Explanatory STATEMENT

 

 

Select Legislative Instrument 2005 No. 257

 

Issued by the Authority of the Parliamentary Secretary to the Minister

 for Health and Ageing

 

Industrial Chemicals (Notification and Assessment) Act 1989

 

Industrial Chemicals (Notification and Assessment) Amendment

Regulations 2005 (No. 2)

 

Section 111 of Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The object of the Act is to provide for a national system of notification and assessment of industrial chemicals for the purposes of aiding in the protection of the Australian people and the environment, provide information and making recommendations about industrial chemicals to Commonwealth, State and Territory bodies, give effect to Australia’s obligations under international agreements, and collect statistics in relation to these chemicals.

 

The purpose of the Regulations is to amend the Industrial Chemicals (Notification and Assessment) Regulations 1990 (the Principal Regulations) to enable Australia to give effect to the obligations of the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the Convention).  The Regulations would control or prevent the import or export of two additional chemicals, tetraethyl lead and tetramethyl lead, which were listed in Annex III of the Convention and became effective on 1 February 2005.  The Regulations would also introduce import controls for two other chemicals that were listed in Annex III at the time of ratification on 20 May 2004.  These are the polybrominated biphenyls: octabromobiphenyl and decabromobiphenyl.

 

The objective of the Convention is to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous pesticide and industrial chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics.  The National Industrial Chemicals Notification and Assessment Scheme (NICNAS) is responsible for implementing Australia’s obligations under the Convention as they relate to industrial chemicals.  International liaison and, in particular, information exchange with the Convention Secretariat and regulatory authorities of other countries that are Parties to the Convention, is the responsibility of the Designated National Authority (DNA).  The DNA for industrial chemicals is currently the Department of the Environment and Heritage.

 

Australia ratified the Convention on 20 May 2004 and the Convention entered into force for Australia on 18 August 2004.  As a Party to the Convention, Australia must have legislative or administrative measures in place to implement its obligations under the Convention.  These obligations include putting controls in place for the export and the import of the industrial chemicals that are listed in Annex III to the Convention. 

 

 

 

Annex III to the Convention contains chemicals that have been notified as severely restricted or banned due to health or environmental reasons by other countries participating in the voluntary PIC Procedure.  As a Party to the Convention, Australia must ensure that the chemicals listed in Annex III are not exported to countries that do not wish to receive them.  Similarly, Australia must also ensure that the chemicals listed in Annex III that it does not wish to receive are not imported to Australia.  Regulations are therefore required to control the importation and the export of some of these Annex III chemicals, where controls are not already in place in Australia.

 

Subsection 106(1) of the Act provides for regulations to be made to prohibit (either absolutely or subject to such conditions or restrictions as prescribed) the introduction or export of an industrial chemical if it is the subject of a prescribed international agreement to which Australia is a party.  Regulation 11B of the Principal Regulations prescribes the Convention for the purposes of subsection 106(1).

 

Subsection 106(2) of the Act specifies that if a chemical is the subject of an international agreement to which Australia is a party, the Director of NICNAS shall publish in the Chemical Gazette a notice identifying the agreement and listing the name or names by which the chemicals are known to the public, and requiring all persons who introduce these chemicals into, or export these chemicals from Australia to give to the Director information in the approved form about movements of the chemical into or out of Australia.  A period of 30 days will need to elapse from the time of the publication of the notice before the regulations can be made.  A notice regarding the four listed chemicals was published in the 6 September 2005 issue of the Chemical Gazette.¹

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

 

 

 

 

Authority:    Section 111 of the Industrial Chemicals (Notification and Assessment) Act 1989

 

ATTACHMENT  

 

Details of the Industrial Chemicals (Notification and Assessment) Amendment Regulations 2005 (No. 2)

 

Regulation 1 – Name of Regulations

 

This Regulation provides that the title of the Regulations is the Industrial Chemicals (Notification and Assessment) Amendment Regulations 2005 (No. 2).

 

Regulation 2 - Commencement

 

This Regulation provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 – Schedule 1

 

This Regulation provides that the Industrial Chemicals (Notification and Assessment) Regulations 1990 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item 1

 

Item 1 makes a punctuation amendment to take into account the addition of two other chemicals in subregulation 11C(1) as (e), tetraethyl lead and (f) tetramethyl lead.

 

Item 2

 

Item 2 amends subregulation 11C(1) to list tetraethyl lead and tetramethyl lead, the two new industrial chemicals, that are the subject of the Rotterdam Convention that must not be exported from Australia without the prior written permission of the Director of the National Industrial Chemicals Notification and Assessment Scheme (NICNAS). 

 

Item 3

 

Item 3 amends subregulation 11C(3) to include octabromobiphenyl, decabromobiphenyl and tetramethyl lead as the industrial chemicals that are the subject of the Rotterdam Convention and must not be introduced to Australia without the prior written permission of the Director of NICNAS.

 

Item 3 amends the note for subregulation 11C(3) to include the industrial chemicals octabromobiphenyl and decabromobiphenyl.  The current regulation only lists hexabromobiphenyl as it is not listed in the Australian Inventory of Chemical Substances and it would be considered a new chemical.  Introduction would therefore require notification to the Director of NICNAS and assessment of the chemical.

 

Item 3 inserts a new subregulation 11C(4) that prohibits under paragraph (4)(a) the introduction without the prior written permission of the Director of NICNAS, tetraethyl lead, unless importation occurs in aviation gasoline or for the production of aviation gasoline and also in

 

leaded fuel and fuel additives and by persons granted an approval under the Fuel Quality Standards Act 2000 for use specified in the approval.

 

While tetramethyl lead is listed in the Australian Inventory of Chemical Substances, a review by NICNAS indicates that it is not currently used in Australia.  The Regulation would therefore require the permission of the Director of NICNAS prior to introducing tetramethyl lead.

 

Item 3 also inserts a new subregulation 11C(5) to provide definitions of “fuel”, “fuel additive” and “supply” for the purposes of new subregulation 11C(4).  These are defined as in the Fuel Quality Standards Act 2000 and Fuel Quality Standards Regulations 2001.