DRINK CONTAINER RECYCLING BILL 2008

i Drink Container Recycling Bill 2008 No. , 2008

Contents

Part 1--Preliminary

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Objects ................................................................................................ 2

Application to external Territories...................................................... 2

States and Territories are bound ......................................................... 2

Relationship with State and Territory law .......................................... 2

Interpretation....................................................................................... 2

Part 2--Beverage container stewardship plans

Application ......................................................................................... 5

Duty of producer or distributor of a beverage, or of industry

or other group ..................................................................................... 5

Submission of beverage container stewardship plan .......................... 5

Content of beverage container stewardship plan ................................ 6

Public consultation on draft beverage container stewardship

plan ..................................................................................................... 7

Approval of beverage container stewardship plan.............................. 8

Review of approved plan .................................................................. 11

Annual reports by producers, distributors and industry or

other groups ...................................................................................... 11

Part 3--Beverage container deposit

Exemption of certain containers ....................................................... 13

Markings required before sale and supply of beverages in

containers .......................................................................................... 13

Beverage container deposit............................................................... 13

Beverage container deposit refund ................................................... 14

Part 4--Miscellaneous

Offence ............................................................................................. 15

Annual report by Minister ................................................................ 15

Regulations ....................................................................................... 15

Drink Container Recycling Bill 2008 No. , 2008 1

A Bill for an Act to provide for product control and

payment and refund of deposits in relation to

certain drink containers in order to protect the

environment, and for related purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the Drink Container Recycling Act 2008.

2 Commence ment

This Act commences on the day on which it receives the Royal

Assent.

Part 1 Preliminary

Section 3

2 Drink Container Recycling Bill 2008 No. , 2008

3 Objects

The objects of this Act are to:

(a) promote the development of product stewardship

arrangements for used beverage containers to reduce,

minimise and, where practicable, eliminate harm to the

environment caused by discarded used beverage containers

and failure to recycle them; and

(b) ensure the environmentally sustainable management and

reuse of used beverage containers; and

containers.

4 Application to external Territories

This Act extends to all the external Territories.

5 States and Te rritories are bound

This Act binds the Crown in right of each of the States, of the

Australian Capital Territory, of the Northern Territory and of

Norfolk Island. However, it does not make the Crown liable to be

prosecuted for an offence.

6 Relationship with State and Territory law

This Act is not intended to exclude or limit the concurrent

operation of any law of a State or Territory, except so far as the

contrary intention appears.

7 Inte rpretation

In this Act:

approved plan means a beverage container stewardship plan

approved under section 13.

beverage means:

(a) brandy, gin, rum, whisky, cordials containing spirits, wine,

cider, perry, mead, ale, porter, spirit-based or wine-based

Preliminary Part 1

Section 7

Drink Container Recycling Bill 2008 No. , 2008 3

drinks, beer or any other spiritous, malt, vinous or fermented

liquors; or

(b) any carbonated soft drink or water; or

(d) any milk, milk substitute, rice milk, soya milk or flavoured

milk drink; or

(e) any other liquid, intended for human consumption by

drinking, declared by the regulations to be a beverage for the

purposes of this Act.

beverage container means a container of any kind made for the

purpose of containing a beverage, being a container that when

filled with the beverage is sealed by the producer or distributor of

the beverage for the purposes of storage, transport and handling

prior to its sale or delivery for the use or consumption of its

contents, but does not include a refillable container having a

capacity of more than 3 litres.

container redemption facility means an operation, facility or retail

premises, or a group of operations, facilities or retail premises,

identified in an approved plan for the collection and redemption of

a producer's, distributor's or industry or other group's used

beverage containers.

deposit amount means an amount prescribed in the regulations in

accordance with section 18 as the deposit amount for beverage

containers, or for particular classes of beverage containers.

distributor means a person or enterprise engaged in the distribution

within Australia or an external Territory of a beverage, whether

produced within Australia or not, to a retailer of the beverage.

final purchaser means the purchaser making the final retail

purchase of a beverage.

industry or other group means an industry group representing

some or all producers or distributors, or some or all producers and

distributors.

Part 1 Preliminary

Section 7

4 Drink Container Recycling Bill 2008 No. , 2008

producer means a person or enterprise engaged in the manufacture

of a beverage for use or consumption in Australia or an external

Territory.

recovery rate, for a producer, distributor or industry or other group,

means the number of used beverage containers collected that were

generated by that producer, distributor or industry or other group,

as the case may be, divided by the total number of beverage

containers generated by that producer, distributor or industry or

other group, as the case may be, expressed as a percentage.

refill means to reuse without manufacturing.

refund marking, in relation to a beverage container, means

marking or labelling the container by any method (including

embossment) with a statement of, and other marks or features as to,

the deposit amount for the beverage container.

retailer means a person whose business is or includes the final sale

of a beverage for the purpose of the use or consumption of that

beverage and, in the case of such sale by means of a vending

machine, includes the owner of that vending machine unless the

owner has hired the machine to some other person, in which case

that other person is also included.

stewardship plan means a beverage container stewardship plan

developed in accordance with Part 2.

used beverage container means any beverage container the

contents of which have been used or consumed and that, as a result

of such use or consumption, the user or consumer of the product

has no further use for the beverage container.

Beverage container stewardship plans Part 2

Section 8

Drink Container Recycling Bill 2008 No. , 2008 5

Part 2--Beverage container stewardship plans

8 Application

(1) This Part applies to any producer or distributor that sells, offers for

sale or distributes a beverage in Australia.

(2) This Act does not prevent a group of producers or distributors, or

an industry or other group, from developing a stewardship plan for

that group or industry group and submitting it in accordance with

this Part.

9 Duty of producer or distributor of a beverage, or of industry or

other group

A producer or distributor of a beverage or an industry or other

group must, within 18 months of the commencement of this Act,

have an approved plan under this Part and comply with the

approved plan in order to sell, offer for sale or distribute the

beverage in Australia.

Civil penalty:

(a) for an individual--5,000 penalty units or such lower amount

as is prescribed by the regulations;

(b) for a body corporate--50,000 penalty units or such lower

amount as is prescribed by the regulations.

10 Submission of beverage container stewardship plan

(1) A producer or distributor of a beverage or an industry or other

group must, within 12 months of the commencement of this Act,

submit to the Minister for approval a beverage container

stewardship plan, in the manner and format prescribed by the

regulations and subject to sections 11 and 12.

Civil penalty:

(a) for an individual--5,000 penalty units or such lower amount

as is prescribed by the regulations;

Part 2 Beverage container stewardship plans

Section 11

6 Drink Container Recycling Bill 2008 No. , 2008

(b) for a body corporate--50,000 penalty units or such lower

amount as is prescribed by the regulations.

(2) A stewardship plan submitted under subsection (1) must be

accompanied by a written statement about public consultations

under section 12, and how the producer, distributor or industry or

other group, as the case may be, has given due consideration to any

public comments received under subsection 12(1).

11 Content of beverage container stewardship plan

(1) A beverage container stewardship plan must include, but is not

limited to, provisions for:

(a) a minimum recovery rate, for beverage containers utilised by

the producer, distributor or industry or other group in the

production or distribution, as the case may be, of its

beverages, of 75% within 2 years of the commencement of

the stewardship plan and 80% within 5 years of the

commencement of the stewardship plan;

(b) public comment on and input into the implementation and

operation of the stewardship plan;

case may be, collecting and paying the costs of collecting and

managing used beverage containers covered by the

stewardship plan, whether the beverages for which the

beverage containers were utilised are currently or were

previously sold, offered for sale or distributed in Australia;

(d) reasonable and free consumer access to return unlimited used

beverage containers to container redemption facilities during

regular business hours 5 days per week, one day of which

must be a Saturday or a Sunday;

(e) making consumers aware of:

(i) the stewardship plan; and

(ii) the locations and hours of operation of container

redemption facilities;

(f) assessing:

(i) the performance of the stewardship plan, including

setting performance requirements or targets; and

Beverage container stewardship plans Part 2

Section 12

Drink Container Recycling Bill 2008 No. , 2008 7

(ii) the management of costs incurred to implement the

stewardship plan; and

(iii) the management of environmental impacts of the

stewardship plan;

(g) a dispute resolution procedure for disputes that arise between

the producer, distributor or industry or other group, as the

case may be, and a person, enterprise or enterprises providing

services related to the collection and management of the

producer's, distributor's or industry or other group's

beverage containers, during the implementation and

operation of the stewardship plan;

(h) eliminating or reducing the environmental impacts of the

producer's, distributor's or industry or other group's

beverage containers throughout the life cycle of those

beverage containers;

(i) the management of the producer's, distributor's or industry

or other group's beverage containers in adherence to the

order of preference in the pollution hierarchy.

(2) For the purposes of paragraph (1)(i), the pollution prevention

hierarchy is as follows in descending order of preference, such that

pollution prevention is not undertaken at one level unless and until

all feasible opportunities for pollution prevention at a higher level

have been undertaken:

(a) reduce the environmental impact of producing beverage

containers by eliminating toxic components and increasing

energy and resource efficiency;

(b) redesign beverage containers to improve reusability or

recyclability;

(d) recycle beverage containers;

(e) recover material from beverage containers.

12 Public consultation on draft beverage container stewardship plan

(1) Before submitting a beverage container stewardship plan in

accordance with section 10, a producer or distributor of a beverage

or an industry or other group must:

(a) prepare a draft beverage container stewardship plan; and

Part 2 Beverage container stewardship plans

Section 13

8 Drink Container Recycling Bill 2008 No. , 2008

(b) publish it on the Internet and invite public comment on it in

its Internet publication of the draft; and

in which the producer or distributor or a member of the

industry or other group sells or distributes a beverage a

notice:

(i) stating that the draft stewardship plan has been prepared

and copies are available for public comment; and

(ii) specifying:

(A) the place or places at which copies will be

available (including its availability on the

Internet); and

(B) the times at which copies will be available; and

available, which must not be less than 30 days

after the publication of the notice; and

(iii) inviting interested persons and organisations to give

written comments to the producer or distributor or

industry or other group, as the case may be, within a

period of not less than 30 days after the publication of

the notice; and

(d) make copies of the draft stewardship plan available in

accordance with the notice in paragraph (c).

(2) The producer, distributor or industry or other group, in preparing

its final beverage container stewardship plan, must give due

consideration to any public comments made in accordance with

subsection (1) but does not have to revise the plan to take account

of those comments unless it considers it necessary to do so.

13 Approval of beverage containe r stewardship plan

(1) On receipt of a beverage container stewardship plan submitted for

approval under section 10, the Minister must, within 30 days of

receiving the stewardship plan, give a written notice to the

producer, distributor or industry or other group submitting the

stewardship plan:

(a) approving it without amendment; or

(b) approving it subject to conditions; or

Beverage container stewardship plans Part 2

Section 13

Drink Container Recycling Bill 2008 No. , 2008 9

group, as the case may be, with suggested alterations; or

(d) not approving it.

(2) A notice under paragraph (1)(b), (c) or (d) must include a statement

of reasons by the Minister for his or her decision.

(3) If a stewardship plan is approved under paragraph (1)(a) or (b), it

takes effect at the end of 30 days after the date of approval, and the

producer, distributor or industry or other group that submitted the

stewardship plan for approval must ensure that all necessary action

to give effect to the stewardship plan is completed by the end of

that period of 30 days.

(4) If a producer, distributor or industry or other group, as the case

may be, fails to comply with any conditions imposed under

paragraph (1)(b), the Minister may, by written notice, rescind the

approval of the stewardship plan.

(5) If the Minister:

(a) returns a stewardship plan with suggested alterations in

accordance with paragraph (1)(c); or

(b) does not approve a stewardship plan under paragraph (1)(d);

subsection (4);

the producer, distributor or industry or other group, as the case may

be, must, within 2 months of the date of the relevant notice under

paragraph (1)(c) or (d) or subsection (4), submit for approval a new

stewardship plan.

(6) In deciding whether to approve a stewardship plan submitted under

section 10 or subsection (5), the Minister must be satisfied that it

complies with the requirements of sections 11 and 12.

(7)

In deciding whether to approve a stewardship plan submitted under

section 10 or subsection (5), the Minister may take into account,

but is not limited to, the following matters:

(a) the population and geographical area of the markets in which

the producer, distributor or industry or other group, as the

Part 2 Beverage container stewardship plans

Section 13

10 Drink Container Recycling Bill 2008 No. , 2008

case may be, sells, offers for sale or distributes the beverage

or beverages;

(b) the manner in which the beverage is or the beverages are

marketed and retailed by the producer, distributor or

members of the industry or other group, as the case may be;

distributor or industry or other group expects to sell or

distribute each year;

(d) the quantity of its used beverage containers that the producer,

distributor or industry or other group expects to collect each

year;

(e) the size of the population intended to be served by each

container redemption facility;

(f) the provision of convenient options for the collection of used

beverage containers in urban centres and small, isolated

communities, and for persons with disabilities or who have

no access to transportation;

(g) the manner, kind and amount of advertising and consumer

education planned by the producer, distributor or industry or

other group, as the case may be, to inform consumers of the

location and operation of container redemption facilities and

the environmental and economic benefits of participating in

the stewardship plan;

(h) the methods of collection, storage, transportation and

management of used beverage containers;

(i) the beverage container stewardship plans of other producers,

distributors and industry or other groups;

(j) the structure of financial and operational cooperation with

other producers, distributors and industry or other groups.

(8) An approval by the Minister under paragraph (1)(a) or (b) is a

legislative instrument for the purposes of the Legislative

Instruments Act 2003.

(9) This section applies to the Minister's consideration of proposed

amendments to an approved plan, submitted for approval under

paragraph 14(2)(a), in the same way that it applies to the Minister's

consideration of a stewardship plan submitted for approval under

section 10 or subsection (5).

Beverage container stewardship plans Part 2

Section 14

Drink Container Recycling Bill 2008 No. , 2008 11

14 Review of approved plan

(1) A producer, distributor or industry or other group, as the case may

be, must:

(a) no later than the fifth anniversary of the date of approval of

the approved plan; and

(b) no later than the end of each succeeding period of 5 years

after that anniversary;

complete a review of its approved plan.

(2) Within 30 days of completing a review under subsection (1), a

producer, distributor or industry or other group, as the case may be,

must:

(a) submit to the Minister for approval any proposed

amendments to the approved plan that are necessary; or

(b) advise the Minister in writing that no amendments to the

approved plan are necessary.

15 Annual reports by produce rs, distributors and industry or other

groups

(1) On or before 30 September in each year, a producer, distributor or

industry or other group, as the case may be, must provide to the

Minister a report for the financial year that ended on 30 June in

that year, in relation to the operation of its stewardship plan.

(2) The report prepared under subsection (1) must include but is not

limited to the following:

(a) a description of educational materials and educational

strategies the producer, distributor or industry or other group,

as the case may be, uses for the purposes of this Act;

(b) the location of container redemption facilities, and any

changes in the number and location of container redemption

facilities from the previous report;

industry or other group, as the case may be, to reduce

environmental impacts throughout the beverage container life

cycle and to increase reusability or recyclability at the end of

the life cycle;

Part 2 Beverage container stewardship plans

Section 15

12 Drink Container Recycling Bill 2008 No. , 2008

(d) a description of how recovered beverage containers were

managed in accordance with the pollution prevention

hierarchy;

(e) the quantity of beverage containers generated by the

producer, distributor or industry or other group, as the case

may be, the total number of used beverage containers

collected that were generated by that producer, distributor or

industry or other group and the recovery rate;

(f) independently audited financial statements detailing all

deposits received and refunds paid by the producer,

distributor or industry or other group covered by the

approved plan;

(g) a comparison of the approved plan's performance for the year

with the performance requirements and targets in the

approved plan;

(h) any other information specified by the Minister.

(3) A report prepared under subsection (1) and received by the

Minister is not required to be tabled by the Minister.

Note:

The Minister may include in his or her annual report on the operation

of this Act information or data from a report prepared under this

subsection: see section 21.

Beverage container deposit Part 3

Section 17

Drink Container Recycling Bill 2008 No. , 2008 13

Part 3--Beverage container deposit

16 Exemption of certain containers

The Governor-General may, by regulation, exempt containers of a

specified class from the application of this Act, or specified

provisions of this Act, either unconditionally or subject to

conditions specified in the regulations.

17 Markings required before sale and supply of beverages in

containers

(1) A producer or distributor must not:

(a) supply a beverage in a container to a retailer for sale by the

retailer; or

(b) sell a beverage in a container for consumption;

unless the container bears a refund marking for the refund of the

deposit for the container prescribed under section 18.

Penalty: 2,000 penalty units.

(2) A retailer must not sell a beverage in a container for use or

consumption unless the container bears a refund marking for the

refund of the deposit for the container prescribed under section 18.

Penalty: 100 penalty units.

18 Beverage container deposit

(1) A retailer must collect from the final purchaser, at the time of the

sale of a beverage in a container, a deposit in the amount

prescribed by the regulations for the purposes of this section.

(2) The deposit collected under subsection (1) must be shown on the

final purchaser's receipt if a receipt is given.

(3) The deposit collected under subsection (1) is an amount that

includes goods and services tax.

Part 3 Beverage container deposit

Section 19

14 Drink Container Recycling Bill 2008 No. , 2008

(4) This section does not apply to a retailer if the retailer sells a

beverage in a beverage container for consumption on the premises

of the retailer and the beverage is consumed on those premises.

19 Beverage container deposit refund

(1) A container redemption facility must accept used beverage

containers for return and pay the person returning the beverage

container or containers, as the case may be, a cash refund per

container in an amount not less than the deposit amount prescribed

in the regulations for the purposes of section 18 and collected

under that section.

(2) A container redemption facility is not required to accept a beverage

container or pay a cash refund for a beverage container if the

beverage container is:

(a) contaminated, rusty or unclean; or

(b) cannot be reasonably identified as a beverage container to

which this Act applies.

Miscellaneous Part 4

Section 20

Drink Container Recycling Bill 2008 No. , 2008 15

Part 4--Miscellaneous

20 Offence

A person must not dispose of redeemed beverage containers in a

landfill or incinerator.

Penalty: 500 penalty units.

21 Annual report by Minister

(1) As soon as practicable after each 30 June and after receiving the

annual reports by producers, distributors and industry or other

groups in accordance with section 15, the Minister must cause to

be prepared a report on the operation of this Act for the 12 months

ending on that 30 June.

(2) A report prepared under subsection (1) may include information

and data from any report prepared under section 15 but must not

include any information or data:

(a) that a producer, distributor or industry or other group has

asked not be released; and

(b) that the Minister is satisfied is commercial in confidence.

(3) The Minister must cause a copy of a report prepared under

subsection (1) to be laid before each House of the Parliament

within 15 sitting days of that House after the day on which the

Minister receives the report.

22 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Commonwealth of Australia Bills

DRINK CONTAINER RECYCLING BILL 2008