Industrial Chemicals Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 256 (9 August 2017)

• Industrial Chemicals Bill 2017
• Privilege against self-incrimination49
• Incorporation of external materials existing from time to time52

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Industrial Chemicals Bill 2017

Purpose	This bill seeks to establish the legislative framework for the Australian Industrial Chemical Introduction Scheme, a new risk-based regulatory scheme for the Commonwealth to continue to regulate the introduction of industrial chemicals in Australia
Portfolio	Health
Introduced	House of Representatives on 1 June 2017
Bill status	Before House of Representatives
Scrutiny principles	Standing Order 24(1)(a)(i), (iii), (iv) and (v)

2.133 The committee dealt with this bill in Scrutiny Digest No. 6 of 2017. The Assistant Minister responded to the committee's comments in a letter dated 28 June 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Assistant Minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[46]

Merits Review^[47]

Initial scrutiny – extract

2.134 Clause 166 sets out a table listing all of the decisions made by the Executive Director that will be considered to be a 'reviewable decision'. A 'reviewable decision' is one which sets out a process for reconsideration by the Executive Director and review by the Administrative Appeals Tribunal (AAT).

2.135 The explanatory memorandum does not explain whether there are decisions that may be made under the Act that may not be described as a 'reviewable decision'. It is therefore difficult to assess what decisions that may be made under the Act are not be subject to the internal review and AAT review process. It is also unclear why certain decisions have been included but others have been excluded. For example, it is unclear why a decision relating to cancellation of a person's registration is reviewable, yet the decision relating to the initial registration is not included as a reviewable decision.^[48]

2.136 The committee therefore requests the Minister's advice as to each of the decisions that could be made under the bill that are not listed as being a 'reviewable decision', and if decisions are excluded that might have an adverse impact on an individual, the justification for not including these in the list of 'reviewable decisions'.

Assistant Minister's response

2.137 The Assistant Minister advised:

Certain decisions that could be made under the Industrial Chemicals Bill 2017, which are not included in the list of 'reviewable' decisions in clause 166, have intentionally been excluded from the clause. This is because, for example, the decision will have no adverse impact on the applicant, will not change the status quo or is automatic. All decisions that could adversely affect the interests of an applicant are reviewable. The tables below list the non-reviewable decisions included in the bill and the reasons why, due to their nature, they will not be reviewable.
Table 1: Decisions which are in favour of the applicant or do not change the status quo

Provision	Decision	Reason for not including in clause 166
17(2)(a)	To grant an application for registration	These are decision that: • are in favour of the applicant, such that there is no adverse impact on a person (i.e. the Executive Director grants an application), or • do not change the status quo and as such do not result in an adverse outcome for the person affected by the decision. For example, an assessment certificate holder makes submissions as to why the terms of the assessment certificate should not be varied at the Executive Director's initiative, and the Executive Director subsequently decides not to vary the terms.
19(6)(b)	Not to cancel a person's registration (on Executive Director's initiative)
37(1)(a)	To issue an assessment certificate
42(5)(b)	Not to remove a person from an assessment certificate (on Executive Director's initiative)
49(1)(a)	To vary the terms of an assessment certificate (on application)
50(5)(b)	Not to vary the terms of an assessment certificate (on application)
52(5)(b)	Not to cancel an assessment certificate (on Executive Director's initiative)
58(1)(a)	To issue a commercial evaluation authorisation
61(5)(b)	To not remove a person from a commercial evaluation authorisation (On Executive Director's initiative)
63(4)(a)	To vary the terms of a commercial evaluation authorisation (on application)
64(5)(b)	Not to vary the terms of a commercial evaluation authorisation (on Executive Director's initiative)
66(5)(b)	Not to cancel a commercial evaluation authorisation (on Executive Director's initiative)
93(1)(a)	To vary the terms of an Inventory listing (on application)
108(1)(a)	To approve an application for protected information
111(8)(b)	To approve an application for protected information on review
114(2)(a)	To approve an application for protected information

Table 2: Decisions that are automatic or mandatory

Provision	Decision	Reason for not including in clause 166
40(2)	Add person covered by an assessment certificate (at certificate holder's request)	These decisions are automatic or mandatory decisions in that they arise where there is a statutory obligation on the Executive Director at act in a certain way upon the occurrence of a specified set of circumstances. These decisions are therefore made on the basis of objective matters (i.e. the application complies with requirements for an application and the appropriate person's consent to the application). These provisions support the applicant to initiate certain limited changes to their authorisation to introduce industrial chemicals into Australia. The process is initiated by the applicant and there are no subjective considerations to which the Executive Director must turn their mind. It is proposed that these decisions will be automated through an electronic process to minimise regulatory burden.
40(5)	Remove a person covered by an assessment certificate (at person's request)
41(2)	Add person to an assessment certificate (at person's request)
41(5)	Remove a person from an assessment certificate (at person's request
51(2)	Cancel an assessment certificate (at person's request)
60(2)	Add person to a commercial evaluation authorisation (at person's request)
60(5)	Remove a person from commercial evaluation authorisation (at person's request)
65(2)	Cancel commercial evaluation authorisation (at person's request)

Table 3: Decision made at the initiative of the Minister

Provision	Decision	Reason for not including in clause 166
67(1)	Enables the Minister to issue an exceptional circumstances authorisation for the introduction of an industrial chemical	This decision is made at the initiative of the Minister, and not on application. It is exercised by the Minister personally, in the public interest, in order to address significant risks to human health or the environment. It is essentially an emergency power (in the public interest).

Committee comment

2.138 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice that certain decisions that could be made under the Industrial Chemicals Bill 2017 are not included in the list of 'reviewable' decisions in clause 166 because, for example, the decision will have no adverse impact on the applicant, will not change the status quo or is automatic. The Assistant Minister advised that all decisions that could adversely affect the interests of an applicant are reviewable.

2.139 The committee requests that the key information provided by the Assistant Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.140 In light of the detailed information provided and, in particular, the Assistant Minister's advice that all decisions that could adversely affect the interests of an applicant will be subject to merits review, the committee makes no further comment on this matter.

Privilege against self-incrimination^[49]

Initial scrutiny – extract

2.141 Clause 175 provides that a person is not excused from giving information or producing a document under section 161 on the ground that the giving of the information or the production of the document would tend to incriminate the person or expose the person to a penalty. This provision therefore overrides the common law privilege against self-incrimination which provides that a person cannot be required to answer questions or produce material which may tend to incriminate himself or herself.^[50]

2.142 The committee recognises there may be certain circumstances in which the privilege can be overridden. However, abrogating the privilege represents a serious loss of personal liberty. In considering whether it is appropriate to abrogate the privilege against self-incrimination, the committee will consider whether the public benefit in doing so significantly outweighs the loss to personal liberty.

2.143 A use and derivative use immunity is included in clause 175(2) as it provides that the information or documents produced, or anything obtained as a direct or indirect consequence of the production of the information or documents, is not admissible in evidence in most proceedings. Although the committee welcomes the inclusion of the use and derivative use immunity, the explanatory memorandum does not provide a justification for removing the privilege against self-incrimination.

2.144 The committee requests the Minister’s advice as to why it is proposed to abrogate the privilege against self-incrimination, particularly by reference to the matters outlined in the Guide to Framing Commonwealth Offences.^[51]

Assistant Minister's response

2.145 The Assistant Minister advised:

The abrogation of the privilege against self-incrimination is limited in two important ways:

• The self-incrimination provision in clause 175 is limited to the circumstances described in clause 161. Clause 161 relates to information or a document requested by the Executive Director that is reasonably necessary to be obtained in order for Australia to comply with its obligations under the Rotterdam Convention.

• Any information given or document produced is not admissible in evidence against the individual in criminal or civil proceedings (other than in very limited circumstances described in the provision).

The provision relating to self-incrimination (in these very limited circumstances) was first included in the Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act) in 2004, in order to ensure Australia meets its obligations (refer section 100H of the ICNA Act).
The provision has been included in the Industrial Chemicals Bill 2017 (and limited to clause 161) so that there is no change or disruption in the arrangements described in the new law, as they relate to Australia's international obligations.

Committee comment

2.146 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice that the abrogation of the privilege against self-incrimination is limited to circumstances where information or a document is requested by the Executive Director that is reasonably necessary to be obtained in order for Australia to comply with its obligations under the Rotterdam Convention. The committee also notes the advice that a use and derivative use immunity is included so that the information or documents produced, or anything obtained as a direct or indirect consequence of the production of the information or documents, is not admissible in evidence in most proceedings. The committee also notes the Assistant Minister's advice that the provision relating to self-incrimination was first included in the Industrial Chemicals (Notification and Assessment) Act 1989 in 2004 in order to ensure Australia met its international obligations and that the provision has been included in this bill so that there is no change or disruption in the existing arrangements.

2.147 The committee requests that the key information provided by the Assistant Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.148 Generally the committee does not consider the fact that a provision continues in existence current legislative arrangements is, of itself, a sufficient justification for abrogating the privilege against self-incrimination. However, in this instance, given the explanation provided and the inclusion of a use and derivative use immunity, the committee makes no further comment in relation to this provision.

Incorporation of external materials existing from time to time^[52]

Initial scrutiny – extract

2.149 Clause 180 provides that rules may be made prescribing a number of matters, and subclause 180(3) provides that despite subsection 14(2) of the Legislation Act 2003, the rules may make provision in relation to a matter by applying, adopting or incorporating any matter contained in any other instrument or other writing as in force or existing from time to time.

2.150 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

• raises the prospect of changes being made to the law in the absence of Parliamentary scrutiny, (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament);

• can create uncertainty in the law; and

• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).

2.151 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.

2.152 The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[53] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

2.153 The explanatory memorandum states that it is anticipated that the rules will prescribe certain international lists of chemicals that an introducer must consult, and as these lists may be regularly updated it is not meaningful to reference them as published on a certain date.^[54]

2.154 Noting the above comments, the committee requests the Minister's advice as to whether the type of international lists that it is envisaged may be applied, adopted or incorporated by reference will be made freely available to all persons interested in the law.

Assistant Minister's response

2.155 The Assistant Minister advised:

The type of international lists that it is envisaged may be applied, adopted or incorporated by reference include:

• European Chemicals Agency (ECHA) Harmonised Classification and Labelling of Hazardous Substances (Annex VI to the CLP Regulation);

• European Union Substances of Very High Concern (EU SVHC);

• United States National Toxicology Program (US NTP) Report on Carcinogens; and

• International Agency for Research on Cancer (IARC) Monographs.

Any materials to be incorporated by reference are readily accessible (at no cost) and links to the materials will be made available on the AICIS website.

Committee comment

2.156 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice providing examples of the type of international lists that it is envisaged may be applied, adopted or incorporated by reference. The committee welcomes the Assistant Minister's advice that any materials to be incorporated by reference are readily accessible (at no cost) and links to the materials will be made available on the Australian Industrial Chemicals Introduction Scheme (AICIS) website.

2.157 The committee takes this opportunity to highlight the expectations of the Senate Standing Committee on Regulations and Ordinances that delegated legislation which applies, adopts or incorporates any matter contained in an instrument or other writing should:

• clearly state the manner in which the documents are incorporated—that is, whether the material is being incorporated as in force or existing from time to time or as in force or existing at a particular time. This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material (see also section 14 of the Legislation Act 2003); and

• contain a description of the documents and indicate how they may be obtained (see paragraph 15J(2)(c) of the Legislation Act 2003).

2.158 The committee requests that the key information provided by the Assistant Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.159 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

2.160 Noting that the materials to be incorporated by reference will be freely available and links to incorporated material will be provided on the AICIS website, the committee makes no further comment in relation to this matter.

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[46] See correspondence relating to Scrutiny Digest No. 8 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest

[47] Clause 166. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iii) of the committee’s terms of reference.

[48] See paragraph 19(6)(a) and clause 17.

[49] Clause 175. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

[50] Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328.

[51] Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 94-99.

[52] Subclause 180(3). The committee draws Senators’ attention to this provision pursuant to principles 1(a)(iv) and (v) of the committee’s terms of reference.

[53] Joint Standing Committee on Delegated Legislation, Parliament of Western Australia, Access to Australian Standards Adopted in Delegated Legislation, June 2016.

[54] Explanatory memorandum, p. 99.