Coalition Senators' additional comments

Coalition Senators' recommendations

Recommendation 1

That the government delay passage of the bill to consult with stakeholders both on the recommendations made in the Main Report, and the suggestions and recommendations made in the following additional comments from Coalition Senators.

Recommendation 2

That the Government re-work each of criteria to be met before a product or substance is to be subject to the bill, so as to have a clear and limited meaning, relevant to the objects of the Act.

That the Government then consider increasing from two, the threshold number of criteria to be met.

Coalition Senators' comments

The Coalition fully supports the principle of sharing responsibility for reducing the environmental health and safety footprint of manufactured goods and materials across the lifecycle of a product.[1] However, in trying to achieve this outcome, the bill has a number of shortcomings.

Whilst the term 'product stewardship' may well have been 'industry' vernacular for some time, it is not clear whether it became recognised and utilised government vernacular before the enunciation of Priority Strategy 1 of the National Waste Policy published in November 2009.[2] Consequently, whilst the term 'product stewardship' is far from public parlance, it might only have been government and industry parlance for just over a year before the Government introduced this bill and the committee started this inquiry. That has left some key stakeholders unaware, and resulted in others becoming belatedly aware, of the intended meaning of and relevance to them of this bill.

This uncertainty has been compounded by the relative haste with which the government has pursued this bill, and has been exacerbated by the fact that the government did not release an exposure draft of the bill, prior to introducing it in Parliament. Regrettably, this situation is causing some distress to the television and computer industries, many of whom have been working responsibly, long and hard towards a national and industry-run product stewardship program for their industry. This bill, whilst necessary to give 'legislative legs' to a scheme for IT, televisions and computers, is about far more than that. That scheme should not be used as a 'stalking horse' for the passage of this bill.

Coalition Senators now address our particular concerns in more detail.

Consultation

Several witnesses raised concerns regarding the amount of, and in reality, lack of, consultation on the bill. While the Coalition notes comments in paragraphs 3.70–3.73 of the Main Report, it is hollow reassurance to those affected by a framework bill to claim that consultation on the general question of 'product stewardship' in Australia amounted to consultation on the detail of the consequent bill.

Senator FISHER—So am I correct in understanding that the earliest date upon which you are able to reassure this committee that each and every member of the consultation body saw this bill was on 23 March, when it was introduced into parliament?

Dr Wright—The stakeholder reference group that I think you are referring to was briefed. Presentation was made to the stakeholder reference group on the approaches—

Senator FISHER—Did they see the bill?

Dr Wright—taken to the bill. As I have already answered, there was no exposure draft of the bill, so the first point at which those people—and parliamentarians—saw the bill was when it was introduced, and this is normal practice.[3]

This, coupled with these sorts and other concerns raised by Australian Chamber of Commerce and Industry in its submission lodged after the hearing into this bill, suggest the government could do worse than delay passage of the bill so that the government can consult with stakeholders both on the recommendations made in the Main Report, and the suggestions and recommendations made in the following additional comments.

Recommendation 1

Objects of the bill

The objects of the bill refer to reducing the impact that products have on the environment, and health as safety, without giving a sense of whether the intent is to reduce ‘bad’ impacts, or any impacts at all. Evidence from the Department of Sustainability, Environment, Water, Population and Communities failed to clarify, arguably leaving industry confused as to how to best start.

Dr Wright—One of the things to remember is that this legislative framework seeks to embrace mandatory, co-regulatory and voluntary product stewardship. With voluntary product stewardship you could envisage that there are many things that would benefit from organisations and companies getting together to improve their products and deal with end-of-life issues. If one had tighter definitions of the objects and those criteria, then that would preclude many of the voluntary schemes they would need to sit outside the legislative framework. Also, not everything is in the legislation—

Senator FISHER—Clearly.

Dr Wright—nor should it be in the legislation. In the national waste policy itself, it articulates the mechanism and the forum through which products will be assessed, where there will be consultation and assessment of any other products that are to be considered to sit within this framework—that is, the Environment Protection and Heritage Council. That is quite important because the focus of this is a national framework and to have a national framework there needs to be agreement and commitment from all jurisdictions to its implementation. A lot of the assessment sits outside the legislative framework and that also is quite usual.

Senator FISHER—Thank you. So you have suggested that the objects need room to allow for positive impact for voluntary things. Are you saying that you also need to allow room for positive impacts for mandatory things and if not where does the bill say you need negative impacts before you can mandate?

Dr Wright—Your question is based on the premise that there is a need to say negative or positive and to distinguish between the two.

Senator FISHER—I am trying to see how industry is going to distinguish and how we are actually going to achieve this. It sounds good, but that does not mean it is going to do good. Could you answer the question, please continue, I am sorry I interrupted.

Dr Wright—I am not sure that I understand the thinking behind the question—

Senator FISHER—Does that matter? Can you answer it?

Dr Wright—because of the fact that assessments need to occur before a product can either be accredited under voluntary or subject to mandatory. There would be few products, articles and material that did not need a number of aspects addressed or meet a number of the criteria.

Senator FISHER—Exactly.

Dr Wright—For example, recycling an aluminium can would provide resource recovery and also delivers greenhouse and energy benefits above the use of virgin materials, but it would only be regulated if it met the regulation impact test. If not then a separate system is being developed—it is not fully developed yet—on voluntary accreditation.[4]

The Food and Grocery Council said:

Mr Mahar—Absolutely. While we agree with the objectives and the intent of the bill—and we support that—

Senator FISHER—Or what we think the intent of the bill is, given that the objectives are not all that clear.

Mr Mahar—Based on the broad interpretation. While we support that, our concern is that it leaves too much scope opportunity for secondary regulations to be made in relation to a range of products that are not necessarily compatible with product stewardship schemes or do not lend themselves to arrangements, mandatory or otherwise, that can be implemented under that bill. In our view the criteria currently in the bill are too broad, too wide and too numerous to allow any certainty for business.[5]

Coverage of the bill – what is not covered?

In addition to evidence to which the Main Report refers on this issue, Mr Angel, of the Total Environment Centre, agreed that the bill in its terms could apply to every substance and every product, but suggested that ministerial discretion would set appropriate boundaries.

Mr Angel—What in this bill makes it apply to everything? On paper everything; in practice potentially nothing, as I have outlined.

Senator FISHER—Which would be dumb.

Mr Angel—Yes. So it will be somewhere in the middle, or somewhere closer to not very many. Knowing how government processes work, how government regulatory assessments work, how industry negotiates and how we have had to work on the various committees, in reality it does not apply to everything. Frankly, I think it is the sort of fiction that puts the bill in a completely wrong perspective and light. What legislation makes everything happen unless it says that everything is going to come under it? It is a discretionary exercise and discretion in ministerial and government terms is very bounded.[6]

Dr Diana Wright of the Department of Sustainability, Environment, Water, Population and Communities gave evidence that:

...not every product or material will get through the regulatory impact assessment and be a suitable candidate for regulation.[7]

The Coalition considers that the bill needs to do much more work in ‘setting the boundaries’, particularly given that the bill can result in every substance and every product being subject to the bill, not only in terms of dealing with it at the ‘end’ of its life, but also during its life. While the bill is largely concerned with impacts at end-of-life, it is misleading to think it is entirely so - for example, reducing hazardous content could arguably reduce negative impact during the working life of a product.

Coverage of the bill – where does industry start?

The Main Report conveys the sentiment of many witnesses lamenting the fact that the bill fails to give industries 'wanting to do the right thing' any sense of where they could most constructively start. They talked about 'low hanging' fruit.

Coalition Senators note the recommendations in the Main Report as to developing a 'priority list'. This would help. Whilst we acknowledge that developing a 'prescriptive' list would not help, it is not clear how the recommended 'priority' list would interact with the provisions of the bill. If the bill could result in substances or products additional to the 'priority list' being subject to the bill, then witnesses concerns about the breath of and uncertainties inherent in, the bill, remain relevant.

Coverage of the bill – insufficient checks or balances

For industry seeking guidance, the 'requirements' set out in paragraph 3.14 of the Main Report are not necessarily reassuring.

Taking some of those key 'requirements' in turn:

Consultation thus far, has been criticised, and the objects of the Act lack clarity.
The six criteria of the bill, two of which must be met before a product or substance can be subject to the bill, are so broad as to either apply to every product and substance (eg criterion (f)) and/or to be meaningless.
Parliamentary processes allowing disallowance of regulation are a last resort.

Criteria too broad to 'filter' much

The Coalition notes comments in the Main Report paragraphs 3.7–3.14, highlighting concerns about the broad and wide ranging nature of the product stewardship (a) to (f) criteria contained in clause 5 of the bill.

Each of the criteria has been criticised as being broad and insufficient as a filter, and could mean the product stewardship could apply to every substance and every product. Here are some examples.

The Food and Grocery Council agreed with the proposition that criterion (a) was very broad, stating that all of its products are sold in the national market and they would struggle to think of any products which aren’t. Therefore their members’ products arguably could all qualify under criterion (a) of this bill.[8]

The Food and Grocery Council also referred to criteria (c) and (e):

Criterion F is a good example, but there are a couple of others in that list. One of them requires that the consumer is willing to pay for action and the potential to increase conservation or recycling of materials. It is our view that that is quite vague. The breadth and leeway in some of those criteria is so broad that it opens the door for product stewardship schemes for a whole range of issues that do not necessarily take into account the impact of that scheme.[9]

When Mr Russ Martin of the Global Product Stewardship Council was asked if criterion (f) could apply to any product, he conceded that it could.[10]

In its supplementary submission, the National Association of Retail Grocers of Australia referred to criterion (b) and noted:

Requirement (b) is problematic because the Bill does not define ‘hazardous’, and in the absence of a definition many materials can be described as hazardous even though they have little or no impact and present no risk in regular usage or disposal. The lead contained in CRTs and solder is an example and there are many others. This criterion needs to be reworded in terms of the material in question presenting a genuine hazard in use or if disposed of in a way other than proposed under a scheme.[11]

Given that the six criteria in (a)–(f) of the bill, two of which must be met before a product or substance can be subject to the bill, are so broad as to either apply to every product and substance (eg criterion (f)) and/or to be meaningless, it would not help to increase the threshold requirement from 2 to (as suggested by some) 3. Rather, each of the criteria should be re-worked so as to have a clear and limited meaning, relevant to the objects of the Act. Failure to do so makes a mockery of any 'filter' claims.

That done, it might then also make sense to increase the threshold number of criteria to be met.

Recommendation 2

That the Government re-work each of criteria to be met before a product or substance is to be subject to the bill, so as to have a clear and limited meaning, relevant to the objects of the Act.

That the Government then consider increasing from two, the threshold number of criteria to be met.

Trademark issues – late submission

Coalition Senators note the late submission from the Law Council of Australia, and that the committee was unable to consider it. That said, Coalition Senators urge the Government to consider and consult about the issues raised in that submission, to ensure that the bill does not cause trademark issues.

Senator Mary Jo Fisher Senator Simon Birmingham
Deputy Chair

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