Introductory Info
Date introduced: 3 December 2020
House: House of Representatives
Portfolio: Environment
Commencement: Various dates as set out in this Bills Digest.
Purpose of
the Bills
This Bills Digest is for a legislative package of five
Bills, that is, the:
The purpose of this legislative package is to:
- establish
a national framework and nationally consistent standards to manage the environmental
risks of industrial chemicals, which will then be implemented by states and
territories and the Commonwealth within their own jurisdictions
- establish
a cost recovery model to implement the national framework and
- make
consequential and other minor amendments to the Industrial
Chemicals Act 2019.
Structure of
the ICEMR Bill
The ICEMR Bill is divided into six parts:
- Part
1 sets out preliminary provisions including the objects and definitions
- Part
2:
- establishes
the Industrial Chemicals Environmental Management Register (the Register)
- enables
the Minister to make ‘scheduling decisions’ which assign industrial chemicals to
a schedule of the Register
- enables
the Minister to make decision-making principles which set out criteria for
scheduling decisions
- Part
3 establishes the Advisory Committee on the Environmental Management of
Industrial Chemicals
- Part
4 provides mechanisms for sharing and protecting information, and for the use
and disclosure of protected information in certain limited circumstances
- Part
5 deals with the administration of the scheduling charge imposed by the Charges
Bills, including liability for the payment of the charge and
- Part
6 contains miscellaneous provisions, including delegation provisions and provisions
which enable the Minister to make rules in relation to the proposed regime.
Commencement
| Bill |
Commencement |
| ICEMR Bill |
The day after Royal
Assent |
| Amendment Bill |
Sections 1–3 on Royal
Assent
Schedule 1 on the day
after Royal Assent
Schedule 2 on the later
of: the start of the day after Royal Assent and immediately after the
commencement of the Industrial Chemicals Environmental Management
(Register) Act 2020. Schedule 2 will not commence if the Industrial
Chemicals Environmental Management (Register) Act does not commence.
Schedule 3 on the
later of: immediately after the commencement of the Industrial Chemicals
Environmental Management (Register) Act 2020 and immediately after the
commencement of the Federal Circuit
and Family Court of Australia Act 2020. Both these events must occur
for Schedule 3 to commence.
|
| Charges Bills |
The later of the
start of the day after Royal Assent and immediately after the commencement of
the Industrial Chemicals Environmental Management (Register) Act.
However, these Bills will not commence if the Industrial Chemicals
Environmental Management (Register) Act does not commence. |
Background
Regulation of chemicals in
Australia
Chemicals introduced to Australia (whether through
importation or manufacture) are regulated through four federal schemes. The
schemes are divided by end use of the product. The four areas concentrate on:
As outlined in the ‘Key issues and provisions’ section of
this Digest, these Bills aim to build on the recent reforms to the regulation
of industrial chemicals by the Industrial Chemicals Act.[8] They follow a long process of
reform and consultation, as discussed further below.
History behind Bills
Productivity Commission report
In 2007, the Government announced that the Productivity
Commission would undertake a study into the regulation of chemicals and plastics.[9]
The Productivity Commission was asked to identify duplication and inconsistency
of those regulations within and across all levels of government in Australia.[10]
The Productivity Commission released its Research
Report on Chemicals and Plastics Regulation in August 2008. Chapter 9
of the report addressed the issue of managing the impact of chemicals on the
environment and found:
-
Chemicals have the potential to impact adversely on the
environment during their manufacture, use and disposal. Governments have a role
in intervening to ensure that the risks of adverse impacts are managed where
that is effective and efficient.
-
Governments have regulated to address the impact on the environment
of a number of chemicals with known hazards. However, a large
number of chemicals in use have not been subject to environmental (or other)
hazard and risk assessment.
-
There are some differences in the way that each state and
territory regulates for environmental protection, including with respect to
chemicals and plastics. This can reflect the different environments across
jurisdictions and the manner in which different regulatory regimes have
evolved.
-
The regulatory framework for managing the impact of chemicals on
the environment could be improved.[11]
Among other matters, the report recommended ‘the
establishment of a new environmental standard-setting body … to set nationally
consistent standards as necessary’, and that the states and territories should
uniformly adopt the standards by reference.[12]
Council of Australian Governments’ response
In November 2008, in response to the Productivity
Commission’s recommendations, the Council of Australian Governments (COAG) requested
the Environment Protection and Heritage Council (EPHC) to progress a proposal
for establishing a standard-setting body for chemicals in the environment. COAG
noted that this would ‘close a significant gap in the current arrangements for
environmental protection’ and provide for a ‘single national decision on the
environmental management of chemicals which can be adopted by reference and
applied consistently in all jurisdictions’.[13]
Responsibility for this reform was transferred to the COAG
Standing Council on Environment and Water when it replaced the EPHC in 2011.[14]
In April 2013, the Standing Council released a Consultation
Regulation Impact Statement (RIS) on options for developing and implementing
nationally consistent decisions to manage the environmental risks of industrial
chemicals.[15]
This aimed to implement the reforms recommended by the Productivity Commission,
including the creation of a standards-setting body to develop national
environmental risk management decisions for industrial chemicals.[16]
According to the Department of Agriculture, Water and the
Environment (the Department), feedback from the RIS consultation process ‘was
used to refine the approach’ and options were presented for consideration by
Environment Ministers:
The preferred option was a cooperative framework including a
National Standard and decision powers established under Commonwealth
legislation. Automatic adoption under jurisdictional legislation would occur for
implementation and compliance.[17]
Environment Ministers decision
In July 2015, Commonwealth, state and territory
Environment Ministers agreed to establish a national standard to manage the
environmental risks of industrial chemicals.[18]
The Bill aims to ‘deliver on the approach agreed by environment ministers and
the recommendation of the Productivity Commission to fill this regulatory gap
through the National Standard’.[19]
In February 2018, the Meeting of Environment Ministers
noted ‘progress’ on the development of a National Standard for environmental
risk management of industrial chemicals:
The Commonwealth and states and territories have been
working collaboratively, and with close consultation with business and the
community, to develop the National Standard.
…
The Australian Government will commence drafting legislation
to establish this framework for protecting the health of our environment and
everything living in it.
All jurisdictions will continue to work together and consult
broadly during implementation of the National Standard to ensure we deliver the
best possible outcomes for governments, businesses and the community.[20]
Consultation on draft legislation
In January 2020, the Department released draft legislation
and supporting information for public consultation in February 2020.[21]
The supporting information explained that the draft legislation aims to build
on recent reforms to the regulation of industrial chemicals by the Industrial
Chemicals Act, and that the ‘ICEMR Bill has been designed to work in
conjunction with the mechanisms under the [Industrial Chemicals Act],
and to avoid duplication’.[22]
Eleven formal submissions were received.[23]
According the Department, feedback received during that process has been ‘incorporated
into the final legislative package’.[24]
Committee
consideration
Senate Environment and
Communications Legislation Committee
The Bills were referred to the Senate Environment and
Communications Legislation Committee for inquiry and report by 11 March 2021. The
Committee received seven submissions. Issues raised in these submissions are
discussed elsewhere in this Digest. The Committee recommended that the Bills be
passed,[25]
but also made two other recommendations:
- that
the government and the Department ‘continue to actively engage state and
territory governments, particularly around planning for the adoption of the
Register in their respective jurisdictions’ (recommendation 1) and
- that
the Department continue its engagement with industry stakeholders in the
implementation of the Bills, ‘particularly with reference to the cost-recovery
arrangements and the role of Australian Industrial Chemicals Introduction
Scheme’ (recommendation 2).[26]
Senate Standing Committee for the
Scrutiny of Bills
ICEMR Bill
The Scrutiny of Bills Committee has raised concerns that
the ICEMR Bill provides for a range of matters that are significant to the
operation of the proposed framework for managing industrial chemicals to be set
out in non-disallowable legislative instruments.[27]
This includes:
- subclause
22(1), which allows the Minister to establish a register of scheduling
decisions for industrial chemicals
- subclause
23(1), which proposes to enable the Minister to determine principles to be
complied with in making, varying or revoking scheduling decisions and
- clause
76, which enables the Minister to make rules prescribing various matters
required or permitted by the Bill, or which are necessary or convenient to be
prescribed for carrying out or giving effect to the Bill.[28]
The Scrutiny Committee observed that the note accompanying
each of these provisions states that section 42 (disallowance), and Part 4 of
Chapter 3 (sunsetting), of the Legislation Act
2003 do not apply to the instrument. The Committee expressed the view
that matters which may be significant to the operation of a legislative scheme
should be included in primary legislation unless sound justification for the
use of delegated legislation is provided.[29]
The Explanatory Memorandum does explain that the exemptions are because the
legislation facilitates the establishment or operation of an intergovernmental
scheme.[30]
However, the Committee stated its expectation that any exemption of delegated
legislation from the usual disallowance and sunsetting processes should be
fully justified in the Explanatory Memorandum, including why the exemption is
appropriate in the particular circumstances.[31]
As such, the Committee requested the Minister's advice as
to why it is appropriate and necessary for the relevant matters to be left to
the delegated legislation which is exempt from parliamentary disallowance and
sunsetting.[32]
The Committee also queried whether the Bill could be amended to provide that
these matters are subject to the usual parliamentary disallowance and
sunsetting processes.[33]
In response, the Minister advised that the exemptions in
sections 44 and 54 of the Legislation Act are ‘automatic exemptions’,
and:
… at the time of enactment, the rationale for including these
exemptions for instruments made under national schemes focused on concerns
about unilateral actions of one party to an agreement affecting the operation
of multi-jurisdictional schemes.[34]
In relation to the proposed principles, the Minister
explained that they would be included in a technical document based on up-to-date
scientific information and as such, ‘it is appropriate that the Principles be
set out in delegated legislation to allow for them to be amended as necessary
in response to evolving scientific knowledge’.[35]
The Minister gave similar reasons in relation to the Register and Rules.[36]
The Minister also explained, for example, that as the states and territories
will draw from the scheduling decisions in the Register, if the Register were
subject to sunsetting, certainty could be undermined for both governments and
industry, and disallowance ‘would affect the content of State and Territory
legislation, which would be inconsistent with the intergovernmental agreement.’[37]
The Committee noted the Minister's advice, but requested
that an ‘addendum to the explanatory memorandum containing the key information
provided by the minister be tabled in the Parliament as soon as practicable’.[38]
The Committee also drew its scrutiny concerns to the attention of Senators and
left to the Senate as a whole:
… the appropriateness of leaving matters which are
significant to the operation of the legislative scheme established by the Bill,
including principles to be complied with when making scheduling decisions and
rules prescribing a wide range of matters, to delegated legislation which is
exempt from parliamentary disallowance and sunsetting.[39]
Charges Bills
The Committee also raised concerns in relation to each of
the three Charges Bills, which seek to impose a charge as a tax payable by a
registered introducer of industrial chemicals for a registration year. The
Committee noted that subclause 8(1) of each Bill provides that the
amount of the charge payable in each case may be prescribed by the regulations,
and the regulations may either set out the amount of the charge payable or a
method for working out the amount.[40]
The Committee stated its ‘consistent scrutiny view’ that
‘it is for the Parliament, rather than makers of delegated legislation, to set
a rate of tax.’[41]
The Committee noted that the Explanatory Memoranda state that there is a need
for flexibility in prescribing the amount of the charge and that any applicable
charge will be determined through a Cost Recovery Implementation Statement and
will be consistent with the Australian Government Charging Framework and the
Australian Government Cost Recovery Guidelines.[42]
Nonetheless, the Committee noted that it ‘has generally not accepted a desire
for administrative flexibility to be a sufficient justification, of itself, for
leaving significant matters to delegated legislation’.[43]
The Committee suggested that it is unclear to ‘why at least high-level guidance
in relation to these matters cannot be provided’.[44]
The Committee therefore requested the Minister's advice as
to whether:
- guidance
could be specifically included in each Bill in relation to the method of
calculation of these charges and/or a maximum charge or
- the
Bills could be amended to specify that, before the Governor-General makes
regulations prescribing an amount of charge, the Minister must be satisfied
that the amount of the charge is set at a level that is designed to recover no
more than the Commonwealth’s likely costs in connection with the administration
of the framework established by the ICEMR Bill.[45]
In response, the Minister advised that the amount of any
applicable charge will be determined through a Cost Recovery Implementation
Statement (CRIS) and that this CRIS (including the method of calculation) would
be released for public consultation.[46]
The Minister advised that, for these reasons, the method of calculation of
charges or the maximum charge will not be able to be included in the Bills
themselves before this process is completed.[47]
The Minister further advised that the Department of Finance must be satisfied
that the charge is set at a level that is designed to recover no more than the
full and efficient costs of the administration of the framework and that the
Finance Minister must agree to the final CRIS.[48]
The Committee noted this advice, and requested ‘an
addendum to the Explanatory Memorandum containing the key information provided
by the minister be tabled in the Parliament as soon as practicable’.[49]
The Committee also drew this matter to the attention of senators and left to the
Senate as a whole the appropriateness of allowing the rate of charges in
relation to the scheduling of industrial chemicals to be set in delegated
legislation.[50]
Finally, the Committee also drew this matter to the attention of the Senate Standing
Committee for the Scrutiny of Delegated Legislation.[51]
Amendment Bill
The Scrutiny Committee had no comment on the Amendment
Bill.[52]
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independents do not appear to have commented on the Bills.
Position of
major interest groups
In its submission to the Senate inquiry, Accord[53]
supported the introduction of a new framework for a nationally uniform approach
for the environmental risk management of industrial chemicals.[54]
However, it highlighted the ‘regrettably poor timing’ of the introduction of
the regime during a time of pandemic, particularly given the industry concern
about costs and other administrative burdens associated with the proposed new
regime.[55]
Nonetheless, Accord supported the ICEMR Bill ‘being passed as written’.[56]
In its submission to the Senate inquiry, Chemistry
Australia supported the principles to which the Bills are directed, being the protection
of the environment through the appropriate management of risks posed by
industrial chemicals; and the establishment of nationally consistent,
transparent, predictable, streamlined and efficient approaches to the
environmental risk management of industrial chemicals. Chemistry Australia also
supported those elements of the Bills that provide a framework for Australia to
ratify and give effect to the decisions made under the Stockholm Convention on
Persistent Organic Pollutants and other international agreements.[57]
However, Chemistry Australia noted that the success of the
scheme and its ability to meet its objects is entirely dependent upon its
uniform adoption in state and territory legislation.[58]
Chemistry Australia expressed concern that, without uniform adoption:
… the scheme will simply introduce an additional layer of
regulatory burden/cost and potentially become an obstacle to the availability
of newer, innovative and safer chemistry in Australia, undermining all of the
benefits of the reforms introduced by the Industrial Chemicals Act 2019.[59]
For this reason, Chemistry Australia suggested a provision
be incorporated in the Bills to delay commencement of the scheme until
implementing legislation has been passed by every state and territory. Chemistry
Australia considered this would ‘encourage all states and territories to
promptly enact legislation to implement the scheme and avoid a situation under
which different rules might continue to apply across jurisdictions for some
time’.[60]
The Minerals Council of Australia did not make a
submission to the Senate Committee Bill inquiry but did make a submission in
relation to the exposure draft of the Bill (as mentioned in the ‘Background’
section of this Digest). In that submission, the Minerals Council expressed
general support for the draft Bill, particularly the requirements for the
Minister to consult before making, varying or revoking a scheduling decision on
an industrial chemical, and to comply with the decision-making principles.[61]
The Minerals Council also supported the ‘standing of the register’ as not
prohibiting, restricting or creating obligations in State or Territory
jurisdictions.[62]
The Minerals Council considered that ‘this approach allows for flexibility in
chemical management pending the activity and locality with respect to
environment and social considerations’.[63]
Cost recovery
Several industry groups expressed concern about the cost
recovery arrangements proposed for the new regime. For example, Accord
expressed concern about the increases in registration costs already experienced
as a result of the AICIS scheme, and about the limited transparency ‘at this
stage about the estimated costs’ relating to the proposed new regulatory scheme
to be established by the ICEMR Bill.[64]
Accord called for the charges to be set at nil initially, along with
‘meaningful consultation’ with industry on the cost‑recovery
arrangements.[65]
The Vinyl Council of Australia (the peak association for
the vinyl, or PVC, industry in Australia) similarly noted the intention that
annual scheduling charges on registered introducers of industrial chemicals
should be implemented on a government cost recovery basis. The Council raised
concerns about the impact of existing AICIS registration fees on its members,
and particularly small businesses, and suggested that the AICIS registration
fee schedule be amended.[66]
Chemistry Australia also noted the current fees and
charges imposed on industry under the AICIS, which it considered ‘already
incorporate elements of cost recovery for the environmental assessment of
industrial chemicals’.[67]
Chemistry Australia therefore questioned whether a separate cost recovery
scheme under the ICEMRB is necessary:
While the collection of the ICEMRB fee might be managed as
part of the annual AICIS fee payment arrangements, a separate cost recovery
scheme will still require additional work by the Department, including the
preparation of annual cost recovery impact statements and consultations with
stakeholders. It will also impose additional burdens on industry. The costs
associated with the cost recovery regime may well end up being a significant
part of the costs of administering the Register.[68]
On this issue, the Minerals Council suggested (in its
submission on the Exposure draft of the Bill) that cost recovery arrangements
should ‘focus primarily on new substances’, given that extensive data already
exists for a range of substances.[69]
Financial
implications
According to the Explanatory Memorandum, the measures in
the ICEMR Bill ‘are estimated to have a minimal financial impact on the
Australian Government Budget’:
The initial costs of implementing the National Standard have
been funded by the measure ‘Environmental Management – the use and disposal of
industrial chemicals’ which provides $9.1m for 5 years from 2019/20 (and
$1.3 million per year ongoing) to set standards for how industrial chemicals
that pose a risk to the environment should be managed through their life cycle.
The Bill introduces arrangements to recover the cost of this measure through a
levy applied alongside the annual registration charge for chemical introducers
under the Industrial Chemicals Act 2019.[70]
The Charges and Amendment Bills have no financial impact
on the Australian Government.[71]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
compatibility of the Bills with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[72]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment on the Bills.[73]
Key issues
and provisions[74]
Purpose of
the Bills
These Bills aim to build on the recent reforms to the
regulation of industrial chemicals by the Industrial Chemicals Act.[75] While industrial
chemicals are assessed for health and environmental risks through the AICIS
under the Industrial Chemicals Act, regulations for managing the
environmental risks of those chemicals vary across Australia. As the
Explanatory Memorandum states:
Under the current regulatory framework for environmental risk
management of industrial chemicals, there is no mechanism to consistently
implement the recommendations for the management of risks to the environment
made by AICIS … in contrast to other frameworks for worker and public health
and safety, such as the Standard for the Uniform Scheduling of Medicines and
Poisons (also known as the Poisons Standard).
Without a national approach, inconsistent implementation of
recommendations for managing the risks from the use of industrial chemicals may
lead to uncertainty, increased costs for business, and inadequate environmental
protection.[76]
The ICEMR Bill aims to address these issues and ‘fill an
important regulatory gap’ by establishing a new national standard for the
environmental risk management of industrial chemicals.[77]
As discussed earlier in this Digest, some stakeholders, such as Chemistry
Australia, have highlighted that whether the scheme meets its aims will depend
on adoption and implementation by state and territory governments.[78]
Chemistry Australia considered that without uniform adoption, there is a risk
that the scheme will introduce an additional layer of regulatory burden and
cost to industry.[79]
Objects
Clause 3 sets out the objects of the proposed ICEMR
Act as:
- to
give effect to an intergovernmental scheme involving the Commonwealth and the
states and territories relating to the establishment of nationally consistent
standards to minimise risks to the environment from industrial chemicals
- to
provide for the Commonwealth Government to establish a national register of
scheduling decisions for relevant industrial chemicals
- to
provide for the Register to operate as a national scheme, in that another law
of the Commonwealth, or a law of a state or territory:
- may
apply or adopt the Register (with or without modification) and
- may
make provision for, or in relation to, its implementation and enforcement, as
so applied or adopted
- to
reflect, through scheduling decisions for relevant industrial chemicals
included in the Register, the views of the Commonwealth on the controls,
including risk management measures, that should be applied to those chemicals
- to
regulate the conduct of the Commonwealth, and persons employed or engaged by
the Commonwealth, in connection with the Register
- to
contribute to meeting Australia’s international obligations in relation to
industrial chemicals.[80]
Key definitions
Clauses 7 and 8 provide definitions of key terms to
be used in the proposed Act. Some of the key definitions include ‘industrial
chemical’ and ‘industrial use’, which are defined by reference to their meaning
in the Industrial
Chemicals Act 2019.
Importantly, scheduling decisions under the proposed
regime will only be able to be made for industrial chemicals, which means that only
industrial chemicals will be included in the Industrial Chemicals Environmental
Management Register (which is discussed further below).
Industrial chemical
Section 10 of the Industrial Chemicals Act defines
an ‘industrial chemical’ as any of the following:
- a
chemical element that has an industrial use
- a
compound or complex of a chemical element that has an industrial use
- a
UVCB substance that has an industrial use[81]
- a
chemical released from an article where the article has an industrial use
- a
naturally-occurring chemical that has an industrial use
- any
other chemical or substance prescribed by the rules that has an industrial use
but not a chemical or substance that is prescribed by the
rules as not being an industrial chemical.
Industrial use
Subclause 8(2) clarifies that the proposed ICEMR
Act will only apply to an industrial chemical to the extent that the
industrial chemical is used, or proposed to be used, for an ‘industrial use’
within the meaning of the Industrial Chemicals Act. In other words, if
an industrial chemical has both industrial uses and non-industrial uses,
scheduling decisions will only be able to be made in respect of the industrial
uses (or proposed industrial uses) of that chemical.
The term ‘industrial use’ is defined in section 9 of the Industrial
Chemicals Act as a use other than (or in addition to) one of the
following uses:
- use
as an agricultural or a veterinary chemical product[82]
(within the meaning of the Agvet Code)
or in the preparation of such a product
- use
as a substance or mixture of substances[83]
(or in the preparation of such a substance or mixture of substances)
- use
as a therapeutic good (within the meaning of the Therapeutic Goods Act)
or in the preparation of such a good
- use
as food intended for consumption by humans (or in the preparation of such food)
- use
as feed intended for consumption by animals (or in the preparation of such feed)
- any
use prescribed by the rules.
Industrial Chemicals Environmental
Management Register
Clause 22 of the Bill provides for the
establishment of the Industrial Chemicals Environmental Management Register
(the Register). Under subclause 22(1), the Register is established by
the Commonwealth Minister for the Environment by a non-disallowable legislative
instrument.[84]
The Explanatory Memorandum states that the Register is
exempt from disallowance and sunsetting because the enabling legislation for
the Register (that is, this Bill) facilitates the establishment or operation of
an intergovernmental scheme involving the Commonwealth and one or more states
and territories, and authorises the instrument to be made for the purposes of
the scheme.[85]
As outlined earlier in this Digest, the Scrutiny of Bills
Committee expressed concern that the Register will be set out in a non-disallowable
legislative instrument given the Register’s significance to the operation of
the proposed regime, and requested an explanation from the Minister in relation
to this issue.
Subclause 22(2) provides that the Register may
include explanatory information relating to the Register or a scheduling
decision, or any other information specified in the rules. The Explanatory
Memorandum suggests this might include additional information concerning an
industrial chemical or its use, descriptions of the Schedules, relevant
guidelines or management plans, or information to assist in the interpretation
and implementation of the risk management measures specified for a particular
industrial chemical.[86]
The Explanatory Memorandum anticipates that there will be
seven schedules of the Register, ‘reflecting increasing risk of harm to the
environment’ (see Figure 1 below).[87]
Figure 1: proposed structure of the
national standard
Source: DAWE, Submission
to the Senate Standing Committee on Environment and Communications, Inquiry
into the Industrial Chemicals Environmental Management (Register) Bills 2020,
[Submission no. 2], 21 January 2021, p. 6.
The intention is that industrial chemicals will ‘be listed
by reference to a particular end use’, since ‘it will generally be the end use
of an industrial chemical that determines the level of concern that chemical
poses to the environment, and that has been assessed in a risk assessment’.[88]
As such:
Which Schedule is appropriate for a particular industrial
chemical or use of that chemical will depend on the risk characteristics of
that chemical. This would be determined by reference to both the inherent
characteristics of the chemical and its proposed use. This means that different
end uses of the same chemical could be listed in different Schedules of the
Register … because different end uses of an industrial chemical may have
different levels of environmental concern associated with them.[89]
Subclause 22(4) provides that the Registrar does
not, of itself, create prohibitions, restrictions or other obligations that are
enforceable in judicial or other proceedings. As the Explanatory Memorandum
notes:
… it is intended that each State and Territory (and the
Commonwealth) will, under their own laws, adopt or apply the Register and
thereby be responsible for implementing and enforcing the contents of the
scheduling decisions listed in the Register in their jurisdiction. In other
words, the prohibitions and restrictions that are listed in the Register for an
industrial chemical will not be enforceable except as they are adopted or
applied in the relevant jurisdiction.[90]
In turn:
It is intended that adoption of the Register by all
jurisdictions will deliver greater certainty and consistency in regulation for
industrial chemical users and introducers in Australia. It will also allow for
better protection of the environment through improved management of the
environmental risks posed by industrial chemicals.[91]
The Department’s submission to the Senate Committee
inquiry states that the ‘Australian Government is committed to implementing the
Register in areas of Commonwealth responsibility’.[92]
This will include developing ‘new legislation for the use, handling and
disposal of chemicals on Commonwealth land, as well as improving controls on
introduction of high concern chemicals into Australia’.[93]
As discussed in the ‘position of major interest groups’
section of this Digest, Chemistry Australia was concerned that the success of
the scheme is ‘entirely dependent’ on uniform adoption and implementation by
state and territory governments.[94]
Chemistry Australia recommended that a provision be incorporated to delay
commencement of the scheme until implementing legislation has been passed by
every state and territory. It suggested this would ‘encourage all states and
territories to promptly enact legislation to implement the scheme and avoid a
situation under which different rules might continue to apply across
jurisdictions for some time’.[95]
Scheduling decisions
Subclause 11(1) provides that the Minister may make
one or more scheduling decisions for a relevant industrial chemical.[96]
The Minister must ensure that the scheduling decision is recorded in the
Register (subclause 11(2)).
A ‘scheduling decision’ is defined in subclause 11(3)
as any of the following:
- a
decision to list the chemical in a particular Schedule or Schedules of the
Register
- a
decision to specify any one or more of the following for a chemical listed on
the Register:
- that
the export, import or manufacture of the chemical is prohibited, or restricted,
in all circumstances or in specified circumstances
- that
all or any end uses for the chemical are prohibited, or restricted, in all
circumstances or in specified circumstances
- one
or more end uses for the chemical
- one
or more risk management measures for the chemical or for a specified end use of
the chemical or
- a
decision relating to the chemical of a kind specified in the rules.
The Explanatory Memorandum states:
Industrial chemicals vary widely in their properties and the
ways in which they are used. It is therefore appropriate to have a selection of
management options available to the Minister in making a scheduling decision.
Listing a chemical or end use of a chemical in a Schedule of the Register will
indicate the level of concern it poses to the environment. In many cases, few
or no risk management measures will be necessary to manage the risks posed by a
particular chemical. In some cases, it will be possible to manage the risks
posed by certain end uses of a chemical, but not others. When there are
significant risks posed by a particular chemical, regardless of end use, and it
is not possible to manage those risks, it may be necessary to ban all end uses
of the chemical, as well as its import and manufacture. In some instances, such
as to comply with Australia’s international obligations, it may also be
necessary to ban the export of certain chemicals.[97]
The Minister may list an industrial chemical in a Schedule
of the Register even if it is already included in a class of industrial
chemicals listed in that Schedule or a different Schedule of the Register.[98]
The Explanatory Memorandum states ‘this is to ensure that chemicals can be
listed in different Schedules (or the same Schedule) of the Register at the
same time by reference to different end uses of that chemical’.[99]
Subclause 11(6) aims to clarify the scope of a risk
management measure that can be specified by the Minister in a scheduling
decision. A risk management measure may:
- prohibit
or restrict particular conduct or things in all circumstances or in specified
circumstances
- require
particular conduct or things in all circumstances or in specified circumstances
- impose
an obligation in relation to particular conduct or things in all circumstances
or in specified circumstances or
- apply
from or until a particular date or for a particular period.
As the Explanatory Memorandum notes:
Risk management measures aim to prevent harm to the
environment from the use or disposal of an industrial chemical. For example,
risk management measures may relate to the protection of land or the marine
environment, the protection of surface or ground water, the protection of
biodiversity, the storage, handling and containment of the chemical, or the
treatment or disposal of the chemical.[100]
The Minister may also vary or revoke a scheduling decision
for a relevant industrial chemical. That variation or revocation must be
recorded in the Register.[101]
Considerations for scheduling
decisions
Clause 15 sets out the mandatory considerations for
the Minister when deciding whether to make, vary or revoke a scheduling
decision. The Minister must have regard to the following matters:
- the
most recent relevant Commonwealth risk assessment[102]
for the industrial chemical (if any)
- any
relevant risks that the chemical, or end use of the chemical, poses (or may pose)
to the environment and how any such risks may be minimised
- any
relevant advice given to the Minister by the Advisory Committee
- any
relevant international obligations Australia has under an international agreement
that is specified in the rules[103]
- any
relevant submissions provided as part of public consultation on the proposed scheduling
decision and any relevant information given to the Minister under clauses 19 or
20 (discussed below) and
- any
other matters that are specified in the rules.
These mandatory considerations do not apply to a variation
of a scheduling decision that is of a ‘minor nature’ (subclause 15(2)). Subclauses
15(3) and (4) provide that the following are taken to be variations
of a minor nature:
- a
variation that does no more than change the way the chemical is identified and
- a
variation that specifies an end use for a chemical instead of a generalised end
use.
The discretionary matters that the Minister may have
regard to when deciding whether to make, vary or revoke a scheduling decision
are set out in clause 16 as follows:
- earlier
Commonwealth risk assessments in relation to the chemical[104]
- a
risk assessment in relation to the chemical undertaken by a Commonwealth entity
(but that does not fall within the definition of Commonwealth risk assessment
in clause 7)
- a
risk assessment in relation to the chemical undertaken by a state or territory
government body, a foreign government body or a public international
organisation
- any
environmental, social or economic matter that the Minister considers relevant
- any
relevant information given to the Minister by an ‘entrusted IC person’[105]
and
- any
other matters that are specified in the rules or that the Minister considers
relevant.
Decision-making principles
Clause 13 requires the Minister to comply with the decision-making principles when making, varying or
revoking a scheduling decision and provides that the Minister cannot make a
scheduling decision unless the decision-making principles are in force. The
Minister may make, vary or revoke these decision‑making principles by
legislative instrument under clause 23. The Department’s submission to
the Senate Committee inquiry further explains:
The Principles will set out criteria for deciding which
Schedule of the Register an industrial chemical (or particular use of an
industrial chemical) should be assigned to, according to its level of concern
to the environment. These criteria are called risk characteristics.[106]
According to the Department, the principles are expected
to be made ‘shortly after passage of the Bill’.[107]
Draft
principles have already been published on the Department’s website.[108]
Clause 24 also requires a mandatory 20 business day public consultation
period before the Minister makes, varies or revokes the principles. Clause
25 requires the Minister to consult with state and territory Environment
Ministers before making, varying or revoking the decision-making principles.[109]
The notes to subclauses 23(1) and (2) of the
Bill state that the decision-making principles will be exempt from disallowance
and sunsetting provisions of the Legislation Act
2003. The Department’s submission to the Senate Committee inquiry
explains:
The Principles represent a key component of the National
Standard and will be developed in collaboration with the states and
territories, and consultation with stakeholders. Were they to be subject to
disallowance or sunsetting, the collaborative interjurisdictional effort that
went into the development of the National Standard could be undermined. Subsections
44(1) and 54(1) of the Legislation Act ensure the integrity of these
interjurisdictional schemes is maintained.[110]
However, as outlined earlier in this Digest, the Scrutiny
of Bills Committee expressed concern that the principles will be set out in non-disallowable
legislative instrument, particularly given their significance to the operation
of the proposed regime.
Public consultation before
scheduling decisions
Clause 17 requires the Minister to undertake public
consultation before making, varying or revoking a scheduling decision. The
Minister must publish a notice on the Environment Department’s website inviting
submissions on the proposed scheduling decision (or the proposed variation or
revocation). The timeframe to provide submissions to the Minister must be no
less than 20 business days.[111]
Under subclause 17(3), public consultation is not
required for a minor variation of a scheduling decision. Subclauses 17(4)
and (5) provide that the following are taken to be minor variations:
- a
variation that does no more than change the way the chemical is identified and
- a
variation that specifies an end use for a chemical instead of a generalised end
use.
The Explanatory Memorandum suggests this would, for
example, allow variations to correct a typographical error or substitute the
proper name of the chemical without having to undertake public consultation
again:
This is considered appropriate because such variations would
not affect the substance of the original scheduling decision.[112]
Clause 18 provides an exception to this public
consultation requirement if an assessment certificate has been issued in
relation to a particular industrial chemical, although the Minister may still
consult the holder of the assessment certificate and the public if appropriate.[113]
Assessment certificates are issued under Industrial Chemicals Act:[114]
An assessment certificate issued under the Industrial
Chemicals Act 2019 relates to the proposed introduction to Australia (by
import or manufacture) of a new industrial chemical or a new use of an
industrial chemical. The proposed new chemical or use will have already been
the subject of consultation under that Act and further public consultation will
not generally be considered useful. A newly introduced chemical or use may also
be the subject of confidential business information protections, making public
consultation inappropriate. However, targeted consultation with the holder of
the assessment certificate (the proposed introducer) may still be considered
appropriate or necessary in the particular circumstances.[115]
Under clause 19, the Minister may, by written
notice, request information that is relevant to a scheduling decision from a
specific person, such as the introducer of an industrial chemical, a relevant
industry body, a Commonwealth body or Department or an independent expert.[116]
Clause 20 also provides a mechanism for the
Minister to make a public call for information, via the Environment Department’s
website, relevant to the making, varying or revoking of a scheduling decision.
As the Explanatory Memorandum notes, clauses 19 and 20
are not intended to be coercive powers, and the Minister would not be able to
compel a person to provide information in response to a request or invitation
made under subclauses 19(1) and 20(1).[117]
Under clause 21, the Commonwealth Minister may (but
is not required to) consult with state or territory environment ministers before
making, varying or revoking a scheduling decision.
Advisory Committee
Clause 27 in Part 3 of the ICEMR Bill establishes
the Advisory Committee on the Environmental Management of Industrial Chemicals
to provide independent expert advice to the Minister.[118]
Clause 28 provides that the Advisory Committee’s
functions include advising the Minister about matters that are referred to it
by the Minister and that relate to the making, variation or revocation of a
scheduling decision for a relevant industrial chemical, the Register or the
decision‑making principles. Other functions can be conferred on the
Advisory Committee by the rules made under clause 76 (as discussed later
in this Digest).
Clause 29 provides that the Advisory Committee
consists of a Chair and at least three, but not more than eight, other members.
Advisory Committee members are appointed by the Minister under clause 30.
A person is not eligible to be appointed as an Advisory Committee member unless
the Minister is satisfied that the person has substantial experience or
knowledge, and significant standing, in certain fields as specified in
subclause 30(3), such as industrial chemistry, ecotoxicology, environmental
risk management, environmental health, human toxicology, applied socio-economic
analysis, ecology, or chemical or environmental regulation.
Rules
Clause 76 in Part 6 of the ICEMR Bill enables the
Minister to make rules prescribing matters to support the proposed ICEMR Act.
Several clauses in the Bill provide for matters to be prescribed in the rules
including:
- other
risk assessments that will be characterised as Commonwealth risk assessments (under
the definition of Commonwealth risk assessment in clause 7)
- international
agreements under which Australia has obligations in relation to industrial
chemicals. The Minister must have regard to any international agreement
prescribed in the rules when making, varying or revoking a scheduling decision
(clause 15)
- other
matters the Minister must or may have regard to when making, varying or
revoking a scheduling decision (clauses 15 and 16)
- additional
functions of the Advisory Committee (clause 28) or the AICIS Executive
Director (clause 72) and
- matters
relating to collecting and recovering the scheduling charge (clause 69).
The rules would be a legislative instrument for the
purposes of the Legislation Act, but would not be disallowable or
subject to sunsetting.[119]
The Explanatory Memorandum states:
This is because the enabling legislation for the rules (being
this Bill) facilitates the establishment or operation of an intergovernmental
scheme involving the Commonwealth and one or more states, and authorises the
instrument to be made for the purposes of the scheme.[120]
As outlined earlier in this Digest, the Senate Scrutiny of
Bills Committee raised concerns that this means that significant matters
relating to the operation of the regime are being left to delegated legislation
which is exempt from parliamentary disallowance and sunsetting.
Cost recovery
The ICEMR Bill, along with the Charges Bills, establish
cost recovery arrangements for the proposed scheme. Part 5 of the ICEMR Bill sets
out provisions relating to the scheduling charge, including who is liable for
the charge (clause 67), when the charge is due for payment (clause 68)
and enabling rules to be made for the collection and recovery of the charge (clause
69).
Clause 67 provides that that a registered
introducer for a registration year would be liable to pay the scheduling
charge. A registered introducer for a registration year means a person
registered under section 17 of the Industrial Chemicals Act.[121]
As the Explanatory Memorandum states:
In practice, this will mean that a person who is liable under
the Industrial Chemicals Act 2019 to pay a registration charge in
respect of the introduction of a new industrial chemical (or a new use of an
existing industrial chemical) would also be liable to pay a scheduling charge
under this Bill. This is appropriate as it recognises that there will be no
separate application to assess a new industrial chemical (or a new use of an
existing industrial chemical) under the Bill for the purposes of making a
scheduling decision. Rather, it is intended that an application for
registration of a new industrial chemical (or a new use of an existing
industrial chemical) under the Industrial Chemicals Act 2019 will be a
trigger for the Minister to assess the environmental risks of the proposed
chemical or use for the purposes of making one or more scheduling decisions
under the Bill.[122]
The scheduling charge is then imposed under the Charges
Bills.[123]
The Charges Bills enable the amount of charge payable to be prescribed in
regulations.[124]
The definition of ‘amount’ enables the charge to be nil.[125]
The Explanatory Memorandum to the ICEMR Bill states:
Consistent with the Australian Government Charging Framework,
the amount of the scheduling charge imposed under the relevant charges Bills
would be determined through a Cost Recovery Implementation Statement. The
amount will also be required to recover no more than the Commonwealth’s likely
costs and, as such, will be limited in amount to the approximate cost of services
rendered by the Commonwealth.[126]
As discussed earlier in this Digest, the Senate Scrutiny
of Bills Committee raised some concerns in relation to the Charges Bills.
Similarly, as noted in the ‘position of major interest groups’ section earlier
in this Digest, several industry groups raised concerns about the proposed cost
recovery arrangements. However, law firm Clayton Utz has suggested that, ‘while
adapting to the new scheme may require up‑front costs to a business, the
single national register is intended to lead to significant reductions in
compliance costs in the long term’.[127]
Confidentiality and information
sharing
Part 4 of the ICEMR Bill contains provisions dealing with
confidential information, the use and disclosure of protected information and
other information sharing matters. These provisions are adequately explained in
the Explanatory Memorandum to the ICEMR Bill. According to the Department’s
submission to the Senate Committee inquiry:
These provisions allow the Minister to decide whether to
publicly release information based on a weighing of the commercial interests of
companies in keeping specific information confidential against the public
interest in information being made available. The Bill also ensures that
companies are consulted on proposed decisions to release information and have
rights to reconsideration and review of decisions.[128]