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Environment Protection Amendment
(Container Deposit Scheme) Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 provides that the main purpose of the Environment Protection
Amendment (Container Deposit Scheme) Bill 2018 is to promote
the recovery, reuse and recycling of empty beverage containers
by establishing a cost effective State-wide container deposit
scheme by amending the Environment Protection Act 1970
(referred to as the "Principal Act" in this explanatory
memorandum).
Clause 2 is the commencement provision. The provisions of the Bill,
except for section 6, will come into operation on 1 November
2019, providing in excess of 12 months to enter into contractual
arrangements and develop the Scheme infrastructure. This
provides more lead-time compared with the NSW scheme,
where legislation passed in October 2016 with a start date of
1 December 2017 for the scheme. Section 6 will come into
operation on 1 January 2022, which also gives a lead-time to
avoid the new offence inserted by section 6.
Clause 3 provides that in this Bill the Environment Protection Act 1970
is referred to as the Principal Act.
581PM33 1 BILL LC INTRODUCTION 24/7/2018
Part 2--Amendments to the Environment Protection Act 1970
Clause 4 the Principal Act currently contains a general principle relating to
product stewardship. Clause 4 adds a new principle establishing
how this general principle applies specifically to the beverage
industry and consumers.
Clause 5 inserts a new Part IIIA into the Principal Act.
New section 31F provides definitions for the key terms used in
the Bill, including the following key definitions--
• collection point means any facility or premises for the
collection and handling of containers delivered to the
facility or premises in consideration of the payment of
refund amounts; or (b) a reverse vending machine;
or (c) any other facility or premises of a kind prescribed
by the regulations;
• container means a container that is designed to
contain a beverage and to be sealed (when filled with
the beverage) for the purposes of transport or storage
before its sale, or delivery, for the use or consumption
of its content. Types and sizes of container that will
be included and excluded from the scheme will be
prescribed by the regulations;
• material recovery facility means a person who carries
on a business that is or includes the processing for reuse
or recycling of domestic waste designated for recycling
and collected by that or any other person during the
course of domestic waste management services and who
is approved in writing by the Authority as a material
recovery facility operator for the purposes of this Part;
• refund marking means a marking or labelling that
complies with the prescribed requirements;
• reverse vending machine means a machine or other
device from which refund amounts can be obtained by
an operation that involves inserting empty containers
into the device, whether or not some other action is
required to activate the device;
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• supplier means a person who carries on a business that
is or includes the supply of beverages in containers, but
does not include a person of a class prescribed as an
exempt class;
• supply means supply, by way of sale or otherwise, in the
course of carrying on a business;
New section 31I authorises the Minister to enter into agreements
with a Scheme Coordinator and network operators in connection
with the management and administration of a container deposit
scheme (scheme). It also establishes that scheme coordinator and
network operator agreements cannot be held by the same person
at the same time.
New section 31J provides for the content of the agreements.
A Scheme Coordinator agreement must require the Scheme
Coordinator to make arrangements with suppliers (supply
arrangements). Supply arrangements will establish the amount
of contributions by Suppliers towards the cost of the Scheme.
The Scheme Coordinator agreement must also require the
Scheme Coordinator to make arrangements with network
operators for the establishment, administration and operation
of a network of collection points under which the Scheme
Coordinator pays to the network operators refund amounts and
administration and handling costs for containers collected at
those collection points.
An agreement with a network operator must require the operator
to make arrangements with other persons for the establishment
and operation of collection points under which the network
operator pays to the collection point operators refund amounts
and associated handling costs for containers collected at those
collection points.
New section 31M provides that refunds may be paid to material
recovery facility operators. In order to determine the mechanism
and amounts to be paid to material recovery facility operators, a
protocol (processing refund protocol) would be developed by the
Minister and published in the Government Gazette.
New section 31O provides that penalties for contravention may
be written into Scheme administration agreements with the
scheme coordinator and the network operator. It provides that
any penalties for contravention of scheme administration
agreements would be paid to the State.
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New section 31P provides that monitoring and enforcement
provisions may be set out in Scheme administration agreements.
The Environment Protection Authority (the Authority) may
delegate powers and functions through scheme administration
agreements and where delegation occurs, the provisions of the
Principal Act would apply to the Scheme administrator in relation
to determining compliance or contravention with the Scheme,
and obtaining information or records for monitoring purposes.
New section 31Q provides that the term of a Scheme Coordinator
agreement must not exceed 7 years. An extension period of a
further 3 years may be approved but only twice, meaning that the
total term of a scheme coordinator can be no more than 13 years
in total. At this point procurement for a Scheme Coordinator
must occur.
New section 31R enables the Minister to vary the terms of
a scheme administration in writing, and to terminate the
agreement in the event of failure to meet performance targets or
contravention of any part of a Scheme administration agreement.
This section enables the Minister to make changes to Scheme
administration agreements to amend performance targets and
reflect changes to regulations. Consent to these amendments is
not required from the Scheme participant, and the participant is
not entitled to compensation for variation of terms or termination
of an agreement.
New section 31S requires the Authority to undertake a
performance audit of a scheme participant on request from the
Minister. The Authority must provide the Minister with a report
on the audit and if the Authority is of the view that a Scheme
participant has contravened the terms of an agreement with the
Minister, the report may recommend options for remedial actions
that could be taken.
New section 31T outlines reporting requirements for the Scheme.
The Scheme Coordinator must report annually on performance
against targets contained in the agreement, the amounts charged
to suppliers and other matters required by the regulations.
Reports must be made to the Minister no later than 90 days
after the end of the financial year, and the Minister is required to
table the annual report within 9 months of receiving the report.
Quarterly data on performance of the Scheme must be published
online by the Scheme Coordinator. This data must be available
on the Authority's website no later than 14 days from the end of
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this quarter. This will support transparency of the Scheme's
operation and enable ongoing monitoring and engagement by
environmental stakeholders.
New section 31U states that the Minister may establish an
Advisory Committee representing a range of interests and
expertise considered appropriate by the Minister.
New section 31V clarifies who is the supplier in relation to
drinks purchased from a vending machine. The supplier is the
owner or lessee of the vending machine.
New section 31W creates an offence for a supplier to supply a
beverage if they have not entered into a scheme agreement and if
the container in question is an approved container. The penalty
for the offence is 700 penalty units in the case of a natural person
or 2500 penalty units in the case of a body corporate.
New section 31X creates an offence for a supplier to supply
or offer to supply a beverage in a container without a refund
marking. The penalty for the offence is 700 penalty units in the
case of a natural person or 2500 penalty units in the case of a
body corporate.
New section 31Y provides that suppliers may apply to the
Authority for a container to be approved, and that applications
must be in a set format and accompanied by a prescribed fee.
In order to approve a container the Authority must undertake due
diligence in relation to ensuring that the supplier has the required
agreements in place and that the label of containers includes a
refund marking. A supplier can apply to VCAT for a review
of a decision not to grant an approval. This section creates an
offence to contravene a condition of the approval. The penalty
is 40 penalty units in the case of a natural person or 150 penalty
units in the case of a body corporate.
New section 31ZA requires collection point operators to accept
the return of any approved container and pay a refund to the
person, organisation or company returning the containers.
Refusal or failure to pay is an offence incurring a penalty of
20 penalty units in the case of a natural person or 40 penalty
units in the case of a body corporate. This section also sets out
reasonable grounds for refusal to pay a refund. Refunds must
be paid on return of containers (or at a time prescribed by
regulations) and they may be paid in cash or another prescribed
manner. For example, reverse vending machines that accept
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approved containers may offer an option to refund in cash or
electronically (for example, to a card or PayPal account).
New section 31ZAB enables a collection point operator to require
a person presenting a container for refund to prove their identity
and/or complete a refund declaration. Collection point operators
must maintain identity and refund declaration documentation for
3 years. Failure to do so is an offence incurring a penalty of
40 penalty units.
New section 31ZC creates an offence to claim refund for
containers that are not subject to the Scheme. The penalty is
700 penalty units in the case of a natural person or 2500 penalty
units in the case of a body corporate.
New section 31ZD enables regulations to be made that provide
for a review function by VCAT.
New section 31ZE creates an offence for providing false or
misleading information in relation to compliance and payments
by any person. The penalty for the offence is 700 penalty units
in the case of a natural person or 2500 penalty units in the case
of a body corporate.
New section 31ZF enables the Authority to require retailers
to display information about a scheme on retail premises.
These requirements should be set out in writing to retailers.
Where these requirements have been established it is an
offence for a retailer to fail to comply with these requirements.
The penalty for failure to comply with a notice is 20 penalty
points.
New section 31ZG requires the Minister to review the scheme
after 4 years and table a report on the review in both houses of
Parliament within 12 months from completion of the review.
New section 31ZH enables the Governor in Council to make
regulations relating to the Scheme. Regulations may provide
for--
• the approval of facilities or premises as collection
points;
• prescription of containers that are subject to the scheme;
• exemption of certain types of containers;
• scheme administration fees;
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• performance targets (for example collection and
recycling rates);
• the content of administration agreements;
• the process for issuing refunds and the refund amount;
• the process for variation or termination of scheme
administration agreements; and
• monitoring and auditing processes.
Clause 6 inserts a new Part IIIB into the Principal Act. New Part IIIB
creates an offence to sell unrecycled plastic beverage containers,
with a penalty of 700 penalty units for a natural person and
2500 penalty units for a body corporate.
Clause 7 provides for the repeal of this amending Act on 1 November
2020.
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