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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
PRODUCT STEWARDSHIP BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Parliamentary Secretary for Sustainability and Urban
Water, Senator the Hon Don Farrell)
PRODUCT STEWARDSHIP BILL 2011
OUTLINE
Objectives and policy background
The Product Stewardship Bill 2011 (the Bill) establishes a national framework to
enable Australia to more effectively manage the environmental, health and safety
impacts of products, and in particular those impacts associated with the disposal of
products.
The Bill implements a commitment in the National Waste Policy: Less Waste, More
Resources (November 2009) that:
the Australian Government, with the support of state and territory
governments, will establish a national framework underpinned by
legislation to support voluntary, co-regulatory and regulatory product
stewardship and extended producer responsibility schemes to provide
for the impacts of a product being responsibly managed during and at
end of life.
The National Waste Policy has been endorsed by all Australian governments, through
both the Environment Protection and Heritage Council (November 2009) and the
Council of Australian Governments (August 2010).
Product stewardship involves shared responsibility for reducing the environmental,
health and safety footprint of manufactured goods and materials across the life cycle
of a product (National Waste Policy, key direction 1). It has been widely adopted in
Australia and internationally as one approach to managing the environmental, health
and safety impacts of products and materials, and particularly the impacts associated
with disposal of products.
Waste in Australia is growing and its nature is changing. Products in particular are
increasingly complex, often contain hazardous substances, and at end of life place an
increasing cost on the general community, rather than those who use or benefit from
their use.
There are a number of 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 hazardous waste stream, meet international obligations and encourage responsible
action. A national approach will avoid the inefficiency associated with different state
and territory laws applying to the same products.
There are also information asymmetries, where a lack of information prevents
consumers and producers from understanding the impacts of a product. The
community has indicated a willingness to recycle, but lacks the information and
capacity to determine whether the statements about a product or scheme are valid.
Accreditation of voluntary product stewardship schemes can help avoid `green wash',
encourage voluntary action and avoid the need for regulation.
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The Bill is a `framework' bill in the sense that regulations will determine the products
and persons that obligations apply to. This framework approach, which enables
assessment of whether product stewardship requirements should be established for
particular classes of products, has been endorsed by all Australian governments
through the National Waste Policy. It avoids the need for product-specific legislation
and promotes a consistent approach to matters such as reporting, compliance and
enforcement.
Key provisions
Scope of obligations
The Bill will provide the basis for obligations to be imposed on manufacturers,
importers, distributors and others to take action that relates to one or more of the
following:
· avoiding generating waste from products;
· reducing or eliminating the amount of waste from products to be disposed of;
· reducing or eliminating hazardous substances in products and waste from
products;
· managing waste from products as a resource;
· ensuring that products and waste from products is treated, disposed of,
recovered, recycled and reused in a safe, scientific and environmentally sound
way.
Circumstances in which obligations may be imposed
Obligations will only apply to classes of products identified in regulations under the
co-regulatory or mandatory provisions of the Bill. Before a decision to make
regulations is made, the Australian Government's requirements for regulatory impact
analysis will be met in accordance with the Best Practice Regulation Handbook. This
will have regard to the following:
· the problem or issues that give rise to the need for action;
· the objectives of government action;
· the feasible alternative options to achieve these objectives;
· the costs and benefits of the alternative options; and
· the net benefit of each option for the community as a whole.
In addition to regulatory impact analysis requirements, the Minister will have to be
satisfied that the regulations meet criteria identified in the Bill and further the objects
of the Bill.
Voluntary provisions
The Bill provides the basis for accreditation of voluntary product stewardship
arrangements. The purpose of voluntary accreditation is to provide an avenue for
encouraging and recognising 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. Details of the
accreditation process would be set out in a Ministerial determination.
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Co-regulatory provisions
A co-regulatory approach involves a combination of government regulation and
industry action. Government sets the minimum outcomes and operational
requirements, while industry has flexibility as to how those outcomes and
requirements are achieved. In practice, it is likely that the co-regulatory provisions of
the Bill would be used where a substantial part of an industry wants to take action, but
is concerned about the rest of the industry `free riding' on their efforts. This is the
case for the national computer and television recycling scheme, which would be
supported by the co-regulatory provisions and associated regulations.
Mandatory provisions
Under the mandatory provisions, regulations may establish prescriptive product
stewardship requirements and establish offences or civil penalties that apply if those
requirements are not met. Regulations could, amongst other things, require specified
actions to be taken with respect to the reuse, recycling, treatment or disposal of
products or prohibit the manufacture and import of products containing hazardous
substances.
Financial Impact Statement
The Bill provides a framework for establishing product stewardship requirements for
particular classes of products. The cost of implementation will depend on the scope of
regulations made under the Bill. The cost of implementing regulations will be
considered on a case-by-case basis as part of the regulatory impact analysis process,
the requirements of which will need to be met prior to making any regulations under
the Bill.
The Regulation Impact Statement (RIS) for the National Waste Policy indicated there
are potential savings from national rather than state by state regulation of product
stewardship. It indicated that if states and territories were to pursue their own
approach then the cost to the economy would be between $212m and $414m above
business as usual, while a national approach to product stewardship would have a net
saving of $147 million. The RIS relating to national television and computer product
stewardship indicated there would be a net benefit to the community from regulation.
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PRODUCT STEWARDSHIP BILL 2011
NOTES ON CLAUSES
Part 1 - Introduction
Overview of Part
1. Part 1 of the Bill covers how the Bill is to be cited (when enacted) and when
its provisions commence. It sets out the objects of the Bill and product stewardship
criteria. Part 1 also contains a dictionary listing every term defined in the Bill and sets
out the Bill's application e.g. to the Crown and external territories and its relationship
with State and Territory laws.
Division 1 - Preliminary
Clause 1 - Short title
2. Once enacted, the short title of the Bill will be the Product Stewardship Act
2011.
Clause 2 - Commencement
3. The table in this clause sets out when the Bill's provisions commence.
4. Clauses 1 and 2 and anything else in the Bill not elsewhere covered by the
table commence on the day that the Product Stewardship Act receives Royal Assent.
5. Clauses 3 to 111 commence on a day or days to be fixed by Proclamation.
6. It is intended that no provision will commence later than six months after the
Product Stewardship Act receives Royal Assent.
Division 2 - Guide to this Act
Clause 3 - Guide to this Act
7. This clause provides a guide to the Bill.
Division 3 - Objects of this Act and product stewardship criteria
Clause 4 - Objects of this Act
Object - reducing the impact of products
8. Clause 4 sets out the objects of the Bill, which are drawn from the aims of the
National Waste Policy (pages 6-7). The objects assist in determining the scope of
voluntary, co-regulatory and mandatory product stewardship.
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9. Paragraph 4(1)(a) states that it is an object of the Bill to reduce the impact that
products have on the environment, throughout their lives. This is a broad objective
that encompasses all of the environmental impacts of a product from the time when
the product begins to be manufactured to the time when it is waste (see definition of
`life' of a product). Part 4(1)(a) therefore covers environmental impacts associated
with the manufacture, distribution, use and disposal of a product.
10. Paragraph 4(1)(b) states that it is an object of the Bill to reduce the impact
that substances contained in products have on the environment, and on the health and
safety of human beings, throughout the lives of those products. This encompasses the
effect that hazardous substances in products can have throughout the life of a product,
from the time the product begins to be manufactured to the time when it is waste.
11. Subclause 4(2) begins by stating that it is Parliament's intention that the object
in subclause 4(1) be achieved by encouraging or requiring manufacturers, importers,
distributors and other persons to take responsibility for the products having the
impacts described in subclause 4(1). This is consistent with the notion that product
stewardship involves participants in the product supply and consumption chain, rather
than the general community, bearing responsibility for the costs of resource recovery
and waste management.
12. Subclause 4(2) then goes on, in paragraphs (a) to (e), to refer to more specific
actions that are largely confined to impacts associated with the disposal of products.
The one exception is the reference in paragraph 4(2)(c) to `reducing or eliminating
hazardous substances in products' - this is relevant to impacts that hazardous
substances in a product may have during the whole of the product's life, not just
following disposal of the product.
13. Paragraphs 4(2)(a) to (e) are particularly significant for the operation of the
co-regulatory and mandatory provisions of the Bill. As discussed further below,
obligations under the co-regulatory and mandatory provisions must relate to one or
more of paragraphs (a) to (e). In broad terms, this means that obligations under the
Bill must relate to waste avoidance, resource recovery or reducing hazardous content
in products. It is not possible for obligations to be imposed with respect to other
matters that fall within the broader objective in subclause 4(1).
14. Subclause 4(2) should be read in conjunction with the definition of `waste' in
clause 6, which makes clear that waste, in relation to a product, means waste
associated with the product after it is disposed of. This makes clear that paragraphs
4(2)(a)-(e) are not intended to cover waste produced in the manufacturing process.
Other objects
15. Subclause 4(3) sets out additional objects of the Bill including contributing to
Australia meeting its international responsibilities concerning the impacts referred to
in subclause 4(1). The Australian Government has responsibilities arising from a
number of international agreements including agreements related to hazardous
substances, wastes, persistent organic pollutants and ozone-depleting substances.
Relevant instruments to which Australia is a party include the Basel Convention on
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the Control of Transboundary Movements of Hazardous Wastes and their Disposal,
the Montreal Protocol on Substances that Deplete the Ozone Layer and the Stockholm
Convention on Persistent Organic Pollutants.
16. Subclause 4(3) also makes reference to the object of contributing to reducing
greenhouse gas emissions, energy use and water consumption in connection with
manufacturing, importing and distributing products. These are in part co-benefits from
other objects of the Bill concerning waste reduction, re-use and recycling in subclause
4(2). This object is also relevant to commitments that may be made by administrators
of voluntary arrangements concerning the broader life cycle impacts of their products
(see commentary on Part 2 below).
17. The use of the words `in connection with' in clause 4(3) are intended to be
broad enough to cover the extraction and processing of raw materials needed to
manufacture products. This recognises that re-using and recycling products (referred
to in paragraph 4(2)(e)) will tend to reduce the greenhouse gas emissions, energy use
and water consumption associated with the extraction and processing of raw
materials. It does not mean that the Bill can regulate the extraction and processing of
raw materials.
Clause 5 - Product stewardship criteria
18. Clause 5 sets out the product stewardship criteria. The product stewardship
criteria are intended to be basic filter criteria to help determine whether the Bill
should apply to a particular class of products. Unless the Minister is satisfied that two
or more product stewardship criteria for a class of products are met then a voluntary
arrangement cannot be accredited and regulations cannot be made under the co-
regulatory or mandatory provisions (see subclause 19(3) and clauses 19 and 39).
19. The product stewardship criteria are only one factor in determining whether
regulations can be made with respect to a class of products. Under both the co-
regulatory and mandatory provisions, the Minister would also have to be satisfied that
making the regulations will further the objects of the (subclauses 19(3) and 39). In
addition, Australian Government policy concerning regulatory impact analysis would
have to be followed.
20. The national market criterion (paragraph 5(a)) directs the Minister's attention
to whether relevant products are sold throughout Australia. This criterion was
included because, 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.
21. The hazardous substance criterion (paragraph 5(b)) directs the Minister's
attention to whether the products contain hazardous substances. This criterion was
included because hazardous substances in products can increase the impacts that
products have on the environment and human health and safety, including at the end
of products' lives. There is a stronger case for product stewardship action where
hazardous substances are present.
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22. The third criterion (paragraph 5(c)) relates to material conservation and
resource recovery, and associated benefits such as reducing greenhouse gas emissions.
This criterion may be satisfied, for example, where reuse or recycling requires less
energy or water than production of a new product.
23. The fourth criterion (paragraph 5(d)) addresses the situation in which
governments are currently incurring significant costs associated with end-of-life
management of a class of products.
24. The willingness to pay criterion (paragraph 5(e)) directs the Minister's
attention to the cost that would be imposed on consumers by product stewardship
action, and whether consumers are willing to pay that cost. In practice, this would
involve an assessment by the Minister as to whether consumers are willing to pay the
costs associated with the particular action in question.
25. The final criterion (paragraph 5(f)) relates to whether product stewardship
action would offer business opportunities that would make a contribution to the
economy. This was included as a criterion because the presence of business
opportunities strengthens the case for taking product stewardship action.
Division 4 - The Dictionary
Clause 6 - The Dictionary
26. The Dictionary contains a list of every term that is defined in the Bill. It
includes some `signpost' definitions that refer readers to the clauses in which terms
are substantively defined. Key definitions are explained below.
administrator
27. As described in more detail in clauses 12 and 20, the administrator of a
product stewardship arrangement is the body corporate responsible for ensuring that
certain outcomes are achieved in relation to a class of products.
civil penalty order
28. This definition refers readers to clause 42, which allows the Minister to apply
to a relevant court for an order that a person pay the Commonwealth a pecuniary
penalty if the person has contravened a civil penalty provision in the Bill or
regulations in the preceding 6 years. (See also the definition of `this Act' below).
constitutional corporation
29. This definition provides that a constitutional corporation is a corporation to
which section 51(xx) of the Constitution applies. Section 51(xx) of the Constitution
provides that the Commonwealth Parliament may pass laws with respect to `foreign
corporations, and trading or financial corporations found within the limits of the
Commonwealth.'
co-regulatory arrangement
30. Clause 20 outlines the key elements of a co-regulatory arrangement, including
that it is an arrangement (however described) that is designed to achieve the outcomes
specified in regulations in relation to a class of products.
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executive officer
31. Executive officer of a body corporate is defined in subclause 51(4) as a person
(whether or not they are a director of the body corporate) who is concerned in, or
takes part, in the management of the body corporate.
improvement notice
32. An improvement notice is a notice the Minister may issue to the administrator
of an approved co-regulatory arrangement under clause 29.
inspector
33. An inspector is a person appointed by the Minister under clause 68 to exercise
the powers and perform the functions of an inspector (e.g. to enter and search
premises under warrant).
liable party
34. A liable party in relation to a class of products is a person who is obliged,
under clause 19, to be a member of an approved co-regulatory arrangement.
Regulations that establish product stewardship requirements for a class of products
would define the `liable parties' for those products.
life
35. The life of a product is defined to include the time when the product begins to
be manufactured, and the time when the product is waste. This is relevant to the scope
of the objects of the Bill, as discussed in the commentary above on clause 4.
magistrate
36. This term is defined to include a Federal Magistrate under certain
circumstances. This is necessary as section 16C of the Acts Interpretation Act 1901
provides that a reference to a `magistrate' does not include Federal Magistrates unless
the contrary intention appears.
penalty unit
37. `Penalty unit' is defined in section 4AA of the Crimes Act 1914. It is currently
$110.
product
38. The primary definition of a product is a thing (including a substance or
mixture of substances) that is manufactured. This is a deliberately broad definition
that is intended to provide flexibility for the Bill to apply to the full range of
manufactured goods or materials that may conceivably be subject to product
stewardship requirements. The definition of `product' can be expanded by regulations.
product stewardship criteria
39. Clause 5 sets out the product stewardship criteria, two or more of which would
have to be satisfied before either:
· the Minister can approve a voluntary arrangement relating to a specified
class of products; or
· regulations can be made for the purposes of the co-regulatory arrangement
or mandatory provisions.
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product stewardship logo
40. A product stewardship logo is a logo designated under clause 14. It is
available for use by persons in accordance with an accredited voluntary product
stewardship arrangements in certain circumstances.
recover
41. `Recover', in relation to products or waste from products, includes to recover
resources, materials or energy from those products or that waste.
relevant court
42. `Relevant court' means the Federal Court of Australia or a Supreme Court of
a State or Territory.
reviewable decision
43. Decisions made under the Bill that are open to internal and Administrative
Appeals Tribunal review, as identified in clause 93.
this Act
44. `This Act' is defined to include regulations, and other legislative instruments,
made under the Product Stewardship Act. This means, for example, that the ability of
the Minister to apply for a civil penalty order against a person contravening a civil
penalty provision `in this Act' (clause 42) also applies to civil penalties in regulations.
The expansive definition of `this Act' was included to simplify the Bill, as it would
otherwise be necessary to also include references to regulations and other legislative
instruments throughout the Bill.
voluntary arrangement
45. Clause 12(2) outlines the key elements of a voluntary arrangement, including
that the arrangement is designed to further the objects of the Bill by achieving one or
more measurable outcomes in relation to a class of products.
waste
46. Waste, in relation to a product, means waste associated with the product after
it is disposed of. This definition is relevant to the scope of the objects clause, co-
regulatory and mandatory provisions. It is discussed further in the commentary on
clause 4.
47. Some terms that are used in the Bill are defined in the Acts Interpretation Act
1901. In particular:
Minister
48. Where a provision of an Act refers to `the Minister', this is a reference to the
Minister or Ministers administering the provision (section 19). (Note also that under
clause 110 of the Bill the Minister may delegate his or her functions or powers).
person
49. `Person' includes a body politic or corporate as well as an individual (section
22).
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Division 5 - Application of this Act
Clause 7 - Act binds the Crown
50. This clause provides that the Bill binds the Crown in each of its capacities.
However, in line with usual practice the Bill provides that the Crown is not liable to a
pecuniary penalty or to be prosecuted for an offence under the Bill. The protection
from prosecution or civil penalty proceedings does not apply to an authority of the
Crown.
Clause 8 - Extension to external Territories
51. The Bill applies to all of Australia's external territories. This clause does not
imply that product stewardship obligations will automatically apply to the external
territories. For example, collection and recycling obligations for a particular product
as specified in regulations may not extend to remote regions, which could include
external territories, where the cost of doing so outweighs the benefits.
Clause 9 - Relationship to State and Territory laws
52. Generally, the Bill does not seek to exclude the operation of State and
Territory laws, to the extent that those laws are capable of operating concurrently with
the Bill (subclause 9 (1)).
53. As the Bill was developed with the support of all Australian Governments to
establish a nationally-consistent approach to product stewardship, it is unlikely that
duplicative schemes for the same class of products will be established. For example,
as all Australian Governments have agreed to a national scheme for recycling
televisions and computers to be established under this Bill it is unlikely that
duplicative schemes would be established under State or Territory laws.
54. However, if a duplicative scheme is established under State or Territory laws
then it will be possible for regulations to prescribe the relevant State or Territory law
as an `excluded law' (subclause 9(2)). The `excluded law' may be particular
provisions of an act or regulations, rather than the whole of an act or regulations. The
effect of prescribing a State or Territory law as an `excluded law' will be that the
provisions of the Bill and regulations dealing with co-regulatory and mandatory
product stewardship will apply to the exclusion of that law.
55. Under subclause 9(3) the exclusion of a State or Territory law only applies to
the extent that:
· regulations have been made with respect to the class of products under the
co-regulatory or mandatory provisions;
· the excluded law deals with the subject matters set out in paragraph 9(3)(b) in
respect of the same class of products as those regulations; and
· the excluded law would apply to or deal with matters within the relevant heads
of Commonwealth legislative power.
56. The approach in clause 9 is similar to that adopted in other Commonwealth
legislation, such as section 136 of the Airports Act 1996. It seeks to minimise
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regulatory duplication and provide certainty by providing a mechanism to deal with
possible conflicts between State and Territory laws on the one hand, and the Bill on
the other.
Part 2 - Voluntary product stewardship
Overview of Part
57. Part 2 relates to the accreditation of voluntary product stewardship
arrangements. The purpose of accreditation is to provide an avenue for encouraging
and recognising 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.
58. 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 class of products (clause 12). Under these provisions it would 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 class of products.
59. Much of the detail concerning voluntary product stewardship will be set out in
a legislative instrument made by the Minister. The legislative instrument would deal
with matters such as who may apply for accreditation, the circumstances in which an
application may be made, and who makes accreditation decisions (clause 13).
60. The Part provides for the use of a government product stewardship logo in
connection with accredited voluntary product stewardship arrangements (clause 11
and paragraph 12(2)(b)). This will provide an incentive for industry to bring forward
voluntary arrangements and will provide a basis for consumers to identify accredited
voluntary arrangements.
61. 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
would be the normal sanctions in the Copyright Act 1968, Trade Marks Act 1995 and
Competition and Consumer Act 2010.
62. The Minister is required to publish information on each accredited voluntary
product stewardship arrangements on the Department's website, including reports on
the operation of the arrangements (clause 108).
Division 1 - Guide to this Part
Clause 10 - Guide to this Part
63. This clause provides a guide to this Part.
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Division 2 - Voluntary arrangements
Clause 11 - Exercising rights in product stewardship logo in accordance with
accredited voluntary arrangement
64. Clause 11 provides that a person is licensed or authorised to exercise the
Commonwealth's intellectual property rights in a product stewardship logo if the
person is exercising those rights in accordance with an accredited voluntary
arrangement.
65. The Commonwealth's `intellectual property rights' are defined in clause 15 by
reference to its rights under the Copyright Act 1968 and the Trade Marks Act 1995.
Clause 12 - What is an accredited voluntary arrangement
Accredited voluntary arrangement
66. Subclause 12(1) provides that an accredited voluntary arrangement is a
voluntary arrangement accredited under a Ministerial determination made under
clause 13.
67. The National Waste Policy referred to accreditation of voluntary product
stewardship `schemes'. The word `arrangement' has been used instead of `scheme' to
avoid confusion with the legislative scheme that may be established for a particular
class of products.
Voluntary arrangements
68. Subclause 12(2) sets out the basic elements of a voluntary arrangement.
69. Paragraph 12(2)(a) requires the arrangement be designed to further the objects
of the Bill by achieving one or more measurable outcomes in relation to a class of
products. Subject to the scope of eligible voluntary arrangements being narrowed by
the Ministerial determination, this means that a voluntary arrangement may be
directed towards reducing any or all of the environmental, health and safety impacts
that fall within subclause 4(1). This could include, for example, environmental
impacts associated with the manufacture and distribution of a product as well as the
environmental impacts associated with the disposal of a product.
70. Paragraph 12(2)(b) requires the arrangement have a written document
stipulating the persons, or classes of persons authorised to exercise the
Commonwealth's intellectual property rights in a product stewardship logo in
connection with products and the circumstances in which use is authorised.
71. This written document may be varied over time. For example, the written
document may initially authorise only members of the arrangement to display the
logo, but as the arrangement evolves other parties such as participating retailers may
be authorised to use a logo.
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72. In practice, a condition of accreditation (see 13(2)(f)) is likely to provide that
changes to the rules concerning use of a product stewardship logo must be proposed
by the arrangement administrator and approved by the accrediting authority.
73. Paragraph 12(2)(c) requires the arrangement to have a person (the
administrator) who is primarily responsible for ensuring that the voluntary
arrangement achieves the measurable outcomes referred to in paragraph 12(2)(a).
74. Paragraph 12(2)(d) requires the administrator to be a body corporate. This is
intended to promote continuity and good governance.
Clause 13 - Accreditation of voluntary arrangements
75. Subclause 13(1) enables the Minister, by legislative instrument, to determine
matters relating to the accreditation of voluntary arrangements.
76. Subclause 13(2) enumerates matters that may be addressed in a determination.
The matters enumerated are not intended to limit the Minister's power under
subclause 13(1).
77. Under subclause 13(2) a determination may provide for any or all of the
following:
· who may apply for accreditation of a voluntary arrangement in relation to a
class of products (e.g. an administrator);
· the circumstances in which a person may apply for such accreditation (e.g. a
determination may set out a process for the accrediting authority to call for
expressions of interest from proposed administrators of voluntary
arrangements and decide which of the expressions of interest may proceed to a
full application);
· who may make a decision on such an application (the accrediting authority)
(e.g. the Minister);
· matters about which the accrediting authority must be satisfied before
accrediting a voluntary arrangement (e.g. that outcomes of the arrangement
must relate to particular matters);
· grounds on which the accrediting authority may or must refuse to accredit a
voluntary arrangement, which may for example include that:
o the applicant has not provided the accrediting authority with the requisite
information or documents;
o the applicant has provided the accrediting authority with false and
misleading information or documents;
o the arrangement does not satisfy the requirements set out in subclause
12(2);
o the administrator is not a fit and proper person;
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· the imposition of conditions by the accrediting authority on a voluntary
arrangement, which may be either standard or arrangement-specific conditions
and may for example include:
o that the administrator of a voluntary arrangement take reasonable steps to
ensure the arrangement's outcomes are achieved (see note 2(a) to the
clause);
o that the administrator of a voluntary arrangement provide annual reports as
to whether the outcomes it has committed to have been achieved;
o that the product stewardship logo only be displayed in a specified way (see
note 2(b) to the clause);
· reviewing the operation of accredited voluntary arrangement (e.g. the
accrediting authority may require an administrator to organise a review of an
arrangement at a particular time or in certain circumstances, such as if an
arrangement is failing to achieve outcomes);
· cancellation by an accrediting authority of a voluntary arrangement's
accreditation (e.g. a determination may set out the general grounds for
cancelling accreditation and also make provision for an administrator to apply
to the accrediting authority requesting cancellation).
78. Note 1 following subclause 13(2) refers readers to clause 102, which sets out
the requirements relating to applications, including that applications must be made in
the manner and form approved in writing by the Minister.
Preconditions to accreditation
79. Subclause 13(3) has the effect of requiring the accrediting authority to refuse
to accredit a voluntary arrangement on certain grounds, including where the objects of
the Bill would not be furthered by accreditation and where the product stewardship
criteria are not satisfied. These two requirements are basic filters common to the co-
regulatory and mandatory provisions.
Public interest and appropriate use of logo - relevant matters
80. The accrediting authority must refuse to accredit a voluntary arrangement
where satisfied that it is not in the public interest to accredit the arrangement
(13(3)(e)). The `public interest' may include matters other than the objects of the Bill
(subclause 13 (4)).
Clause 14 - What is a product stewardship logo
81. Clause 14 provides for the Minister to make a legislative instrument that
identifies one or more product stewardship logos. It anticipates that the
Commonwealth will have intellectual property rights in a product stewardship logo
under the Copyright Act 1968, and may also have rights under the Trade Marks Act
1995.
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Clause 15 - What are the Commonwealth's intellectual property rights in a
product stewardship logo
82. Clause 15 defines the Commonwealth's intellectual property rights in a
product stewardship logo as the rights it holds under the Copyright Act 1968 and the
Trade Marks Act 1995.
83. Generally, the Commonwealth's right under the Copyright Act 1968, as an
owner of copyright in an artistic work to do an act comprised in that copyright, is the
exclusive right to do, or authorise other persons to do, all or any of the following acts:
· to reproduce the work in a material form;
· to publish the work;
· to communicate the work to the public.
84. Generally, the Commonwealth's rights under the Trade Marks Act 1995, as a
registered owner of a trade mark, extend to the right to use, or authorise other persons
to use, the trade mark in relation to goods and/or services, but only goods and/or
services:
· dealt with or provided in the course of trade; and
· in respect of which the trade mark is registered.
Clause 16 - Commonwealth's intellectual property rights not limited
85. For the avoidance of doubt, clause 16 provides this Part does not limit the
Commonwealth's intellectual property rights in a product stewardship logo or the
operation of the Trade Marks Act 1995 or the Copyright Act 1968.
Part 3 - Co-regulatory product stewardship
Overview of Part
86. Part 3 deals 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 regulations, such as recycling outcomes for a class of
products (subclause 21(1)).
87. The co-regulatory provisions only apply where regulations have been made
with respect to a product. Before regulations can be made the Minister would have to
be satisfied that the regulations would further the objects of the Bill and that the
product meets two or more of the `product stewardship criteria' specified in the Bill
(subclause 19(3)). As a matter of government policy, the usual regulatory impact
assessment requirements would also apply.
88. Liable parties in relation to a class of products (as defined in regulations) must
be members of an approved product stewardship arrangement (subclause 18(1)). This
is intended to ensure a level playing field for the relevant industry, and that there are
no `free riders'. Civil penalties, including daily penalties and penalties for executive
16
officers of a body corporate involved in the contravention of the obligation, may
apply (see Part 5).
89. Product stewardship arrangements are operated by administrators. Proposed
administrators apply to the Minister to approve an arrangement (clause 25). The
administrator of an approved co-regulatory arrangement will be required to take all
reasonable steps to ensure that outcomes specified in regulations are achieved (clause
23). A failure to do so may result in the Minister issuing an improvement notice
(clause 29) or cancelling the arrangement's approval (clause 28). The regulations may
also establish reporting obligations for administrators (clause 24).
90. The outcomes that are specified in regulations for a co-regulatory arrangement
must relate to one or more of the following:
· avoiding generating waste from products;
· reducing or eliminating the amount of waste from products to be disposed of;
· 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 reused, recycled,
recovered, treated and disposed of in a safe, scientific and environmentally
sound way (subclause 21(3)).
91. 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. Generally, persons may apply for authorisation
from the Australian Competition and Consumer Commission (ACCC) when the
conduct they propose to engage in might constitute conduct prohibited by Part IV of
the Competition and Consumer Act 2010. Parties considering a potential product
stewardship arrangement that could raise competition concerns should contact the
ACCC for further information on 1300 302 502, or at www.accc.gov.au.
92. If the Product Stewardship Bill is passed by the Parliament then, consistent
with the announcement of the Environment Protection and Heritage Council of
5 November 2009, the first set of regulations to be made under the co-regulatory
provisions would be to establish a national collection and recycling scheme for
televisions, computers and computer peripherals. A consultation paper concerning
those regulations was released for comment on 8 March 2011.
Division 1 - Guide to this Part
Clause 17 - Guide to this Part
93. This clause provides a guide to this Part.
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Division 2 - 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 18 - Liable party to be member of approved co-regulatory arrangement
94. Clause 18 requires a liable party to be a member of an approved co-regulatory
arrangement. This obligation is central to the operation of the co-regulatory provisions
as it seeks to ensure that non-participants in an industry arrangement do not gain an
advantage over participants.
95. In some cases there will be a substantial incentive for a liable party to
contravene this provision. For example, it is proposed that regulations under the co-
regulatory provisions will establish a national recycling scheme for computers and
televisions. As part of this scheme, it is likely that importers and manufacturers of
televisions will be `liable parties' required to be members of an approved product
stewardship arrangement. The regulations will require the administrators of those
arrangements to meet collection and recycling targets, and in order to achieve these
targets it is likely that administrators will charge fees to members. These fees could be
substantial, providing a significant incentive for avoidance of subclause 18(1).
96. Given the substantial incentive for avoidance of subclause 18(1), a number of
penalties and compliance provisions apply, including:
· A basic civil penalty of 200 penalty units, or 1000 units for a body corporate,
(subclauses 18(1), 43(1));
· A daily penalty for ongoing contraventions, which increase the basic penalty
by 10 per cent each day the contravention continues (subclause 18(9),
subclause 43(2), clause 59);
· As alternative to the above, a penalty equal to the commercial benefits
obtained from the contravention (subclause 43(3)); and
· Liability for executive officers involved in contraventions (clause 51).
97. Taken together, these penalties and compliance provisions should provide an
adequate deterrent to contraventions of subclause 18(1).
98. As is apparent from later provisions of the Bill (such as paragraph 20(2)(c)), it
is possible for a co-regulatory arrangement to have a single member. This means that
it would be possible for a liable party to establish its own co-regulatory arrangement.
Minister to give notice before applying for civil penalty order
99. Subclauses 18(2) and 18(3) specify that the Minister cannot apply for a civil
penalty order unless the Minister first issues a written notice to the liable party which
provides it with at least 14 days to become a member of an approved co-regulatory
arrangement, and it fails to comply with the notice. This is intended to ensure that
liable parties have an opportunity to become a member of an approved co-regulatory
arrangement before penalties are imposed.
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Variation and revocation of notice
100. Subclause 18(4) enables a person to whom a notice has been given to apply to
the Minister to vary the notice to specify a later day or revoke the notice. Under
subclause 18(5) the person's application must be in writing and made before the day
specified in the notice.
101. Subclause 18(6) allows the Minister to vary the notice to specify a later day or
revoke the notice. The person who has applied to vary or revoke the notice may apply
to the Administrative Appeals Tribunal to seek review of the Minister's decision
(clause 93, item 4). If the decision was made by a delegate of the Minister, internal
review is also available (clause 95).
102. Subclauses 18(4) and (6) do not affect the operation of subsection 33(3) of the
Acts Interpretation Act 1901 (Subclause 18(8)). This ensures that the Minister has the
power to revoke or vary a notice at his or her own initiative, rather than just on the
application of the person who has been served with the notice.
Clause 19 - Who is a liable party in relation to a class of products
Regulations may specify liable parties
103. Subclause 19(1) defines liable party, in relation to a class of products, as a
person in a class (or classes) of persons specified as liable parties in regulations.
104. Subclause 19(2) limits who can be identified as a liable party in regulations to
a person who has at any time:
· imported the relevant product into Australia;
· manufactured the relevant product in Australia;
· distributed the relevant product in Australia; or
· used the relevant product in Australia.
105. Regulations may define a liable party with reference to a threshold. For
example, a liable party may be a constitutional corporation which imported over a
certain number of products of a specified class in a specified period. It would also be
possible for the definition of `liable party' to provide that such a threshold is exceeded
where imports of that corporation, together with related parties, exceed the threshold.
106. A threshold could also be based on the turnover of a company - for example,
the definition of `brand owner' in existing State and Territory laws related to
packaging have a $5 million turnover threshold (e.g. regulation 46I, Protection of the
Environment Operations (Waste) Amendment (Used Packaging Materials) Regulation
2006 (NSW)).
107. Subclause 19(2) is intended to allow sufficient flexibility to cater for different
products and approaches to product stewardship. Other product stewardship schemes,
either in Australia or overseas, have imposed obligations on importers, manufacturers,
distributors and users of products. For example, the National Environment Protection
(Used Packaging Materials) Measure and related state laws apply to large users of
packaging, such as supermarkets.
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108. Subclause 19(2) refers to a person `who has at any time' been in any of the
categories referred to in the subclause. This is preferable to limiting the subclause to
persons who are currently in those categories, as it may be appropriate to impose a
continuing obligation on a person to become a member of an approved arrangement.
109. It will be possible to have different liable parties for different product classes,
and a particular person may be a liable party in relation to more than one product
class.
Satisfying product stewardship criteria and furthering objects
110. Under subclause 19(3) the Governor-General cannot make regulations
specifying liable parties in relation to a class of product unless the Minister is satisfied
that:
· making regulations furthers the objects of the Bill; and
· the product satisfies 2 or more of the product stewardship criteria.
111. In addition, as a matter of Australian Government policy, the requirements for
a regulatory impact analysis will also have to be met before a product is subject to co-
regulatory requirements.
112. The constitutional limitations in clause 34 provide a further constraint on the
classes of persons that may be identified in regulations as liable parties.
Exempting liable parties
113. Subclause 19(4) allows regulations to provide for the granting of exemptions
to liable parties. This has been included as a safeguard in case it is required in future
regulations.
Clause 20 - What is an approved co-regulatory arrangement
114. Clause 20 sets out the basic elements of a co-regulatory arrangement,
including that the arrangement is designed to achieve the outcomes specified in
regulations and that there is an administrator who is responsible for ensuring that
these outcomes are achieved.
115. Clause 20 does not require an arrangement to be in writing. This provides
flexibility for arrangements to evolve over time without the need for administrators to
continually re-seek approval for any changes from the Minister. This is consistent
with the co-regulatory philosophy of avoiding government intervention as long as
outcomes and basic operational requirements are met.
116. While flexibility is afforded to administrators in how they achieve outcomes,
there are a number of safeguards to ensure that the operation of co-regulatory
arrangements can be effectively monitored. In particular:
· the application for approval of a co-regulatory arrangement must include a written
description of the arrangement (subclause 25(2));
· the regulations may require an administrator to notify the Minister of changes in
the circumstances of the arrangement (subclause 24(3)); and
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· the regulations may require administrators may to submit reports on the operation
of the arrangement (subclause 24(4)).
117. Subclause 20(1) provides that the co-regulatory arrangement is approved `in
relation to a class of products'. In reading this subclause and other provisions using
this phrase, regard should be had to section 23 of the Acts Interpretation Act 1901,
which provides that "[i]n any Act, unless the contrary intention appears ... words in
the singular number include the plural...". The effect of this rule of interpretation is
that an arrangement may deal with more than one class of products. For example, if
computers and televisions are identified in regulations as different classes of products,
it would be possible for one co-regulatory arrangement to deal with both computers
and televisions. In considering whether to approve such an arrangement under clause
26, the Minister would consider whether requirements relating to both classes of
products have been met and make a single decision approving or refusing the
application.
Clause 21 - Outcomes for co-regulatory arrangements
118. Clause 21 requires that regulations must specify one or more outcomes which
must be achieved by co-regulatory arrangements that relates to a class of products,
and provides that these outcomes must relate to one or more of the following:
· avoiding generating waste from products;
· reducing or eliminating the amount of waste from products to be disposed of;
· reducing or eliminating hazardous substances in products and in waste from
products;
· managing waste from products as a resource; or
· ensuring that products and waste from products are reused, recycled,
recovered, treated and disposed of in a safe, scientific and environmentally
sound way.
119. Paragraph 21(2)(a) provides the scope for a method or formula to be outlined
in the regulations for determining how an outcome may be achieved. 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.
120. Paragraph 21(2)(b) allows the regulations to require different outcomes to be
achieved by the end of different periods. For example, different recycling targets
could be set for each financial year.
121. Paragraph 21(2)(c) provides scope for the regulations to specify requirements
on how outcomes are achieved. For example, administrators may be required to meet
an Australian Standard published on a specified date.
Clause 22 - Matters to be dealt with by co-regulatory arrangements
122. This clause allows regulations to specify basic operational requirements that a
co-regulatory arrangement must adequately address to be approved, or to maintain
approval.
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123. Subclause 22(2) requires matters to relate to one or more of the following:
· the governance of the arrangement (including how it resolves disputes);
· the membership of the arrangement (including requirements for becoming or
ceasing to be a member of the arrangement);
· how the arrangement communicates information to the public; and
· other matters that may be relevant to the operation of the arrangement or the
achievement of outcomes under clause 21.
124. While these matters are likely to be common across product classes, it is
envisaged that regulations could specify different matters for different classes of
products.
Subdivision B--Requirements for administrators of approved co-regulatory
arrangements
Clause 23 - Administrator to achieve outcomes for co-regulatory arrangement
125. Clause 23 requires the administrator of an approved co-regulatory
arrangement to take all reasonable steps to ensure that the arrangement achieves the
outcomes specified in regulations made under clause 21, and complies with any
requirements specified in regulations for meeting those outcomes.
126. If the arrangement administrator does not comply with this clause, the
Minister may give an improvement notice (clause 29), require an audit of the
arrangement to be carried out (clause 30) or cancel the arrangement's approval (clause
28).
127. The requirement to `take all reasonable steps' recognises that in some
circumstances outcomes may not entirely be within the control of the administrator.
For example, the ability to achieve collection and recycling targets for a class of
products may depend in part upon how many of those products are delivered by
members of the public at collection points.
Subdivision C--Requirements for liable parties and administrators
Clause 24 - Requirements relating to record-keeping, giving information and
reporting
Record-keeping and giving information
128. Clause 24 allows regulations to require a liable party or the administrator of an
approved co-regulatory arrangement to make and keep records or provide information
to the Minister or an inspector.
129. Subclause 24(3) makes clear that regulations may require the administrator of
an approved co-regulatory arrangement to notify the Minister of specified matters,
including a change to the membership of the arrangement. A requirement that
administrators report on their membership will help the Minister determine whether
liable parties have met their obligation under clause 18.
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Reporting
130. Subclause 24(4) provides that the regulations may require the administrator of
an approved co-regulatory arrangement to provide reports regarding the operation of
the arrangement, in accordance with the regulations. Regulations may, for example,
require the administrator to submit an audited annual report addressing performance
in meeting outcomes specified in regulations. Reports provided to the Minister under
subclause 24(4) may be published on the Department's website pursuant to
subparagraph 108(1)(d)(ii).
Civil penalty provisions
131. Under subclause 24(5) the regulations may make provision for pecuniary
penalties not exceeding 250 penalty units (for a body corporate) or 50 penalty units
(in any other case) for a contravention of requirements to make records or provide
information.
132. These penalty levels are consistent with the recommendation in A Guide to
Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (page 39)
that where an Act authorises the creation of offences in a regulation it should specify
that these offences may carry a maximum fine not exceeding 50 penalty units for an
individual and 250 penalty units for a body corporate.
Division 3--Approval of co-regulatory arrangements
Clause 25 - Approving co-regulatory arrangements - application
133. Clause 25 allows the administrator of a co-regulatory arrangement to apply to
the Minister for approval of the arrangement, and specifies that the application must
be accompanied by a written description of the arrangement that addresses certain
matters, including how the arrangement proposes to achieve the outcomes specified in
regulations. A note to the clause alerts readers to clause 102, which contains general
requirements for applications under the Bill.
Clause 26 - Approving co-regulatory arrangements - decision
Minister to approve or refuse to approve arrangement
134. Subclause 26(1) requires the Minister to either approve or refuse to approve a
co-regulatory arrangement. The Minister cannot impose conditions on that approval.
135. There is scope for the Minister to consult with the applicant on any aspect of
their arrangement while it is under consideration for approval. The applicant may
choose to modify some aspects of their application to meet any concerns the Minister
has.
136. The Minister may also consult with other parties to inform consideration of the
application. For instance, the Minister may consult with the Australian Competition
and Consumer Commission on whether competition issues might arise from the
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arrangement and whether applicants have sought authorisation under the Competition
and Consumer Act 2010.
When the Minister must refuse to approve arrangement
137. Subclause 26(2) sets out when the Minister must refuse to approve a
co-regulatory arrangement. The matters set out in subclause 26(2) are mainly directed
to ensuring that approved arrangements will function properly and achieve the
outcomes set by regulations.
The Minister must also reject an application where satisfied that it is not in the public
interest to approve the arrangement.
Fit and proper person
138. Subclause 26(3) provides that in determining whether the administrator is a fit
and proper person (for the purposes of paragraph 26(2)(d)), the Minister must have
regard to matters specified in regulations. The Minister may also have regard to any
other matter.
Public interest
139. Subclause 26(4) provides that in determining whether it is in the public
interest to approve the arrangement (for the purposes of paragraph 26(2)(e)), the
Minister must have regard to the objects of the Bill and any other matter.
140. For example, the Minister would refuse to accredit a proposed product
stewardship arrangement based on competition concerns where the ACCC has
previously denied or revoked an authorisation, or such an authorisation has expired
for that arrangement.
When the Minister may refuse to approve an arrangement
141. Subclause 26(5) provides that the Minister may refuse an arrangement if:
· the Minister has requested further documentation or information from the
applicant under clause 103 and the applicant fails to provide this information;
or
· documentation or information provided from the applicant is false or
misleading.
Notice of decision
142. Subclause 26(6) requires the Minister to provide applicants with a written
notice of the decision on the application. Subclause 108(1) also requires the Minister
to publish information on the arrangement on the Department's website, including a
summary of approved co-regulatory arrangements and the name and contacts details
of the arrangement administrator. There is no requirement to publish information on
the website about unsuccessful applications.
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Division 4 - Reviewing co-regulatory arrangements and cancelling approvals
Clause 27 - Reviewing approved co-regulatory arrangements
143. Subclause 27(1) requires the Minister to review an approved co-regulatory
arrangement before the end of 5 years from when the arrangement is approved and
each successive 5 year period. However, subclause 27(1) does not limit the Minister
from reviewing an approved arrangement at any other time or cancelling the approval
of a co-regulatory arrangement.
144. Examples of matters that a review could consider includes (but is not limited
to) the effectiveness of the arrangement in achieving one or more outcomes in clause
21 or whether the administrator remains a fit and proper person. Having reviewed the
arrangement, the Minister has the power to cancel the arrangement if satisfied that one
of the matters in clause 28 are satisfied.
Clause 28 - Cancelling approvals of co-regulatory arrangements
General grounds for cancelling arrangement's approval
145. Subclause 28(1) sets out the general grounds for the Minister cancelling the
approval of a co-regulatory arrangement. The Minister may cancel approval in a range
of circumstances. These include a failure to achieve outcomes specified in
regulations, a failure to comply with reporting or other requirements, or where the
Minister is satisfied that the administrator is not a fit or proper person.
146. The Minister may also revoke the approval of a product stewardship
arrangement where there has been a material change in circumstances since the
arrangement was accredited. An example of this (without limiting the other
circumstances justifying revocation) would be where the parties had been granted an
authorisation under competition law by the ACCC prior to approval, but the
authorisation had expired or been revoked by the ACCC. This would be a material
change in circumstances and the Minister may revoke the accreditation of the
arrangement.
147. Clause 28 does not require the Minister to give notice of cancellation of an
approved co-regulatory arrangement to the administrator or its members. However,
the general principles of procedural fairness would apply. These principles mean that
the Minister would ordinarily need to notify both the administrator and members of
the Minister's proposed decision to cancel the arrangement, and give the administrator
and members an opportunity to comment.
Fit and proper person
148. Subclause 28(2) provides that in determining whether the administrator is a fit
and proper person (for the purposes of paragraph 28(1)(d)), the Minister must have
regard to matters specified in regulations. The Minister may also have regard to any
other matter.
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Cancelling arrangement's approval on application by administrator
149. Subclause 28(3) enables the Minister to cancel the approval of a co-regulatory
arrangement at the request of the administrator. Where the Minister is satisfied that
the administrator has consulted with its members concerning the cancellation, the
rules of procedural fairness would be met without the need for the Minister to
separately contact the members of the arrangement.
Division 5 - Enforcing approved co-regulatory arrangements
Clause 29 - Improvement notices
150. The Minister may give an improvement notice to an administrator if the
Minister believes on reasonable grounds that the administrator has not taken
reasonable steps to achieve the arrangement's outcomes in accordance with the
regulations and that it is in the public interest to do so (subclause 29(1)).
151. The notice must specify the contravention that the Minister believes is
occurring, the reasons for that belief and a reasonable period within which the
administrator must take the action necessary to prevent any further contravention
(subclause 29(2)).
Varying or revoking a notice
152. Subclause 29(5) enables the Minister to vary or revoke an improvement notice
if he or she is satisfied that it is in the public interest. The Minister may do so by
giving written notice to the administrator. Any variations to an improvement notice
must be set out in the Minister's notice given to the administrator (subclause 29(6)).
Civil penalty provision
153. If an improvement notice is not complied with, the Minister can bring civil
penalty proceedings (subclause 29(7)) or cancel the arrangement (subparagraph
28(1)(e)(iii)). The maximum civil penalty for an administrator (as a body corporate) is
500 penalty units (subclauses 29(7), 43(1)). This penalty is within the range of
penalties for analogous provisions in other Commonwealth legislation, such as section
38DC of the Great Barrier Reef Marine Park Act 1975 (500 penalty units for
individuals, 2500 penalty units for bodies corporate). See also section 193 of the
Model Work Health and Safety Act 2010 ($50,000 for an individual and $250,000 for
a body corporate, equivalent to 454 and 2,273 penalty units respectively).
Clause 30 - Directed audits - general
154. The Minister may also require an administrator to carry out an audit. The main
situations in which a Minister may require an audit is where the Minister believes on
reasonable grounds that:
· the administrator has not taken reasonable steps to achieve the arrangement's
outcomes in accordance with the regulations (paragraph 30(1)(a)); or
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· the administrator has not complied with, or is unlikely to comply with an
improvement notice given to the administrator under clause 29 (paragraph
30(1)(b)).
155. An audit notice issued by the Minister in writing must specify certain matters,
including the matters to be addressed by the audit report, the form of audit report and
the time before which it must be given to the Minister (subclause 30(3)).
Clause 31 - Directed audits - Appointing auditor and carrying out of audit
156. An administrator who has been issued a notice under clause 30 must appoint
an auditor and arrange the audit in accordance with the notice. A failure to do so may
attract a civil penalty for an administrator (as a body corporate) of up to 500 penalty
units (subclauses 31(1), 43(1)). This penalty is comparable to penalties applying to
similar offences in other Commonwealth legislation, such as section 459 of the
Environment Protection and Biodiversity Act 1999.
157. Subclause 31(3) specifies that an auditor cannot be appointed without the
Minister's approval and subclause 31(4) specifies that an officer or employee of the
administrator cannot be appointed as an auditor. This is to ensure the audit is
conducted appropriately and independently. The cost of undertaking the audit would
be borne by the administrator.
Division 6 - Other matters relating to co-regulatory product stewardship
Clause 32 - Co-regulatory product stewardship - anti-avoidance
158. The intention of this anti-avoidance provision is to ensure that persons that
would otherwise be identified as a liable party under regulations do not engage in
behaviour specifically designed to avoid the costs of being a liable party.
159. It could apply, for example, where an importer of products covered by
regulations redirects these imports through several subsidiaries in order to avoid a
liability threshold.
Minister may determine Act has effect as if person were a liable party
160. Subclause 32(1) enables the Minister to make a written determination to
identify a specified person as a prospective liable party. A prospective liable party
would be subject to the same obligations as a liable party under clause 18.
161. A liable party identified under subclause 32(1) will have the benefit of the
notice requirement applying to other liable parties. The effect of clause 18(2) is that
the Minister must issue a written notice requiring the liable party to become a member
of an arrangement by a specified date, and that notice must be breached, before civil
penalty proceedings may be commenced
162. A determination under subclause 32(1) is a reviewable decision (clause 93,
item 7).
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Condition for making determination-avoidance scheme etc.
163. Subclause 32(2) specifies that the Minister can only make a determination if at
any time after the commencement of this Bill that one or more persons enters into,
begin to carry out or are carrying out a scheme that the Minister believes, on
reasonable grounds, is intended to help them avoid being a liable party. Further, if
regulations are made in accordance with paragraph 34(1)(a) the prospective party
must be a constitutional corporation.
Determination not a legislative instrument
164. Subclause 32(5) makes clear that the Minister's written determination is not a
legislative instrument. This provision is simply to assist readers, as the determination
is not a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Clause 33 - Co-regulatory product stewardship - replacing administrator
165. Clause 33 provides that the Minister's approval is required before an
administrator can be changed. This ensures that the Minister can assess whether the
new administrator is a fit and proper person.
Clause 34 - Co-regulatory product stewardship - constitutional connection
166. Clause 34 sets out the limitations to apply in relation to regulations specifying
liable parties in order to ensure that there is the necessary connection with the relevant
constitutional powers, namely that either:
· liable parties in relation to a class of products must be a constitutional
corporation; or
· the regulations are appropriate and adapted to give effect to Australia's
obligations under an international agreement.
167. Subclause 34(2) requires regulations made under this Part to identify whether
they are made in accordance with paragraph 34(1)(a) or (b). If regulations are made to
give effect to Australia's obligations under an international agreement, paragraph
34(2)(b) requires the regulations to identify the specific agreement that the regulations
draw their power from.
Clause 35 - Co-regulatory product stewardship - reading down provision in
relation to administrators
168. Clause 35 provides for the co-regulatory provisions to read as if the
administrator of the co-regulatory arrangement were expressly required to be a
constitutional corporation. This, in effect, provides for an alternative constitutional
basis for the co-regulatory provisions.
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Part 4--Mandatory product stewardship
Overview of Part
169. The objective of Part 4 is to make provision for imposing product stewardship
obligations through regulations. It is envisaged that mandatory product stewardship
will be used where other types of product stewardship have been explored and found
unsuitable, or where mandatory arrangements would deliver greater benefit to the
community than other options.
170. Regulations may require people or organisations involved in the life of a
product to take, or not to take, actions that relate to one or more of the following:
· avoiding generating waste from products;
· reducing or eliminating the amount of waste from products to be disposed of;
· reducing or eliminating hazardous substances in products and in waste from
products;
· managing waste from products as a resource; or
· ensuring that products and waste from products are reused, recycled,
recovered, treated and disposed of in a safe, scientific and environmentally
sound way. (Clause 37(2))
171. Regulations may make provision for penalties not exceeding a fine of 50
penalty units for offences against regulations, and pecuniary penalties of 200 penalty
units for contraventions of civil penalty provisions (clause 38). In each case penalties
for bodies corporate will be 5 times higher.
172. Before regulations can be made the Minister would have to be satisfied that
the regulations would further the objects of the Bill and that the product meets two or
more of the `product stewardship criteria' specified in the Bill (clause 39). As a matter
of government policy, the usual regulatory impact assessment requirements would
also apply.
Division 1 - Guide to this Part
Clause 36 - Guide to this Part
173. This clause provides a guide to this Part.
Division 2 - Mandatory provisions
Clause 37 - Mandatory requirements may be specified in regulations
Basic rule - requiring people to take, or not take, specified action
174. Subclause 37(1) provides that regulations can be made under the mandatory
provisions requiring one or more specified persons, or classes of person, to take, or
not to take, specified action in relation to a specified class of products. The specified
action must relate to one or more of the matters enumerated in subclause 37(2).
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175. Similarly broad regulation-making powers are found in comparable
`framework' legislation, such as the Waste Minimisation Act 2008 (NZ) (section 23),
Waste Avoidance and Resource Recovery Act 2007 (WA) (Schedule 3, Division 3),
Waste Avoidance and Resource Recovery Act 2001 (NSW) (section 16).
176. The note following subclause 28(2) alerts readers to the limitations on the
power to make regulations in clause 29 (satisfying product stewardship criteria and
furthering objects) and 30 (constitutional connection).
Specific action covered by subclause (1)
177. Subclause 37(3) provides a non-exhaustive list of matters that can be
addressed in regulations made for the purposes of subclause 37(1). It provides that
regulations made in relation to a class of products may:
· prohibit (either absolutely or conditionally), limit, restrict or otherwise affect
the manufacture, import, export, distribution or use of a product in that class
(paragraph 37(3)(a));
· prohibit (either absolutely or conditionally), limit or restrict substances that
may be contained in a product in that class (paragraph 37(3)(b));
· require certain products to be labelled or marked in accordance with the
regulations (paragraph 37(3)(c));
· specify packaging requirement for a product in that class (paragraph 37(3)(d));
· require communication in accordance with the regulations regarding
distributing, reusing, recycling, recovering, treating or disposing a product in
that class (paragraph 37(3)(e));
· require a person to make product return payments in relation to products in
that class (paragraph 37(3)(f));
· specify other requirements for reusing, recycling, recovering, treating or
disposing of a product in that class (paragraph 37(3)(g));
· require a person to keep records relating to a product in that class in
accordance with regulations (paragraph 37(3)(h));
· require a person to give the Minister specified information relating to a
product in that class (paragraph 37(3)(i));
· provide for the Minister to exempt a specified person from a requirement
specified in regulations made under subclause (1) (paragraph 37(3)(j)).
171. Under clause 37(3)(b), regulations under the Bill could prohibit, limit or
restrict hazardous substances in products manufactured in, imported into or sold in
Australia. This power could be used where Australia has international obligations to
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control particular hazardous substances. Other jurisdictions have adopted controls on
hazardous substances in products. For example, EU Directive 2002/95 bans the
placing on the EU market of new electrical and electronic equipment containing more
than agreed levels of lead, cadmium, mercury, hexavalent chromium, polybrominated
biphenyl (PBB) and polybrominated diphenyl ether (PBDE) flame retardants. Any
such regulations would only be introduced in Australia following regulatory impact
analysis.
178. Under paragraphs 37(3)(g) and related provisions, schemes could be
established to provide, for example, for producers of identified classes of products to
take specified action to deal with those products at end of life.
Meaning of product return payment
179. Paragraph 37(3)(f) provides that regulations may require a person to make
product return payments in relation to products in a specified class. The term `product
return payment' is defined in subclause 37(5).
180. A product return payment provides 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.
181. Limitations on the circumstances in which product return payments may be
used are discussed under clause 39 below.
Product return payment is not taxation
182. Subclause 37(6) provides that regulations requiring a person to make a product
return payment must not amount to taxation.
Clause 38 - Contravening mandatory product stewardship requirements
Offences and civil penalties in regulations
183. Paragraph 38(1)(a) enables regulations made under subclause 37(1) to make
provision for a maximum penalty of 50 penalty units for offences. Where a body
corporate is convicted of an offence against the regulations, a court can impose 5
times this amount by virtue of subsection 4B(3) of the Crimes Act 1914. These
penalties are consistent with the recommended maximum penalty for offences
contained in regulations (A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers, page 43).
184. Paragraph 38(1)(b) enables regulations made under subclause 37(1) to make
provision for pecuniary penalties not exceeding 1000 penalty units for a body
corporate and 200 penalty units in any other case for contravening a civil penalty
provision. Setting a civil penalty higher than a fine for a corresponding offence is
consistent with Commonwealth practice (see A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers, page 57).
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185. If a person continues contravening a civil penalty provision in the regulations
then subclause 59(3) will apply, with the effect that the penalty in the regulations will
increase by 10% for each day the person fails to comply with the requirement
(including the day the relevant civil penalty order was made).
186. Subclause 51(1) (civil liability of executive officer of body corporate) can
apply to civil penalty provisions in regulations made under paragraph 37(1), where
the regulations provide for this (see subparagraph 51(1)(a)(ii)).
Infringement notices in regulations
187. The regulations may make provision for infringement notices in respect of
strict liability offences or civil penalty provisions created under subclause 37(1).
188. If provision is made for infringement notices in regulations, then the usual
safeguards recommended in Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers (e.g. as to the notice contents and service
requirements) will be included in those regulations. These requirements have not been
included in the Bill as infringement notices are only relevant to the regulations.
189. Subclause 38(3) sets out the limits for the penalty payable to the
Commonwealth pursuant to any infringement notice regime created by regulations:
· for an offence it must not exceed one-fifth of the maximum penalty for
committing the offence (paragraph 38(3)(a)); or
· for a civil penalty provision - one-tenth of the maximum pecuniary penalty for
contravening the civil penalty provision (paragraph 38(3)(b)).
Clause 39 - Mandatory product stewardship - satisfying product stewardship
criteria and furthering objects etc.
190. Clause 39 sets out a limitation on the making of regulations i.e. regulations
cannot be made unless the Minister is satisfied that:
· the regulations will further the objects of the Bill specified in clause 4; and
· two or more of the product stewardship criteria in clause 5 are satisfied; and
· if the regulations would require a person to make a product return payment in
relation to a product in that class, then certain other requirements are met,
including that the persons required to make product return payments in
relation to the relevant class of products are likely to be appropriately
compensated.
191. The limitations with respect to product return payments are intended to make
clear that the purpose of these payments is not to put an impost on the persons
required to make the payments, but rather to provide for `refunds' to encourage
consumers to return used products for reuse, recycling or other end-of-life
management.
192. The requirement that persons required to make product return payments are
appropriately compensated could be met, for instance, where retailers are
compensated for the refund amounts by wholesalers, the wholesalers in turn
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incorporate the refund amount into higher prices to retailers for their products, and the
retailers then incorporate this into higher prices to consumers.
Clause 40 - Mandatory product stewardship - constitutional connection
193. Clause 40 sets out a limitation on the making of regulations i.e. the regulations
must be underpinned by one or more specific heads of constitutional power including:
· the corporations' power (section 51 (xx)) - the regulations are expressed only
to apply to action taken, or not taken, by a constitutional corporation
(paragraph 40(1)(a));
· the trade and commerce power (section 51 (i)) (together with the territories
power in s 122) - the regulations are expressed only to apply in relation to
action in the course of constitutional trade or commerce (paragraph 40(1)(b));
· the external affairs power (section 51 (xxix)) - the regulations are appropriate
and adapted to give effect to Australia's obligations under an agreement with
one or more other countries (paragraph 40(1)(c)).
194. Regulations must specify whether they are made under paragraphs 40(1)(a),
(b) or (c) and if they are made in accordance with paragraph 40(1)(c) the relevant
international agreement or agreements must be referred to.
Part 5 - Enforcing this Act
Overview of Part
195. Part 5 of this Bill sets out the rules for obtaining civil penalty orders including,
in some circumstances, against executive officers of bodies corporate. It also provides
powers for the Minister to publicise offences, contraventions and decisions, accept
enforceable undertakings and obtain injunctions. Provisions of the kind contained in
Part 5 are common in Commonwealth legislation dealing with civil penalties and
other enforcement measures.
Division 1 - Guide to this Part
Clause 41 - Guide to this Part
196. This clause provides a guide to this Part.
Division 2 - Civil penalty provisions
Subdivision A - Obtaining a civil penalty order
Clause 42 -Civil penalty orders
Application for order
197. Subclause 42(1) allows the Minister to apply to a relevant court for an order
that a person who has contravened a civil penalty provision under the Bill or
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regulations to pay the Commonwealth a pecuniary penalty. The Minister is able to
make an application within 6 years of a person contravening a civil penalty provision.
198. As noted above, `relevant court' is defined by clause 6 to mean the Federal
Court of Australia or a Supreme Court of a State or Territory.
199. Subclause 42(2) empowers a relevant court to order a person to pay the
Commonwealth a pecuniary penalty if the court is satisfied that the person
contravened the civil penalty provisions.
200. Subclause 42(3) provides that the order made under subclause 42(2) is a civil
penalty order.
201. Subclause 42(4) specifies that a pecuniary penalty under subclause 42(2) must
not exceed the amount worked out under subclause 43 (see below).
Relevant matters in determining pecuniary penalty
202. Subclause 42(5) enumerates relevant matters that a court may take into
account in determining the pecuniary penalty. The matters listed are designed to aid
the court in performing its function and help ensure that the penalty imposed is
proportionate to the contravention.
Clause 43 - Maximum amount of pecuniary penalty
General rule
203. Subclause 43(1) provides that, as a general rule, the maximum penalty for
breach of a civil penalty provision is the amount specified in the provision, or 5 times
that amount for bodies corporate. This `corporate multiplier' is consistent with the
approach to criminal offences under subsection 4B(3) of the Crimes Act 1914, and is
the approach recommended in A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers (pages 66-67).
Special rule - continuing contraventions
204. Subclause 43(2) provides that the maximum amount payable under subclause
43(1) will be increased in the case of continuing contraventions in accordance with
subclause 59(3) (see below).
Special rule - not being a member of an approved co-regulatory arrangement
205. Subclause 42(3) is a `commercial benefits' provision that stipulates a special
rule for a contravention of subclause 18(1) (liable party to be a member of an
approved co-regulatory arrangement). The penalty for this contravention is the greater
of:
· the amount calculated under the general rule plus any increase under the rule
for continuing contravention; and
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· an amount equivalent to the total benefits gained from a liable party not being
a member of an approved co-regulatory arrangement (provided this can be
ascertained by a court).
206. This special rule seeks to ensure that a liable party cannot profit from
contravening clause 18(1). It is possible that in some cases the financial gain from
avoidance will exceed the penalties that would otherwise be payable, even taking into
account the special rule concerning continuing contraventions. Given that the amount
of financial gain is likely to vary widely, this is best dealt with by a `commercial
benefits' provision rather than increasing the basic penalty. The rule is also
appropriate because in many cases a breach of the obligation to be a member of an
approved co-regulatory arrangement will lead to a direct and measurable financial
gain, equal to the membership fee that should have been paid to an arrangement
administrator.
Special rule - civil liability of executive officer of a body corporate
207. Subclause 43(4) relates to the penalty for executive officers of a body
corporate. Under these provisions the penalty for an executive officer is the relevant
penalty for an individual, rather than the higher penalty that applies to a body
corporate. The penalty for executive officers includes both the basic amount of the
civil penalty and any amount for continuing contraventions (see subclause 51(3)).
However, it is not affected by any higher penalty that may apply to a body corporate
under the commercial benefits provision.
Clause 44 - Involvement in contravening civil penalty provision
208. Clause 44 prohibits a person from involvement in contravening a civil penalty
provision. Subclause 44(1) enumerates the various ways in which a person can be
involved in a contravention and aims to capture a wide variety of behaviour ranging
from aiding or abetting to conspiracy.
Civil penalty
209. Under subclause 44(2) the contravention of subclause 44(1) is deemed a
contravention of the relevant civil penalty provision. This affects the penalty that
applies. For example, if a person were to aid the contravention of a civil penalty
provision with a maximum penalty of 100 penalty units, the same maximum penalty
would apply for aiding the contravention.
Clause 45 - Civil enforcement of penalty
210. Subclause 45(1) provides that a pecuniary penalty imposed under a civil
penalty order is a debt payable to the Commonwealth.
211. Subclause 45(2) enables the Commonwealth to enforce the civil penalty order
as if it were a debt recovery order made in civil proceedings i.e. a judgment debt.
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Clause 46 - Conduct contravening more than one civil penalty provision
212. Clause 46 is a `civil double jeopardy' provision. It enables proceedings to be
instituted in relation to 2 or more civil penalty provisions, but provides that a person is
not liable to more than one pecuniary penalty in relation to the same conduct.
213. This is consistent with the recommendation in A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers (page 63) that a
person should not penalised twice for the same or substantially the same conduct.
Clause 47 - Multiple contraventions
214. Subclause 47(1) enables a court to make a single civil penalty order for
multiple contraventions of a civil penalty provision on the proviso that the
contraventions are founded on similar facts, or are part of a series of contraventions of
the same or similar character.
215. Subclause 47(2) clarifies that the penalty imposed for multiple contraventions
must not exceed the maximum sum for separate penalties that could be ordered for
each contravention.
Clause 48 - Proceedings may be heard together
216. Clause 48 allows a court to direct that 2 or more proceedings for civil penalty
orders may be heard together.
Clause 49 - Civil evidence and procedure rules for civil penalty orders
217. Clause 49 requires a relevant court to apply the rules of evidence and civil
procedure when hearing proceedings for civil penalty orders.
Clause 50 - Contravening a civil penalty provision is not an offence
218. This clause clarifies that contravention of a civil penalty provision is not an
offence.
Subdivision B - Civil liability of executive officers of bodies corporate
Clause 51 - Civil liability of executive officer of body corporate
Civil penalty provision for executive officer - contravention of civil penalty provision
by body corporate
219. Under subclause 51(1) if a body corporate contravenes subclause 18(1) or a
civil penalty provision specified in regulations made under subclause 37(1), and an
executive officer knew that (or was reckless or negligent as to whether) the
contravention would occur, the officer will be subject to a civil penalty if he or she
was in a position to influence the conduct of the body corporate, in relation to the
contravention, but failed to take all reasonable steps to prevent it. Subclause 51(1) is a
civil penalty provision.
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220. Executive officer liability is appropriate for a breach of subclause 18(1)
because of the substantial gains that could be obtained by contravention of this civil
penalty provision. It may also be appropriate for some civil penalty provisions that
could be included in regulations concerning mandatory product stewardship in the
future, such as provisions that prohibit the manufacture or import of products
containing hazardous substances. The aim in both cases is to ensure that compliance
with the Bill is taken seriously at a high level within corporations.
221. These provisions are similar to provisions in existing Commonwealth
legislation (see, for example, Division 4 of Part 5 of the National Greenhouse and
Energy Reporting Act 2007).
Amount of pecuniary penalty
222. Subclause 51(3) provides that the maximum pecuniary penalty a court can
impose for a contravention against subclause 51(1) by an executive officer is the
penalty that would apply to an individual who had contravened that provision. For
example, an executive officer who aided a contravention of clause 18(1) would be
liable for a maximum penalty of 200 penalty units rather than the 1000 penalty units
applying to bodies corporate.
223. Where there is a continuing contravention, the maximum penalty will be
adjusted accordingly, but the pecuniary penalty applying to an executive officer is not
affected by the `commercial benefits' penalty.
Meaning of reckless and meaning of negligent
224. Subclauses 51(4) and (5) explain the terms `reckless' and `negligent' This is
necessary because the provision is a civil penalty provision, and therefore the
definition of these terms in the Criminal Code Act 1995 do not apply.
Clause 52 - Reasonable steps to prevent contravention
225. Subclause 52(1) enumerates the matters to which a Court must have regard in
determining whether the chief executive officer has failed to take all reasonable steps
to prevent a contravention of a civil penalty provision. These include whether the
officer has arranged reviews of the corporation's compliance; steps they have taken to
ensure the corporation's employees, agents and contractors are aware of requirements
under the provisions of the Bill; and any actions they took on becoming aware that the
corporation was contravening the Bill.
Subdivision C - Civil proceedings and criminal proceedings
Clause 53 - Civil proceedings after criminal proceedings
226. Clause 53 ensures that an order is not made against a person where the person
has been convicted of an offence constituted by conduct that is substantially the same
as the conduct constituting the contravention. It is analogous to the `double jeopardy'
rule applicable to criminal offences.
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Clause 54 - Criminal proceedings during civil proceedings
227. Clause 54 clarifies that any proceedings that have commenced for a civil
penalty order against a person will be stayed if criminal proceedings are commenced
or have already been commenced against a person for substantially the same conduct
alleged to constitute the contravention. The civil proceedings will be dismissed if the
person is convicted of the offence but may be resumed if the person is not convicted
of the offence.
Clause 55 - Criminal proceedings after civil proceedings
228. Clause 55 reserves the right to commence criminal proceedings
notwithstanding the imposition of a civil penalty order.
Clause 56 - Evidence given in civil proceedings not admissible in criminal
proceedings
229. Where criminal proceedings are commenced against a person who has already
given evidence or produced documents in proceedings for a civil penalty order arising
from the same or substantially the same conduct, clause 56 clarifies that evidence of
this type is inadmissible in the criminal proceedings. However, this restriction does
not apply where the criminal proceedings relating to the falsity of the evidence in the
civil proceedings.
Subdivision D - Miscellaneous
Clause 57 - Mistake of fact
230. Subclause 57(1) provides that a person is not liable to have a civil penalty
order made against him or her for a contravention of a civil penalty provision if the
person considered whether or not facts existed and was under a mistaken but
reasonable belief about those facts and had those facts existed, the conduct would not
have constituted a contravention of the civil penalty provision.
231. A person who wishes to rely on the subclause 57(1) bears an evidential burden
in relation to that matter. This approach is justified where a matter is peculiarly within
the defendant's knowledge and not available to the prosecution.
Clause 58 - State of mind
232. Subclause 58(1) provides that it is not necessary to prove the state of mind of a
person in proceedings for a civil penalty order. However, this subclause does not
affect the operation of clauses 51 (civil liability of executive officer of body
corporate) and 57 (mistake of fact).
Clause 59 - Continuing contraventions
233. Clause 59 applies where an act or thing is required, under a civil penalty
provision, to be done within a particular period or before a particular time. This would
apply to a liable party's failure to become a member of an approved arrangement by a
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date specified in a Ministerial notice (see subclause 18(9)). It would also apply, for
example, to a requirement under clause 24 that an annual report be submitted by a
specified date.
234. The effect of subclause 59(3) is that in these cases the pecuniary penalty is
increased by an amount equal to 10% of the pecuniary penalty specified for the initial
contravention for each day the person fails to comply with the requirement (including
the day the relevant civil penalty order was made).
235. This provision provides a substantial deterrent against continuing
contraventions. However, it is less punitive than the usual rule in a criminal context,
which is that a separate offence is committed for each day the contravention continues
and that the maximum penalty is increased accordingly (see Crimes Act 1914, section
4K).
Division 3 - Publicising offences, contraventions and decisions
Clause 60 - Minister may publicise certain offences, contraventions and decisions
236. Subclause 60(1) enables the Minister to publicise convictions and
contraventions in respect of which a court order has been made. It also enables the
Minister to publicise certain administrative decisions made under the Bill, such as
decisions to cancel an arrangement's accreditation or approval. Information that is
published can identify the relevant person or administrator. It is envisaged that
publicising these matters will act as a deterrent to contravention.
237. The note following subclause 60(1) indicates that the subclause constitutes an
authorisation for the purposes paragraph 14(1)(d) of the Privacy Act 1988. Paragraph
14(1)(d) provides that a record-keeper who has possession or control of a record that
contains personal information shall not disclose the information to a person, body or
agency (other than the individual concerned) unless the disclosure is required or
authorised by or under law.
Division 4 - Enforceable undertaking
Clause 61 - Acceptance of undertakings
238. Clause 61 enables the Minister to accept written undertakings (or variations to
or withdrawal of undertakings) in connection with civil penalty provisions or an
offence under the Bill. This provision is intended to act as an alternative to civil
penalty proceedings or prosecution.
Clause 62 - Enforcement of undertakings
239. Where the Minister considers that a person has breached any terms of an
undertaking given, clause 62 provides for the Minister to apply to a relevant court for
an order to direct the person either to comply with the terms of the undertaking, pay
the Commonwealth an amount up to that of any financial benefit the person has
gained as a result of the breach, compensate any other person for loss or damage
resulting from the breach, or anything else that the Court considers appropriate.
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Division 5 - Injunctions
Clause 63 - Injunctions
Restraining injunctions
240. Subclause 63 (1) empowers a relevant court, on the application of the
Minister, to grant an injunction either to restrain a person who has engaged, is
engaging in or is proposing to engage in conduct in contravention of a civil penalty
provision or an offence provision in the Bill from engaging in that conduct, or to
require the person to take such specified action as the Court determines in order to
comply with the Bill.
Performance injunctions
241. Subclause 63(2) empowers a relevant court, on the application of the Minister,
to grant an injunction requiring a person who has refused or failed, or is refusing or
failing, or is proposing to refuse or fail, and the refusal or failure was, is or would be a
contravention of a civil penalty provision or an offence provision in the Bill to take
such specified action as the Court determines in order to comply with the Bill.
Clause 64 - Granting interim injunctions
242. Subclause 64(1) enables the court to grant an interim injunction.
243. Subclause 64(2) prevents the court from requiring the Minister or anyone else
to give an undertaking in relation to damages as a condition of granting an interim
injunction.
Clause 65 - Discharging or varying injunctions
244. Clause 65 enables the court to discharge or vary an injunction.
Clause 66 Certain limits on granting injunctions not to apply
Restraining injunction
245. Subclause 66(1) allows restraining injunctions to be granted or varied
irrespective of whether or not it appears to a relevant court that:
· a person intends to engage again, or is continuing engaging in such conduct;
and
· a person has previously engaged in such conduct; and
· there is imminent danger of substantial damage to any person due to a
person's conduct.
Performance injunction
246. Subclause 66(2) allows an injunction requiring a person to do an act or thing
to be granted or varied irrespective of whether or not it appears to the court that:
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· a person intends to refuse or fail again, or to continue to refuse or fail, to do
that act or thing; and
· a person has previously refused or failed to do that act or thing; and
· there is imminent danger of substantial damage to any person due to a
person's refusal or failure to do that act or thing.
Part 6 - Compliance powers
Overview of Part
247. Part 6 of this Bill sets out the compliance powers which may be exercised by
inspectors appointed by the Minister. The Part also enables the Minister to require a
person to provide information or appear before an inspector. Provisions of the kind
contained in Part 6 are common in Commonwealth legislation dealing with
compliance powers.
Division 1 - Guide to this Part
Clause 67 - Guide to this Part
248. This clause provides a guide to this Part.
Division 2 - Power of inspectors
Subdivision A - Appointment of inspectors
Clause 68 - Minister may appoint inspectors
249. In order to assist the Minister in the administration and operation of the Bill,
subclause 68(1) empowers the Minister to appoint an officer or employee of a
Commonwealth, State and Territory agency as an inspector.
Prerequisites to appointment
250. Subclause 68(2) empowers the Minister to appoint a person as an inspector if
the Minister is satisfied that the person has suitable skills and experience to exercise
the powers and functions of an inspector.
251. Subclause 68(3) prevents the Minister from appointing an officer or employee
of a Commonwealth agency as an inspector without the agreement of the relevant
agency and prevents the appointment of an inspector from a State or Territory agency
without the agreement of the State or Territory.
Inspector to comply with directions
252. Subclause 68(4) requires inspectors to comply with any directions of the
Minister while exercising their powers or performing their functions as inspectors.
These directions will be used to ensure that if a State or Territory officer is appointed
41
as an inspector, that officer has same accountability as if he or she were an Australian
Public Service employee (see A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers, page 79).
253. Subclause 68(5) enables the Minister to revoke the appointment of a person as
an inspector if the person fails to comply with the Minister's direction under
subclause 68(4).
254. Subclause 68(6) provides that a direction given in writing under subclause
68(4) is not a legislative instrument. The subclause is included to assist readers, as the
direction is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Clause 69 - Identity cards
255. Subclause 69(1) requires the Minister to issue an identity card to an inspector
appointed under clause 68. Subclause 68(2) stipulates that the identity card must be in
the form approved by the Minister and contain a recent photograph of the inspector.
256. Subclause 68(3) requires an inspector to carry his or her identity card at all
times when exercising powers or performing functions as an inspector.
257. Subclause 68(4) prohibits an inspector from exercising powers as an inspector
without being able to produce his or her identity card at the request of the occupier of
premises to be inspected and the inspector fails to comply with this requirement.
Clause 70 - Offence for failing to return identity card
258. Subclause 70(1) makes it a strict liability offence for an inspector to fail to
return their identity card to the Minister as soon as practicable after ceasing to be an
inspector, and provides for a penalty of 1 penalty unit.
259. This penalty is consistent with A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers (page 70) which provides it should be an
offence for an authorised officer to fail to return an identity card on ceasing to be an
authorised officer (maximum penalty: 1 to 5 penalty units).
Defence - card lost or destroyed
260. Subclause 70(3) provides that subclause 70(1) does not apply if the identity
card was lost or stolen. The note following subclause 70(3) alerts the reader that a
defendant bears the evidential burden in relation to this matter.
Subdivision B - Powers of inspectors
Clause 71 - Purposes for which powers can be used
261. Clause 71 enables inspectors to exercise their powers for purposes identified
in the clause. This includes investigating a possible offence that is in the Crimes Act
1914 or Criminal Code Act 1995 and relates to the Bill or a legislative instrument
42
made under the Bill. An example of such an offence would be s 136 of the Criminal
Code Act 1995 (false and misleading statements) as it relates to an application under
the Bill.
Clause 72 - Inspection powers - with consent
262. Subclause 72(1) enables an inspector to enter premises and exercise certain
powers provided the occupier consents to entry and the exercise of those powers.
263. Under subclause 72(2) before obtaining an occupier's consent, inspectors are
required to inform the occupier that he or she may refuse their consent or withdraw
their consent at any stage.
264. Subclause 72(3) stipulates what an inspector who enters premises in
accordance with subclause 72(1) may do. This ranges from searching the premises to
operating equipment on the premises in order to gain access to a document or record
pertaining to one or more stewardship products. Compensation may be payable under
clause 105 if equipment or data is damaged or destroyed as a result of the inspector
operating the equipment.
Clause 73 - Refusing consent is not an offence
265. Clause 73 makes it clear that it is not an offence for occupiers to refuse to
allow an inspector to enter or remain on their premises without a warrant. This
safeguard is consistent with the Scrutiny of Bills Committee's views in its Fourth
Report of 2000 into entry and search provisions in Commonwealth legislation (that is,
that refusing entry, where entry is not under a warrant, must not be an offence).
Clause 74 - Inspection powers - with warrant
266. Subclause 74(1) empowers an inspector to enter premises and exercise powers
specified in subclause 74(2) if the inspector has a warrant for the entry (subdivision D
deals with applications for warrants).
267. Subclause 74(2) empowers an inspector who enters premises under warrant to
do one or more of the following:
· exercise the powers enumerated in subclause 72(3);
· require persons on the premises to answer questions and produce
documentation;
· seize or secure any evidential material on the premises.
268. The power to require persons to answer questions and produce documentation
will facilitate the safe and efficient inspection of premises. Questions may, for
example, relate to whether hazardous substances are present in particular parts of the
premises, or whether particular records are kept on the premises.
269. Subclause 74(4) provides that a person commits an offence if they do not
answer an inspector's questions or produce a requested book, record or document.
The penalty is 30 penalty units. This is the recommended penalty for withholding
43
information in A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers (page 41).
270. A person can refuse to answer a question or produce documentation on the
ground that this might tend to incriminate the person or make him or her liable to a
penalty (see clause 104).
Clause 75 -Announcement before entry under warrant
271. Subclause 75(1) requires an inspector, before entering premises under a
warrant, to announce that he or she is authorised to enter the premises and to provide
any person at the premises the opportunity to allow entry.
272. However, under subclause 75(2) an inspector need not comply with subclause
75(1) if he or she reasonably considers that immediate entry is necessary to ensure the
effective execution of the warrant is not frustrated.
273. Subclause 75(3) requires inspectors to show his or her identity card to the
occupier as soon as practicable after entering premises if the inspector has entered
under subclause 75(2) and the occupier is present at the premises.
Clause 76 - Copy of warrant to be given to occupier
274. Subclause 76(1) requires an inspector to give to the occupier of premises (if
present) a copy of the warrant being executed in relation to the premises, identify
himself or herself to the occupier and inform the occupier of their rights and
responsibilities under clause 77 (observing execution of warrant) and 78 (providing
facilities and assistance).
275. Subclause 76(2) provides that the copy of the warrant need not include the
signature of the magistrate who issued the warrant.
Clause 77 - Occupier entitled to observe execution of warrant
276. Subclause 77 allows an occupier who is present at the premises to observe the
execution of the warrant. Under subclause 77(2) if the occupier impedes the execution
of the warrant their right to observe the execution ceases.
277. Subclause 77(3) provides that clause 77 does not prevent the execution of the
warrant in 2 or more areas of the premises at the same time.
Clause 78 - Occupier to provide inspector with facilities and assistance
278. Subclause 78(1) requires the occupier of premises to which a warrant relates to
provide an inspector executing the warrant and any person assisting an inspector with
all reasonable facilities and assistance for the effective exercise of their powers.
279. Subclause 78(2) makes it an offence for the occupier if he or she does not
provide all reasonable facilities and assistance. The penalty for a contravention of this
subclause is 30 penalty units. This is the recommended penalty for failing to provide
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reasonable facilities and assistance to an officer who is on premises under warrant in
A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers (page 85).
Subdivision C - General provisions relating to seizure
Clause 79 - Copies of seized things to be provided
280. Subclause 79(1) provides that if an inspector seizes, under a warrant, a
document, film, computer file or a storage device the inspector must, on request of the
occupier of the premises, give a copy of the thing or the information seized to the
occupier as soon as practicable after the seizure.
281. Subclause 79(1) does not apply if possession or the thing or information by the
occupier or other person could constitute an offence (subclause 79(2)).
Clause 80 - Receipt for things seized
282. Clause 80 provides that receipts are to be issued to occupiers for things seized.
Under this provision, it will be possible for the items to be listed on the same receipt.
It is not envisaged that inspectors would be required to identify absolutely every item
individually where those items can be adequately identified by a class description.
Clause 81 - Return of seized things
283. Subclause 81(1) requires the Minister to take reasonable steps to return seized
things if the reason for the seizure no longer exists or it is decided the seized things
are not to be used as evidence; or period of 60 days after seizure has ended.
284. Subclause 81(2) sets out when the Minister is not required to return seized
things e.g.
· if proceedings were instituted and have not completed before the end of 60
days and the seized things will be afforded as evidence; or
· if a magistrate has issued an order under clause 82 permitting a thing to be
retained; or
· if the Commonwealth, the Minister or an inspector is authorised by a
Commonwealth, State or Territory court to retain, destroy, dispose of or
otherwise deal with a thing.
285. Seized things must be returned from either the person from whom it was
seized or the owner if that person is not entitled to possess it.
Clause 82 - Magistrate may permit a thing to be retained
286. Subclause 82(1) describes how the Minister may apply to a magistrate for an
order to retain a seized thing beyond the 60 day retention period (or before the end of
a period specified in an order of a magistrate) where proceedings in respect of which
the thing may afford evidence have not commenced.
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287. Subclause 82(2) provides that if the magistrate is satisfied that it is necessary
for an extension of time to be granted to enable investigation of whether or not an
offence has been committed against the Bill or to enable the evidence to be secured
for the purposes of a prosecution, the magistrate may grant an extension for such
period as is specified in an order. Before making an application under this subclause,
the Minister must take reasonable steps to establish who has an interest in the
retention of the seized goods and, if practicable, notify such persons (subclause
82(3)).
Clause 83 - Disposal if thing cannot be returned
288. This clause provides that the Minister may dispose of a thing seized under this
Part, in a manner the Minister considers appropriate, if there is no owner of the thing
or the Minister has made reasonable efforts to locate the owner and cannot locate the
owner.
Subdivision D - Applying for warrants to enter premises
Clause 84 - Ordinary warrants
Application for warrant
289. Subclause 84(1) provides for the issuing of ordinary warrants to inspectors to
enter premises.
Issue of warrant
290. Subclause 84(2) allows the magistrate to issue a warrant if he or she is
satisfied (by information on oath or affirmation) that it is reasonable that one or more
inspectors should have access to the premises for the purposes stipulated in subclause
84(2).
291. Subclause 84(3) allows the magistrate to request further information either
orally or by affidavit from an inspector concerning the grounds on which the warrant
is being sought, and provides that where such information has been sought the warrant
must not be issued until that information has been given provided.
Content of warrant
292. Subclause 84(4) specifies the contents of the warrant e.g. the warrant
authorises the inspector to enter the premises using such assistance and force as is
necessary and reasonable. The warrant must also state the purpose for which it is
issued, indicate when the entry is authorised, and specify the day on which it ceases to
have effect (warrants may be issued for a maximum of one week).
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Clause 85 - Warrants by telephone, fax etc.
Application for warrant
293. In the case of urgent warrants, subclause 85 (1) allows for an inspector to
apply for a warrant by telephone, fax or other electronic means. Subclause 85(2)
provides that where practical, the magistrate may require communication by voice and
may record such communication.
294. Subclause 85(3) requires the inspector must prepare information setting out
the grounds on which the warrant is sought and subclause 85(4) provides that if
necessary the inspector may apply for the warrant before the information is sworn or
affirmed.
Issue of warrant
295. Subclause 85(5) provides that if the magistrate is satisfied that there are
reasonable grounds for doing so, he or she may then issue a warrant as if the
application had been made under clause 84.
Obligations of magistrate and inspector once warrant issued
296. Subclause 85(6) requires the magistrate to advise the inspector of the terms of
the warrant, the day on which and the time at which the warrant was signed, specify
the day on which it ceases to have effect (warrants may be issued for a maximum of
one week), and record on the warrant the reasons for its issue.
297. Subclauses 85(7) sets out the obligations of an inspector if the magistrate
completes and signs the warrant. The inspector must complete a form of warrant in
the same terms as advised by the magistrate and record the name of the magistrate,
and the time and date on which the warrant was signed. The inspector must send this
form of warrant to the magistrate together with duly sworn or affirmed information
pertaining to the grounds on which the warrant was sought.
298. Subclause 85(8) requires the inspector to send the form of warrant together
with duly sworn or affirmed information pertaining to the grounds on which the
warrant was sought to the magistrate within one day after the execution or expiry
(whichever is earlier) of the warrant.
299. Subclause 85(9) requires the magistrate to attach the documents (supplied
under subclause 85(8)) to the warrant and deal with them as if they were an ordinary
warrant made under clause 84.
What a warrant authorises
300. Subclause 85(10) provides that a warrant completed under subclause 75(7) by
an inspector is authority for the same powers as are authorised by a warrant signed by
a magistrate.
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Clause 86 - Signed form of warrant not produced in evidence
301. Under clause 86 a court must assume, unless the contrary is proved, that an
inspector's exercise of powers was not authorised under clause 85 if:
· if the court needs to be satisfied (in proceedings) that the inspector's powers
were exercised pursuant to clause 85; and
· the warrant signed by the magistrate authorising the inspector to exercise those
powers fails to be produced in evidence.
Subdivision E - Power of magistrates
Clause 87 - Federal Magistrates - consent to nomination
302. `Magistrate' includes State magistrates (see section 16C(2), Acts
Interpretation Act 1901). By virtue of the extended definition in clause 6 of Bill also
includes Federal Magistrates who fall under subclause 87(2).
303. Under clause 87(2) a Federal Magistrate may consent, in writing, to be
nominated by the Minister to be a magistrate for the purposes of the Bill.
Clause 88 - Powers of magistrates
Power conferred personally
304. Subclause 88(1) provides that a power conferred on a magistrate under
subdivision E is conferred in a personal capacity as opposed to as a court or a member
of a court.
Powers need not be accepted
305. Under subclause 88(2) the magistrate (other than a Federal Magistrate) is not
required to accept the power conferred.
Protection and immunity
306. Subclause 88(3) stipulates that a magistrate exercising a power conferred by
this Part of the Bill has the same protection and immunity as if he or she were
exercising the power as the court of which the magistrate is a member, or as a
member of the court of which the magistrate is a member.
Division 3 - Information gathering powers
Clause 89 - Meaning of a person who has product stewardship information
307. Clause 89 defines a "person who has product stewardship information" as
being a person whom the Minister believes, on reasonable grounds, to be capable of
providing information relevant for the purposes of investigating or preventing a
contravention of a civil penalty provision or an offence provision in the Bill.
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Clause 90 - Minister may require a person to provide information
308. Subclause 90(1) enables the Minister, by written notice, to require a person
who has product stewardship information to provide such information, documents or
records as specified in the notice to an inspector within a specified period. Subclause
90(2) stipulates the matters required in the Minister's notice.
309. Subclause 90(3) requires the Minister's notice to set out the effect of sections
137.1 and 137.2 of the Criminal Code Act 1995. These provisions make it an offence
to knowingly give false or misleading information or documents in compliance or
purported compliance with a law of the Commonwealth.
Offence for failing to comply with a notice
310. Under subclause 90(4) a person commits an offence if he or she is required to
provide an inspector with the information, book, record or document and fail to do
this within the period specified in the notice. The penalty is 6 months imprisonment.
There are similar provisions in other Commonwealth legislation such as, section 61 of
the Water Efficiency Labelling and Standards Act 2005.
Clause 91 - Minister may require a person to appear before an inspector
311. Subclause 91(1) enables the Minister, by written notice, to require a person
who has product stewardship information to appear before an inspector to answer
questions put by the inspector and produce such information, documents or records as
specified in the notice. Subclause 91(2) stipulates the matters required in the
Minister's notice.
312. Subclause 91(3) requires the Minister's notice to set out the effect of sections
137.1 and 137.2 of the Criminal Code Act 1995. These provisions make it an offence
to knowingly give false or misleading information, or produce false or misleading
documents, to an inspector respectively.
Offence for failing to appear
313. Under subclause 91(4) a person commits an offence if he or she is required to
appear before inspector and fail to do this. The penalty is 6 months imprisonment.
There are similar provisions in other Commonwealth legislation such as, section 62 of
the Water Efficiency Labelling and Standards Act 2005.
Offence for failing to answer questions or produce a book, record or document
314. Under subclause 91(5) a person commits an offence if he or she is required to
appear before an inspector and when appearing before an inspector the person fails to
answer the inspector's questions or produce a book, record or document to the
inspector as required by the Minister's notice. The penalty is 6 months imprisonment.
There are similar provisions in other Commonwealth legislation, such as section 62 of
the Water Efficiency Labelling and Standards Act 2005.
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Part 7 - Reviewing decisions
Overview of Part
315. Part 7 provides for the review of certain decisions made under the Bill and
stipulates the persons able to seek review.
Division 1 - Guide to this Part
Clause 92 - Guide to this Part
316. This clause provides a guide to this Part.
Division 2 - Reviewing decisions
Clause 93 - Persons affected by reviewable decision
317. Clause 93 sets out the decisions made by the Minister under the Bill which are
open to review. These decisions are referred to as a `reviewable decisions' in column
2 of the table. The clause also lists (in column 1 of the table) the persons able to seek
review of a reviewable decision. These persons are referred to as a person `affected'
by the reviewable decision.
318. The approach of specifying persons affected by reviewable decisions differs
from the default position set out in section 27 of the Administrative Appeals Tribunal
Act 1975 (see clause 96(3)). Section 27 provides that where an Act provides for a
right of appeal to the Tribunal, a person whose interests are affected by the decision
may apply to the AAT for review of the decision.
319. Clause 93 adopts a modified approach to section 27 because of the particular
policy and statutory context, as outlined below with respect to each reviewable
decision.
Items 1, 2 and 3 - voluntary arrangements
320. Items 1-3 in the table allow the administrator of a voluntary arrangement to
seek review of the following decisions:
· an accrediting authority's decision to refuse to accredit the voluntary
arrangement under clause 13;
· an accrediting authority's decision to impose conditions on the voluntary
arrangement's accreditation under clause 13; and
· the decision by an accrediting authority to cancel or refuse to cancel the
accreditation of the voluntary arrangement under clause 13.
321. It is appropriate to confine `person affected' to the administrator of the
voluntary arrangement or a person licensed or authorised to use a product stewardship
logo because other persons' interests would not be materially affected. Further, if
third parties can seek review of these decisions this may discourage applicants from
proposing voluntary arrangements.
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Item 4 - notice to liable parties
322. Item 4 relates to the notice the Minister may issue to a liable party, requiring it
to become a member of an approved co-regulatory arrangement in a specified period.
The person who receives this notice may apply to vary or revoke it, and may seek
review of the Minister's decision to vary the notice, or to refuse to vary or revoke the
notice.
323. It is appropriate to confine `person affected' by this decision to the person
receiving (and applying to vary or revoke) the notice. The notice will have a
negligible impact on any other person's interests and therefore review is best limited
to the person subject to the notice.
Items 5 and 6 - co-regulatory arrangements
324. Under item 5, the administrator of a co-regulatory arrangement is a `person
affected' by the Minister's decision to refuse to approve the co-regulatory
arrangement under clause 26.
325. It is appropriate to limit review rights to the administrator because only
administrators may apply to the Minister. It is unlikely that persons other than the
applicant will have a material interest in the refusal of an application.
326. In addition, it would not be appropriate for another person to effectively
require an unwilling administrator to administer an arrangement. This could be result
of allowing persons other than the administrator to review the Minister's refusal, in
circumstances in which the administrator has elected not to review that decision.
(Note in this regard the requirement in clause 23 applying to administrators of co-
regulatory arrangements, and improvement notices in clause 29).
327. Under item 6, the administrator of an approved co-regulatory arrangement
may seek review of decisions to cancel approval or refuse to cancel approval of the
arrangement. It is appropriate to limit review rights to the administrator for the
reasons expressed in the preceding paragraphs.
Item 7 - anti-avoidance notice
328. Item 7 specifies that a prospective liable party subject an anti-avoidance
determination made under clause 32 by the Minister is a person affected and
therefore, may seek review of the Minister's determination.
329. In this case, the person subject to the determination will be directly impacted
by that determination but the determination will not have a material impact on other
persons' interests. It is therefore considered appropriate to limit review rights to the
person subject to the notice.
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Item 8 - consent to replacement of administrator
330. Item 8 specifies that a proposed new administrator is a person affected by a
decision by the Minister under clause 33 to refuse to consent to that person's
appointment as administrator.
331. It is appropriate to limit review rights to the proposed new administrator
because this body would be required to administer the co-regulatory arrangement. As
with items 5 and 6 above, it would not be appropriate for another person to effectively
require an unwilling administrator to administer an arrangement. This could be result
of allowing persons other than the administrator to review the Minister's refusal, in
circumstances in which the administrator has elected not to review that decision.
Clause 94 - Notification of decisions and review rights
332. Subclause 94(1) requires the Minister to ensure that the affected person, in
relation to a reviewable decision, is given written notice containing the terms of the
decision, reasons for the decision and information regarding the person's review
rights.
333. Subclause 94(2) provides that a failure to comply with subclause 94(1) does
not affect the validity of the Minister's decision.
Clause 95 - Internal review
334. Subclause 95(1) enables an affected person to apply to the Minister for
internal review of a reviewable decision provided the decision has not been made by
the Minister personally. This application should be in writing.
335. Subclause 95(2) provides that an application for internal review must be made
within 30 days of receipt of the decision by the applicant or for a further period
allowed by the Minister. Under subclause 95(3) the Minister must review the
decision.
336. Subclause 95(4) enables the Minister to affirm, vary or revoke the decision
and substitute such other decision as he or she sees thinks appropriate.
Clause 96 - Review of decisions by Administrative Appeals Tribunal
337. Clause 96 allows an affected person to apply to the Administrative Appeals
Tribunal for review of a reviewable decision made by the Minister personally or of an
internal review decision made under subclause 95(4).
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Part 8 Protecting information
Overview of Part
338. Part 8 seeks to ensure that information obtained by a person performing a
function or duty, or exercising a power under the Bill is not disclosed unnecessarily or
put to unauthorised use.
Division 1 - Guide to this Part
Clause 97 - Guide to this Part
339. This clause provides a guide to this Part.
Division 2 - Protecting information
Clause 98 Offence - Disclosing commercially sensitive information
Offence
340. Subclause 98(1) makes it an offence for a person to disclose protected
information he or she has obtained in performing a function or duty, or exercising a
power, under or in relation the Bill to another person and there is a risk that the
disclosure might substantially prejudice the commercial interests of a third person.
The penalty for this offence is two years' imprisonment or 120 penalty units, or both.
This is the penalty recommended by A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers (page 47) for offences of this kind.
341. A definition of `protected information' is provided in subclause 98(3).
Exception - authorised disclosure
342. Subclause 98(2) stipulates that subclause 98(1) does not apply if disclosure is
authorised by clause 99. Clause 99 sets out the circumstances in which disclosure of
information is authorised.
Clause 99 - Authorised disclosure
343. Clause 99 sets out the circumstances when a person may disclose information
for example:
· the disclosure is necessary for duties, functions or powers under the Bill
(subparagraph 99(1)(a)(i)-(ii)); or
· the disclosure assists in the administration or enforcement of another
Commonwealth, State or Territory law (subparagraph 99(1)(a)(iii)); or
· the disclosure is required or permitted by a Commonwealth, State or Territory
law prescribed by regulations (paragraph 99(1)(b)); or
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· the person whose commercial interests may be prejudiced has expressly or
impliedly authorised disclosure (paragraph 99(1)(c)); or
· the information disclosed is already publicly available (paragraph 99(1)(d)); or
· the Minister has certified (in writing) that disclosure is in the public interest
and the disclosure is made in accordance with requirements specified in the
regulations (paragraph 99(1)(e)); or
· a person believes on reasonable grounds that disclosure is necessary to prevent
or lessen a serious and imminent threat to the life or health of a person and the
disclosure is for the purposes of preventing or lessening that threat (paragraph
99(1)(f)); or
· summaries of information, or statistics derived from the information, are
released and this release is not likely to enable the identification of a person
(paragraph 99(1)(g)).
344. Subclause 99(3) provides that the Minister's certification in writing that
disclosure is in the public interest is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003. The subclause is included to assist
readers, as the direction is not a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Clause 100 - Disclosing commercially sensitive information to courts and
tribunals etc.
345. Subclause 100(1) applies 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 the Bill and there is a risk that the disclosure might substantially prejudice the
commercial interests of a person other than the public official.
Information not to be disclosed to court or tribunal
346. Under subclause 100(2) the public official is not required, except for the
purposes of the Bill, to disclose information or produce a document to a court or
tribunal or other persons having power to require the production of documents or
answering of questions.
Part 9 Miscellaneous
Overview of Part
347. Part 9 deals with miscellaneous matters which are not addressed elsewhere in
the Bill, such as delegations and regulations.
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Division 1 - Guide to this Part
Clause 101 - Guide to this Part
348. This clause provides a guide to this Part.
Division 2 - Miscellaneous
Clause 102 - Requirements relating to applications
349. Subclause 102(1) specifies the requirements relating to applications made
under the Bill. Applications must be made in the manner and form approved in
writing by the Minister and accompanied by specified documentation or information.
Application fees may also be specified by regulations.
350. Subclause 102(2) provides that documentation or information accompanying
an application, or statements made in an application may need to be verified by a
statutory declaration.
351. Subclause 102(3) enables the Minister to approve various forms for different
classes of applications. Similarly, the subclause provides scope for regulations to
specify different fees depending on the nature of the application.
352. Sublcause 102(4) enables the Minister to waive the whole or part of a fee
payable for an application under the Bill.
Clause 103 Applications--requesting additional information
353. Subclause 103(1) enables the Minister to request (by written notice) additional
information for the purposes of determining an application. The notice would specify
the additional documentation or information required and the timeframe for providing
them.
354. Subclause 103(2) provides that the further documentation or information
requested by the Minister may need to be verified by statutory declaration.
Clause 104 - Privilege against self-incrimination not affected
355. Clause 104 provides that the Bill does not affect a person's right to refuse to
answer questions, give information or provide documents on the grounds that those
actions may incriminate a person or make the person liable for a penalty.
Clause 105 - Compensation for damage to electronic equipment
356. Clause 105 requires the Commonwealth to pay reasonable compensation to the
owner of electronic equipment which has been damaged or corrupted due to
insufficient care being exercised by the person operating the equipment, or in
selecting that person to operate the equipment pursuant to the inspection powers under
clauses 72 and 74.
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357. Where the Commonwealth and the affected person disagree over the amount
of the compensation, the person may take the matter to the Federal Court or State or
Territory Supreme Court. In determining the compensation payable, the Court is to
have regard to whether the occupier, or the occupier's employees and agents, had
provided appropriate warning or guidance on the operation of the equipment.
Clause 106 - Compensation for acquisition of property
358. Clause 106 requires the Commonwealth to pay reasonable compensation
where operation of the Bill would result in the acquisition of property from a person
otherwise than on just terms within the meaning of section 51 (xxxi) of the
Constitution. Where the Commonwealth and the person disagree over the amount of
the compensation, the person may take the matter to a relevant court to determine a
reasonable amount of compensation.
Clause 107 - Annual report
359. Clause 107 requires the Minister to prepare a report on operation of the Bill
during each financial year as soon as practicable after the end of the financial year.
The Minister must cause a copy of the report to be tabled in both Houses of
Parliament within 15 sitting days after the report is completed. This report may form
part of the responsible Department's annual report.
Clause 108 - Publishing material on Department's website
360. Subclause 108 requires the Minister to publish on the Department's website
information regarding each accredited voluntary arrangement and approved co-
regulatory arrangement. The information must include:
· a summary of the arrangement;
· the name of the arrangement's administrator;
· contact details of the arrangement's administrator that are specified in the
regulations; and
· copies of reports relating to the operation of the arrangement as referred to
in
o paragraph 13(2)(f) (conditions of the voluntary arrangement's
accreditation) and
o subclause 24(4) (requirements for administrator of approved co-
regulatory arrangement).
361. Subclause 108(2) does not allow the Minister to publish information if he or
she is satisfied that the information might substantially prejudice the commercial
interests of a person and publishing the information is not in the public interest.
Clause 109 - Review of operation of this Act
362. This clause provides for an independent review of the operation of the Bill
after it has been in operation for 5 years and every 5 years after the first review. The
persons undertaking the review are required to provide the Minister with a written
report of the review, which the Minister must then cause to have tabled in each House
of Parliament within 15 sitting days after the report is completed.
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Clause 110 - Delegation
363. Subclause 110(1) provides that the Minister may delegate his or her functions
or powers under the Bill to the Secretary of the Department or a Senior Executive
Service employee (or acting SES employee) in the Department. Given the powers of
the Minister, it is appropriate to limit delegations of power to SES employees. (See
section 34 of the Public Service Act 1999 for a definition of `SES employees').
364. Subclause 110(2) provides that the delegate must comply with any direction of
the Minister.
Clause 111- Regulations
365. Clause 111 provides for the making of regulations prescribing matters
necessary or convenient to be prescribed for the purposes of the Bill.
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