Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



What goes around comes around

Introduction

 

 

The Product Stewardship Bill 2011 ("the Bill" or the "the Act") establishes a national framework underpinned by Commonwealth legislation of voluntary, co-regulatory and mandatory schemes to more effectively manage the recycling and safe disposal of products containing hazardous materials.

 

 

Manufacturers, importers and distributors alike, will be encouraged and required to take responsibility for those products, by taking action such as avoiding generating waste and hazardous substances and ensuring that such waste is recycled and disposed of in a safe, scientific and environmentally sound way.

 

 

The Bill also aims to contribute to the meeting of Australia's international obligations concerning the impacts of the waste, reduction of greenhouse gases and energy and water consumed in such dealings.

 

 

Background to the Bill

 

 

Australia is projected to produce 150 per cent more waste in 2020–21 compared with 2002–03 levels[1]. With waste generation in Australia steadily increasing in volume, complexity and toxicity the National Waste Policy was implemented in an attempt to reduce waste for disposal and to manage it as a resource to deliver economic, environmental and social benefits.

 

 

Product Stewardship is purportedly seen as a key method to help meet the objectives of the

 

National Waste Policy by sharing responsibility amongst manufacturers, consumers, Government and the community for reducing the environmental, health and safety 'footprint' of manufactured goods across the life cycle of a product.

 

 

Product Stewardship

 

 

The Bill introduces three types of regulations: voluntary, co-regulatory and mandatory.

 

 

Voluntary

 

The voluntary provisions of the Bill establish a mechanism to encourage and recognise product stewardship without the need to regulate the arrangements.

 

 

Accreditation of eligible schemes and the availability of Product stewardship 'logos' will also exist to assure the Community that a voluntary scheme is operating to achieve its stated and measured outcomes.

 

 

 

Co-Regulatory

 

On the other hand, a co-regulatory scheme would involve a combination of government regulation and industry action. 'Liable parties' of manufacturers, importers, distributors and users of products, would be required to be part of these regulations.

 

 

A 'liable party' for a class of products includes anyone who has at any time manufactured, imported, distributed or used a product in that class in Australia. However the Minister can exempt parties if it so chooses.

 

 

Under the arrangements it is the responsibility of such parties to take reasonable steps, as well as to appoint an 'administrator' to report on the arrangements and to ensure the outcomes and requirements are achieved.

 

 

Anti-avoidance provisions will also exist and the Government will have the ability to issue improvement notices to administrators, and require arrangements to be audited.

 

 

Mandatory

 

Mandatory product stewardship requires 'liable parties' to take, or not to take, specified action in relation to products. These requirements might include restricting the manufacture or import of products, labelling requirements and requirements relating to the treating or disposing of products.

 

 

In addition, as a matter of government policy, a regulatory impact assessment of the proposed regulations would also have to be satisfied.

 

 

Under mandatory arrangements civil penalties and infringement notices can be issued for contravention of the regulations.

 

 

Enforcement and Sanctions

 

 

According to the Bill, the Government has the power to require inspections to identify contraventions of the Act. Such a breach can result in pecuniary penalties as well as publication of the offence.

 

 

However, there is provision for the review of decision either by the Minister personally or by an internal review by the Administrative Appeals Tribunal.

 

 

The court is also given power to regulate any undertakings made or given under the Act.

 

 

 

Which products does it apply to?

 

 

The 'Product Stewardship Criteria' are satisfied in relation to a class of products if: 

 

 

  •  the products in the class are in a national market; and
  • at least one of the following applies in relation to the products in the class:

    -    t
    he products contain hazardous substances;
    -
             there is the potential to significantly increase the conservation  of materials used in the products, or the recovery of resources (including materials and energy) from waste from the products;
    -  
          there is the potential to significantly reduce the impact that the products have on the environment, or that substances in the products have on the environment.

     

The Government will have regard to the above criteria in determining whether to accredit voluntary schemes and as well as in determining whether to enforce co-regulatory or mandatory regulations for certain products.

 

 

In Australia there are six products or materials that are currently subject to assessment for product stewardship or have been previously assessed by the Environment Ministerial Council. These include:

 

 

-          packaging

 

-          plastic bags

 

-          mercury containing lights

 

-          computers and televisions;

 

-          tyres

 

-          packaging and litter (including beverage containers)

 

 

The National Waste Implementation Plan has identified these as the priority products to be covered under product stewardship schemes in the first two to three years.

 

What does it mean for my business?

 

 

The Bill has ramifications for importers and manufacturers who trade in products that are in a national market as well as Local Government insofar as their involvement in the collection of the products.

 

One of the concerns of the scheme held by industry was whether reporting requirements and powers of investigation would mean confidential commercial information could become available in the public domain. The Bill has attempted to address this by making it an offence to disclose any information obtained as a result of the Act that is not authorised and might substantially prejudice an entity's commercial interests. There is also a limitation on the ability of courts and tribunals to require the disclosure of protected information.

 

 

Although 12 months notice must be given to the relevant class of products (unless there are special circumstances), the regulations may require any of the following; the restriction of the manufacture, import, export, distribution or use of a product or the substances contained within it, changes to labelling and packaging restrictions and the requirement of communication and records of the distribution, recycling and recovering of products.

 

 

Therefore in anticipation of the impact of the changes and having regard to possible sanctions, the passing of such a Bill requires action by industry, local government and other affected parties alike.

 

 

With industry-leading expertise in this area of law Hunt & Hunt have the knowledge and the resources to assist and advise your business with the seamless implementation of the new laws and schemes with commercially viable outcomes. As ever, we would be happy to assist with readying your business for the changes.



[1] Environment Protection and Heritage Council (EPHC), National Waste Report 2010, March 2010, p. 3, as referred to in, Product Stewardship Bill 2011, Explanatory Memorandum, Commonwealth of Australia 2011 p. 2

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