purposes of the Legislation Act 2003 . This is declaratory of the law and is included to assist readers. It is not intended to be an exemption from the operation of the Legislation Act 2003.

Clause 167      Analyst may give certificate

Clause 167 will provide that if a person is alleged to have contravened the Bill in relation to waste material or any other thing, an appointed analyst may give a written certificate stating one or more of the following matters:

·          when and from whom the waste material or other thing was received;

·          what (if any) labels or other means of identifying the waste material or other thing accompanied the waste material or other thing when it was received;

·          what covering the waste material or other thing was in when it was received;

·          a description, and the weight, of the waste material or other thing received;

·          when the waste material or other thing, or a portion or sample of the waste material or other thing, was tested or analysed;

·          a description of the method of testing or analysis;

·          the results of the testing or analysis;

·          how the waste material or other thing was dealt with after handling by the analyst, including details of the quantity retained, and the name of any person to whom any retained quantity was given, and measures taken to secure any retained quantity.

A certificate issued by an analyst must be in a form approved by the Secretary. The note after subclause 167(2) will explain that in certain circumstances, the certificate may be admitted as evidence in proceedings in relation to an alleged contravention of the Bill (see clause 168).

It is intended that a certificate given under this clause will be in a format of a technical report, prepared by an analyst who meets the training and qualification requirements and able to be admitted as evidence for court proceedings. As the matters to be dealt with by the certificate are objective and scientific based, they are appropriate to be included in the certificate.

Clause 168      Admission of analyst’s certificate in proceedings

Clause 168 will set out that a certificate given under clause 167 is admissible in any proceedings in relation to a contravention of the Bill as prima facie evidence of the matters in the certificate and the correctness of the result of the analysis to which the certificate related.

This means that information contained in the certificate could be used as evidence against a defendant without the requirement to prove each piece of information contained in the certificate, so long as the certificate is given in accordance with clause 161 (including in a form approved by the Secretary).

Although admission of an analyst’s certificate will constitute prima facie evidence, it may still be tested through cross-examination and rebutted by the defendant.

Subclause 168(2) will provide that at least 14 days before the certificate is admitted as evidence in the proceedings, a copy of the certificate and a notice of intention to produce the certificate as evidence in proceedings must be given to the defendant or a legal practitioner appearing for the defendant. If the certificate and notice of intention to produce the certificate as evidence is not given to the defendant or their legal practitioner, then the provisions in this clause will not apply and the matters in the certificate may not be treated as prima facie evidence. However, it is intended that matters in the certificate may still be admitted as evidence. 

Subclauses 168(3) and 168(4) will provide that the defendant may require the analyst who gave the certificate to be called as a witness for the person who instituted the proceedings and cross-examined as if the analyst had given evidence of the matters stated in the certificate. However, the analyst may only be required to be called as a witness if the person who instituted the proceedings has been given at least four days’ notice of the defendant’s intention to require the analyst to be called, or the court, by order, allows the defendant to require the analyst to be called.

Subclause 168(5) will clarify that a document purporting to be a certificate given under clause 167 is taken to be a certificate that has been given in accordance with that clause, unless the contrary is established.

Clause 169      Hindering compliance with this Act etc.

Clause 169 will make it an offence and the contravention of a civil penalty provision for a person to engage in conduct that hinders or prevents another person from performing functions or exercising powers under the Bill, or from complying with the Bill or a direction given under the Bill.

While section 149.1 of Schedule 1 to the Criminal Code Act 1995 already provides an offence for obstruction of Commonwealth public officials performing their functions, this subclause is necessarily broader. This is because persons who are not Commonwealth public officials may exercise powers and functions under the Bill, for example state, territory or third party authorised officers (see Part 3 of Chapter 4 of the Bill).

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 169 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The maximum penalty for the offence in subclause 169(2) will be imprisonment for five years or 300 penalty units. The maximum penalty which could be imposed is for contravention of the civil penalty provision in subclause 169(3) is 600 penalty units. The size of the penalty is considered appropriate to reflect the gravity of the conduct involved and the need for the penalty to be a deterrent from such conduct, given its potential to undermine to integrity of the regulatory regime and result in harm to human and environmental health.

Clause 170      Influencing a person performing functions or duties or exercising powers

Clause 170 will make it an offence and a contravention of a civil penalty provision for a person to engage in conduct with the intention of dishonestly influencing another person in the performance of the other person’s functions or duties, or in the exercise of the other person’s powers, under the Bill.

It is considered appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce the prohibition appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected criminal proceedings will be brought for conduct that contravenes clause 170 and is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

The maximum penalty for the offence in subclause 170(2) will be imprisonment for five years or 300 penalty units. The maximum penalty which could be imposed for contravention of the civil penalty provision in subclause 170(3) is 600 penalty units. The size of the penalty is considered appropriate to reflect the gravity of the conduct involved and the need for the penalty to be a deterrent from such conduct, given its potential to undermine to integrity of the regulatory regime and result in harm to human and environmental health.

Chapter 5—Other matters

GENERAL OUTLINE

Chapter 5 of the Bill will deal with miscellaneous matters including requirements for applications, the fit and proper person test, automated decision-making, the circumstances where a relevant Commonwealth liability is taken to be paid and how partnerships, trusts and unincorporated associations will be treated under the Bill. Chapter 5 will also provide for the delegation of powers, require annual reports on the operation of the Bill and a ten-year review of the operation of the Bill, and enable the Minister to make the rules.

NOTES ON INDIVIDUAL CLAUSES

Clause 171      Simplified outline of this Chapter

Clause 171 will provide an outline to Chapter 5. This outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions in Chapter 5, rather than to replace these provisions. It is intended that readers will rely on the substantive provisions of the Chapter 5.

Clause 172      General requirements for making applications

Clause 172 will set out the general requirements for making applications under the Bill.

Subclause 172(1) will have the effect that if the Minister has approved a form or manner in which the application should be made, the application must be made in that form or manner. This includes providing any information or documents that are required by the approved form. Subclause 172(1) will also require an application made under the Bill to include any information or documents prescribed by the rules, and to be accompanied by any fee prescribed by the rules.

The note after subclause 172(1) will draw attention to the fact that a person may be liable for a civil penalty if they make a false or misleading statement in an application made under this Bill. A note is sufficient in these circumstances, as the relevant civil penalty provisions are located elsewhere in the Bill and in Schedule 1 to the Criminal Code Act 1995 .

Subclause 172(2) will clarify that information, or a document, previously given to the Minister in an application under the Bill may satisfy a requirement of subclause 172(1). An example of this may be where a person applies to renew an export licence and some of the required information has not changed since their original application. Rather than requiring the person to resubmit the same information, the Minister may rely on the information previously submitted to the extent that it is relevant.

Subclause 172(3) will provide that an application is taken not to be made if it does not comply with the requirements of subclause 172(1). This means that if a person has not made the application in the approved form or manner, or has not provided the required information, documents or fee, then it is taken not to be made and will not be assessed or otherwise dealt with until the issue with the application is rectified.

Subclause 172(4) will clarify that the Minister may approve different forms for applications relating to different matters and may also approve one form for multiple kinds of applications.

Clause 173      Additional or corrected information in relation to applications

Clause 173 will require a person who has made an application under the Bill to correct any relevant information or documents in their application that they become aware is incomplete or incorrect, or to provide any additional information prescribed by the rules. The additional or corrected information must be provided as soon as practicable. Failure to comply with the obligation in clause 173 will be a contravention of a civil penalty provision, with a penalty of 60 penalty units. The purpose of this provision is to ensure that the decision-maker has all the relevant, correct information before them when assessing the application and making a decision.

Clause 174      Dealing with applications

Clause 174 will allow the person to whom an application is made (for instance, the Minister) to request additional specified information or documents relevant to the application or applicant. In practice, the request will generally be made to the applicant. However, if the person to whom the application is made considers that another person may have the information needed to properly assess the application, then they may direct the request to that other person. This will ensure that the decision-maker has all relevant information before them when making a decision on the application.

A request under clause 174 must be in writing and must specify the period within which the person must comply with the request. The period must not be longer than the period prescribed by the rules, if any.

Clause 175      Fit and proper persons

Clause 175 will set out the relevant considerations for determining whether a person is a fit and proper person for the purposes of both the waste export and product stewardship components of the Bill.

In the waste export context, the fit and proper person test is relevant to granting, varying, suspending and revoking an export licence. For example, the Minister must have regard to whether the applicant for a licence or a licence renewal is a fit and proper person before deciding whether to grant the licence or renewal. Additionally, if the Minister is satisfied that the holder of an export licence is no longer a fit and proper person, this is a ground to vary, suspend or revoke the person’s licence. In the product stewardship context, the fit and proper person test is relevant to both the accreditation of a voluntary arrangement and the approval of a co-regulatory arrangement. The Bill allows the Minister to refuse to approve a co-regulatory arrangement if satisfied that the administrator is not a fit and proper person. It is also intended that rules will be made to allow the accrediting authority to refuse to accredit a voluntary arrangement if satisfied that the administrator of that arrangement is not a fit and proper person.

Subclause 175(2) will set out the matters to which the Minister is required to have regard when deciding whether a person is a fit and proper person. These matters include whether the person has been convicted of an offence or ordered to pay a pecuniary penalty under several specified Commonwealth Acts. However, they will also include other compliance-related concerns relating to the person, such as their compliance history with this Bill, their history in relation to environmental matters more generally and whether they have previously provided false or misleading statements, information or documents under the Bill. It is intended that these factors will enable the Minister to gain a broader understanding of the compliance history of the person without being restricted to only considering those matters that resulted in a conviction or pecuniary penalty order. This will enable the Minister to make an informed decision as to whether the person is a fit and proper person.

While criminal record information is sensitive information under the Privacy Act 1988 , it is considered appropriate that the Minister have regard to relevant convictions of the person when determining whether the person is a fit and proper person for the purposes of the Bill. This is because knowledge of a person’s history of compliance with relevant Australian laws will assist in the Minister’s assessment of whether the person is likely to comply, or be able to comply, with the requirements of the Bill, the rules or a licence granted to the person. This is particularly the case where the convictions stem from offences against Australian legislation that covers similar subject matter (such as environmental legislation) or provides for a similar regime (such as other export legislation). The criminal record information obtained by the Minister for the purposes of undertaking the fit and proper person test will be protected information under clause 148 and will be subject to the prohibition on use and disclosure in that clause.

Subclause 175(3) will set out further matters that the Minister is permitted, but not required, to have regard to when deciding whether a person is a fit and proper person. These matters include whether the person has been convicted of an offence or ordered to pay a pecuniary penalty under another Australian law. This will allow the Minister to consider any convictions or pecuniary penalties the person has under State or Territory laws, or Commonwealth laws not expressly referred to in subclause 175(2).

Subclause 175(3) will also permit the Minister to have regard to the matters listed in subclause 175(2) in relation to an associate of the person. The term associate is defined in clause 10 of the Bill.

Subclause 175(4) clarifies that Part VIIC of the Crimes Act 1914 , dealing with spent convictions, remains unaffected by this section.

Clause 176      Treatment of partnerships

Clause 176 deals with how conduct by a partnership will be treated under the Bill. Generally, the Bill will apply to a partnership as if the partnership were a person. This means a partnership may (for example) apply for an export licence or for an exemption. However, as a partnership is not a legal entity, specific provisions have been included to deal with this.

Under subclause 176(2), an obligation that the Bill imposes on a person will be imposed on each partner instead; the partners being the relevant legal entities. This is consistent with how State and Territory partnership laws operate. The obligation, however, can be discharged by any of the partners. The purpose of this provision is to make it clear that all partners are not required to take joint action to discharge an obligation under the Bill.

Subclause 176(3) will limit liability for an offence against the Bill to those partners in the partnership who were involved (both directly and indirectly) in the relevant act or omission constituting the offence, including those who aided, abetted, counselled or procured the act or omission. The purpose of this provision is to ensure that partners who had no knowledge of the offence are not punished for it. Subclause 176(4) will make it clear that the clause 176 applies to contraventions of civil penalty provisions in the same way it applies to offences.

Subclause 176(5) clarifies that a change in the composition of the partnership does not affect the continuity of the partnership for the purposes of the Bill.

Clause 177      Treatment of unincorporated associations

Clause 177 deals with how conduct by an unincorporated association will be treated under the Bill. Generally, the Bill will apply to an unincorporated association as if the unincorporated association were a person. However, as an unincorporated association is not a legal entity, specific provisions have been included to deal with this.

Under subclause 177(2), an obligation that the Bill imposes on a person will be imposed on each member of the unincorporated association’s committee of membership instead; these persons being the relevant legal entities. The obligation, however, can be discharged by any of the members. The purpose of this provision is to make it clear that all committee members are not required to take joint action to discharge an obligation under the Bill.

Subclause 177(3) will limit liability for an offence against the Bill to those members of the unincorporated association’s committee of management who were involved (both directly and indirectly) in the relevant act or omission constituting the offence, including those who aided, abetted, counselled or procured the act or omission. The purpose of this provision is to ensure that members who had no knowledge of the offence are not punished for it. Subclause 177(4) will make it clear that clause 177 applies to contraventions of civil penalty provisions in the same way it applies to offences.

Clause 178      Treatment of trusts

Clause 178 deals with how conduct by a trust will be treated under the Bill. Generally, the Bill will apply to a trust as if the trust were a person. However, specific provisions have been included to deal with the fact that trust may have one or more trustees (the relevant legal entity).

Under subclause 178(2), if the trust has a single trustee, an obligation that the Bill imposes on a person will be imposed on the trustee instead. The trustee will also be taken to have committed an offence that will otherwise have been committed by the trust. This is appropriate as the trustee is the relevant legal entity and has legal responsibility for the operation of the trust.

Subclause 178(3) deals with trusts that have two or more trustees. In that circumstance, paragraph (a) will provide that an obligation that the Bill imposes on a person is instead imposed on each trustee. The obligation, however, can be discharged by any of the trustees. The purpose of this provision is to make it clear that all trustees are not required to take joint action to discharge an obligation under the Bill. Paragraph 178(3)(b) will limit liability for an offence against the Bill to those trustees who were involved (both directly and indirectly) in the relevant act or omission constituting the offence, including those who aided, abetted, counselled or procured the act or omission. The purpose of this provision is to ensure that trustees who had no knowledge of the offence are not punished for it.

Subclause 178(4) will make it clear that clause 178 applies to contraventions of civil penalty provisions in the same way it applies to offences.

Clause 179      Arrangements with States and Territories to help give effect to this Act

Clause 179 will allow the Minister to enter into arrangements with a State or Territory Minister concerning either the use of a place in the relevant State or Territory for the purposes of the Bill, or matters necessary or convenient to enable the Commonwealth and the relevant State or Territory to assist each other for the purposes of achieving the Bill’s objects. Potential arrangements entered under this clause could, for example, involve the use of State or Territory officers or employees as authorised officers under the Bill (including in relation to compliance and enforcement matters) or concern the sharing of information held by States and Territories relating to products or waste.

Clause 180      Protection from civil proceedings

Subclause 180(1) will prevent civil proceedings from being instituted against the Commonwealth or a protected person in relation to any act or omission done in good faith in the performance or purported performance of a duty, function or power under the Bill, or in the assistance or purported assistance of a person performing a duty, function or power under the Bill. A protected person will be defined in subclause 180(3) as the Minister, Secretary, an authorised officer or a Departmental officer or employee.

Subclause 180(2) will offer equivalent protection against civil proceedings for persons assisting a protected person as a result of a request, direction or other requirement imposed by the protected person in the performance (or purported performance) of a duty, function or power under the Bill, so long as the assistance was provided by the person in good faith.  

These protections are considered necessary and appropriate to ensure efficient and effective administration of the Bill. Acts or omissions that are not performed in good faith will still be subject to potential civil proceedings, which is considered appropriate as powers, duties and functions under legislation must be exercised in good faith for a proper purpose.

Subclause 180(4) is intended to make it clear that, despite subclauses (1) to (3), civil proceedings can still be brought against the Commonwealth for the purpose of determining the amount of compensation that is reasonable in the event of an acquisition of property (within the meaning of section 51(xxxi) of the Constitution) otherwise than on just terms. This is because just terms for an acquisition of property is a constitutional guarantee and must be preserved.

Clause 181      Circumstances in which the relevant Commonwealth liability of a person is taken to have been paid

This clause will allow the rules to prescribe circumstances where a relevant Commonwealth liability is taken to have been paid.

Clause 10 of the Bill defines relevant Commonwealth liability as including a fee or charge payable under this Bill or a related charging Bill, a penalty for a late payment of such a fee or charge, or a pecuniary penalty or other liability imposed under a prescribed law. Whether all relevant Commonwealth liabilities have been paid is a mandatory consideration for the Minister when deciding, among other things, whether to grant or vary an export licence. This is considered appropriate as a person should not be able to obtain or continue to enjoy the benefits of the Bill, without meeting their liabilities. However, it is recognised that there may be some circumstances where it may be considered appropriate for the relevant Commonwealth liability to be taken to have been paid, such as where payment of the relevant Commonwealth liability is no longer within the applicant’s control. Clause 181 will provide the Minister with flexibility to make rules to address specific circumstances as appropriate.

Clause 182      Power to arrange for certain decisions to be made by computer programs

Clause 182 will allow the Minister to make rules prescribing decisions under this Bill that may be made by a computer program, rather than a person. The power to make the relevant decision may be ordinarily vested in the Minister or the Secretary.

Subclause 182(1) will have the effect that, if a decision is prescribed in rules made for the purpose of clause 182(2), the Secretary may arrange for the use, under the Secretary’s control, of computer programs for the purpose of making that decision. Any rules made prescribing decisions that can be automated will be a legislative instrument and subject to parliamentary scrutiny and disallowance processes through the ordinary operation of the Legislation Act 2003 .

Consistent with the Administrative Review Council’s Best-practice principles of automated assistance in administrative decision making , it is intended that the Minister will only prescribe decisions that are suitable for automated decision-making, such as decisions that involve non-discretionary elements. Decisions made by computer programs under arrangements made under subclause 182(1) will still be required to comply with general administrative law principles and will be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 .

As additional safeguards, subclause 182(3) will impose an obligation on the Secretary to take all reasonable steps to ensure that decisions made by a computer system are correct, while subclause 182(5) would allow the Secretary or Minister (as the case requires) to override the computer system and substitute a new decision if satisfied that the decision made by the computer system was incorrect. It is intended that, for any decisions that are automated, the Department will have a robust system-testing process in operation to ensure the initial and continued accuracy and effectiveness of the relevant computer program.

Subclause 182(4) will provide that a decision made by the operation of a computer program under an arrangement made under subclause 182(1) will be taken to be a decision made by the Secretary or Minister (as the case requires).

Clause 183      Compensation for acquisition of property

Clause 183 will provide for reasonable compensation to be paid to a person if the operation of the Bill will result in an acquisition of property by the Commonwealth on otherwise than just terms. The purpose is to ensure that the relevant provisions of the Bill are consistent with the requirements of section 51(xxxi) of the Constitution. The person affected may institute court proceedings to determine the amount of compensation they are entitled to if they cannot come to an agreement with the Commonwealth on what is reasonable in the circumstances. See also clause 10 for definitions of acquisition of property and just terms .

Clause 184      Annual report

Clause 184 will require the Minister to prepare a report on the operation of the Bill during each financial year. The Minister is required to prepare this annual report as soon as possible after the end of the financial year and must table a copy of the report in each House of Parliament within 15 sitting days after the report is completed.

Clause 185      Review of operation of this Act

Clause 185 will ensure that the Act continues to achieve its objective by requiring a review of the operation of the Act and the extent to which the objects of the Act have been achieved. The review must be undertaken no later than 10 years after the Bill (once enacted) commences.  

The persons undertaking the review must provide the Minister with a written report (subclause 185(3)). The Minister is required to table a copy of the review report in each House of Parliament within 15 sitting days after the Minister receives the report.

Clauses 186 and 187  Delegations by the Minister and Secretary

Clauses 186 and 187 will enable the Minister and the Secretary to delegate any or all their functions and powers under the Bill. As the definition of this Act includes both rules made under the Bill and the Regulatory Powers (Standard Provisions) Act 2014 as it applies to the Bill, the ability to delegate will extend to any functions and powers of the Minister and Secretary set out in the rules or the Regulatory Powers (Standard Provisions) Act 2014 (as it applies to this Bill).

Clause 186 will enable the Minister to delegate their functions or powers to the Secretary or a Senior Executive employee, or acting Senior Executive employee, in the Department. The ability for the Minister to delegate their functions and powers does not extend to the power of the Minister to make rules under clause 188 or to prepare and publish a Minister’s priority list under clause 67.

Clause 187 will enable the Secretary to delegate their functions or powers to a Senior Executive employee, or acting Senior Executive employee, in the Department.

In performing functions or exercising powers, delegates must comply with any directions of the Minister or the Secretary (as the case may be), to ensure that powers exercised by delegates are exercised appropriately and consistently (subclause 186(3) and 187(2)).

As an additional safeguard to ensure the appropriate and reasonable use of delegations, the giving of delegations and the exercise of delegated powers are also subject to fraud control procedures, risk management processes and other protocols. These are designed to ensure delegated decision-making is made at the appropriate level and in a transparent and accountable manner.

Clause 188      Rules

Subclause 188(1) will enable the Minister to make rules prescribing matters required or permitted by the Bill to be prescribed by the rules or matters that are necessary or convenient to be prescribed for carrying out or giving effect to this Bill. Rules made under clause 188 are legislative instruments for the purposes of the Legislation Act 2003 and will be available on the Federal Register of Legislation.

The Bill establishes a framework which enables different classes of waste to be prescribed, and product-specific product stewardship arrangements to be made, at different times. Given that what is an appropriate regulatory requirement will vary for different classes of waste and different product stewardship arrangements (based on the properties of the particular waste or product) it is necessary and appropriate for that detail to be included in the rules rather than the Bill.

For example, the prescribed export conditions that will be appropriate for different classes of waste exports will differ depending on the kind of waste material being exported. Similarly, importing or manufacturing thresholds for a person to be required to join a co-regulatory product stewardship arrangement may differ depending on the product involved.

However, where there is no need for the content of a requirement to differ between products or waste materials, that requirement is set out in the Bill itself, including all offences and civil penalty provisions. For example, most requirements for granting, varying, suspending or revoking an export licence are set out in the Bill, and will apply to all exports of regulated waste materials. Similarly, the regimes relating to compliance and enforcement, authorised officers and audits are set out in the Bill rather than the rules, as it is not necessary to distinguish between kinds of products or waste materials in these contexts.

The rules will be a legislative instrument that is subject to Parliamentary scrutiny and disallowance through the ordinary operation of the Legislation Act 2003 .

Subclause 188(2) will clarify that the rules may prescribe a matter or thing differently for different kinds of persons, things or circumstances.

Subclause 188(3) will override subsection 14(2) of the Legislation Act 2003 by allowing the Minister to make rules applying, adopting or incorporating any written material (with or without modification) as in force or existing from time to time. This is considered appropriate because the types of materials that are likely to be incorporated by reference in the rules will generally be reference materials that are regularly updated. For example, to ensure appropriate processing standards are used in relation to regulated waste materials, the rules will incorporate references to written industry standards that relate to the waste material and are listed on the Department’s website.

Compliance with a specific standard is not intended to be mandatory, but as one way in which an exporter will be able to demonstrate the requirements of the Bill have been met. An alternative mechanism for an exporter to meet the processing requirements will be to provide the Department with contracts of sale that detail the processing specifications, and the equipment that will be used to meet those specifications. This approach provides flexibility to regulated entities to choose a waste processing standard which meets their specific situation and contractual agreements without compromising environmental standards. Similarly, in the product stewardship context, clause 188 will allow the rules to incorporate the Australian census data as existing from time to time, which will ensure that requirements for television and computer collection services accurately reflect the Australian population demographics.

In referencing or adopting non-legislative instruments as existing from time to time consideration has been given to the fundamental principle of the Legislation Act 2003 , and of access to justice, that people are easily able to understand their rights and obligations at law. This is reflected in the waste export context as an exporter will be able to either use a processing standard that is accessible on the Department’s website, or they will be able to nominate a different processing standard which meets their contractual agreements. Accordingly, the intention is that an exporter will not be required to comply with a processing standard that will be uncertain in its content, or that will not be accessible to the exporter free of charge. While it is possible that the content of some standards listed on the Department’s website will only be available to exporters for a fee, exporters have a choice as to whether they use one of those standards, another more freely available standard, or their own nominated standard if it better suits their export operation.

Additionally, in order to comply with paragraph 15J(2)(c) of the Legislation Act 2003 , the explanatory statements for the rules will contain a description of the relevant incorporated material and indicate how it may be obtained.

Subclause 188(4) will provide that the rules may not create an offence or civil penalty, provide powers of arrest or detention or powers of entry, search or seizure. Further, the rules will not impose a tax, set an amount to be appropriated from the Consolidated Revenue Fund or directly amend the text of the Bill.

Subclause 188(5) will provide that in clause 188, a reference to this Act does not include the rules. This is necessary because the general definition of this Act in section 10 includes the rules, to pick up any powers and functions that are vested in persons by the rules. However, that extended definition is not appropriate for the rule-making power in clause 188 as, in this context, the Act and the rules must be able to be distinguished.

 



ATTACHMENT A

Statement of Compatibility with Human Rights

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

Recycling and Waste Reduction Bill 2020

 

The 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 Bills

The Recycling and Waste Reduction Bill 2020 (the Bill) will establish a framework to:

·          regulate the export of waste materials, in line with the agreement to ban the export of waste plastic, paper, glass and tyres by the Council of Australian Governments in 2020, and

·          improve the management of environmental, health and safety impacts of products, in particular those impacts associated with the disposal of products.

The Bill will facilitate this by:

·          permitting rules to prescribe waste material that will be regulated under the Bill (regulated waste material);

·          permitting rules to prohibit the export of regulated waste material unless prescribed export conditions are complied with (such as the issuing of an export licence);

·          providing for the granting of export licences to carry out export operations in relation to a kind of regulated waste material;

·          providing a mechanism for the Minister to exempt persons from the provisions of the Bill relating to the export of regulated waste material;

·          providing for the accreditation of voluntary product stewardship arrangements for a product that further the objects of the Bill, for example, by making arrangements for the recovery and recycling of particular products;

·          permitting the rules to specify liable parties in relation to a product, requiring liable parties to be a member of an approved co-regulatory arrangement in relation to that product, providing for the approval of co-regulatory product stewardship arrangements and imposing obligations on the administrators of such arrangements;

·          enabling mandatory product stewardship requirements to be prescribed by the rules, which relate to the objects of the Bill and require specified persons to take, or not take, specified actions in relation to a specified product;

·          establishing offences and civil penalty provisions relating to the export of regulated waste material and product stewardship schemes;

·          triggering the compliance and enforcement provisions of the Regulatory Powers (Standard Provisions) Act 2014 and providing for additional powers to support the objectives of the Bill;

·          enabling the delegation of the Minister’s and the Secretary’s functions and powers under the Bill; and

·          requiring a review of the operation of the Bill and the achievement of its objectives, at regular intervals.

Human Rights Implications

The Bill engages the following human rights:

·          the right to health in Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (the ICESCR);

·          the right to a fair trial and fair hearing in Article 14(1) of the International Covenant on Civil and Political Rights (the ICCPR);

·          the right to the presumption of innocence in Article 14(2) of the ICCPR; and

·          the right to privacy in Article 17 of the ICCPR.

Right to health

Article 12(1) of the ICESCR makes provision in relation to the right to health, specifically the right to the enjoyment of the highest attainable standard of physical and mental health. Article 12(2)(b) includes the improvement of all aspects of environmental hygiene as a step to be taken to achieve the full realisation of the right to health. In its General Comment No 14 (August 2000), the United Nations Committee on Economic Social and Cultural Rights states that this encompasses the prevention and reduction of the population’s exposure to harmful substances such as harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health (at [15]).

A key objective of the Bill will be to promote the right to health (including by promoting a healthy environment) by reducing the impact on human and environmental health of products, waste from products and waste material, including by reducing the amount of greenhouse gases emitted, energy and resources used, water consumed and contamination in connection with products, waste from products and waste material. The Bill will achieve this objective by:

·          regulating the export of waste material to promote its management in an environmentally sound way (see Chapter 2 of the Bill);

·          encouraging the reuse, recycling and recovery of products, waste from products and waste material in an environmentally sound way (see Chapter 3 of the Bill);

·          encouraging those responsible for using, designing, manufacturing and distributing products to take responsibility for those products (see Chapter 3 of the Bill).

In particular, in relation to the regulation of waste exports in Chapter 2 of the Bill:

·          Clause 18 will enable the rules to prohibit the export of regulated waste material subject to prescribed export conditions, such as the issue of an export licence.

·          In deciding whether to grant or renew an export licence, the Minister must have regard to the objects of the Bill, which include human and environmental health objectives (see clauses 34 and 39).

·          Clause 35 will allow conditions to be imposed on an export licence which may relate, amongst other things, to the manner in which regulated waste material is processed prior to export. This includes conditions requiring that regulated waste material meet contamination thresholds and processing standards prior to being exported from Australia.

·          Export licences may be varied, suspended or revoked if the Minister reasonably believes that it is necessary to do so to prevent or lessen a threat to human or environmental health (see clauses 44, 46 and 54).

By allowing for the regulation of these matters, the Bill will ensure that the export of regulated waste material does not adversely impact on human and environmental health.

Chapter 3 of the Bill will enable the Minister to set measurable outcomes that further the objects of the Bill through voluntary, co-regulatory and mandatory product stewardship schemes. By providing for the regulation of a range of product stewardship schemes, the Bill will encourage manufactures, importers, distributors and users of products to reuse, recycle or recover products in an environmentally responsible manner, leading to improved human and environmental health outcomes.

Also, clause 4 will require the Minister to take a precautionary approach in relation to protecting human and environmental health when performing functions and exercising powers under the Bill. This promotes the right to health as it ensures the Minister performs their functions and exercises their powers under the Bill in a manner that minimises any potential harm to human and environmental health.

In summary, the Bill is compatible with the right to health under Article 12 of the ICESCR because it positively engages and promotes that right.

Right to a fair trial and fair hearing

Article 14(1) of the ICCPR guarantees the right to a fair trial and fair hearing in relation to both criminal and civil proceedings.

Right to a fair trial - civil penalty provisions

The Bill will provide for a number of civil penalty provisions, relating to, for example:

·          the export of regulated waste material without a licence (Chapter 2, Part 2 of the Bill);

·          contraventions of a condition of an exemption in relation to the export of regulated waste material (Chapter 2, Part 3);

·          carrying out export operations after suspension or revocation of an export licence (Chapter 2, Parts 7 and 8);

·          contravention of conditions of an export licence and other obligations of holders of an export licence (Chapter 2, Part 9);

·          requirements in relation to approved co-regulatory arrangements (Chapter 3, Part 4);

·          compliance and enforcement such as the contravention of directions and the provision of false or misleading information or documents (Chapter 4, Parts 2, 3 and 8);

·          record-keeping (Chapter 4, Part 4); and

·          other matters such as requirements that enable the Minister to collect and disseminate statistical information (Chapter 5).

Civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a criminal penalty for the purposes of the ICCPR, so that an assessment can be made as to whether the provision is consistent with the requirements of the ICCPR.

Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

The civil penalty provisions of the Bill will expressly classify the penalties as civil penalties. Those provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties will be to encourage compliance with the requirements for the export of regulated waste materials, approved co-regulatory arrangements, effective administration of the Bill, record-keeping and other matters such as the collection of statistical information. The civil penalty provisions will not impose criminal liability and a finding by a court that they have been contravened does not lead to the creation of a criminal record. The civil penalties will only apply to the participants of the relevant regulatory regimes established by the Bill, rather than the public in general. These factors all suggest that the civil penalties imposed by the Bill are civil rather than criminal in nature.

The maximum penalties that may be imposed in civil penalty orders are between 60 and 600 penalty units. Where the penalties are higher, this reflects the more serious implications or results of the contravention. Under subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 , as applied to the Bill by clause 101, the maximum penalties that apply to individuals will be those specified in the civil penalty provision of the Bill. Due to the proposed application of the standard provisions in Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 by clause 101 of the Bill, the corporate multiplier provision in subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 will apply to the proposed civil penalty provisions in the Bill. Consequently, for bodies corporate, the penalties will be no more than five times the penalty specified in the civil penalty provision, i.e., the maximum penalties will be between 300 and 3000 penalty units.

These civil pecuniary penalties for the proposed civil penalty provisions in the Bill have been set by reference to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide). They seek to reflect the seriousness of the contravening conduct and the risk that the conduct may pose to human or environmental health.

In light of the matters discussed above, the civil penalties provided for by the Bill will not amount to a criminal penalty for the purposes of the ICCPR, so criminal process rights provided for by Articles 14 and 15 of the ICCPR are not engaged by the provisions of the Bill (and the Regulatory Powers (Standard Provisions) Act 2014 ) relating to civil penalty orders.

Right to a fair trial - infringement notices

Clause 102 of the Bill will trigger the infringement notice provisions in Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 . These provisions will enable the Secretary to issue an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 where the Secretary believes, on reasonable grounds, that a listed provision of the Bill has been contravened.

An infringement notice issued under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 will be a notice of a pecuniary penalty imposed on a person. It will set out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice or electing to have the matter dealt by a court. If the person does not pay the amount in the notice, they may be prosecuted if the notice relates to an offence provision, or proceedings for a civil penalty order may be brought against them if the notice relates to a civil penalty provision. This engages the right to a fair and public hearing and the other criminal process rights and minimum guarantees in Article 14 of the ICCPR. As the person may elect to have the matter heard by a court, rather than pay the penalty, the rights to a fair and public hearing, in both civil and criminal matters, are not limited. Clause 102 does not limit the minimum guarantees in criminal proceedings or other process rights provided for by Article 14 of the ICCPR.

Accordingly, the infringement notice provisions under clause 102 of the Bill are compatible with the right to a fair and public trial.

Right to a fair trial - enforceable undertakings

Clause 103 of the Bill will trigger the enforceable undertakings provisions in Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 . This will enable the Secretary to accept and enforce undertakings relating to compliance with a provision of the Bill. If the Secretary is satisfied that the person has breached the undertaking, the Secretary may apply to a relevant court for an order relating to the undertaking under section 115 of the Regulatory Powers (Standard Provisions) Act 2014 .

Triggering the enforceable undertakings provisions of the Regulatory Powers (Standard Provisions) Act 2014 in relation to a provision under the Bill engages the right to a fair and public hearing and other criminal process rights and minimum guarantees in Article 14 of the ICCPR. Article 14(1) of the ICCPR ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 , an order enforcing an undertaking can only be made by a court. Accordingly, the right to a fair and public hearing is not limited.

Article 14(1) of the ICCPR also provides a right to a fair and public hearing in civil matters. As orders to enforce an undertaking can only be made by a relevant court under section 115 of the Regulatory Powers (Standard Provisions) Act 2014 , the right to a fair hearing in civil matters provided for by Article 14(1) of the ICCPR is not limited.

Accordingly, clause 103, which triggers the enforceable undertakings provisions of the Regulatory Powers (Standard Provisions) Act 2014 , is compatible with human rights.

Right to a fair trial - injunctions

Clause 104 of the Bill will trigger the injunctions provisions in Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 . This will enable the Secretary to apply to a relevant court for an injunction to restrain a person from engaging in conduct or requiring a person to do a thing. The Secretary may apply to a relevant court for an interim injunction. The injunction provisions are triggered in relation to a provision of the Bill.

Triggering the injunction provisions of the Regulatory Powers (Standard Provisions) Act 2014 in relation to a provision of the Bill engages the right to a fair trial and public hearing in both civil and criminal proceedings. Article 14(1) of the ICCPR ensures that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 , an injunction can only be granted by a court. Thus, the right to a fair and public hearing by a competent, independent and impartial tribunal is not limited. Clause 104 does not limit any of the other criminal process rights or minimum guarantees in Article 14 of the ICCPR.

Overlap of criminal and civil penalties

Sections 90 and 91 of the Regulatory Powers (Standard Provisions) Act 2014 will apply in relation to civil penalty proceedings brought under the Bill as a result of clause 101. These clauses concern the relationship between criminal and civil penalty proceedings.

Section 90 of the Regulatory Powers (Standard Provisions) Act 2014 clarifies that criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention. This section recognises the importance of criminal proceedings and criminal penalties in sanctioning contraventions of a triggering Act (i.e. an Act that seeks to apply the standard provisions of the Regulatory Powers (Standard Provisions) Act 2014 ) and ensures that criminal remedies are not precluded by earlier civil action.

Section 90 of the Regulatory Powers (Standard Provisions) Act 2014 engages the criminal process rights in Article 14 of the ICCPR, but does not limit those rights. Article 14(7) of the ICCPR provides that “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. This prohibition on double jeopardy is a fundamental safeguard in the common law of Australia. It means that a person who has been convicted or acquitted of a criminal charge is not to be re-tried for the same or substantially the same offence.

As section 90 of the Regulatory Powers (Standard Provisions) Act 2014 permits both civil and criminal proceedings, but not multiple criminal proceedings for the same conduct, Article 14(7) of the ICCPR is not infringed. Further, section 88 of the Regulatory Powers (Standard Provisions) Act 2014 provides a safeguard against potential double jeopardy by stating that a court cannot make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

Section 91 of the Regulatory Powers (Standard Provisions) Act 2014 provides that evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

·          the individual previously gave the information or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and

·          the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

Section 91 of the Regulatory Powers (Standard Provisions) Act 2014 ensures that information or documents produced during civil proceedings are not relied upon to support subsequent criminal proceedings, unless those proceedings are criminal proceedings relating to falsifying evidence in civil proceedings. Accordingly, that section engages, but does not limit, the criminal process rights in Article 14 of the ICCPR.

In summary, clause 101 of the Bill, which triggers Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , engages, but does not limit, the right to a fair and public hearing and the other criminal process rights and minimum guarantees in Article 14 of the ICCPR.

Right to a fair hearing - serious and imminent threat to human or environmental health

Chapter 2 of the Bill will allow the Minister to vary, suspend and revoke an export licence for waste materials granted under the Bill without an application from the licence holder. Division 2, Part 3 of Chapter 4 will allow the Minister to vary, suspend and revoke the authorisation of third party authorised officers. In these circumstances, the Minister must give the licence holder notice specifying particular matters, including a request to give the Minister, within 14 days after the day the notice is given, a written statement showing cause why the proposed decision should not be made.

However, the notice will not be required if the Minister reasonably believes that the proposed decision is necessary to prevent or lessen a serious and imminent threat to human or environmental health. This engages with the fair hearing right under Article 14 because an affected person will not have the opportunity to be heard prior to the Minister’s decision to vary, suspend or revoke the export licence or the authorisation of a third party authorised officer. This will be necessary where there is evidence of a serious and imminent threat to human or environmental health, as the threat may have materialised within 14 days and caused serious harm to human or environmental health. However, the requirement that the threat be both serious and imminent, and the Minister having to reasonably believe that varying, suspending or revoking the export licence is necessary to prevent or lessen the threat, mean this will be a high bar that will likely only be able to be satisfied in rare circumstances. In addition, in these circumstances, the Minister’s decision will still be a reviewable decision as provided for by clause 151. The person will still be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Therefore, the right to a fair hearing outlined by Article 14 of the ICCPR is not unduly limited.

 

Right to the presumption of innocence

Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty accordingly to law.

Right to the presumption of innocence - e videntiary certificate

Clause 168(1) of the Bill provides that a certificate given under clause 167 (Analyst may give certificate) is admissible (if the procedure in subclause (2) is complied with) in any proceedings in relation to a contravention of the Bill as prima facie evidence of the matters in the certificate and the correctness of the result of the analysis to which the certificate relates. This engages Article 14 because the prosecution is not required to prove each piece of information contained in the certificate, unless the defendant challenges the certificate.

The objective of this clause is to ensure that all appropriate evidence is before the court. The certificate is intended to be in the format of a technical report, prepared by an analyst who meets the training and qualification requirements. The certificate will provide information on the waste material relevant to establishing a contravention of the Bill, such as the method and results of testing or analysing the waste material and other matters which are objective and scientific based.

Allowing the certificate as prima facie evidence of limited matters is reasonable to free up the court’s time to consider the more pressing issues related to the offence. The use of an evidentiary certificate will likely mitigate the delays that may be faced in obtaining evidence in other ways. In this way, the use of evidentiary certificates will promote the right of the defendant to be tried without undue delay in Article 14(3)(c) of the ICCPR.

Further, there are a number of safeguards built into clause 168 of the Bill that will protect the rights of the defendant. First, evidentiary certificates establish prima facie evidence, rather than conclusive evidence, of the matters contained within it. As such, the certificates create a rebuttable presumption as to the facts which the defendant may challenge during the court proceedings.

Second, subclause 168(2) of the Bill will provide that the defendant (or a legal practitioner who is appearing for the defendant) must be given a copy of the certificate, and notice of the intention to produce the certificate as evidence in the proceedings, at least 14 days before the certificate is admitted as evidence. This will allow time for the defendant and their legal counsel to view the certificate and prepare their case in relation to it.

Third, subclause 168(3) of the Bill will allow the defendant to require the analyst who gave the certificate to be called as a witness and cross-examined. This will give the defendant an opportunity to challenge the credibility of the analyst as well as the evidence in the certificate. This is consistent with Article 14(3)(e) of the ICCPR, which includes as a minimum guarantee in the determination of any criminal charge against a person the right to examine, or have examined, the witnesses against the person.

Right to the presumption of innocence - strict liability

Strict liability offences engage and limit the presumption of innocence as they allow for the imposition of criminal liability without the need to prove fault. However, strict liability offences will not necessarily be inconsistent with the presumption of innocence, provided that the removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. It is also important to note that, for each of the strict liability elements and offences, the defence of honest and reasonable mistake of fact is still available to the defendant and the existence of strict liability does not make any other defence unavailable.

Elements of fault-based offences subject to strict liability

There are some offences in Chapter 2 of the Bill (Regulating the export of waste material) where strict liability is applied to one or more physical elements of the offence in circumstances where strict liability is appropriate as set out in the Guide.

The offence elements subject to strict liability through the operation of subclauses 20(3), 21(3), 22(3), 23(3), 24(3) and 59(6) set out matters of law. It is appropriate for these elements to be subject to strict liability because they do not involve any conduct by the export licence holder. It is appropriate to expect persons who are voluntarily engaged in the regulatory regime to know their legal obligations before commencing relevant conduct. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons engaged in the regulatory regime had a particular state of mind (e.g. knowledge) in relation to the relevant legal requirements.

Strict liability offences

Chapter 2 of the Bill (Regulating the export of waste material), Chapter 3 of the Bill (Product stewardship), Chapter 4 of the Bill (Administration) and Chapter 5 of the Bill (Other matters) contain offences of strict liability relating to notifying the Minister of certain events, participation in, and requirements relating to, co-regulatory product stewardship schemes, the return of identity cards by authorised officers and others, record-keeping requirements, and the provision to the Minister of statistical and other information.

The Guide states that applying strict liability to all physical elements is generally only considered appropriate where all of the following apply:

·          the offence is not punishable by imprisonment;

·          the offence is punishable by a fine of up to 60 penalty units for an individual and 300 penalty units for a body corporate;

·          the punishment of offences not involving fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring certain conduct;

·          there are legitimate grounds for penalising persons lacking fault (for example, because they will be placed on notice to guard against the possibility of any contravention).

None of the strict liability offences proposed to be created by the Bill are punishable by imprisonment, and each is punishable by a fine of 60 penalty units or less for an individual.

Subclause 61(3) will establish a strict liability offence for export licence holders in relation to the failure to notify the Minister of certain events concerning their business operations. These events include changes to the licence holder’s name and contact details, and if the person becomes insolvent or for corporations, enters administration or wound up. Requiring export licence holders to provide notification of these events to the Minister is necessary so the Minister can determine whether it is appropriate for the export licence to remain in force or whether it should be varied. Strict liability will ensure that the failure to notify the Minister can be dealt with efficiently to ensure industry and public confidence in the regulatory regime.

Subclauses 72(3) and 82(3) will establish strict liability offences for administrators of an accredited voluntary arrangement or co-regulatory arrangement in relation to the failure to notify the Minister of certain events concerning the operation of the arrangement. These events include an event which affects whether the administrator is a fit and proper person, or an event which hinders the ability of the arrangement to achieve its outcomes. Requiring administrators to provide notification on the operation of their product stewardship arrangements to the Minister is necessary to ensure that the arrangements operate in a transparent and accountable way. Strict liability will ensure that the failure to notify the Minister can be dealt with efficiently to ensure industry and public confidence in the regulatory regime.

Under subclause 76(2) it is a strict liability offence for a liable party in relation to a product not to be a member of an approved co-regulatory arrangement in relation to that product. Requiring liable parties to be members of a co-regulatory product stewardship arrangement is central to the operation of co-regulatory arrangements as it seeks to ensure that non-participants in an industry arrangement do not gain an advantage over participants by not adhering to requirements of the co-regulatory arrangements. Offences relating to non-membership of co-regulatory schemes need to be dealt with efficiently to ensure industry confidence in the regulatory regime.

Subclause 81(2) will establish a strict liability offence if the administrator of a co-regulatory arrangement fails to take reasonable steps to ensure that the arrangement achieves its specified outcomes. The imposition of strict liability is justified because it is important that non-compliance of an administrator of a co-regulatory scheme is dealt with efficiently. This is to ensure the integrity of, and industry confidence in, the regulatory regime. This is because administrators are the persons responsible for the co-regulatory arrangement achieving the outcomes specified for the relevant product, which is the primary mechanism for the co-regulatory regime to achieve the objects of the Bill.

Under subclause 83(4) it is a strict liability offence for a liable party or administrator of an approved co-regulatory arrangement that fails to comply with a rule requiring that liable party or administrator to provide specified reports to the Minister. Requiring liable parties to provide information to the Minister is integral to the operation of co-regulatory product stewardship and the overarching product stewardship framework set out in the Bill. Offences relating to the provision of information to the Minister need to be dealt with efficiently to ensure the integrity of, and industry confidence in, an informed regulatory regime.

Subclause 88(8) will make it a strict liability offence for an administrator to fail to comply with an improvement notice, which is a notice that may be issued when that the Minister believes on reasonable grounds that the administrator has not complied, or is unlikely to comply, with clause 81. Clause 81 will require the administrator of an approved co-regulatory arrangement to take all reasonable steps to ensure that the arrangement achieves the relevant outcomes for the product, and to comply with any requirements prescribed by rules made in relation to the achievement of those outcomes.

The imposition of strict liability is justified in relation to subclause 88(8) because it is important as non-compliance of an administrator of a co-regulatory scheme need to be dealt with efficiently to ensure the integrity of, and industry confidence in, the regulatory regime. This is because administrators are the persons responsible for the co-regulatory arrangement achieving the outcomes specified for the relevant product, which is the primary mechanism for the co-regulatory regime to achieve the objects of the Bill.

Under subclause 124(3) a person commits an offence of strict liability if they have been issued with an identity card under subclause 123(1), they no longer belong to a category of persons eligible to be granted an identity card, and they fail to return their identity card to the Secretary within 14 days of this occurring. However, no offence is committed if the person’s authorisation has been suspended (if they are an authorised officer) or their identity card was lost or destroyed.

This offence is necessary to achieve the legitimate objective of preventing the fraudulent or unauthorised use of identity cards. Under Division 4 of Part 2 of Chapter 4 a person holding an identity card will (other than in circumstances prescribed by the rules) be required to carry that card at all times when performing relevant functions or duties, or exercising powers, under the Bill. Further, an authorised officer entering a premise to exercise monitoring and investigation powers will be required to produce an identity card before entering the premises except for circumstances prescribed in the rules. The rules may also specify when approved auditors are required to show identity cards. Removing the requirement to prove fault will ensure that offences relating to identity cards are dealt with efficiently to ensure industry confidence in the regulatory and enforcement regime provided for by the Bill.

The proposed strict liability offence in subclause 142(4) of the Bill will relate to the requirements for certain persons to make and retain records relating to their operations or activities. The Minister is permitted to make rules relating to the making or retention of records, and it is a strict liability offence for a person to fail to comply with a requirement imposed by these rules. Strict liability will be necessary to ensure the integrity of the regulatory regime. The making and retention of records is an important compliance mechanism to ensure that those who are regulated under the Bill, or perform functions or exercise powers under the Bill, may be held accountable for their actions or omissions. Removing the requirement to prove fault will provide a strong incentive for such to keep records. The existence of the offence is likely to place relevant persons on notice to guard against the possibility of any contravention of the Bill.

Subclause 144(8) makes the failure to comply with rules requiring information to be provided a strict liability offence. The information collected under clause 144 will play an important role in informing the Commonwealth in relation to those matters covered by the objects of the Bill, which is a necessary part of ensuring that the Bill remains an effective and efficient mechanism to realise its intended human and environmental health benefits. Strict liability is appropriate because the person affected will be placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

Right to the presumption of innocence - reversal of the burden of proof

Laws that shift the burden of proof to a defendant, commonly known as ‘reverse burden provisions’, can be considered a limitation of the presumption of innocence. When a defendant bears an evidential burden in relation to an exception it means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

Reverse burden offences will not necessarily be inconsistent with the presumption of innocence, provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a reverse burden provision impermissibly limits the right to the presumption of innocence will depend on the circumstances and justification for the reverse burden.

The Guide notes that placing the burden of proof on the defendant should be limited to where the matter is peculiarly within the knowledge of the defendant and where it is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The Guide also notes that a reverse burden provision is more readily justified if:

·          the matter in question is not central to the question of culpability for the offence;

·          the penalties are at the lower end of the scale; and

·          the conduct proscribed by the offence poses a grave danger to public health or safety.

Clause 124 of the Bill will create a strict liability offence, subject to a penalty of one penalty unit, if a person who was an authorised officer, approved auditor or other prescribed person fails to return their identity card within 14 days of ceasing to be such a person. The defendant will bear the evidential burden in relation to demonstrating that their authorisation has been suspended (if they are an authorised officer) or that their identity card was lost or destroyed.

This clause is necessary to achieve the legitimate objective of preventing the fraudulent or unauthorised use of identity cards. The rules may specify when a person will be required to produce an identity card before entering premises to conduct an audit, and a person holding an identity card will (other than in circumstances prescribed by the rules) be required to carry that card at all times when performing relevant functions or duties, or exercising powers, under the Bill.

Reversing the burden in these circumstances is reasonable because whether the defendant’s identity card has been lost or destroyed is something peculiarly within the knowledge of the defendant alone and proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence . It is also relevant to note that the penalty of 1 penalty unit is low.

Clauses 145, 146 and 147 will establish civil penalty provisions in relation to providing false or misleading statements in connection with an application made under the Bill, information given as required by the Bill or a document produced as required by the Bill. These civil penalty provisions are included as a deterrent from such conduct given its potential to undermine the integrity of the regulatory scheme. For example, such conduct could lead to waste material being exported to a place considered inappropriate for human or environmental health reasons.

The civil penalty provisions in clauses 145, 146 and 147 will not apply if the statement is not false or misleading in a material particular (or that the statement did not omit a thing without which the statement is misleading in a material particular). Section 96 of the Regulatory Powers (Standard Provisions) Act 2014 provides that if a defendant wishes to rely on this exception to the civil penalty provision, the defendant bears an evidential burden of proof in relation to the matter.

The reversal of the burden of proof in these circumstances is reasonable because whether a statement is false or misleading in a material particular is something peculiarly within the knowledge of the defendant alone, being the person who provides the statement, information or document. Proving the contrary beyond reasonable doubt will require significant and difficult to obtain indirect and circumstantial evidence.

Under subclause 148(1) of the Bill it will be an offence for a person to use or disclose protected information that they obtained in the course of, or for the purposes of, performing functions or duties or exercising powers under the Bill, where there is a risk that the use or disclosure might substantially prejudice the commercial interests of another person. This offence has been included to deter the use or disclosure of commercially sensitive protected information in circumstances that are not reasonable, necessary or proportionate.

Clause 149 provides for exceptions to this prohibition in defined circumstances, including where the use or disclosure is for the purposes of performing a duty or function, or exercising a power, under or in relation to the Bill, is authorised by or under a Commonwealth law or a prescribed law of a State or Territory, is consented to by the relevant person, or occurs after the relevant information has been lawfully made public. The evidential burden is placed on a defendant who seeks to show that a disclosure was authorised or required within the terms of clause 149.

It is appropriate that the evidential burden in relation to these matters is placed on the defendant as whether the defendant used or disclosed protected information in reliance on one or more of the exemptions in subclause 149(1) is peculiarly within the knowledge of the person. Further, there are a number of authorised uses and disclosures set out in subclause 149(1). In the event of a prosecution, it will be significantly more difficult and costly for the prosecution to disprove all the circumstances set out in paragraphs 149(1)(a)-(h) than it will be for a defendant to establish the existence of one of those circumstances. Consequently, in order to effectively protect information under clause 148, it is reasonable, necessary and proportionate to require a defendant to adduce or point to evidence that suggests a reasonable possibility that one of the exceptions listed in clause 149 applies, and for clause 149 to limit the right to the presumption of innocence.

Right to privacy

Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence. The United Nations Human Rights Committee has given a liberal interpretation to the term ‘home’, which includes a person’s workplace. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances.

Right to privacy - monitoring, investigation and audit powers

The Bill will trigger various monitoring and investigation powers that are provided for in the Regulatory Powers (Standard Provisions) Act 2014 , including powers relating to entry, inspection, search and seizure. The monitoring and investigation powers are necessary for the legitimate purpose of enabling the monitoring of compliance with the Bill and the collection of evidential material relating to contraventions of the Bill. The use of these powers is constrained, ensuring that their use is not arbitrary, as follows:

·          The powers cannot be exercised without consent being given to the entry to the premises, or under warrant granted by an issuing officer. Where entry is by the consent of the occupier, consent must be informed and voluntary, and can be withdrawn at any time.

·          Monitoring and investigation warrants can only be issued where the issuing officer is satisfied of certain matters, by information on oath or affirmation, of an authorised government enforcement officer.

·          An authorised government enforcement officer cannot enter premises under warrant unless their identify card is shown to the occupier of the premises, and they provide the occupier with a copy of the warrant.

Also, under Division 4 of Part 2 of Chapter 4 of the Bill, the Minister may require that an audit be carried out of a product stewardship arrangement, certain export operations or the performance of functions or exercise of powers under the Bill. In particular, under clause 113 an auditor may ask a person for information, and under clause 115 a relevant person (including the administrator of a co-regulatory arrangement, a holder, or former holder of an export licence or exemption) is required to provide facilities and assistance to an auditor. If a relevant person fails to comply with such a request, or to provide assistance, this is a ground for suspension or revocation of an export licence, or for the cancellation of the approval of a co-regulatory arrangement. However, there is no criminal or civil penalty associated with failure to comply.

In summary, the monitoring, investigation and audit powers are necessary, proportionate and reasonable in the pursuance of the legitimate objectives of the Bill.

Right to privacy - collection of information

Various provisions of the Bill will, or will permit rules to be made that:

·          require a person to provide information in an application (e.g. clause 172);

·          require a person to provide additional or corrected information in relation to their application (e.g. clauses 60, 173 and 174); and

·          give a person (e.g. the Minister) the power to require information or documents (e.g. clauses 64, 83, 143 and 144).

By requiring persons to provide information or documents the Bill may, in some cases, require the provision of personal information. The collection of information under these clauses (and any subsequent storage, use or disclosure of this information) may therefore operate to limit the right to privacy. However, it is likely that only a limited amount of personal information will be collected under the Bill and most information will be relating to a person’s business.

Any personal information collected under the Bill will be managed in an open and transparent way, consistent with the Department’s Privacy Policy and the Australian Privacy Principles contained in Schedule 1 of the Privacy Act 1988 . Under the Department’s Privacy Policy, appropriate controls exist in relation to the use and storage of personal information. For example, only personal information necessary to effectively carry out the scheme will be collected.

Clauses requiring information in relation to persons who wish to export, or have exported, regulated waste material are necessary for the legitimate objective of assessing the suitability of a person to participate in export operations in relation to regulated waste materials and to ensure those persons are continuing to comply with the Bill. A person who provides information in an application or as a participant in the regulatory scheme will do so as someone who has ‘opted in’ to the regulatory system, and should expect that some personal information may need to be provided in order to gain the benefits of that system.

Further, some information will be able to be gathered under the Bill from participants in product stewardship schemes. However, it is expected that only a very limited amount of such information will be personal information. A person who provides information as a participant, or prospective participant, in a voluntary product stewardship scheme will ‘opt in’ to the scheme and should expect that some personal information may need to be provided in order to gain the benefits of that system.

Clause 144 will enable the Minister to collect information in relation to the objects of the Bill for statistical purposes. This data will be used to support the national approach to waste data collection within product stewardship schemes and to monitor the export of regulated waste material to inform the public and enable effective enforcement of the Bill.

Right to privacy - use and publication of information

Subclause 65(1) of the Bill will require the Minister to publish on the Department’s website certain information in relation to each export licence granted by the Minister, including the name of the export licence holder and details about the licence including the kinds of regulated waste materials covered by it. Subclause 95(1) will require the Minister to publish on the Department’s website certain information about accredited voluntary arrangements and approved co-regulatory arrangements. The Minister must not publish any information under subclause 65(1) or subclause 95(1) if the Minister is satisfied that there is a risk that publishing the information might substantially prejudice the commercial interests of a person, and publishing the information is not in the public interest.

The purpose of such publication is to provide transparency to industry and the public on the regulated waste export operations and product stewardship arrangements. Publishing the names of holders of export licences can assist entities to find a licensed exporter, as well as provide assurance that they are dealing with a licensed exporter to outweigh the potential adverse consequences to the individuals concerned. Furthermore, by including accredited voluntary and co-regulatory arrangement administrator’s details online will provide a clear avenue for potential members to seek out the relevant arrangements and potentially join.

Clauses 65 and 95 may, in practice, require the Minister to publish information about individuals. However, it is anticipated that most export licence holders and administrators of product stewardship arrangements will be body corporates, for which the protections in the Privacy Act 1988 do not apply.

The types of information that are required to be published under clauses 65 and 95 are set out with specificity in the Bill, so the Minister will not have any scope to exercise discretion. The disclosures authorised by these provisions are reasonable, necessary and proportionate.

Under clause 122 of the Bill, the Minister may publicise certain matters, including the name of a person who has been convicted of an offence against the Act, had a civil penalty order made against them, or entered into an enforceable undertaking. The purpose of permitting such publication is to act as a deterrent to contravention and therefore assist with ensuring the integrity of the regulatory regime. Again, the matters that may be disclosed under clause 122 are set out with precision in the Bill.  It is expected that most persons whose names would be published will be body corporates, for which the Privacy Act 1988 does not apply and that many of the matters will already be publicly available. Also, this publishing power is discretionary and as such the Minister retains the ability to decide not to publish any of the information set out above if they consider that, in the particular circumstances the potential adverse consequences of publishing the information outweigh the intended deterrence effect.

Clause 149 will provide for the authorised use and disclosure of protected information, that was disclosed or obtained under or for the purposes of the Bill, in defined circumstances. Examples of such circumstances include for the purposes of performing a duty or function, or exercising a power, under or in relation to the Bill, is authorised by or under a Commonwealth law or a prescribed law of a State or Territory, is consented to by the relevant person, or occurs after the relevant information has been lawfully made public. These circumstances are clearly defined and are generally aimed at assisting with compliance and enforcement with the Bill. Therefore, they are reasonable, necessary and proportionate to achieving the objects of the Bill. Also, it is expected that most protected information covered by any of the authorised uses and disclosures are in relation to body corporates, for which the Privacy Act 1988 does not apply, and will not include personal information.

Clause 144 will enable the Minister to disseminate collected information in relation to the objects of the Bill for statistical purposes. This data will be used to support the national approach to waste data collection within product stewardship schemes and to monitor the export of regulated waste material, to inform the public and enable effective enforcement of the Bill.

In summary, the clauses discussed above, which limit the right to privacy, are reasonable, necessary and proportionate to achieve relevant legitimate objectives. Accordingly, these aspects of the Bill are consistent with the right to privacy in Article 17 of the ICCPR.

Conclusion

The Bill is compatible with human rights because it promotes the right to health under Article 12(1) of the ICESCR. To the extent that it engages and limits other human rights (including those under Articles 14(1), 14(2) and 17 of the ICCPR), those limitations are reasonable, necessary and proportionate to achieve the legitimate aims of the Bill.

 

(Circulated by authority of the Minister for the Environment, the Hon. Sussan Ley MP)

 



 

Department of Agriculture, Water and the Environment  



ATTACHMENT B

 

 

 

 

 

 

Decision Regulation Impact Statement:

Phasing out exports of waste plastic, paper, glass and tyres

 

 

 

 

 

Prepared for COAG consideration

13 March 2020

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

ISBN XXX-X-XXXXXX-XX-X

Copyright notice

Creative Commons BY graphic

This document - Decision Regulation Impact Statement: Phasing out certain waste exports - is licensed under the Creative Commons Attribution 4.0 International Licence .

Licence URL: https://creativecommons.org/licenses/by/4.0/legalcode

Please attribute: © Commonwealth of Australia (Department of Agriculture, Water and the Environment) 2020

Notice:

1.     If you create a derivative of this document, the Department of Agriculture, Water and the Environment requests the following notice be placed on your derivative: Based on Commonwealth of Australia (Department of Agriculture, Water and the Environment) data.

2.     Inquiries regarding this licence or any other use of this document are welcome. Please contact: National Waste and Recycling Taskforce, Department of Agriculture, Water and the Environment. Please direct any questions to 1800 803 772 or COAGwasteexportban@awe.gov.au .

Notice identifying other material or rights in this publication:

1.    Australian Commonwealth Coat of Arms - not licensed under Creative Commons, see https://www.itsanhonour.gov.au/coat-arms/index.cfm .

2.    Certain images and photographs (as marked) - not licensed under Creative Commons.



About this Decision Regulation Impact Statement

The Commonwealth National Waste and Recycling Taskforce within the Department of Agriculture, Water and the Environment (the Department) has prepared this Decision Regulation Impact Statement (RIS) in consultation with state and territory government officials and representatives from the Australian Local Government Association. The Centre for International Economics (The CIE) undertook a cost-benefit analysis that was built on to provide the final analysis in this Decision RIS.

The development of this Decision RIS has been guided by the Council of Australian Governments’ (COAG) Best Practice Regulation guidance, to ensure that regulatory processes at the national level are consistent with best practice principles.

The Decision RIS follows the August 2019 meeting of COAG, where Australia’s First Ministers considered waste and recycling issues and agreed Australia should establish a timetable to ban the export of waste plastic, paper, glass and tyres, while building Australia’s capacity to generate high value recycled commodities and associated demand.

As required by COAG Regulation Impact Guidelines, a Consultation RIS and Decision RIS have been prepared ahead of First Ministers’ consideration. The purpose of this Decision RIS is to recommend a preferred policy option for the phase out of certain waste exports, for a final decision by Ministers, noting Ministers may take a different position to the options outlined.

The Decision RIS is a point in time document, providing analysis for the different implementation options and the impacts for each measure, as presented in the Consultation RIS publicly released in December 2019. This process included written submissions and face-to-face discussions through to February 2020.

The Decision RIS identifies the nature of the problem to be addressed, outlines the alternative policy options considered for each measure, and provides an impact analysis of each of the options based on feedback and indicative costs for implementation.

The Commonwealth, state and territory government officials and representatives from the Australian Local Government Association appreciate the significant time and effort of all stakeholders across the community sector, academia, industry, and individuals to progress this important reform agenda.

 

 

 

 



 

Contents

 

About this Decision Regulation Impact Statement 2

Contents   3

Acronyms and abbreviations   6

Executive summary   8

Background . 8

Statement of the problem .. 8

Objective and options . 8

Approach to the impact and cost-benefit analyses . 9

Estimated impacts . 10

Conclusions . 11

1.          Statement of the problem    12

Global waste generation . 12

Recent international commitments on waste . 12

Australia’s waste and recycling industry . 15

Market competition . 20

Disruption to export markets . 21

Barriers to increased domestic recycling . 24

Market failure . 25

The value of waste . 27

Summary and focus of the RIS .. 28

2.          Objectives of government action   29

3.          Reform options considered   30

Option 1 - Status quo, with consumer education and work on standards . 30

Options 2(a) and 2(b) - Prohibit or restrict exports of waste plastic, paper, tyres and glass . 31

Other options . 32

4.          Impact analysis approach   34

Cost-benefit analysis approach . 34

General approach to the CBA .. 35

Establishing the baseline . 36

Current waste plastic, paper, glass and tyre exports . 39

Domestic recycling of waste plastic, paper, glass and tyre exports . 42

5.          Identification and valuation of costs arising from reform    49

Industry costs . 49

Waste paper and cardboard . 49

Plastic . 53

Cost of additional sorting . 54

Tyres . 57

Glass . 58

Costs to government 59

6.          Identification and valuation of benefits arising from reform    63

The value of waste . 63

Environmental benefits . 64

Mismanagement of waste in importing countries . 65

Ocean Conservancy . 66

Environmental, health and social impacts of mismanaged waste . 71

Economic costs of mismanaged waste . 76

Waste management in Australia . 79

Environmental externalities from changes in recycling . 83

Environmental and social costs of waste transport 85

Benefits from government intervention . 86

7.          Other impacts   89

Competition effects . 89

Risk analysis . 90

Risks by material 93

8.          Impact analysis   102

Net benefits across commodities . 105

Net benefits across jurisdictions . 111

Distributional impacts . 118

Sensitivity analysis . 121

9.          Consultation on proposed reform    124

Problem definition and policy objectives . 125

Impacts of changes in international markets . 125

Impacts to be further explored in the Decision RIS .. 126

Design considerations for the proposed export ban (definitions and legislation) 126

Preferred options and other interventions . 127

Previous consultation . 130

10.        Evaluation and conclusions   131

Summary of the cost and benefits analysis . 131

Costs and benefits across materials . 131

Costs and benefits across jurisdictions . 132

Distribution of costs and benefits . 132

Preferred option . 133

11.        Implementation and Review    135

Implementation . 135

Review of new export restrictions . 136

Appendix A: Ninth Meeting of Environment Ministers   138

Agreed Statement - 8 November 2019, Adelaide . 138

Appendix B: National Waste Action Plan - 2019   142

National Waste Policy: From waste to resource . 142

National Action Plan . 142

Appendix C: Detailed cost benefit analysis assumptions   145

Appendix D: Envisage Works estimates of costs of further processing   152

Appendix E: Exports under the base case   154

Appendix F: Environmental and social costs of waste transport 156

Estimating environmental costs . 156

Appendix F: Environmental externalities from changes in recycling   163

Appendix G: Summary of jurisdiction policy settings   168

Appendix H: Details of recycling capacity   173

Appendix I: Input-Output Econometric Modelling   178

Methodology . 178

Key findings . 179

Future study . 180

Appendix J: Consultation RIS Stakeholder questions   181

Problem .. 181

Policy objectives . 181

Policy options and impact analysis . 181

Options 2(a) and 2(b) - Prohibit or restrict exports of waste plastic, paper, tyres and glass . 182

 

 



Acronyms and abbreviations

 

ABS

Australian Bureau of Statistics

ABF

Australian Border Force

ACCC

Australian Competition and Consumer Commission

APCO

Australian Packaging Covenant Organisation

APEC

Asia-Pacific Economic Cooperation regional economic forum

C&D

Construction and demolition. This refers to waste that comes from the construction and demolition sector.

C&I

Commercial and industrial. This refers to waste that comes from businesses, outside of construction and demolition.

CBA

Cost-benefit analysis

CDS/CDR

Container Deposit Scheme / Container Return Scheme

COAG

Council of Australian Governments

EOLT

End-of-Life Tyre

G20

Group of Twenty international forum for global economic cooperation

GDP

Gross Domestic Product

GHG

Greenhouse gas

HDPE

High density polyethylene

LDPE

Low density polyethylene

LGAs

Local government authorities

MRF

Material recovery facility. This is a facility that takes a mixed stream of waste and sorts it into different commodities. Sorting can be done at different levels.

MSW

Municipal solid waste. This refers to waste that comes from households.

NPV

Net Present Value

OECD

Organisation for Economic Cooperation and Development

PET

Polyethylene terephthalate

PP

Polypropylene

RIS

Regulation Impact Statement

The Act

Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth)

The CIE

The Centre for International Economics

The Department

The Commonwealth Department of Agriculture, Water and the Environment

TSA

Tyre Stewardship Australia

 



Executive summary

Background

On 9 August 2019, the Council of Australian Governments (COAG) agreed Australia should establish a timetable to ban the export of waste plastic, paper, glass and tyres, while building Australia’s capacity to generate high value recycled commodities and associated demand. 

Changes in waste import standards in countries around the world have highlighted the need for Australia to manage its own waste better. COAG’s agreement reflects increasing concern in Australia and around the world about plastic pollution of our oceans and the need to ensure that exports of waste do not cause harm to human health and the environment. 

Australia’s Environment Ministers were tasked with advising COAG on a proposed timetable and response strategy following consultation with industry and other stakeholders to support implementation of the bans. As required by COAG Best Practice Regulation guidelines, a Consultation Regulation Impact Statement (RIS) and Decision RIS have been prepared ahead of First Ministers’ consideration of the final design of the proposed ban.

Statement of the problem

Waste exports have made Australia’s waste and recycling system more vulnerable to policy changes in international markets.

Since 2017, several countries to which Australia exported recyclable material have introduced or tightened restrictions on certain imports including China, Indonesia, India, Malaysia and the Philippines. For example, China was Australia’s largest export market for recycled waste, receiving approximately four per cent (1.3 million tonnes) of Australia’s recyclable waste and around one-third of Australia’s recyclable plastics, paper and cardboard.

Existing recycling collection methods and infrastructure mean it is generally not cost-effective to meet the new standards. Current trends suggest exports of certain recyclable materials may no longer be cost-effective or permissible in future. The timing for this outcome is uncertain. Recent international agreements relating to marine plastic debris and the movement of hazardous waste will also have further implications for waste exports.

There is increasing concern in Australia and around the world about plastic pollution of our oceans and the need to ensure that exports of waste do not cause harm to human health and the environment. Exports of waste plastic to countries can overwhelm waste management infrastructure and result in waste leakage into marine environments. This has consequences for human health and marine and coastal ecosystems, as well as an economic impact.

This RIS considers whether a more cost-effective adjustment to global restrictions on waste exports can be facilitated by increasing domestic handling of waste material that is currently exported.

Objective and options

COAG Best Practice Regulation guidelines require that a RIS identify a range of viable options to address the problem, including, as appropriate, non-regulatory, self-regulatory and co-regulatory options [1] .   In the context of a RIS examining proposed changes to ban certain waste exports, it is important to consider alternative options, to not only establish that the proposed changes deliver a net benefit to the community, but also that the preferred option is the best approach to achieving the government’s objectives.

The objectives of government action are to:

·          achieve better protection of the environment and human health through improved management of Australia’s waste plastic, paper, glass and tyres domestically and internationally

·          ensure Australia actively manages the risk of countries imposing waste import restrictions so Australia’s waste and recycling sector is well placed to manage any future disruption or closure of global waste markets without resulting in adverse environmental or human health impacts

·          complement and leverage the agreed actions under the National Waste Policy Action Plan that provides a framework for collective, national action on waste management, recycling and resource recovery to 2030.

To address the objectives of the waste export ban, this RIS explores one non-regulatory option and two related regulatory options:

·          Option 1: The status quo, with consumer education, work on standards and implementation of the National Waste Policy Action Plan 2019.

·          Option 2(a): Consumer education and restriction of exports of waste plastic, paper, tyres and glass without additional supporting government interventions .

·          Option 2(b): Consumer education and restriction of exports of waste plastic, paper, tyres and glass with additional supporting government interventions to build markets and associated demand.

Approach to the impact and cost-benefit analyses

The analyses are conducted through a multi-step approach including:

·          Early consultations with stakeholders to gather views on the proposed reform and information necessary to inform the cost-benefit analyses (CBA);

·          Reviewing survey, primary and official data sources to identify key issues affecting the results;

·          Gathering and reviewing of information from other sources to better understand the status quo of waste recycling and exporting, to establish a baseline for the CBA;

·          Reviewing responses to the Consultation RIS; and

·          Analysing the impact and benefit analyses, by:

-        establishing the base case against which to assess the potential economic impacts of changes;

-        quantifying the changes from the base case resulting from the possible scenarios being considered; and

-        placing values on the changes and aggregating these values in a consistent manner to assess the outcomes.

Estimated impacts

Costs and benefits are estimated in Net Present Value (NPV) terms over a 20-year period, using a discount rate of 7 per cent. The CBA results under each of the options described above are shown in Table 1.

Table 1: Summary of cost benefit analysis, $m, present value

 

Option 1

Option 2(a)

Option 2(b)

Net benefit waste industry

100

-207

488

Net benefit governments

-84

-42

-476

Net benefit communities

57

0

34

Overall net benefit

72

-249

46

Note: Using an evaluation period of 20 years and a social discount rate of 7 per cent.

Source: The CIE and the Department of Agriculture, Water and the Environment.

Other options

The Consultation RIS suggested an alternative regulatory option where export restrictions could be introduced through a permit system, accreditation or supply chain assurance, which would provide that exports meeting specified standards could continue. Based on stakeholder feedback, this has been incorporated into options 2(a) and 2(b).

Other options that focussed on Product Stewardship and design standards may be considered by governments at a later stage to complement the proposed restriction on exports.

Other impacts

The assessment also considered the direct and indirect (or flow-on net benefits) to the economy from the three proposed options using Input-Output Econometric modelling, these impacts are shown in Table 2 and Table 3.

Table 2: Direct economic impacts

 

Option 1

Option 2(a)

Option 2(b)

Gross output, $m, PV

$107

$722

$1,268

GDP, $m, PV

$32

$217

$459

Income (wages), $m, PV

$19

$121

$303

Employment, jobs

34

367

602

Source: ABS National Accounts and Input-Output Tables

Table 3: Indirect economic impacts

 

Option 1

Option 2(a)

Option 2(b)

Gross output, $m, PV

$199

$1,316

$2,307

GDP, $m, PV

$84

$551

$992

Income (wages), $m, PV

$49

$306

$564

Employment, jobs

78

922

1,313

Source: ABS National Accounts and Input-Output Tables

A restriction on certain waste exports with government support (Option 2(b)) is expected to see the Australian economy grow by $3.6 billion in turnover and $1.5 billion in value-added (or GDP) in present value terms [2] over a 20-year period. This is expected to be delivered through the addition of an average of 1,900 jobs [3] and the result of higher value-added activity occurring onshore in Australia.

Conclusions

Based on the analysis presented in this Decision RIS, including the results of the cost benefit analysis and the economic analysis, the preferred option in accordance with the COAG Best Practice Guidelines is Option 2(b), which has the greatest benefit to the community.

Option 1 showed a net benefit but did not fully address the objectives of government action, with Australia’s waste not actively managed. Option 2(a) improves the domestic management of Australia’s waste, but fails to actively manage risk to Australia’s waste and recycling sector.

Options 1 and 2(a) also have lower macroeconomic impacts compared with Option 2(b) in terms of output, value added, wages and employment. This is because a greater amount of economic activity occurs domestically when all waste material that was previously exported is now processed domestically and returns a higher value in the market.

The impact analysis suggests that Option 2(b) would best assist in transitioning industry to a circular economy and deliver on Australia’s commitments to better manage its own waste.

The CBA results suggest that Option 2(b) would deliver the best results across all jurisdictions in meeting the objectives of the National Waste Policy which was adopted by Environment Ministers.

Consultation also showed overall support for this option.

 



1.     Statement of the problem

Global waste generation

Research from the World Bank has estimated that the world is on a trajectory where waste generation will drastically outpace population growth by more than double by 2050. Although we are seeing improvements and innovations in solid waste management globally, it is a complex issue and one that nations are taking urgent action on.

Solid waste management affects all nations and where waste is poorly managed it can have negative impacts, particularly on society’s most vulnerable, with profound health repercussions. Too often the environment also pays a high price.

In 2016, the world generated 242 million tonnes of plastic waste—12 per cent of all municipal solid waste [4] . Waste generation is rising globally. An estimated 2.01 billion tonnes of municipal solid waste were generated in 2016, and the World Bank expects this number to grow to 3.40 billion tonnes by 2050 under a business-as-usual scenario. Figure 1 shows the kilograms of solid waste each person creates per year across the countries in our region for 2016, 2030 and 2050.

Figure 1: Solid waste generation per capita per year

Source: World Bank, What a Waste 2.0: A global snapshot of solid waste management to 2050.

Recent international commitments on waste

Waste is a commodity, which is also exported around the world for further processing. There is increasing concern in Australia and around the world about plastic pollution of our oceans and the need to ensure that exports of waste do not cause harm to human health and the environment. Exports of waste plastic to countries can overwhelm waste management infrastructure and result in waste leakage into marine environments. This has consequences for human health and marine and coastal ecosystems, as well as an economic impact.

About 8 million metric tons of plastic are thrown into the ocean annually [5] and by 2050 there will be more plastic in the oceans than there are fish (by weight) [6] . Around 80 per cent of marine plastic pollution comes from land-based sources [7] .

Marine plastics kill and maim marine life directly through entanglement and ingestion, and by entering the food chain which has potential impacts to reproduction and exposure of life to toxic chemicals. More than 800 species have had some form of encounter with marine litter, of which the majority is plastic. For example, every species of sea turtle has been documented to have been impacted, as well as 66 per cent of marine mammals and 50 per cent of seabirds [8] .

Marine plastic litter negatively impacts upon major marine industries, including shipping (for example fouling propellers, navigational hazards), fishing (reducing target species populations through ghost fishing, catch contamination) and tourism (unsightly and extensive pollution of reefs and beaches leading to reduced visitation and loss of sectoral jobs).

A recent study commissioned by the Asia-Pacific Economic Cooperation (APEC) regional economic forum estimated the damage costs to the marine industries attributed to marine debris was US$10.8 billion per annum [9] . This is an increase from the estimate in the previous APEC 2009 report of $1.26 billion [10] , increasing due to improved data, growth in the marine economy and growth in the amount of plastic waste in the oceans over the last decade. This direct cost comprises costs associated with damage to fisheries and aquaculture, marine transport, shipbuilding and marine tourism industries from marine debris. The APEC study did not quantify remedial costs and indirect damage costs.

Australia is a member of a number of international organisations that are actively engaged on marine plastic waste issues, principally the Group of Twenty (G20) international forum for global economic cooperation, APEC, the International Maritime Organisation, the United Nations Environment Assembly and the High Level Panel for a Sustainable Ocean Economy.

Australia participates in international marine debris initiatives including the Commonwealth Clean Ocean Alliance, the United Nations Environment Programme Clean Seas Campaign, the G20 Marine Litter Action Plan and Implementation Framework, the APEC Roadmap on Marine Debris and the International Coalition to Reduce Plastic Bags Pollution.

Recent international agreements on waste reflect this concern.

G20 Action Plan on Marine Litter

At the Hamburg Summit in 2017, the G20 adopted an action plan on marine litter. The action plan recognises ‘the urgent need for action to prevent and reduce marine litter in order to preserve human health and marine and coastal ecosystems and mitigate marine litter's economic costs and impacts’ [11] .

Among other areas of concern and potential policy measures, the action plan identifies:

·          Promoting the socio-economic benefits of establishing policies to prevent marine litter;

·          Promoting waste prevention and resource efficiency; and

·          Promoting sustainable waste management.

At the Osaka Summit in 2019, the G20 released an implementation framework for actions on marine plastic litter. Among other actions, the implementation framework encourages actions that ‘promote a comprehensive life-cycle approach to urgently and effectively prevent and reduce plastic litter discharge to the oceans, in particular from land-based sources’. The framework recognises these actions could include ‘promotion of sustainable consumption and production, including but not limited to promoting resource efficiency, circular economy, sustainable materials management, waste to value approach, and measures to address sea-based sources’ [12] .

Changes to the Basel Convention

Australia is a party to the Basel Convention, which is an international treaty to control transboundary movements of hazardous and certain other wastes. Australia implements its obligations under the Basel Convention through the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act). Any transboundary movement of hazardous waste requires the prior informed consent of all countries involved in the movement before the movement can proceed. Under the Act, for recyclable materials such as plastic and paper/cardboard to be exported without a permit, they must be well-sorted and not contaminated with other wastes, including mixed household wastes.

The "ban amendment" is a recently ratified provision under the Basel Convention that prohibits member states of the Organisation for Economic Cooperation and Development (OECD), the European Community and Liechtenstein from exporting hazardous wastes to developing and transitioning economies. The ban amendment came into force on 5 December 2019. Although not ratified by Australia, the amendment will prevent Australian exporters from exporting hazardous waste to developing and transitioning economies that have ratified the amendment. The ban amendment should not affect the export of plastics, scrap metal or paper waste, unless it is contaminated with hazardous waste including household waste. However, other countries may take a broader view of the waste types covered by the amendment and the level of contamination that is acceptable.

In May 2019, agreement was reached to amend the Basel Convention to create new classifications for waste plastics:

·          Mixed, non-hazardous plastic wastes not sorted to a high standard will be subject to prior informed consent before they can be exported.

·          Hazardous plastics, or plastics that contain hazardous substances will be subject to prior informed consent before they can be exported.

·          Certain plastic waste of a single polymer or resin type provided it is destined for recycling in an environmentally sound manner and almost free from contamination and other types of wastes will not require prior informed consent.

Australia’s waste and recycling industry

Australians create around 67 million tonnes of waste each year [13] . In 2018-19, 4.4 million tonnes of this waste were exported. This included 1.4 million tonnes of waste plastic, paper, glass and tyres, representing 32 per cent of total waste export tonnage. The total declared value of these exports was around $290 million [14] .

Recent import bans on waste-derived exports by some of Australia’s key importing destinations has impacted on export flows and trade values. This has placed pressure on Australia’s domestic waste and recycling industry.

Demand for waste and recycling services has grown over the past decade, as solid waste volumes have increased. Changes in construction activity and greater demand from population growth and rising urbanisation have all contributed to increased solid waste volumes. Figure 2 presents the volume of waste generated by jurisdiction.

The volume of waste generated across Australia is influenced by a range of factors. These factors include population distribution, general waste volumes, industrial and manufacturing activity, construction activity and government involvement in waste management activities. Over the past decade, the volume of waste generated has grown at an average annual rate of 2.8 per cent.

Figure 2: Total waste by jurisdiction

Source: 2016-17 data from the Department of the Environment and Energy 2019, National Waste report 2018 database, https://www.environment.gov.au/protection/waste-resource-recovery/national-waste-reports/national-waste-report-2018 . Excludes ash.

The volume of waste generated nationally tends to increase with population growth. An increase in the number of households also increases the amount of waste produced and demand for waste collection services. Household discretionary income also influences demand for waste recovery, as higher income households produce more rubbish due to higher expenditure on consumables.

Upstream construction and manufacturing activity also affects demand for industry services. An increase in activity in these sectors often results in growth in the volume of waste generated, boosting demand for recovery and remediation services. Figure 3 shows the volume of waste generated by the main streams.

Figure 3: National waste volumes, by stream

Source: 2016-17 data from the Department of the Environment and Energy 2019, National Waste report 2018 database, https://www.environment.gov.au/protection/waste-resource-recovery/national-waste-reports/national-waste-report-2018 . ABS National Accounts

Steady population growth has increased household waste volumes, as solid waste generation usually increases alongside household consumption expenditure and urbanisation, both of which have risen over the past five years. However, growth in solid waste generation has been constrained somewhat by falling construction activity over the past five years. Despite some types of construction growing over the period, such as multi-unit and apartment construction, overall activity in the sector has fallen and reduced the quantity waste generated. Overall, growth in waste volumes on a per capita basis has started to increase on aggregate (Figure 4).

Figure 4: National waste volumes, by stream, tonnes per capita

Source: 2016-17 data from the Department of the Environment and Energy 2019, National Waste report 2018 database, https://www.environment.gov.au/protection/waste-resource-recovery/national-waste-reports/national-waste-report-2018 . ABS National Accounts

Changes in the key driving factors of waste generation at a state the territory level have resulted in differing waste volumes across each jurisdiction. Figure 5 highlights the impacts that changes in demographics and economic activity can have at the state and territory level. Overall, all jurisdictions have shown an increase in waste volumes per capita in recent years.

Figure 5: Total waste per capita by jurisdiction

Source: 2016-17 data from the Department of the Environment and Energy 2019, National Waste report 2018 database, https://www.environment.gov.au/protection/waste-resource-recovery/national-waste-reports/national-waste-report-2018 . ABS National Accounts.

Industry performance

Total revenue in the waste and recovery industry in Australia for 2018-19 was $16 billion, comprising: $6.8 billion for Solid Waste Collection Services (collection); $6.0 billion for Waste Remediation and Materials Recovery Services (MRFs); and $3.3bn for Waste Treatment and Disposal Services in Australia (landfill).

The waste and recycling industry generates an additional $33.8 billion in turnover across the rest of the economy from supply-chain and consumption-induced transactions. The industry directly employs 33,517 people across Australia and around 70,500 indirectly across Australia. The waste and recycling industry contributes $4.8 billion to Gross Domestic (GDP), growing at an average rate of 6 per cent per annum for the past decade. Its Gross Operating Surplus (GOS) or profitability is $1.7 billion, growing at 3 per cent per annum on average over the same period.

Figure 6 presents the key components that underpin the performance of the waste and recycling industry.

Figure 6: Economic performance of waste and recycling industry

Source 2016-17 data from the Department of the Environment and Energy 2019, National Waste report 2018 database, https://www.environment.gov.au/protection/waste-resource-recovery/national-waste-reports/national-waste-report-2018 . ABS National Accounts. The y axis values represent annual turnover. The * on the x axis are projections by CIE.

Solid Waste Collection Services employ 45 per cent of the industry workforce; Waste Remediation and Materials Recovery Services (MRFs) employ 33 per cent; and Waste Treatment and Disposal Services employ 22 per cent. Total employment growth has averaged around 3.0 per cent over the last decade compared with the total labour market of 1.5 per cent over the same period.

Figure 7: Employment in waste and recycling industry by classification, no of jobs

Source: 2016-17 data from the Department of the Environment and Energy 2019, National Waste report 2018 database, https://www.environment.gov.au/protection/waste-resource-recovery/national-waste-reports/national-waste-report-2018 . ABS National Accounts

Strong demand over the past five years has encouraged operators to enter the industry. Industry enterprise numbers have increased over the period, intensifying competition. As a result, industry prices have been under pressure, contributing to a decline in profit margins. Rising demand for specialised services over the period has led industry firms to hire more highly qualified and skilled staff. However, wage costs have fallen slightly as a share of industry revenue over the past five years, as labour productivity has improved due to increasing automation of waste separating and sorting. Figure 8 shows that the industry is running at much higher capital intensity ratios (defined as capital to revenue) than for all Australian industries and the impact of recent investments.

Figure 8: Capital intensity ratio

Source: ABS Australian Industry 2017-18, IBISWorld

While profitability in the industry is lower than for the Australian industry average, profitability levels have been consistently maintained for the Solid Waste Collection Services and Waste Treatment and Disposal Services (Figure 9). MRFs earn most of their revenue through the sale of recyclable paper (50 per cent of input tonnage) and plastic product (7 per cent) as well as metals (3 per cent). These are the three most valuable commodities produced by MRFs. The fall in commodity prices has impacted their profitability. Levy increases on landfill waste have boosted demand for plastic recovery. As a result, industry operators focused on plastic materials recovery have generated stronger profit margins over the past five years.

Figure 9: Waste and recycling industry, profits

Source: IBISWorld

Market competition

Generally, the direct cost of collecting and sorting recyclables is significantly higher than rubbish collection and disposal to landfill, although the cost difference is smaller for construction and demolition waste. Recycling also requires greater capital expenditure on recycling facilities compared with sending rubbish to landfill. Significant economies of scale can be gained from operating large material separating, sorting and recycling facilities that receive high and steady waste flows.

However, market share consolidation can in some circumstances be difficult to achieve in the industry. Long distances between population centres limit industry companies' ability to use existing facilities to expand into new regions. Transporting waste over long distances is not cost-effective. Therefore, industry operators have to either establish new facilities or acquire existing materials recovery operations to compete in a new region. The long-term nature of municipal waste contracts further limits industry consolidation, with companies unable to gain access to new contracts until a tender expires. As a result, the industry has remained fragmented.

Domestic policy settings

Most state governments have introduced targets to reduce waste sent to landfill over the past five years and have created policies for increasing waste recovery and recycling rates. These policies have included increasing landfill levies, providing paper and organic municipal recycling collection services, and implementing more stringent regulations governing waste disposal methods.

Local government plays a key role in either providing recycling services to industry and households or contracting out waste management services.

Landfill levies, which are set by the government, have increased nationwide. These higher levies have promoted waste avoidance and resource recovery, remediation and recycling. Various governments have also provided incentives for waste generators to reassess their environmental practices, reduce the waste they generate and invest in on-site treatment. These levies have also made recovery operations more competitive by making landfill disposal services more expensive. This trend has increased demand for materials recovery services and allowed some industry operators to increase profit margins, as external price competition has eased. However, diminishing manufacturing activity and weakening prices for waste exports overseas have constrained industry revenue growth.

Following the 2009 National Waste Policy agreement between all Australian Environment Ministers, state governments have been implementing various strategies to increase waste remediation and recycling. Figure 10 shows the cumulative growth across the waste and recycling industry and compares this to cumulative growth for all industry across Australia.

Further detail on government policies is provided in Section 4.

Figure 10: Revenue in waste and recycling industry by classification, indexed growth, 100=2007

Source: IBISWorld

Disruption to export markets

Waste import restrictions imposed overseas have highlighted vulnerabilities in Australia’s waste and recycling sector.

Historically, with export markets being able to process material more cheaply than it could be done within Australia, the gap for increased sorting and processing was fairly small. This meant that it was not a good business decision for Australian businesses to sort materials more. This gap is now widening and provides Australian businesses with greater incentives to improve the quality of their material.

Waste exports also reflect the absence of domestic markets and re-manufacturing facilities for these materials. This can be attributed to immature demand for recycled material, the absence of standards and approaches for product recyclability, and strong competition from virgin material that can be sourced reliably and at a lower cost. Recyclable material reprocessed in Australia is also subject to competition from imports of recycled material.

In 2018, China, the world’s largest importer of recyclable materials, introduced new restrictions on the recyclable materials it imports through its National Sword Policy. This policy established an acceptable contamination rate of 0.5 per cent for the import of certain recyclable materials. Australia is one of over 100 countries affected by China’s restrictions. China was Australia’s largest export market for recycled waste, receiving approximately four per cent (1.3 million tonnes) of Australia’s recyclable waste and around one-third of Australia’s recyclable plastics, paper and cardboard.

China’s decision has caused significant disruption to the global market for exports of recyclable material, reducing prices for recycled plastics, paper and cardboard [15] . Export volumes of scrap plastics and paper and cardboard peaked in 2015-16. By 2018-19, exports of scrap paper and cardboard were 27 per cent lower than in 2015-16, and exports of scrap plastics 7 per cent lower than its 2015-16 peak. Australia’s waste metals exports have not been greatly affected [16] .

In analysis commissioned by the Commonwealth Department of the Treasury, the CIE found that industry response to date to the China National Sword Policy has been:

·          To redirect exports to other South East Asian countries, such as Malaysia, Indonesia and India, in particular for plastic;

·          A reduction in paper and cardboard exports, although no change for plastic;

·          A reduction in prices received, for the low value end of the recycled commodity market in particular, such as mixed plastic and mixed paper from kerbside recycling;

·          Exporting higher quality material, such as commercial paper, and using lower quality material domestically, and

·          Investment in additional sorting of material within Australia so that it is less contaminated.

Following China’s decision, exports of paper and plastics, the material types most affected by the Chinese restrictions, increased to Indonesia, Vietnam, India, Malaysia and Thailand [17] . This may be a temporary solution, as other countries reach capacity or introduce similar import restrictions.

The six countries receiving the most waste exports from Australia in January 2019 accounted for 78 per cent of all that was exported. These countries were, in order, China (including Hong Kong and Macau), Indonesia, India, Vietnam, Bangladesh and Malaysia. Other than Bangladesh, these countries were also in the top six receivers of waste in December 2018.

APCO released a Market Impact Assessment Report defining the impact of China’s National Sword Policy. The policy is part of an inspection program targeting (for Australia’s purposes) recyclable materials (such as paper and various grades of post-consumer plastics) that are being imported into China, with the goal to reduce the amount of contaminated materials entering the country.

Findings from the report revealed that the volume of Australian export of scrap paper and plastics remained largely stable over the past 12 months; however, their value has dropped significantly due to global oversupply. Mixed paper scrap once valued at $124 per tonne (EXW) has dropped approximately 100 per cent and is now close to worthless; scrap mixed plastic has fallen 76 per cent, from $325 per tonne to $75 per tonne; and cardboard is now valued at $125 per tonne, falling 40 per cent from $210 per tonne.

There have also been reports of increased stockpiling following the implementation of China’s new restrictions, and recycling service providers and local government came under pressure. For example, China’s import restrictions have been attributed as a cause of SKM Recycling’s collapse [18] .

The potential impact of further disruptions to international markets is described in Section 4.

CASE STUDY: IMPACT OF CLOSING INTERNATIONAL MARKETS
 In July 2019, SKM Recycling closed, leaving more than 30 councils without a recycling provider, which meant initially that most of its contracted councils have no other options but to send recyclable material to landfill. 
 SKM Recycling owned five sites across Victoria, featuring three materials recovery facilities, a glass processing plant, a plastics sorting facility and a transfer station. Prior to the 2017 announcement that China would stop accepting recyclable material imports over a certain contamination grade, SKM exported a number of its products internationally. In the aftermath of these policies, key markets were closed to processors and exporters. This had a significant impact on SKM’s operations.
 In August 2019, SKM was put into receivership and was subsequently sold to Cleanaway in October 2019. SKM had been involved in a number of industrial fires and other incidents during recent years, which largely related to the over-stockpiling of materials at its facilities. 
 SKM was by far the largest provider of recycling services in Victoria and its collapse has highlighted the vulnerability of the system where there was a reliance on a single major service provider.

 

 

 

 

 

 

 

 

 

 

 

 

 

Barriers to increased domestic recycling

The Australian recycling system, and particularly the kerbside system, has been facing significant issues due to a lack of demand for what it produces.

Plastic and paper

Plastic and paper from kerbside recycling have faced reduced demand because of restrictions on imported waste material under China’s National Sword Policy. A substantial share of recycled plastic and paper material is sent to overseas markets. China and Hong Kong were the major destinations for this material. The China National Sword Policy led to a significant decrease in the amount of material sent to China, due to changes in the quality specifications for materials which Australian MRFs could not achieve.

Glass

Glass from kerbside recycling is struggling to find buyers. Glass is nearly all sold domestically (rather than exported). The main markets are for use in glass bottle manufacturing by Owens-Illinois and Orora, as well as for use as a construction material in glass sand, often blended with quarried materials by groups such as Alex Fraser in Melbourne and formerly Benedict’s in Sydney. A reduction in market pull and demand from established end markets has meant that some glass is being stockpiled or landfilled.

Tyres

Rising vehicle registrations and the subsequent increase in new tyre sales is underpinning the forecast increase in End-of-Life Tyre (EOLT) generation, estimated to exceed 506 000 tonnes by

2024-25. Historically, domestic recycling of EOLTs has been limited due to a lack of markets for tyre-derived products and strong international demand for tyre-derived fuel (TDF). REC et. al., 2017 estimate that 63 per cent of end-of-life tyres end up in landfill and 27 per cent are exported to serve as a cheap fuel alternative [19] . The use of tyres in higher market applications is constrained by high competition from lower cost readily available substitutes and immature demand.

The potential closure of export markets will therefore require dramatic increases in processing to create value-added materials and/or use of recycled materials within Australia to sustain existing recovery rates.

The domestic and overseas markets for recycled material are set out in Table 4.

Table 4: Key domestic and overseas markets

Recycled item

Potential end markets

Glass

Reused by bottle manufacturers domestically

Glass sand for use in construction/drainage

Glass used in road base

Paper and cardboard

Reused in paper manufacturing domestically

Reused in paper manufacturing overseas

HDPE, PP and PET

Plastic manufacturing domestically

Plastic manufacturing overseas

Rigid plastics (outside of above)

Minimal markets currently, but potential to be used in chemical recovery and waste to energy facilities

Soft plastics

Recycling to make outdoor furniture, gardening stakes, bin liners, etc.

Virgin-like quality polypropylene resin

Blending with asphalt for roads and concrete footpaths

Chemical degrading to make new plastics

As an energy source (waste to energy)

Tyres

Tyre derived fuels

Combined with crushed rock to make retaining walls

Crumbed rubber asphalt for roads, pavements, synthetic sporting tracks/fields and soft fall children’s play spaces

Crumbed rubber combined with polyolefin plastic to manufacture commercial pipes

Removed steel reinforced layer melted and reformed into steel billet for use as rods, bars and wires

Source: APCO Working Group 2018 reports for Soft Plastics, Expanded Polystyrene, Polymer Coated Paperboard, and Glass; Tyre Stewardship Australia, Tyre-Derived Products Case Studies, REC, et. al., 2017, National market development strategy for used tyres 2017-2022, Melbourne: Report prepared by Randell Environmental Consulting, Reincarnate and Envisage Works on behalf of Sustainability Victoria; the CIE.

Market failure

The waste and recycling system is characterised by numerous market failures that can be identified throughout the waste industry supply chain. These include:

·          Upstream activities are those relating to extraction and use of materials, such as manufacturing and consumption of manufactured products. It includes recycling and reuse of materials.

-        Major impacts include: depletion of finite resources, degradation of renewable resources, greenhouse gas emissions, air and water pollution, incident risk and occupational, health and safety risk.

·          Downstream activities are those relating to disposal of waste, such as at landfill. The term ‘post-consumer waste’ is used to refer to waste that is remaining after consumption of manufactured products and is not recycled/reused. It also covers the significant impacts that are associated with the mismanagement of wastes, which may include its blending (and disposal to inappropriate landfills), stockpiling or dumping.

-        Major impacts include: greenhouse gas emissions, air and water pollution, amenity impacts (visual, odour, noise etc), use of landfill airspace, alienation of land, biological impacts, human health and injury risks, and marine life health risks.

Community benefits from increased reuse and recycling may include:

·