Title Industrial Chemicals Environmental Management (Register) Bill 2020
Database Explanatory Memoranda
Date 11-05-2021 04:15 PM
Source House of Reps
System Id legislation/ems/r6638_ems_704b758e-337b-4f65-a4d4-d6f0723c5079


Industrial Chemicals Environmental Management (Register) Bill 2020

2019-2020-2021

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

INDUSTRIAL CHEMICALS ENVIRONMENTAL MANAGEMENT (REGISTER) BILL 2020

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

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

 


INDUSTRIAL CHEMICALS ENVIRONMENTAL MANAGEMENT (REGISTER) BILL 2020

This addendum responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 4, dated 24 February 2021.

General Outline

 

The Industrial Chemicals Environmental Management (Register) Bill 2020 (the ICEMR Bill) would facilitate the establishment and operation of an intergovernmental scheme involving the Commonwealth and the states and territories and authorises the Principles, the Register, and the Rules to be made for the purposes of the scheme.

 

The Principles, the Register and the Rules would be exempt from disallowance and sunsetting because of the operation of the subsections 44(1) and 54(1) of the Legislation Act 2003 (the Legislation Act) respectively. This is an automatic exemption that applies by force of law for instruments that are made under legislation that facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States or Territories and that authorises the instrument to be made for the purposes of the scheme. The explanatory memorandum for the Legislative Instruments Bill 2003, which enacted section 44, describes the rationale for its inclusion as being that 'the Commonwealth Parliament should not, as part of a legislative instruments regime, unilaterally disallow instruments that are part of a multilateral scheme'. Similarly, the same explanatory memorandum explains the need for subsection 54(1) as being that instruments that are part of a multilateral agreement 'should therefore not be subject to a unilateral sunsetting process which would cause them to cease to exist in only one of the jurisdictions that are party to the agreement'.

 

The intergovernmental scheme established by the ICEMR Bill would be the National Standard for environmental risk management of industrial chemicals (the National Standard). In 2015, Australian environment ministers reviewed options for establishing the National Standard in a Council of Australian Governments Decision Regulation Impact Statement. They agreed to establish [the National Standard] under Commonwealth legislation with automatic adoption under jurisdictional legislation for implementation and compliance. The ICEMR Bill would deliver on this approach agreed by environment ministers to provide a consistent, nation-wide approach to managing the risks that industrial chemicals may pose to the environment.

 

Notes on Clauses

 

Clause 22

 

The Register would record the scheduling decisions made in respect of industrial chemicals and their uses under the ICEMR Bill. It is intended that one or more scheduling decisions will be made for all industrial chemicals considered under the scheme, and that these will be updated as appropriate. Scheduling decisions will be made regularly and may be varied or revoked in response to scientific advancements or technological innovations. For this reason, it is appropriate that they be recorded in an instrument that can be readily updated and amended without the need to amend primary legislation.

 

Recording the scheduling decisions in the Register would also allow States and Territories (and the Commonwealth) to easily adopt those decisions (by adopting the Register as it exists from time to time) so that they can be implemented and enforced by each jurisdiction, as agreed in the intergovernmental agreement.

 

If the Register were subject to disallowance and sunsetting, this would undermine the certainty that the scheme provides for industry and governments implementing the scheduling decisions made under the ICEMR Bill. Disallowance of the Register would affect the content of State and Territory legislation, which would be inconsistent with the intergovernmental agreement.

 

Sunsetting would give rise to similar problems in relation to undermining the intergovernmental agreement. In addition, the potential for the hundreds of scheduling decisions that would be recorded in the Register to sunset at the same time would create significant disruption and uncertainty for governments and industry. It would also create significant administrative burden for the Australian Government. In turn, this would increase costs for industry, as the scheme will be fully cost recovered. Provisions in the ICEMR Bill would allow for scheduling decisions in the Register to be reviewed and varied or revoked as necessary. It is more appropriate that this be undertaken as needed on a chemical-by-chemical basis in response to relevant technological and scientific advancements, and subject to the rigorous consultation requirements of the ICEMR Bill, rather than en masse as a result of sunsetting.

 

For these reasons, and consistently with Parliament's rationale for including subsections 44(1) and 54(1) in the Legislation Act, it is appropriate that the Register not be subject to disallowance or sunsetting.

 

Clause 23

 

The Principles would be a key component of the National Standard. Scheduling decisions for industrial chemicals would be required to comply with the Principles and would not be able to be made unless the Principles are in force. The intergovernmental agreement provides for the Commonwealth and each State and Territory to adopt, implement and enforce the scheduling decisions in their jurisdiction. This is designed to drive national consistency in the management of industrial chemicals through a more streamlined, transparent, efficient and predictable approach to environmental risk management.

 

The Principles will be developed in collaboration with the states and territories, and in consultation with stakeholders. This would be a technical document, based on the most recent scientific findings regarding the properties of industrial chemicals and their potential environmental impacts. It is appropriate that the Principles be set out in delegated legislation to allow for them to be amended as necessary in response to evolving scientific knowledge. Any time the Principles are made or varied they would be subject to the mandatory consultation processes with states and territories and the public that is set out in the ICEMR Bill.

 

It is also appropriate that the Principles be exempt from disallowance and sunsetting. The Principles will reflect years of collaboration and input from the States and Territories and industry. As mentioned above, they would also be subject to further public consultation and consultation with State and Territory environment ministers before they are made, as required under the ICEMR Bill. If the Principles were to be subject to disallowance and sunsetting, the collaborative interjurisdictional effort that went into the development of the National Standard as a whole, and the Principles in particular, could be undermined. Similarly, the certainty and consistency they provide for scheduling decisions would be jeopardised.

 

Furthermore, while it is appropriate that the Principles be updated as necessary to reflect scientific and technological advancements, it would undermine the certainty and predictability of scheduling decisions if the whole framework of the Principles were subject to sunsetting. The sunsetting of the Principles would also have the potential to destabilise the rest of the cooperative scheme for the National Standard, as they are a central component of it.

 

For these reasons, and consistently with Parliament's rationale for including subsections 44(1) and 54(1) in the Legislation Act, it is appropriate that the Principles not be subject to disallowance or sunsetting.

 

Clause 76

 

The Rules would represent a key aspect of the legislative framework that will give effect to the intergovernmental scheme. The purpose of the Rules is to detail additional matters related to processes, functions and relevant information for day-to-day operation of the intergovernmental scheme, including additional matters that should be considered by the Minister when making scheduling decisions, such as relevant international agreements or matters that have arisen in the course of scientific advancements or consultation with other jurisdictions.

 

The Rules require the flexibility to adapt to an evolving scientific landscape to provide continued certainty and relevant up to date information to industry and governments implementing the scheme. Further, it is intended that any rules will reflect the agreed intergovernmental scheme and will be subject to consultation with States and Territories, as they would affect the content of scheduling decisions which, in turn, would affect the content of State and Territory laws that adopt and implement the scheduling decisions. If the Rules were subject to disallowance and sunsetting, this could, for the same reasons as for the Principles and the Register, undermine the effectiveness of the broader scheme.

 

For these reasons, and consistently with Parliament's rationale for including subsections 44(1) and 54(1) in the Legislation Act, it is appropriate that the Rules not be subject to disallowance or sunsetting.