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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Recycling and Waste Reduction Bill 2020
No. , 2020
(Environment)
A Bill for an Act to reduce the environmental and
other impacts of products and waste material, and
for related purposes
No. , 2020
Recycling and Waste Reduction Bill 2020
i
Contents
Chapter 1--Introduction
1
Part 1--Preliminary provisions
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects of this Act ............................................................................. 2
4
Minister to have regard to certain matters in exercising
powers and functions ......................................................................... 3
5
Simplified outline of this Act ............................................................ 3
6
Act binds the Crown .......................................................................... 5
7
Extension to external Territories ....................................................... 6
8
Extraterritorial application ................................................................. 6
9
Concurrent operation of State and Territory laws .............................. 6
Part 2--Interpretation
7
10
The Dictionary ................................................................................... 7
11
Definition of
associate
..................................................................... 12
12
Definition of
entered for export
....................................................... 13
13
Definition of
export operations
....................................................... 13
14
When the
product stewardship criteria
are satisfied ....................... 13
15
Definition of
waste material
............................................................ 14
Chapter 2--Regulating the export of waste material
15
Part 1--Introduction
15
16
Simplified outline of this Chapter .................................................... 15
Part 2--Exporting waste material
17
17
Rules may prescribe waste material for the purposes of this
Act ................................................................................................... 17
18
Rules may prohibit export of regulated waste material
subject to conditions ........................................................................ 17
19
Export declaration--general requirements ...................................... 18
20
Exporting regulated waste material--non-compliance with
prescribed export conditions ............................................................ 19
21
Knowingly making false or misleading representation about
regulated waste material that is entered for export .......................... 19
22
Recklessly making false or misleading representation about
regulated waste material that is entered for export .......................... 20
23
Knowingly making false or misleading representation in
relation to an export declaration ...................................................... 21
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Recycling and Waste Reduction Bill 2020
No. , 2020
24
Recklessly making false or misleading representation in
relation to an export declaration ...................................................... 22
Part 3--Exemptions
24
25
Application for exemption ............................................................... 24
26
Minister must decide whether to grant exemption ........................... 24
27
Exemption may be granted subject to conditions ............................ 25
28
Notice of decision ............................................................................ 26
29
Period of effect of exemption .......................................................... 27
30
Variation of conditions of exemption .............................................. 27
31
Revocation of exemption ................................................................. 28
32
Effect of exemption ......................................................................... 28
Part 4--Grant of export licence
29
33
Application for export licence ......................................................... 29
34
Minister must decide whether to grant export licence ..................... 29
35
Conditions of export licence ............................................................ 31
36
Matters to be stated in export licence .............................................. 32
37
Period of effect of export licence ..................................................... 32
Part 5--Renewal of export licence
34
38
Application to renew export licence ................................................ 34
39
Minister must decide whether to renew export licence .................... 35
40
Conditions of renewed export licence ............................................. 36
41
Matters to be stated in renewed export licence ................................ 37
Part 6--Variation of export licence
38
Division 1--Application by holder
38
42
Application by holder to vary export licence ................................... 38
43
Notice of variation ........................................................................... 39
Division 2--Variation by Minister
41
44
Minister may vary export licence .................................................... 41
45
Notice of variation ........................................................................... 43
Part 7--Suspension of export licence
45
46
Grounds for suspension--general .................................................... 45
47
Grounds for suspension--overdue relevant Commonwealth
liability ............................................................................................ 47
48
Notice of suspension ........................................................................ 48
49
Period of suspension ........................................................................ 49
50
Revocation of suspension ................................................................ 49
51
Effect of suspension ........................................................................ 49
No. , 2020
Recycling and Waste Reduction Bill 2020
iii
52
Export operations must not be carried out if export licence is
suspended ........................................................................................ 49
Part 8--Revocation of export licence
51
Division 1--Revocation requested by holder
51
53
Holder may request revocation ........................................................ 51
Division 2--Revocation by Minister
52
54
Grounds for revocation--general .................................................... 52
55
Grounds for revocation--overdue relevant Commonwealth
liability ............................................................................................ 53
56
Notice of revocation ........................................................................ 54
Division 3--Other provisions
56
57
Export operations must not be carried out after export licence
revoked ............................................................................................ 56
58
Minister may require action to be taken after export licence
revoked ............................................................................................ 56
Part 9--Obligations of holders of export licences
58
59
Conditions of export licence must not be contravened .................... 58
60
Additional or corrected information in relation to application
for licence etc. ................................................................................. 59
61
Holder of export licence must notify the Minister of certain
events ............................................................................................... 60
Part 10--Other matters
62
62
Persons who participate in the management or control of
another person's export business ..................................................... 62
63
Minister's powers in relation to associates of holder of
export licence .................................................................................. 62
64
Minister may give directions to holder of export licence................. 63
65
Publishing information about export licences .................................. 64
Chapter 3--Product stewardship
65
Part 1--Introduction
65
66
Simplified outline of this Chapter .................................................... 65
Part 2--Minister's priority list
67
67
Minister's priority list ...................................................................... 67
68
Tabling of Minister's priority list and statement relating to
product stewardship arrangements................................................... 69
Part 3--Voluntary product stewardship
70
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Recycling and Waste Reduction Bill 2020
No. , 2020
69
Exercising rights in product stewardship logo in accordance
with accredited voluntary arrangement ............................................ 70
70
Accreditation of voluntary arrangements ......................................... 70
71
Only certain kinds of voluntary arrangements can be
accredited ........................................................................................ 72
72
Administrator of accredited voluntary arrangement must
notify the Minister of certain events ................................................ 72
73
What is a
product stewardship logo
................................................ 73
74
What are the Commonwealth's
intellectual property rights
in
a product stewardship logo .............................................................. 74
75
Commonwealth's intellectual property rights not limited................ 74
Part 4--Co-regulatory product stewardship
75
Division 1--Requirements for liable parties and administrators
of co-regulatory arrangements
75
Subdivision A--Requirement for liable party to be member of
approved co-regulatory arrangement
75
76
Liable party to be member of approved co-regulatory
arrangement ..................................................................................... 75
77
Who is a
liable party
in relation to a product .................................. 77
78
What is an
approved co-regulatory arrangement
............................ 78
79
Outcomes for approved co-regulatory arrangements ....................... 78
80
Matters to be dealt with by co-regulatory arrangements .................. 79
Subdivision B--Requirements for administrators of approved
co-regulatory arrangements
79
81
Administrator to achieve outcomes for co-regulatory
arrangement ..................................................................................... 79
82
Administrator must notify the Minister of certain events ................ 80
Subdivision C--Requirements for liable parties and
administrators
81
83
Requirement to give reports to the Minister .................................... 81
Division 2--Approving co-regulatory arrangements
83
84
Approving co-regulatory arrangements--application ...................... 83
85
Approving co-regulatory arrangements--decision .......................... 83
Division 3--Reviewing co-regulatory arrangements and
cancelling approvals
86
86
Reviewing approved co-regulatory arrangements ........................... 86
87
Cancelling approvals of co-regulatory arrangements ...................... 86
Division 4--Improvement notices
89
88
Improvement notices ....................................................................... 89
No. , 2020
Recycling and Waste Reduction Bill 2020
v
Division 5--Other matters relating to co-regulatory product
stewardship
91
89
Co-regulatory product stewardship--anti-avoidance ...................... 91
90
Additional or corrected information in relation to approved
co-regulatory arrangements ............................................................. 92
91
Co-regulatory product stewardship--replacing administrator ......... 93
Part 5--Mandatory product stewardship
95
92
Mandatory product stewardship requirements may be
prescribed by rules ........................................................................... 95
93
Mandatory product stewardship--satisfying product
stewardship criteria and furthering objects etc. ............................... 97
94
Mandatory product stewardship--constitutional connection ........... 98
Part 6--Other matters
99
95
Publishing information about arrangements .................................... 99
Chapter 4--Administration
100
Part 1--Introduction
100
96
Simplified outline of this Chapter .................................................. 100
Part 2--Compliance and enforcement
102
Division 1--Powers of investigation and enforcement
102
97
General monitoring powers ........................................................... 102
98
Additional monitoring powers etc. ................................................ 103
99
General investigation powers ........................................................ 104
100
Additional investigation powers etc. ............................................. 105
101
Civil penalty provisions ................................................................. 106
102
Infringement notices ...................................................................... 107
103
Enforceable undertakings .............................................................. 109
104
Injunctions ..................................................................................... 109
Division 2--Power to give directions
111
105
Direction to assist persons performing functions etc. under
this Act .......................................................................................... 111
106
Direction to deal with non-compliance with the requirements
of this Act etc. ............................................................................... 112
107
General provisions relating to directions ....................................... 115
Division 3--Audits
116
Subdivision A--Minister may require audits to be conducted
116
108
Audit of export operations ............................................................. 116
109
Audit of product stewardship arrangements .................................. 117
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Recycling and Waste Reduction Bill 2020
No. , 2020
110
Audit in relation to persons performing functions or
exercising powers under this Act ................................................... 119
111
Single audit or program of audits may be required ........................ 119
112
Matters relating to audits ............................................................... 119
113
Powers of auditors ......................................................................... 120
114
Relevant person for an audit .......................................................... 121
115
Relevant person for an audit must provide facilities and
assistance ....................................................................................... 121
Subdivision B--Approved auditors
122
116
Minister may approve persons to conduct audits ........................... 122
117
Approved auditors may charge fees ............................................... 123
Division 4--Miscellaneous
124
118
Physical elements of offences ........................................................ 124
119
Contravening an offence provision or a civil penalty
provision ........................................................................................ 124
120
Notification of conviction of offence, order to pay pecuniary
penalty etc.--participants in product stewardship
arrangements, export licence holders and applicants for
licences .......................................................................................... 124
121
Notification of conviction of offence or order to pay
pecuniary penalty--third party authorised officers etc. ................. 126
122
Minister may publicise certain offences, contraventions and
decisions ........................................................................................ 126
123
Identity cards ................................................................................. 128
124
Offence--failure to return identity card ........................................ 128
Part 3--Authorised officers
130
Division 1--Authorisation
130
125
Authorisation of persons to be authorised officers ........................ 130
126
Conditions of authorisation ........................................................... 132
127
Third party authorised officers must not contravene
conditions of authorisation ............................................................ 133
128
Arrangements for State or Territory officers or employees to
be authorised officers .................................................................... 134
129
Training and qualification requirements for authorised
government enforcement officers .................................................. 134
Division 2--Variation, suspension and revocation of
authorisation
135
Subdivision A--Variation, suspension and revocation on
Secretary's own initiative
135
130
Variation of authorisation .............................................................. 135
No. , 2020
Recycling and Waste Reduction Bill 2020
vii
131
Suspension of authorisation ........................................................... 136
132
Revocation of authorisation ........................................................... 137
133
Notice of proposed action must be given to third party
authorised officer ........................................................................... 137
Subdivision B--Variation, suspension and revocation on
application or request by third party authorised
officer
138
134
Application for variation of authorisation ...................................... 138
135
Request for suspension of authorisation ........................................ 139
136
Request for revocation of authorisation ......................................... 140
Subdivision C--Other provisions
140
137
Secretary may request notification of certain events by
suspended third party authorised officer ........................................ 140
Division 3--Functions and powers
142
138
Rules may confer functions or powers on authorised officers ....... 142
139
Functions and powers of authorised officers ................................. 142
140
Third party authorised officer must not contravene direction ........ 143
141
Certain authorised officers may charge fees .................................. 143
Part 4--Record-keeping
144
142
Requirements to make and retain records ...................................... 144
Part 5--Information management
146
Division 1--Information gathering powers
146
143
Power to require information or documents .................................. 146
144
Providing and disseminating information ...................................... 147
Division 2--False or misleading information or documents
149
145
False or misleading statements in applications .............................. 149
146
False or misleading information .................................................... 149
147
False or misleading documents ...................................................... 150
Division 3--Protecting information
152
148
Offence--using or disclosing commercially sensitive
information .................................................................................... 152
149
Authorised uses and disclosures .................................................... 152
150
Disclosing commercially sensitive information to courts and
tribunals etc. .................................................................................. 154
Part 6--Review of decisions
155
151
Persons
affected
by
reviewable decisions
...................................... 155
152
Notice of decisions and review rights ............................................ 159
153
Internal review ............................................................................... 159
viii
Recycling and Waste Reduction Bill 2020
No. , 2020
154
Review of decisions by Administrative Appeals Tribunal ............. 159
Part 7--Fees and charges
161
Division 1--Fees
161
155
Charging of fees ............................................................................ 161
156
Commonwealth not liable to pay a fee .......................................... 162
157
Recovery of fees ............................................................................ 162
158
Minister may direct that activities not be carried out ..................... 162
Division 2--Waste material export charge
164
159
Rules relating to waste material export charge .............................. 164
160
Recovery of waste material export charge and late payment
penalty ........................................................................................... 164
161
Minister may direct that activities not be carried out ..................... 165
162
Commonwealth liable to pay waste material export charge
and late payment penalties ............................................................. 165
Part 8--Other matters
166
163
Methods for taking, testing and analysing certain samples ............ 166
164
Storage of samples ......................................................................... 166
165
Test or analysis may result in destruction or reduction in
value of sample .............................................................................. 166
166
Appointment of analyst ................................................................. 167
167
Analyst may give certificate .......................................................... 167
168
Admission of analyst's certificate in proceedings ......................... 168
169
Hindering compliance with this Act etc......................................... 169
170
Influencing a person performing functions or duties or
exercising powers .......................................................................... 170
Chapter 5--Other matters
171
171
Simplified outline of this Chapter .................................................. 171
172
General requirements for making applications .............................. 171
173
Additional or corrected information in relation to
applications .................................................................................... 172
174
Dealing with applications .............................................................. 173
175
Fit and proper persons ................................................................... 173
176
Treatment of partnerships .............................................................. 176
177
Treatment of unincorporated associations ..................................... 176
178
Treatment of trusts ......................................................................... 177
179
Arrangements with States and Territories to help give effect
to this Act ...................................................................................... 178
180
Protection from civil proceedings .................................................. 178
No. , 2020
Recycling and Waste Reduction Bill 2020
ix
181
Circumstances in which relevant Commonwealth liability of
a person is taken to have been paid................................................ 179
182
Power to arrange for certain decisions to be made by
computer programs ........................................................................ 180
183
Compensation for acquisition of property ..................................... 180
184
Annual report ................................................................................. 181
185
Review of operation of this Act ..................................................... 181
186
Delegation--Minister .................................................................... 181
187
Delegation--Secretary................................................................... 182
188
Rules .............................................................................................. 182
No. , 2020
Recycling and Waste Reduction Bill 2020
1
A Bill for an Act to reduce the environmental and
1
other impacts of products and waste material, and
2
for related purposes
3
The Parliament of Australia enacts:
4
Chapter 1--Introduction
5
Part 1--Preliminary provisions
6
7
1 Short title
8
This Act is the
Recycling and Waste Reduction Act 2020
.
9
Chapter 1
Introduction
Part 1
Preliminary provisions
Section 2
2
Recycling and Waste Reduction Bill 2020
No. , 2020
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 3 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of this Act
13
(1) The objects of this Act are as follows:
14
(a) to reduce the impact on human and environmental health of
15
products, waste from products and waste material, including
16
by reducing the amount of greenhouse gases emitted, energy
17
and resources used and water consumed in connection with
18
products, waste from products and waste material;
19
(b) to realise the community and economic benefits of taking
20
responsibility for products, waste from products and waste
21
material;
22
(c) to promote a circular economy that maximises the continued
23
use of products and waste material over their life cycle and
24
accounts for their environmental impacts;
25
Introduction
Chapter 1
Preliminary provisions
Part 1
Section 4
No. , 2020
Recycling and Waste Reduction Bill 2020
3
(d) to contribute to Australia meeting its international obligations
1
concerning the impact referred to in paragraph (a).
2
(2) These objects are to be achieved by:
3
(a) regulating the export of waste material to promote its
4
management in an environmentally sound way; and
5
(b) encouraging and regulating the reuse, recycling and recovery
6
of products, waste from products and waste material in an
7
environmentally sound way; and
8
(c) encouraging and regulating those responsible for using,
9
designing, manufacturing and distributing products to take
10
responsibility for those products, including by taking action
11
that relates to:
12
(i) reducing or avoiding generating waste through
13
improvements in product design; and
14
(ii) improving the durability, reparability and reusability of
15
products; and
16
(iii) managing products throughout their life cycle.
17
4 Minister to have regard to certain matters in exercising powers
18
and functions
19
In performing functions and exercising powers under this Act, the
20
Minister must take a precautionary approach in relation to
21
protecting human and environmental health.
22
5 Simplified outline of this Act
23
This Act creates a framework for reducing the impact on human
24
and environmental health of waste material.
25
Waste material includes any thing that is discarded, rejected or left
26
over from an industrial, commercial, domestic or other activity,
27
and any thing that is surplus to or a by-product of those activities.
28
The Minister may, in rules made under this Act, prescribe kinds of
29
waste material. If the Minister does so, the waste material is called
30
regulated waste material and its export may be prohibited by the
31
Chapter 1
Introduction
Part 1
Preliminary provisions
Section 5
4
Recycling and Waste Reduction Bill 2020
No. , 2020
rules unless certain conditions prescribed by the rules (called
1
prescribed export conditions) are complied with.
2
Conditions may include a requirement to hold an export licence to
3
export the regulated waste material and to provide the Minister
4
with an export declaration before the regulated waste material is
5
exported.
6
The Minister may, on application, grant an exemption to people
7
who wish to export regulated waste material from complying with
8
certain requirements imposed by this Act. An exemption remains
9
in force for up to 12 months, and may be granted subject to
10
conditions. An exemption can be revoked.
11
This Act also creates a framework for reducing the impact on
12
human and environmental health of products and waste from
13
products.
14
A product can include any thing that is manufactured.
15
This Act provides for 3 regimes relating to product stewardship,
16
each of which is designed to encourage or require manufacturers,
17
importers, distributors and other persons to take responsibility for
18
products including, for example, through improved product design.
19
The first regime, called voluntary product stewardship, involves
20
accrediting voluntary arrangements designed to further the objects
21
of this Act in relation to products, and authorising the use of
22
product stewardship logos in accordance with such arrangements.
23
The second regime, called co-regulatory product stewardship,
24
involves requiring some manufacturers, importers, distributors and
25
users of products (called liable parties), who have been specified in
26
the rules, to be members of co-regulatory arrangements approved
27
by the Minister. These arrangements must have outcomes,
28
specified in the rules, that are designed to further the objects of this
29
Act.
30
Introduction
Chapter 1
Preliminary provisions
Part 1
Section 6
No. , 2020
Recycling and Waste Reduction Bill 2020
5
The third regime, called mandatory product stewardship, enables
1
rules to be made that require specified persons to take, or not to
2
take, specified action in relation to products.
3
Authorised officers have powers to ensure people are complying
4
with this Act, to investigate non-compliance and to enforce this
5
Act. Enforcement mechanisms include infringement notices,
6
enforceable undertakings and injunctions.
7
Auditors can conduct audits in relation to export operations,
8
product stewardship arrangements and the performance of
9
functions and the exercise of powers under this Act.
10
The rules may require persons who have obligations under this Act
11
to make and retain specified kinds of records.
12
The Minister has various powers to gather information relating to
13
regulated waste material, product stewardship, the objects of this
14
Act and other matters. The use and disclosure of certain kinds of
15
information is regulated.
16
Certain decisions under this Act may be reviewed by the Minister
17
and by the Administrative Appeals Tribunal.
18
Fees may be charged relating to activities carried out by, or on
19
behalf of, the Commonwealth in the performance of functions or
20
the exercise of powers under this Act.
21
The rules may also make provision in relation to the payment of
22
waste material export charge (which is a tax imposed under related
23
legislation).
24
6 Act binds the Crown
25
(1) This Act binds the Crown in each of its capacities.
26
(2) However, this Act does not make the Crown liable to a pecuniary
27
penalty or to be prosecuted for an offence.
28
Chapter 1
Introduction
Part 1
Preliminary provisions
Section 7
6
Recycling and Waste Reduction Bill 2020
No. , 2020
(3) The protection in subsection (2) does not apply to an authority of
1
the Crown.
2
7 Extension to external Territories
3
This Act extends to every external Territory.
4
8 Extraterritorial application
5
This Act extends to acts, omissions, matters and things outside
6
Australia.
7
9 Concurrent operation of State and Territory laws
8
This Act is not intended to exclude or limit the operation of a law
9
of a State or Territory that is capable of operating concurrently
10
with this Act.
11
Introduction
Chapter 1
Interpretation
Part 2
Section 10
No. , 2020
Recycling and Waste Reduction Bill 2020
7
Part 2--Interpretation
1
2
10 The Dictionary
3
In this Act:
4
accredited voluntary arrangement
: see subsection 70(1).
5
accrediting authority
: see paragraph 70(3)(c).
6
administrator
:
7
(a) of a voluntary arrangement: see paragraph 71(c); and
8
(b) of a co-regulatory arrangement: see paragraph 85(3)(e).
9
affected
: for when a person is
affected
by a reviewable decision,
10
see section 151.
11
approved auditor
means a person approved under
12
subsection 116(1) to conduct audits.
13
approved co-regulatory arrangement
: see section 78.
14
artistic work
has the same meaning as in the
Copyright Act 1968
.
15
associate
: see section 11.
16
auditor
means:
17
(a) an approved auditor; or
18
(b) a Commonwealth authorised officer; or
19
(c) a State or Territory authorised officer.
20
Australia
, when used in a geographical sense, includes the external
21
Territories.
22
Australian law
means a law of the Commonwealth, or of a State or
23
Territory.
24
authorised government enforcement officer
means a
25
Commonwealth authorised officer, or a State or Territory
26
Chapter 1
Introduction
Part 2
Interpretation
Section 10
8
Recycling and Waste Reduction Bill 2020
No. , 2020
authorised officer, who satisfies the requirements determined under
1
section 129.
2
authorised officer
means a person who is authorised under
3
section 125 to be an authorised officer for the purposes of this Act.
4
child
has a meaning affected by subsection 11(2).
5
civil penalty order
has the same meaning as in the Regulatory
6
Powers Act.
7
civil penalty provision
has the same meaning as in the Regulatory
8
Powers Act.
9
Commonwealth authorised officer
means an authorised officer
10
who is an officer or employee of the Commonwealth, or an
11
authority of the Commonwealth.
12
constitutional corporation
means a corporation to which
13
paragraph 51(xx) of the Constitution applies.
14
constitutional trade or commerce
means trade or commerce:
15
(a) between Australia and a place outside Australia; or
16
(b) among the States; or
17
(c) between a State and a Territory; or
18
(d) between 2 Territories.
19
conveyance
means:
20
(a) an aircraft; or
21
(b) a vessel.
22
de facto partner
of a person has the meaning given by the
Acts
23
Interpretation Act 1901
.
24
distribute
includes sell and supply, whether for consideration or
25
not.
26
engage in conduct
means:
27
(a) do an act; or
28
(b) omit to perform an act.
29
entered for export
: see section 12.
30
Introduction
Chapter 1
Interpretation
Part 2
Section 10
No. , 2020
Recycling and Waste Reduction Bill 2020
9
expiry date
, for an export licence: see subsection 37(4).
1
export
means export from Australia.
2
export business
means a business that carries out export operations
3
in relation to a kind of waste material.
4
export declaration
means a written declaration of an intention to
5
export regulated waste material that complies with section 19.
6
export licence
means an export licence granted under Part 4 of
7
Chapter 2.
8
export operations
: see section 13.
9
Finance Minister
means the Minister administering the
Public
10
Governance, Performance and Accountability Act 2013
.
11
improvement notice
means a notice given under section 88.
12
intellectual property rights
: see section 74.
13
liable party
in relation to a product: see section 77.
14
life cycle
of a product includes:
15
(a) the time when the product begins to be manufactured; and
16
(b) the time when the product is waste.
17
Minister's priority list
: see section 67.
18
parent
has a meaning affected by subsection 11(4).
19
prescribed export conditions
means conditions prescribed by rules
20
made for the purposes of section 18.
21
prescribed law
means:
22
(a) a law (other than this Act) that is administered by the
23
Minister; or
24
(b) an Australian law that is prescribed by the rules.
25
product
means a thing (including a substance or mixture of
26
substances) that is:
27
(a) manufactured; or
28
Chapter 1
Introduction
Part 2
Interpretation
Section 10
10
Recycling and Waste Reduction Bill 2020
No. , 2020
(b) prescribed by the rules;
1
and includes a class of such things.
2
product return payment
: see subsection 92(8).
3
product stewardship criteria
: see section 14.
4
product stewardship logo
: see section 73.
5
prospective liable party
: see subsection 89(1).
6
protected information
: see subsection 148(3).
7
recover
includes recover resources, material or energy from
8
products, waste from products or waste material.
9
regulated waste material
: see section 17.
10
Regulatory Powers Act
means the
Regulatory Powers (Standard
11
Provisions) Act 2014
.
12
related body corporate
has same meaning as in the
Corporations
13
Act 2001
.
14
relevant Commonwealth liability
means:
15
(a) any of the following that are due and payable:
16
(i) a fee payable under this Act;
17
(ii) a charge imposed by the
Recycling and Waste Reduction
18
Charges (Customs) Act 2020
;
19
(iii) a charge imposed by the
Recycling and Waste Reduction
20
Charges (Excise) Act 2020
;
21
(iv) a charge imposed by the
Recycling and Waste Reduction
22
Charges (General) Act 2020
; or
23
(b) penalties for late payment of a fee or charge described in
24
subparagraphs (a)(i) to (iv); or
25
(c) a pecuniary penalty, or other liability for an amount, imposed
26
by or under a prescribed law.
27
Note:
A relevant Commonwealth liability of a person is taken to have been
28
paid for the purposes of a provision of this Act in certain
29
circumstances (see section 181).
30
Introduction
Chapter 1
Interpretation
Part 2
Section 10
No. , 2020
Recycling and Waste Reduction Bill 2020
11
relevant court
means:
1
(a) the Federal Court of Australia; or
2
(b) the Federal Circuit Court of Australia; or
3
(c) a Supreme Court of a State or Territory.
4
relevant person
, for an audit under Division 4 of Part 2 of
5
Chapter 4, has the meaning given by section 114.
6
reviewable decision
: see section 151.
7
rules
means the rules made under section 188.
8
scheme
: see subsection 89(6).
9
Secretary
means the Secretary of the Department.
10
State or Territory authorised officer
means an authorised officer
11
who is an officer or employee:
12
(a) of a State or Territory; or
13
(b) of an authority of a State or Territory.
14
stepchild
has a meaning affected by subsection 11(3).
15
third party authorised officer
means a person who is authorised
16
under subsection 125(5) to be a third party authorised officer.
17
this Act
includes:
18
(a) the rules; and
19
(b) the Regulatory Powers Act as it applies in relation to this
20
Act.
21
trade mark
has the same meaning as in the
Trade Marks Act 1995
.
22
waste
, in relation to a product, means waste associated with the
23
product over the life cycle of the product.
24
waste material
: see section 15.
25
waste material export charge
means a charge imposed under:
26
(a) section 7 of the
Recycling and Waste Reduction Charges
27
(Customs) Act 2020
; or
28
Chapter 1
Introduction
Part 2
Interpretation
Section 11
12
Recycling and Waste Reduction Bill 2020
No. , 2020
(b) section 7 of the
Recycling and Waste Reduction Charges
1
(Excise) Act 2020
; or
2
(c) section 7 of the
Recycling and Waste Reduction Charges
3
(General) Act 2020
.
4
11 Definition of
associate
5
(1)
Associate
of a person (the
first person
) includes each of the
6
following:
7
(a) a spouse, de facto partner, child (who is at least 18 years old)
8
or parent of the first person;
9
(b) a person not mentioned in paragraph (a) who is or was:
10
(i) directly or indirectly concerned in; or
11
(ii) in a position to control or influence the conduct of;
12
a business or undertaking of:
13
(iii) the first person; or
14
(iv) a corporation of which the first person is an officer or
15
employee, or in which the first person holds shares;
16
(c) a corporation of which the first person, or any of the other
17
persons mentioned in paragraph (a) or (b), is an officer or
18
employee;
19
(d) if the first person is a body corporate--another body
20
corporate that is a related body corporate of the first person.
21
(2) Without limiting who is a child of another person for the purposes
22
of this Act, a person is the
child
of another person if the person is:
23
(a) a stepchild or adopted child of the other person; or
24
(b) a child of the other person within the meaning of the
Family
25
Law Act 1975
.
26
(3) Without limiting who is a stepchild of another person for the
27
purposes of this Act, a child of a de facto partner of the other
28
person is the
stepchild
of the other person if the child would be the
29
other person's stepchild except that the other person is not legally
30
married to the partner.
31
(4) Without limiting who is a parent of another person for the purposes
32
of this Act, a person is the
parent
of another person if the other
33
Introduction
Chapter 1
Interpretation
Part 2
Section 12
No. , 2020
Recycling and Waste Reduction Bill 2020
13
person is a child of the person because of the definition of
child
in
1
subsection (2).
2
12 Definition of
entered for export
3
Waste material is
entered for export
if, in the course of export
4
operations, the waste material is presented to, or information or a
5
document about the waste material is given to:
6
(a) the Minister; or
7
(b) an authorised officer; or
8
(c) another person who is authorised to exercise powers or
9
perform functions under this Act in relation to the waste
10
material;
11
for the purpose of the Minister, authorised officer or other person
12
exercising powers or performing functions under this Act in
13
relation to the waste material.
14
13 Definition of
export operations
15
Export operations
means:
16
(a) operations to export waste material; or
17
(b) operations to produce, or prepare, waste material for export;
18
or
19
(c) operations (other than operations referred to in paragraph (a)
20
or (b)) in relation to waste material for export before it is
21
exported.
22
14 When the
product stewardship criteria
are satisfied
23
The
product stewardship criteria
are satisfied in relation to a
24
product if:
25
(a) the product is sold in more than one State or Territory; and
26
(b) at least one of the following applies in relation to the product:
27
(i) the product contains hazardous substances;
28
(ii) there is the potential to significantly increase the
29
conservation of materials used in the product, or the
30
recovery of resources (including materials and energy)
31
from waste from the product;
32
Chapter 1
Introduction
Part 2
Interpretation
Section 15
14
Recycling and Waste Reduction Bill 2020
No. , 2020
(iii) there is the potential to significantly reduce the impact
1
that the product has on the environment, or that
2
substances in the product have on the environment, or
3
on the health or safety of humans.
4
Note:
Whether the product stewardship criteria are satisfied in relation to a
5
product is relevant for determining whether:
6
(a) to accredit a voluntary arrangement in relation to that product
7
(see subsection 70(4)); or
8
(b) rules can be made under this Act in relation to the product (see
9
sections 77 (co-regulatory product stewardship--liable parties
10
for products) and 93 (mandatory product stewardship criteria)).
11
15 Definition of
waste material
12
(1)
Waste material
means any thing (including a substance or mixture
13
of substances) that is:
14
(a) discarded, rejected or left over from an industrial,
15
commercial, domestic or other activity; or
16
(b) surplus to or a by-product of an industrial, commercial,
17
domestic or other activity; or
18
(c) prescribed by the rules.
19
(2)
Waste material
can be a gas, liquid, solid or energy, or a
20
combination of any of them.
21
(3) A thing can be
waste material
whether or not:
22
(a) it is of value; or
23
(b) it is or may be processed, recycled, re-used or recovered.
24
Regulating the export of waste material
Chapter 2
Introduction
Part 1
Section 16
No. , 2020
Recycling and Waste Reduction Bill 2020
15
Chapter 2--Regulating the export of waste
1
material
2
Part 1--Introduction
3
4
16 Simplified outline of this Chapter
5
The rules may prescribe kinds of waste material (called regulated
6
waste material) for the purposes of this Act.
7
The rules may prohibit the export of regulated waste material
8
unless conditions prescribed by the rules (called prescribed export
9
conditions) are complied with.
10
A person commits an offence, or is liable to a civil penalty, if the
11
person:
12
(a)
exports regulated waste material in contravention of
13
prescribed export conditions; or
14
(b)
makes false or misleading representations about
15
regulated waste material that is entered for export.
16
The Minister may grant an exemption from one or more provisions
17
of this Act in relation to regulated waste material. An exemption
18
remains in force for up to 12 months, and may be granted subject
19
to conditions. An exemption can be revoked.
20
The Minister may, on application by a person, grant the person an
21
export licence to carry out a kind of export operations in relation to
22
a kind of regulated waste material.
23
An export licence is subject to certain conditions and it may remain
24
in force for a specified period or until a specified event occurs. It
25
cannot remain in force for more than 3 years.
26
An export licence may be varied, renewed, suspended or revoked.
27
Chapter 2
Regulating the export of waste material
Part 1
Introduction
Section 16
16
Recycling and Waste Reduction Bill 2020
No. , 2020
The holder of an export licence must comply with certain
1
obligations, including complying with licence conditions and
2
notifying the Minister of specified events. The Minister may also
3
give written directions to the holder of an export licence which
4
must be complied with.
5
The Minister must publish certain information on the Department's
6
website about export licences that have been granted, including the
7
name of the holder of the licence and the kind of regulated waste
8
material covered by the licence.
9
Regulating the export of waste material
Chapter 2
Exporting waste material
Part 2
Section 17
No. , 2020
Recycling and Waste Reduction Bill 2020
17
Part 2--Exporting waste material
1
2
17 Rules may prescribe waste material for the purposes of this Act
3
(1) The rules may prescribe a kind of waste material for the purposes
4
of this Act.
5
Note:
For prescribing by class, see subsection 13(3) of the
Legislation Act
6
2003
.
7
(2) Waste material prescribed for the purposes of subsection (1) is
8
regulated waste material
.
9
18 Rules may prohibit export of regulated waste material subject to
10
conditions
11
(1) The rules may prohibit the export of regulated waste material
12
unless conditions prescribed by the rules are complied with.
13
Note:
Failure to comply with prescribed export conditions, which must be
14
met before the regulated waste material is exported, is an offence and
15
a civil penalty provision (see section 20).
16
(2) Without limiting subsection (1), the rules may prescribe conditions
17
in relation to the export of regulated waste material that:
18
(a) require the waste material to be exported:
19
(i) in accordance with an export licence; or
20
(ii) in any other way prescribed by the rules; or
21
(b) require export operations to be carried out in relation to the
22
waste material:
23
(i) in accordance with an export licence; or
24
(ii) in any other way prescribed by the rules; or
25
(c) require the exporter to give an export declaration to the
26
Minister before the waste material is exported; or
27
(d) require the exporter to hold either or both of the following:
28
(i) an export licence covering the waste material;
29
(ii) another kind of permission, consent or approval, granted
30
as prescribed by the rules, to export the waste material.
31
Chapter 2
Regulating the export of waste material
Part 2
Exporting waste material
Section 19
18
Recycling and Waste Reduction Bill 2020
No. , 2020
(3) Without limiting paragraph (2)(c), the rules may require the export
1
declaration to be given within a specified period or before a
2
specified event occurs.
3
19 Export declaration--general requirements
4
(1) An export declaration must:
5
(a) if the Minister has approved, in writing, a manner for giving
6
the declaration--be given in an approved manner; and
7
(b) if the Minister has approved a form for the declaration:
8
(i) include the information required by the form; and
9
(ii) be accompanied by any documents required by the
10
form; and
11
(c) include the information (if any) prescribed by the rules; and
12
(d) be accompanied by any documents prescribed by the rules;
13
and
14
(e) be signed and dated by the exporter of the regulated waste
15
material to which the declaration relates.
16
Note 1:
The export of regulated waste material may be prohibited unless an
17
export declaration relating to the waste material is given (see
18
section 18 and rules made for the purposes of that section).
19
Note 2:
A person may commit an offence or be liable to a civil penalty if the
20
person provides false or misleading information or documents (see
21
sections 146 and 147 of this Act and sections 137.1 and 137.2 of the
22
Criminal Code
).
23
(2) An export declaration is taken not to have been given if the
24
declaration does not comply with the requirements in
25
subsection (1).
26
(3) To avoid doubt, the Minister may approve:
27
(a) different forms for export declarations in relation to different
28
kinds of regulated waste material; or
29
(b) a single form for an export declaration for the export of
30
consignments of more than one kind of regulated waste
31
material.
32
Regulating the export of waste material
Chapter 2
Exporting waste material
Part 2
Section 20
No. , 2020
Recycling and Waste Reduction Bill 2020
19
20 Exporting regulated waste material--non-compliance with
1
prescribed export conditions
2
(1) A person contravenes this subsection if:
3
(a) the person exports waste material; and
4
(b) the waste material is regulated waste material; and
5
(c) the export of the waste material is prohibited unless
6
prescribed export conditions are complied with; and
7
(d) prescribed export conditions are not complied with.
8
Fault-based offence
9
(2) A person commits an offence if the person contravenes
10
subsection (1).
11
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
12
(3) For the purposes of subsection (2), strict liability applies to
13
paragraphs (1)(b) and (c).
14
Civil penalty provision
15
(4) A person is liable to a civil penalty if the person contravenes
16
subsection (1).
17
Civil penalty:
600 penalty units.
18
When waste material is exported
19
(5) For the purposes of this section, waste material is exported when
20
the conveyance transporting the waste material from Australia
21
starts its journey to a place outside Australia (whether or not that
22
place is the intended final overseas destination for the waste
23
material).
24
21 Knowingly making false or misleading representation about
25
regulated waste material that is entered for export
26
(1) A person contravenes this subsection if:
27
(a) waste material is entered for export by the person; and
28
(b) the waste material is regulated waste material; and
29
Chapter 2
Regulating the export of waste material
Part 2
Exporting waste material
Section 22
20
Recycling and Waste Reduction Bill 2020
No. , 2020
(c) the export of the waste material is prohibited unless
1
prescribed export conditions are complied with; and
2
(d) at the time the waste material is entered for export:
3
(i) the person represents (either expressly or by necessary
4
implication) that the prescribed export conditions
5
applicable, at or before that time, in relation to the
6
export of the waste material have been complied with;
7
and
8
(ii) the person does so knowing that the representation is
9
false or misleading.
10
Fault-based offence
11
(2) A person commits an offence if the person contravenes
12
subsection (1).
13
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
14
(3) For the purposes of subsection (2), strict liability applies to
15
paragraphs (1)(b) and (c).
16
Civil penalty provision
17
(4) A person is liable to a civil penalty if the person contravenes
18
subsection (1).
19
Civil penalty:
600 penalty units.
20
Exception
21
(5) Subsection (1) does not apply if the representation is not false or
22
misleading in a material particular.
23
Note:
A defendant bears an evidential burden in relation to the matters
24
mentioned in this subsection (see subsection 13.3(3) of the
Criminal
25
Code
and section 96 of the Regulatory Powers Act).
26
22 Recklessly making false or misleading representation about
27
regulated waste material that is entered for export
28
(1) A person contravenes this subsection if:
29
(a) waste material is entered for export by the person; and
30
Regulating the export of waste material
Chapter 2
Exporting waste material
Part 2
Section 23
No. , 2020
Recycling and Waste Reduction Bill 2020
21
(b) the waste material is regulated waste material; and
1
(c) the export of the waste material is prohibited unless
2
prescribed export conditions are complied with; and
3
(d) at the time the waste material is entered for export:
4
(i) the person represents (either expressly or by necessary
5
implication) that the prescribed export conditions
6
applicable, at or before that time, in relation to the
7
export of the waste material have been complied with;
8
and
9
(ii) the person does so reckless as to whether the
10
representation is false or misleading.
11
Fault-based offence
12
(2) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty: Imprisonment for 3 years or 180 penalty units, or both.
15
(3) For the purposes of subsection (2), strict liability applies to
16
paragraphs (1)(b) and (c).
17
Civil penalty provision
18
(4) A person is liable to a civil penalty if the person contravenes
19
subsection (1).
20
Civil penalty:
360 penalty units.
21
Exception
22
(5) Subsection (1) does not apply if the representation is not false or
23
misleading in a material particular.
24
Note:
A defendant bears an evidential burden in relation to the matters
25
mentioned in this subsection (see subsection 13.3(3) of the
Criminal
26
Code
and section 96 of the Regulatory Powers Act).
27
23 Knowingly making false or misleading representation in relation
28
to an export declaration
29
(1) A person contravenes this subsection if:
30
Chapter 2
Regulating the export of waste material
Part 2
Exporting waste material
Section 24
22
Recycling and Waste Reduction Bill 2020
No. , 2020
(a) waste material is entered for export by the person; and
1
(b) the waste material is regulated waste material; and
2
(c) at the time the waste material is entered for export:
3
(i) the person makes a representation (either expressly or
4
by necessary implication) in relation to any matters that
5
are to be stated in an export declaration; and
6
(ii) the person does so knowing that the representation is
7
false or misleading.
8
Fault-based offence
9
(2) A person commits an offence if the person contravenes
10
subsection (1).
11
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
12
(3) For the purposes of subsection (2), strict liability applies to
13
paragraph (1)(b).
14
Civil penalty provision
15
(4) A person is liable to a civil penalty if the person contravenes
16
subsection (1).
17
Civil penalty:
600 penalty units.
18
Exception
19
(5) Subsection (1) does not apply if the representation is not false or
20
misleading in a material particular.
21
Note:
A defendant bears an evidential burden in relation to the matters
22
mentioned in this subsection (see subsection 13.3(3) of the
Criminal
23
Code
and section 96 of the Regulatory Powers Act).
24
24 Recklessly making false or misleading representation in relation
25
to an export declaration
26
(1) A person contravenes this subsection if:
27
(a) waste material is entered for export by the person; and
28
(b) the waste material is regulated waste material; and
29
Regulating the export of waste material
Chapter 2
Exporting waste material
Part 2
Section 24
No. , 2020
Recycling and Waste Reduction Bill 2020
23
(c) at the time the waste material is entered for export:
1
(i) the person makes a representation (either expressly or
2
by necessary implication) in relation to any matters that
3
are to be stated in an export declaration; and
4
(ii) the person does so reckless as to whether the
5
representation is false or misleading.
6
Fault-based offence
7
(2) A person commits an offence if the person contravenes
8
subsection (1).
9
Penalty: Imprisonment for 3 years or 180 penalty units, or both.
10
(3) For the purposes of subsection (2), strict liability applies to
11
paragraph (1)(b).
12
Civil penalty provision
13
(4) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Civil penalty:
360 penalty units.
16
Exception
17
(5) Subsection (1) does not apply if the representation is not false or
18
misleading in a material particular.
19
Note:
A defendant bears an evidential burden in relation to the matters
20
mentioned in this subsection (see subsection 13.3(3) of the
Criminal
21
Code
and section 96 of the Regulatory Powers Act).
22
Chapter 2
Regulating the export of waste material
Part 3
Exemptions
Section 25
24
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 3--Exemptions
1
2
25 Application for exemption
3
An application for an exemption from one or more provisions of
4
this Chapter or rules made for the purposes of this Chapter in
5
relation to regulated waste material may be made to the Minister
6
by:
7
(a) a person who wishes to export regulated waste material; or
8
(b) a person prescribed by the rules.
9
Note:
See sections 172, 173 and 174 for additional matters relating to
10
applications.
11
26 Minister must decide whether to grant exemption
12
(1) On receiving an application made under section 25 for an
13
exemption, the Minister must decide:
14
(a) to grant the exemption; or
15
(b) to refuse to grant the exemption.
16
Note:
A decision under this subsection is a reviewable decision (see
17
section 151) and the Minister must give the person written notice of
18
the decision (see section 152).
19
(2) The Minister may grant the exemption if the Minister is satisfied,
20
having regard to any matter prescribed by the rules and any other
21
matter that the Minister considers relevant, that:
22
(a) any requirements prescribed by the rules are met; and
23
(b) it is appropriate to grant the exemption.
24
Note:
An exemption generally must not be varied (see subsection 30(1)).
25
(3) In considering whether it is appropriate to grant the exemption, the
26
Minister:
27
(a) must have regard to the objects of this Act; and
28
(b) may have regard to any other matter.
29
(4) If the Minister grants the exemption, the Minister must:
30
Regulating the export of waste material
Chapter 2
Exemptions
Part 3
Section 27
No. , 2020
Recycling and Waste Reduction Bill 2020
25
(a) decide that the exemption remains in force until a specified
1
event occurs (which must not occur more than 12 months
2
after the day the exemption takes effect); or
3
(b) decide that the exemption remains in force for a specified
4
period (which cannot be more than 12 months after the day
5
the exemption takes effect).
6
(5) The Minister may decide that the exemption remains in force for a
7
specified period under paragraph (4)(b) even if rules made for the
8
purposes of subsection 29(2) apply in relation to the exemption.
9
27 Exemption may be granted subject to conditions
10
(1) The Minister may grant an exemption in relation to regulated waste
11
material, subject to any conditions that the Minister considers are
12
necessary.
13
Note:
Conditions of an exemption may be varied (see section 30).
14
(2) In considering whether it is necessary to impose conditions on an
15
exemption, the Minister must have regard to:
16
(a) the objects of this Act; and
17
(b) the matters (if any) prescribed by the rules.
18
(3) A person contravenes this subsection if:
19
(a) the person is the holder of an exemption in force under this
20
Part; and
21
(b) the person engages in conduct; and
22
(c) the conduct contravenes a condition of the exemption.
23
Fault-based offence
24
(4) A person commits an offence if the person contravenes
25
subsection (3).
26
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
27
Civil penalty provision
28
(5) A person is liable to a civil penalty if the person contravenes
29
subsection (3).
30
Chapter 2
Regulating the export of waste material
Part 3
Exemptions
Section 28
26
Recycling and Waste Reduction Bill 2020
No. , 2020
Civil penalty:
600 penalty units.
1
28 Notice of decision
2
Instrument of exemption
3
(1) If the Minister decides to grant an exemption in relation to
4
regulated waste material, the Minister must give the applicant for
5
the exemption an instrument of exemption stating the following:
6
(a) the kind of regulated waste material covered by the
7
exemption;
8
(b) if applicable, each place to which the regulated waste
9
material is to be exported under the exemption;
10
(c) the reasons why the Minister is satisfied that it is appropriate
11
to grant the exemption;
12
(d) the provisions of this Act covered by the exemption;
13
(e) the day (which must not be before the grant) when the
14
exemption takes effect;
15
(f) that the exemption remains in force:
16
(i) until a specified event occurs; or
17
(ii) for a specified period;
18
(g) if the exemption remains in force until a specified event
19
occurs--the specified event;
20
(h) if the exemption remains in force for a specified period--the
21
period;
22
(i) any conditions of the exemption;
23
(j) any other information prescribed by the rules.
24
Note:
For the purposes of paragraph (f), an exemption cannot remain in
25
force for more than 12 months (see subsection 26(4)).
26
(2) An instrument of exemption given under subsection (1) is not a
27
legislative instrument.
28
Notice of refusal
29
(3) If the Minister decides to refuse to grant an exemption, the
30
Minister must notify the applicant, in writing, of the decision. The
31
notice must include the reasons for the decision.
32
Regulating the export of waste material
Chapter 2
Exemptions
Part 3
Section 29
No. , 2020
Recycling and Waste Reduction Bill 2020
27
29 Period of effect of exemption
1
(1) An exemption:
2
(a) takes effect on the day stated in the instrument of exemption
3
under paragraph 28(1)(e); and
4
(b) remains in force until the earliest of the following:
5
(i) if the exemption remains in force until a specified event
6
occurs--the event occurs;
7
(ii) if the exemption remains in force for a specified
8
period--the end of the specified period;
9
(iii) if applicable--the end of the period prescribed by the
10
rules for the purposes of subsection (2);
11
(iv) the exemption is revoked under section 31.
12
(2) The rules may prescribe the period during which an exemption
13
remains in force (which must not exceed 12 months). The rules
14
may apply in relation to:
15
(a) exemptions generally; or
16
(b) exemptions for a kind of regulated waste material; or
17
(c) exemptions in relation to a place to which the regulated waste
18
material may be exported.
19
30 Variation of conditions of exemption
20
(1) Except as provided by subsection (2), an exemption that is in force
21
under this Part must not be varied.
22
Note:
If changes to an exemption are needed, an application for a new
23
exemption must be made.
24
(2) If the Minister considers it necessary to do so, the Minister may
25
vary the conditions of an exemption that is in force under this Part
26
(including by imposing new conditions).
27
(3) In considering whether it is necessary to vary the conditions of an
28
exemption, the Minister must have regard to:
29
(a) the objects of this Act; and
30
(b) the matters (if any) prescribed by the rules.
31
Chapter 2
Regulating the export of waste material
Part 3
Exemptions
Section 31
28
Recycling and Waste Reduction Bill 2020
No. , 2020
(4) If the Minister varies the conditions of an exemption, the Minister
1
must give the holder of the exemption a written notice stating the
2
following:
3
(a) the varied conditions and any new conditions;
4
(b) the reason for varying the conditions;
5
(c) the day the varied conditions take effect;
6
(d) any other information prescribed by the rules.
7
31 Revocation of exemption
8
(1) The Minister may revoke an exemption that is in force under this
9
Part.
10
(2) In considering whether to revoke an exemption, the Minister must
11
have regard to:
12
(a) the objects of this Act; and
13
(b) the matters (if any) prescribed by the rules.
14
(3) If the Minister decides to revoke an exemption, the Minister must
15
give the holder of the exemption a written notice stating the
16
following:
17
(a) that the exemption is revoked;
18
(b) the reasons for the revocation;
19
(c) the day the revocation takes effect.
20
32 Effect of exemption
21
If:
22
(a) a kind of regulated waste material is, or is to be, exported;
23
and
24
(b) the export of the regulated waste material is covered by an
25
exemption from one or more provisions of this Act (the
26
exempted provisions
);
27
the exempted provisions do not apply in relation to the export of
28
the regulated waste material.
29
Regulating the export of waste material
Chapter 2
Grant of export licence
Part 4
Section 33
No. , 2020
Recycling and Waste Reduction Bill 2020
29
Part 4--Grant of export licence
1
2
33 Application for export licence
3
(1) A person may apply to the Minister for an export licence to carry
4
out a kind of export operations in relation to a kind of regulated
5
waste material.
6
Note:
See sections 172, 173 and 174 for additional matters relating to
7
applications.
8
(2) An application:
9
(a) may relate to more than one kind of regulated waste material;
10
and
11
(b) may relate to more than one kind of export operations; and
12
(c) may specify one or more places to which the regulated waste
13
material is to be exported.
14
Note:
The export of a kind of regulated waste material may be prohibited
15
unless the exporter holds an export licence that covers the export of
16
waste material of that kind (see section 18 and rules made for the
17
purposes of that section).
18
34 Minister must decide whether to grant export licence
19
(1) On receiving an application for an export licence, the Minister
20
must decide:
21
(a) to grant the applicant an export licence; or
22
(b) to refuse to grant the applicant an export licence.
23
Note 1:
See sections 172, 173 and 174 for additional matters relating to
24
applications.
25
Note 2:
If the application is for an export licence for more than one kind of
26
regulated waste material for export to more than one place, the
27
Minister may decide to grant an export licence for some or all of those
28
kinds of waste material for export to some or all of those places.
29
Note 3:
If the application is for an export licence to carry out more than one
30
kind of export operations in relation to more than one kind of
31
regulated waste material for export to more than one place, the
32
Minister may decide to grant the applicant an export licence to carry
33
out some or all of those kinds of export operations in relation to some
34
Chapter 2
Regulating the export of waste material
Part 4
Grant of export licence
Section 34
30
Recycling and Waste Reduction Bill 2020
No. , 2020
or all of those kinds of waste material for export to some or all of
1
those places.
2
Note 4:
A decision to refuse to grant an export licence is a reviewable decision
3
(see section 151) and the Minister must give the applicant written
4
notice of the decision (see section 152).
5
(2) In deciding whether to grant the applicant an export licence, the
6
Minister must have regard to the following matters:
7
(a) the objects of this Act;
8
(b) whether the applicant is a fit and proper person;
9
(c) whether all relevant Commonwealth liabilities of the
10
applicant have been paid;
11
(d) if one or more relevant Commonwealth liabilities of the
12
applicant have not been paid--whether the non-payment is
13
due to exceptional circumstances;
14
(e) whether the applicant is, and is likely to continue to be, able
15
to comply with the conditions to which the export licence, if
16
granted, would be subject;
17
(f) any other matters prescribed by the rules.
18
Note 1:
The Minister must have regard to the matters in section 175 in
19
considering whether the applicant is a fit and proper person for the
20
purposes of paragraph (b).
21
Note 2:
For the purposes of paragraph (c), a relevant Commonwealth liability
22
of a person is taken to have been paid in certain circumstances (see
23
section 181).
24
(3) In deciding whether to grant the applicant an export licence, the
25
Minister may have regard to any other matter that the Minister
26
considers relevant.
27
(4) If the Minister grants the applicant an export licence, the Minister
28
must:
29
(a) decide that the licence remains in force until a specified event
30
occurs (which must not occur more than 3 years after the day
31
the licence takes effect); or
32
(b) set an expiry date for the licence (which cannot be more than
33
3 years after the day the licence takes effect).
34
Regulating the export of waste material
Chapter 2
Grant of export licence
Part 4
Section 35
No. , 2020
Recycling and Waste Reduction Bill 2020
31
(5) The Minister may set an expiry date for the export licence under
1
paragraph (4)(b) even if rules made for the purposes of
2
subsection 37(5) apply in relation to the licence.
3
35 Conditions of export licence
4
(1) An export licence is subject to:
5
(a) the conditions provided by this Act; and
6
(b) the conditions prescribed by the rules (other than any of those
7
conditions that the Minister decides are not to be conditions
8
of the licence); and
9
(c) any additional conditions that the Minister considers
10
appropriate and that are specified in the licence.
11
Note 1:
See subsection 64(4) for a condition of an export licence.
12
Note 2:
The holder of an export licence may commit an offence or be liable to
13
a civil penalty if a condition of the licence is contravened (see
14
section 59).
15
Note 3:
An export licence may be suspended or revoked if a condition of the
16
licence is contravened (see sections 46 and 54).
17
Note 4:
A decision to grant an export licence subject to additional conditions
18
is a reviewable decision (see section 151) and the Minister must give
19
the person written notice of the decision (see section 152).
20
(2) Without limiting paragraph (1)(b), the rules may prescribe
21
conditions in relation to any or all of the following:
22
(a) the holder of the export licence;
23
(b) a kind of regulated waste material;
24
(c) a kind of export operations.
25
(3) Without limiting paragraph (1)(b) or (c), the rules may prescribe
26
conditions, and the Minister may impose conditions:
27
(a) that are required to be complied with before or after the
28
export of the waste material to which the conditions relate; or
29
(b) that relate to the objects of this Act.
30
(4) For the purposes of this Act, conditions to which an export licence
31
is subject under subsection (1) or section 40 are conditions of the
32
licence.
33
Chapter 2
Regulating the export of waste material
Part 4
Grant of export licence
Section 36
32
Recycling and Waste Reduction Bill 2020
No. , 2020
36 Matters to be stated in export licence
1
(1) An export licence must:
2
(a) be in writing; and
3
(b) be given to the applicant to whom it was granted.
4
(2) An export licence must state the following information:
5
(a) the number allocated to the licence;
6
(b) each kind of regulated waste material covered by the licence;
7
(c) each kind of export operations covered by the licence;
8
(d) if applicable, each place to which a kind of regulated waste
9
material covered by the licence may be exported;
10
(e) the day the licence takes effect;
11
(f) that the licence remains in force:
12
(i) until a specified event occurs; or
13
(ii) for a specified period;
14
(g) if the licence remains in force until a specified event
15
occurs--the specified event;
16
(h) if the licence remains in force for a specified period--the
17
expiry date for the licence;
18
(i) any conditions prescribed by the rules that the Minister has
19
decided are not to be conditions of the licence;
20
(j) any additional conditions of the licence;
21
(k) any other information prescribed by the rules.
22
Note:
A licence cannot remain in force for more than 3 years (see
23
subsection 34(4)).
24
37 Period of effect of export licence
25
(1) If an export licence is expressed to remain in force until a specified
26
event occurs, the licence remains in force until the event occurs,
27
unless it is earlier revoked under Part 8.
28
(2) If there is an expiry date for an export licence (including an export
29
licence that has been renewed under Part 5), the licence remains in
30
force until the end of that expiry date unless:
31
(a) the licence is renewed under Part 5 on or before that date; or
32
(b) the licence is revoked under Part 8 on or before that date.
33
Regulating the export of waste material
Chapter 2
Grant of export licence
Part 4
Section 37
No. , 2020
Recycling and Waste Reduction Bill 2020
33
(3) There is an expiry date for an export licence if:
1
(a) rules made for the purposes of subsection (5) apply in
2
relation to the export licence; or
3
(b) an expiry date for the export licence set under
4
subsection 34(4) or 39(5) or paragraph 44(1)(c) is in force in
5
relation to the export licence.
6
(4) The
expiry date
for an export licence is:
7
(a) if rules made for the purposes of subsection (5) apply in
8
relation to the export licence and no expiry date set under
9
subsection 34(4) or 39(5) or paragraph 44(1)(c) is in force in
10
relation to the export licence--the last day of the period
11
prescribed by the rules; or
12
(b) if an expiry date for the export licence set under
13
subsection 34(4) or 39(5) or paragraph 44(1)(c) is in force in
14
relation to the export licence--that date.
15
Note:
The expiry date cannot be more than 3 years after the day the licence
16
takes effect (see paragraph 34(4)(b)).
17
(5) The rules may prescribe the period during which an export licence
18
remains in force (which must not exceed 3 years). The rules may
19
apply in relation to:
20
(a) export licences generally; or
21
(b) export licences for a kind of regulated waste material and, if
22
applicable, a place to which the regulated waste material may
23
be exported; or
24
(c) export licences for a kind of export operations in relation to a
25
kind of regulated waste material and, if applicable, a place to
26
which the regulated waste material may be exported.
27
Chapter 2
Regulating the export of waste material
Part 5
Renewal of export licence
Section 38
34
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 5--Renewal of export licence
1
2
38 Application to renew export licence
3
(1) This section applies in relation to an export licence (other than a
4
licence that is suspended wholly or in part under Part 7) if there is
5
an expiry date for the licence.
6
Note:
See subsections 37(3) and (4) in relation to the expiry date for an
7
export licence.
8
(2) The holder of the export licence may apply to the Minister to
9
renew the licence.
10
Note:
See sections 172, 173 and 174 for additional matters relating to
11
applications.
12
(3) An application for renewal:
13
(a) may relate to more than one kind of regulated waste material;
14
and
15
(b) may relate to more than one kind of export operations; and
16
(c) may specify one or more places to which the regulated waste
17
material is to be exported.
18
(4) An application for renewal must be made:
19
(a) within the period prescribed by the rules; or
20
(b) if the Minister allows a longer period--within that longer
21
period.
22
(5) If an application to renew an export licence is made after the period
23
applying under subsection (4):
24
(a) the application is taken to be an application for a new export
25
licence; and
26
(b) Part 4 applies in relation to the application; and
27
(c) the other provisions of this Part do not apply in relation to the
28
application.
29
Regulating the export of waste material
Chapter 2
Renewal of export licence
Part 5
Section 39
No. , 2020
Recycling and Waste Reduction Bill 2020
35
39 Minister must decide whether to renew export licence
1
(1) On receiving an application to renew an export licence, the
2
Minister must decide:
3
(a) to renew the licence; or
4
(b) to refuse to renew the licence.
5
Note 1:
See sections 172, 173 and 174 for additional matters relating to
6
applications.
7
Note 2:
If the application is to renew the export licence for more than one kind
8
of regulated waste material for export to more than one place, the
9
Minister may decide to renew the licence for some or all of those
10
kinds of waste material for export to some or all of those places.
11
Note 3:
If the application is to renew the export licence to carry out more than
12
one kind of export operations in relation to more than one kind of
13
regulated waste material for export to more than one place, the
14
Minister may decide to renew the licence to carry out some or all of
15
those kinds of export operations in relation to some or all of those
16
kinds of waste material for export to some or all of those places.
17
Note 4:
A decision to refuse to renew an export licence is a reviewable
18
decision (see section 151) and the Minister must give the applicant
19
written notice of the decision (see section 152).
20
(2) If an export licence would, apart from this subsection, expire
21
before the application to renew the licence is decided, then the
22
export licence is taken to continue in force until:
23
(a) if the application to renew is refused--the refusal takes
24
effect; or
25
(b) if the licence is renewed in response to the application--the
26
day the renewed licence takes effect.
27
(3) In deciding whether to renew an export licence, the Minister must
28
have regard to the following matters:
29
(a) the objects of this Act;
30
(b) whether the applicant is a fit and proper person;
31
(c) whether all relevant Commonwealth liabilities of the
32
applicant have been paid;
33
(d) if one or more relevant Commonwealth liabilities of the
34
applicant have not been paid--whether the non-payment is
35
due to exceptional circumstances;
36
Chapter 2
Regulating the export of waste material
Part 5
Renewal of export licence
Section 40
36
Recycling and Waste Reduction Bill 2020
No. , 2020
(e) whether the applicant is, and is likely to continue to be, able
1
to comply with the conditions to which the export licence, if
2
renewed, would be subject;
3
(f) any other matters prescribed by the rules.
4
Note 1:
The Minister must have regard to the matters in section 175 in
5
considering whether the applicant is a fit and proper person for the
6
purposes of paragraph (b).
7
Note 2:
For the purposes of paragraph (c), a relevant Commonwealth liability
8
of a person is taken to have been paid in certain circumstances (see
9
section 181).
10
(4) In deciding whether to renew an export licence, the Minister may
11
have regard to any other matter that the Minister considers
12
relevant.
13
(5) If the Minister renews the export licence, the Minister must:
14
(a) decide that the licence remains in force until a specified event
15
occurs (which cannot occur more than 3 years after the day
16
the renewed licence takes effect); or
17
(b) set an expiry date for the licence (which cannot be more than
18
3 years after the day the renewed licence takes effect).
19
Note:
A decision under this subsection is a reviewable decision (see
20
section 151) and the Minister must give the person written notice of
21
the decision (see section 152).
22
(6) The Minister may set an expiry date for the export licence under
23
paragraph (5)(b) even if rules made for the purposes of
24
subsection 37(5) apply in relation to the licence.
25
40 Conditions of renewed export licence
26
(1) If the Minister renews an export licence, the renewed licence is
27
subject to:
28
(a) the conditions provided by this Act; and
29
(b) the conditions prescribed by rules made for the purposes of
30
paragraph 35(1)(b) (other than any of those conditions that
31
the Minister decides are not to be conditions of the licence);
32
and
33
(c) any additional conditions that the Minister considers
34
appropriate and that are specified in the licence.
35
Regulating the export of waste material
Chapter 2
Renewal of export licence
Part 5
Section 41
No. , 2020
Recycling and Waste Reduction Bill 2020
37
Note 1:
See subsection 64(4) for a condition of an export licence.
1
Note 2:
The holder of an export licence may commit an offence or be liable to
2
a civil penalty if a condition of the licence is contravened (see
3
section 59).
4
Note 3:
An export licence may be suspended or revoked if a condition of the
5
licence is contravened (see sections 46 and 54).
6
Note 4:
A decision to renew an export licence subject to additional conditions
7
is a reviewable decision (see section 151) and the Minister must give
8
the person written notice of the decision (see section 152).
9
(2) Without limiting paragraph (1)(c), the Minister may impose
10
conditions:
11
(a) that are required to be complied with before or after the
12
export of the waste material to which the conditions relate; or
13
(b) that relate to the objects of this Act.
14
41 Matters to be stated in renewed export licence
15
If an export licence is renewed, the Minister must give the
16
applicant a new export licence stating the information referred to in
17
subsection 36(2).
18
Chapter 2
Regulating the export of waste material
Part 6
Variation of export licence
Division 1
Application by holder
Section 42
38
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 6--Variation of export licence
1
Division 1--Application by holder
2
42 Application by holder to vary export licence
3
(1) The holder of an export licence may apply to the Minister:
4
(a) to vary the conditions of the licence (including by imposing
5
new conditions); or
6
(b) to vary the licence in relation to any of the following matters
7
(including by adding or removing any of those matters):
8
(i) kinds of regulated waste material;
9
(ii) kinds of export operations;
10
(iii) if applicable, places to which regulated waste material
11
may be exported; or
12
(c) if the licence is expressed to remain in force until a specified
13
event occurs--to vary the licence by varying the specified
14
event (which must not occur more than 3 years after the day
15
the licence took effect); or
16
(d) if there is an expiry date for the licence (whether under
17
paragraph 37(4)(a) or (b))--to vary the licence by setting a
18
different expiry date for the licence (which must not be more
19
than 3 years after the day the licence took effect); or
20
(e) to vary the licence to make a minor change to a matter stated
21
in the licence (including to correct a minor or technical
22
error); or
23
(f) to vary any other aspect of the licence.
24
Note:
See sections 172, 173 and 174 for additional matters relating to
25
applications.
26
(2) An application cannot be made for a variation that would extend
27
the period in which the licence is in force beyond 3 years from the
28
day the licence took effect.
29
(3) If the Minister receives an application to make a variation, the
30
Minister must decide:
31
(a) to make the variation; or
32
Regulating the export of waste material
Chapter 2
Variation of export licence
Part 6
Application by holder
Division 1
Section 43
No. , 2020
Recycling and Waste Reduction Bill 2020
39
(b) to refuse to make the variation.
1
Note 1:
See section 174 for matters relating to dealing with applications.
2
Note 2:
A decision to refuse the application is a reviewable decision (see
3
section 151) and the Minister must give the applicant written notice of
4
the decision (see section 152).
5
(4) In deciding whether to make a variation, the Minister must have
6
regard to the following matters:
7
(a) the objects of this Act;
8
(b) whether all relevant Commonwealth liabilities of the
9
applicant have been paid;
10
(c) if one or more relevant Commonwealth liabilities of the
11
applicant have not been paid--whether the non-payment is
12
due to exceptional circumstances;
13
(d) whether the applicant is, and is likely to continue to be, able
14
to comply with the conditions to which the export licence, if
15
varied, would be subject;
16
(e) any other matters prescribed by the rules.
17
Note:
For the purposes of paragraph (b), a relevant Commonwealth liability
18
of a person is taken to have been paid in certain circumstances (see
19
section 181).
20
(5) Despite subsection (4), the Minister need not have regard to those
21
matters if the application is for a variation:
22
(a) to set an earlier expiry date for the licence; or
23
(b) to make a minor change to a matter stated in the licence
24
(including to correct a minor or technical error); or
25
(c) of a kind prescribed by the rules.
26
(6) In deciding whether to make a variation, the Minister may have
27
regard to any other matter that the Minister considers relevant.
28
43 Notice of variation
29
(1) If the Minister varies an export licence under paragraph 42(3)(a),
30
the Minister must give the holder of the licence written notice of
31
the variation.
32
(2) The notice must state the following:
33
Chapter 2
Regulating the export of waste material
Part 6
Variation of export licence
Division 1
Application by holder
Section 43
40
Recycling and Waste Reduction Bill 2020
No. , 2020
(a) details of the variation;
1
(b) if the variation is of the conditions of the export licence--the
2
varied conditions;
3
(c) the day the variation takes effect;
4
(d) any other information prescribed by the rules.
5
(3) If the export licence needs to be changed to take account of the
6
variation, the Minister must give the holder of the licence a new
7
export licence including the variation.
8
Note:
The export licence, as varied, remains in force as provided by
9
section 37.
10
Regulating the export of waste material
Chapter 2
Variation of export licence
Part 6
Variation by Minister
Division 2
Section 44
No. , 2020
Recycling and Waste Reduction Bill 2020
41
Division 2--Variation by Minister
1
44 Minister may vary export licence
2
(1) The Minister may do any of the following in relation to an export
3
licence:
4
(a) vary the conditions of the licence (including by imposing
5
new conditions);
6
(b) vary the licence in relation to any of the following matters
7
(including by adding or removing any of those matters):
8
(i) kinds of regulated waste material;
9
(ii) kinds of export operations;
10
(iii) if applicable, places to which regulated waste material
11
may be exported;
12
(c) if the licence is expressed to remain in force until a specified
13
event occurs--vary the licence by varying the specified event
14
(which must not occur more than 3 years after the day the
15
licence took effect);
16
(d) if there is an expiry date for the licence (whether under
17
paragraph 37(4)(a) or (b))--vary the licence by setting a
18
different expiry date for the licence (which must not be more
19
than 3 years after the day the licence took effect);
20
(e) vary the licence to make a minor change to a matter stated in
21
the licence (including to correct a minor or technical error);
22
(f) vary any other aspect of the licence.
23
Note:
Certain decisions under this subsection are reviewable decisions (see
24
section 151).
25
(2) The Minister may vary the export licence only if the Minister
26
reasonably believes that:
27
(a) a condition of the licence has been, or is being, contravened;
28
or
29
(b) it is necessary to do so to ensure compliance with the
30
requirements of this Act in relation to the regulated waste
31
material and the export operations covered by the licence; or
32
(c) it is necessary to do so to prevent or lessen a threat to human
33
or environmental health; or
34
Chapter 2
Regulating the export of waste material
Part 6
Variation of export licence
Division 2
Variation by Minister
Section 44
42
Recycling and Waste Reduction Bill 2020
No. , 2020
(d) the holder is not a fit and proper person; or
1
(e) it is necessary to do so:
2
(i) to take account of an event notified under section 61; or
3
(ii) to correct a minor or technical error; or
4
(f) the holder of the licence:
5
(i) failed to comply with a direction given to the holder by
6
an authorised officer or the Minister; or
7
(ii) failed to comply with a request by an authorised officer
8
to provide information or a document; or
9
(iii) failed to provide facilities and assistance to an auditor as
10
required by section 115; or
11
(iv) failed to comply with a request made by an auditor
12
under section 113; or
13
(g) the holder of the licence:
14
(i) intimidated a person performing functions or exercising
15
powers under this Act; or
16
(ii) hindered a person, or prevented a person from,
17
performing functions or exercising powers under this
18
Act; or
19
(h) the holder of the licence or any other person who participates
20
in the management or control of the holder's export business
21
(as provided by section 62):
22
(i) made a false or misleading statement in an application
23
under this Act; or
24
(ii) gave false or misleading information or documents to
25
the Minister or to another person performing functions
26
or exercising powers under this Act; or
27
(iii) gave false or misleading information or documents to a
28
person under a prescribed law; or
29
(i) the licence needs to be varied for any other reason prescribed
30
by the rules.
31
Note:
The Minister must have regard to the matters in section 175 in
32
considering whether the holder is a fit and proper person for the
33
purposes of paragraph (d).
34
Regulating the export of waste material
Chapter 2
Variation of export licence
Part 6
Variation by Minister
Division 2
Section 45
No. , 2020
Recycling and Waste Reduction Bill 2020
43
(3) The Minister must not vary the export licence unless the Minister
1
has given a written notice to the holder of the licence in accordance
2
with subsection (4).
3
(4) The notice must:
4
(a) specify each proposed variation; and
5
(b) specify the grounds for each proposed variation; and
6
(c) subject to subsection (5), request the holder of the export
7
licence to give the Minister, within 14 days after the day the
8
notice is given, a written statement showing cause why the
9
proposed variation should not be made; and
10
(d) include a statement setting out the holder's right to seek
11
review of a decision to make the proposed variation.
12
(5) The notice is not required to include the request referred to in
13
paragraph (4)(c) if the Minister reasonably believes that the
14
proposed variation is necessary to prevent or lessen a serious and
15
imminent threat to human or environmental health.
16
(6) Subsections (2) and (3) do not apply to a variation under:
17
(a) paragraph (1)(d) to set a later expiry date for an export
18
licence; or
19
(b) paragraph (1)(e).
20
45 Notice of variation
21
(1) If the Minister makes a variation under subsection 44(1) in relation
22
to an export licence, the Minister must give the holder of the
23
licence written notice of the variation.
24
(2) The notice must state the following:
25
(a) details of the variation;
26
(b) if the variation is of the conditions of the export licence--the
27
varied conditions and any new conditions;
28
(c) if the variation affects the period of effect of the licence:
29
(i) the expiry date for the licence under paragraph 37(4)(a)
30
or (b) (whichever applies); or
31
Chapter 2
Regulating the export of waste material
Part 6
Variation of export licence
Division 2
Variation by Minister
Section 45
44
Recycling and Waste Reduction Bill 2020
No. , 2020
(ii) if the licence is expressed to remain in force until a
1
specified event occurs--that the licence remains in force
2
until the event occurs or is earlier revoked;
3
(d) the date the variation takes effect;
4
(e) any other information prescribed by the rules.
5
(3) If the holder was given a notice under subsection 44(3) that
6
included the request referred to in paragraph 44(4)(c), the variation
7
must not take effect before the earlier of the following:
8
(a) the day after any response to the request is received by the
9
Minister;
10
(b) the end of 14 days after the notice was given.
11
(4) If the export licence needs to be changed to take account of the
12
variation, the Minister must give the holder of the licence a new
13
export licence including the variation.
14
Note:
The export licence, as varied, remains in force as provided by
15
section 37.
16
Regulating the export of waste material
Chapter 2
Suspension of export licence
Part 7
Section 46
No. , 2020
Recycling and Waste Reduction Bill 2020
45
Part 7--Suspension of export licence
1
2
46 Grounds for suspension--general
3
(1) The Minister may suspend an export licence in relation to one or
4
more kinds of regulated waste material, one or more kinds of
5
export operations or one or more places to which the regulated
6
waste material may be exported, if the Minister reasonably believes
7
any of the following:
8
(a) a condition of the licence has been, or is being, contravened;
9
(b) the holder of the licence has contravened a requirement of
10
this Act in relation to the licence;
11
(c) it is necessary to do so to prevent or lessen a threat to human
12
or environmental health;
13
(d) the holder of the licence is not a fit and proper person;
14
(e) the holder of the licence:
15
(i) failed to comply with a direction given to the holder by
16
an authorised officer or the Minister; or
17
(ii) failed to comply with a request by an authorised officer
18
to provide information or a document; or
19
(iii) failed to provide facilities and assistance to an auditor as
20
required by section 115; or
21
(iv) failed to comply with a request made by an auditor
22
under section 113;
23
(f) the holder of the licence:
24
(i) intimidated a person performing functions or exercising
25
powers under this Act; or
26
(ii) hindered a person, or prevented a person from,
27
performing functions or exercising powers under this
28
Act;
29
(g) the holder of the licence or any other person who participates
30
in the management or control of the holder's export business
31
(as provided by section 62):
32
(i) made a false or misleading statement in an application
33
under this Act; or
34
Chapter 2
Regulating the export of waste material
Part 7
Suspension of export licence
Section 46
46
Recycling and Waste Reduction Bill 2020
No. , 2020
(ii) gave false or misleading information or documents to
1
the Minister or to another person performing functions
2
or exercising powers under this Act; or
3
(iii) gave false or misleading information or documents to a
4
person under a prescribed law;
5
(h) the holder of the licence is or was an associate of a person
6
referred to in paragraph 63(1)(a), (b), (c) or (d);
7
(i) a ground prescribed by the rules exists.
8
Note 1:
The Minister must have regard to the matters in section 175 in
9
considering whether the holder is a fit and proper person for the
10
purposes of paragraph (d).
11
Note 2:
A suspension must not be for more than 12 months (see section 49).
12
Note 3:
A decision to suspend an export licence under this section is a
13
reviewable decision (see section 151) and the Minister must give the
14
person written notice of the decision (see section 152).
15
Notice of proposed suspension
16
(2) The Minister must not suspend an export licence under this section
17
unless the Minister has given a written notice to the holder of the
18
licence in accordance with subsection (3).
19
(3) The notice must:
20
(a) specify each kind of regulated waste material, each kind of
21
export operations and each place, in relation to which the
22
export licence is proposed to be suspended (as applicable);
23
and
24
(b) specify the grounds for the proposed suspension; and
25
(c) subject to subsection (4), request the holder of the export
26
licence to give the Minister, within 14 days after the day the
27
notice is given, a written statement showing cause why the
28
licence should not be suspended as proposed; and
29
(d) include a statement setting out the holder's right to seek
30
review of a decision to suspend the licence as proposed.
31
(4) The notice is not required to include the request referred to in
32
paragraph (3)(c) if the Minister reasonably believes that the
33
suspension is necessary to prevent or lessen a serious and imminent
34
threat to human or environmental health.
35
Regulating the export of waste material
Chapter 2
Suspension of export licence
Part 7
Section 47
No. , 2020
Recycling and Waste Reduction Bill 2020
47
47 Grounds for suspension--overdue relevant Commonwealth
1
liability
2
Notice of proposed suspension
3
(1) The Minister may suspend an export licence in relation to all kinds
4
of regulated waste material and all kinds of export operations if:
5
(a) a relevant Commonwealth liability of the holder of the
6
licence (the
debtor
) is more than 30 days overdue; and
7
(b) the Minister has given a written notice to the debtor in
8
accordance with subsection (2); and
9
(c) within 8 days after the notice is given:
10
(i) the relevant Commonwealth liability has not been paid;
11
or
12
(ii) the debtor has not entered into an arrangement with the
13
Minister to pay the relevant Commonwealth liability.
14
Note 1:
A suspension must not be for more than 12 months (see section 49).
15
Note 2:
A decision to suspend an export licence under this section is a
16
reviewable decision (see section 151) and the Minister must give the
17
person written notice of the decision (see section 152).
18
Note 3:
If the Minister suspends an export licence under this section, the
19
Minister may revoke the export licence in certain circumstances (see
20
section 55).
21
(2) The notice must:
22
(a) state that a relevant Commonwealth liability of the debtor in
23
relation to an export licence is more than 30 days overdue;
24
and
25
(b) state that the Minister may suspend the export licence in
26
relation to all kinds of regulated waste material and all kinds
27
of export operations if, within 8 days after the notice is given:
28
(i) the relevant Commonwealth liability is not paid; or
29
(ii) the debtor has not entered into an arrangement with the
30
Minister to pay the relevant Commonwealth liability;
31
and
32
(c) include a statement setting out the debtor's right to seek
33
review of a decision to suspend the export licence.
34
Chapter 2
Regulating the export of waste material
Part 7
Suspension of export licence
Section 48
48
Recycling and Waste Reduction Bill 2020
No. , 2020
Minister may direct that activities not be carried out
1
(3) If the Minister suspends an export licence under subsection (1), the
2
Minister may refuse to carry out, and direct a person not to carry
3
out, specified activities or kinds of activities in relation to the
4
debtor under this Act until the relevant Commonwealth liability
5
has been paid.
6
Note:
See also section 107 (general provisions relating to directions).
7
Action under this section does not affect liability to pay relevant
8
Commonwealth liability
9
(4) Action by the Minister under this section does not affect the
10
liability of the debtor to pay the relevant Commonwealth liability.
11
48 Notice of suspension
12
(1) If the Minister decides to suspend an export licence under this Part,
13
the Minister must give the holder of the licence a written notice
14
stating the following:
15
(a) that the export licence is to be suspended, for the period
16
specified in the notice, in relation to all or specified kinds of
17
regulated waste material, all or specified kinds of export
18
operations and all or specified places to which the regulated
19
waste material may be exported (as applicable);
20
(b) the reasons for the suspension;
21
(c) the day the suspension is to start;
22
(d) if the licence is suspended for a period--the period of the
23
suspension;
24
(e) if the licence is suspended until a specified event occurs or
25
action is taken--the event or action.
26
Note:
The notice must also state the matters referred to in section 152.
27
(2) If the holder of the export licence was given a notice under
28
subsection 46(2) that included the request referred to in
29
paragraph 46(3)(c), the suspension must not start before the earlier
30
of the following:
31
(a) the day after any response to the request is received by the
32
Minister;
33
Regulating the export of waste material
Chapter 2
Suspension of export licence
Part 7
Section 49
No. , 2020
Recycling and Waste Reduction Bill 2020
49
(b) the end of 14 days after the notice was given.
1
49 Period of suspension
2
(1) A suspension of an export licence under this Division must not be
3
for more than 12 months.
4
(2) The Minister may vary the period of a suspension of an export
5
licence under this Division by written notice to the holder of the
6
licence. However, the total period of a suspension must not be
7
more than 12 months.
8
Note:
A decision to extend the period of a suspension is a reviewable
9
decision (see section 151) and the Minister must give the person
10
written notice of the decision (see section 152).
11
50 Revocation of suspension
12
The Minister may revoke a suspension of an export licence under
13
this Division by written notice to the holder of the licence.
14
51 Effect of suspension
15
(1) If an export licence is suspended wholly or in part under this Part:
16
(a) export operations covered by the suspension must not be
17
carried out; and
18
(b) the licence remains in force while it is suspended; and
19
(c) subject to rules made for the purposes of subsection (2), the
20
requirements of this Act in relation to the licence (including
21
the conditions of the licence) must be complied with while
22
the licence is suspended.
23
(2) The rules may prescribe requirements of this Act (including
24
conditions of an export licence) that are not required to be
25
complied with during any period when the licence is suspended.
26
52 Export operations must not be carried out if export licence is
27
suspended
28
(1) A person contravenes this subsection if:
29
(a) the person is the holder of an export licence; and
30
Chapter 2
Regulating the export of waste material
Part 7
Suspension of export licence
Section 52
50
Recycling and Waste Reduction Bill 2020
No. , 2020
(b) the person was given notice of suspension of the licence
1
under subsection 48(1); and
2
(c) export operations that were covered by the suspension were
3
carried out after the suspension took effect.
4
Fault-based offence
5
(2) A person commits an offence if the person contravenes
6
subsection (1).
7
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
8
Civil penalty provision
9
(3) A person is liable to a civil penalty if the person contravenes
10
subsection (1).
11
Civil penalty:
240 penalty units.
12
Regulating the export of waste material
Chapter 2
Revocation of export licence
Part 8
Revocation requested by holder
Division 1
Section 53
No. , 2020
Recycling and Waste Reduction Bill 2020
51
Part 8--Revocation of export licence
1
Division 1--Revocation requested by holder
2
53 Holder may request revocation
3
(1) The holder of an export licence (including a licence that is
4
suspended wholly or in part under Part 7) may request the Minister
5
to revoke the licence.
6
(2) A request under subsection (1) must:
7
(a) be in writing; and
8
(b) include the information (if any) prescribed by the rules.
9
(3) If the Minister receives a request from the holder of an export
10
licence under subsection (1), the Minister must, by written notice
11
to the holder, revoke the licence with effect on the day specified in
12
the notice.
13
(4) Subsection (3) does not apply if, before the request under
14
subsection (1) was made, the Minister:
15
(a) had given the holder of the export licence a notice under
16
subsection 54(2) in relation to the licence; and
17
(b) had not decided whether to revoke the licence or not.
18
Chapter 2
Regulating the export of waste material
Part 8
Revocation of export licence
Division 2
Revocation by Minister
Section 54
52
Recycling and Waste Reduction Bill 2020
No. , 2020
Division 2--Revocation by Minister
1
54 Grounds for revocation--general
2
(1) The Minister may revoke an export licence (including a licence
3
that is suspended wholly or in part under Part 7) if the Minister
4
reasonably believes any of the following:
5
(a) a condition of the licence has been, or is being, contravened;
6
(b) the holder of the licence has contravened a requirement of
7
this Act in relation to the licence;
8
(c) it is necessary to revoke the licence to prevent or lessen a
9
threat to human or environmental health;
10
(d) the holder of the licence is not a fit and proper person;
11
(e) the holder of the licence:
12
(i) failed to comply with a direction given to the holder by
13
an authorised officer or the Minister; or
14
(ii) failed to comply with a request by an authorised officer
15
to provide information or a document; or
16
(iii) failed to provide facilities and assistance to an auditor as
17
required by section 115; or
18
(iv) failed to comply with a request made by an auditor
19
under section 113;
20
(f) the holder of the licence:
21
(i) intimidated a person performing functions or exercising
22
powers under this Act; or
23
(ii) hindered a person, or prevented a person from,
24
performing functions or exercising powers under this
25
Act;
26
(g) the holder of the licence or any other person who participates
27
in the management or control of the holder's export business
28
(as provided by section 62):
29
(i) made a false or misleading statement in an application
30
under this Act; or
31
(ii) gave false or misleading information or documents to a
32
person performing functions or exercising powers under
33
this Act; or
34
Regulating the export of waste material
Chapter 2
Revocation of export licence
Part 8
Revocation by Minister
Division 2
Section 55
No. , 2020
Recycling and Waste Reduction Bill 2020
53
(iii) gave false or misleading information or documents to a
1
person under a prescribed law;
2
(h) the holder of the licence is or was an associate of a person
3
referred to in paragraph 63(1)(a), (b), (c) or (d);
4
(i) a ground prescribed by the rules exists.
5
Note 1:
The Minister must have regard to the matters in section 175 in
6
considering whether the holder is a fit and proper person for the
7
purposes of paragraph (d).
8
Note 2:
A decision to revoke an export licence under this section is a
9
reviewable decision (see section 151) and the Minister must give the
10
former holder of the licence written notice of the decision (see
11
section 152).
12
Notice of proposed revocation
13
(2) The Minister must not revoke an export licence under this section
14
unless the Minister has given a written notice to the holder of the
15
licence in accordance with subsection (3).
16
(3) The notice must:
17
(a) specify the grounds for the proposed revocation; and
18
(b) subject to subsection (4), request the holder of the export
19
licence to give the Minister, within 14 days after the day the
20
notice is given, a written statement showing cause why the
21
licence should not be revoked; and
22
(c) include a statement setting out the holder's right to seek
23
review of a decision to revoke the licence.
24
(4) The notice is not required to include the request referred to in
25
paragraph (3)(b) if the Minister reasonably believes that the
26
revocation is necessary to prevent or lessen a serious and imminent
27
threat to human or environmental health.
28
55 Grounds for revocation--overdue relevant Commonwealth
29
liability
30
(1) The Minister may revoke an export licence if:
31
(a) the licence is suspended under section 47 for non-payment of
32
a relevant Commonwealth liability; and
33
(b) within 90 days after the start of the suspension:
34
Chapter 2
Regulating the export of waste material
Part 8
Revocation of export licence
Division 2
Revocation by Minister
Section 56
54
Recycling and Waste Reduction Bill 2020
No. , 2020
(i) the relevant Commonwealth liability had not been paid;
1
or
2
(ii) the person (the
debtor
) who is liable to pay the relevant
3
Commonwealth liability had not entered into an
4
arrangement with the Minister to pay the relevant
5
Commonwealth liability.
6
Note:
A decision to revoke an export licence under this section is a
7
reviewable decision (see section 151) and the Minister must give the
8
person written notice of the decision (see section 152).
9
Minister may direct that activities not be carried out
10
(2) If the Minister revokes an export licence under subsection (1), the
11
Minister may refuse to carry out, and direct a person not to carry
12
out, specified activities or kinds of activities in relation to the
13
debtor under this Act until the relevant Commonwealth liability
14
has been paid.
15
Note:
See also section 107 (general provisions relating to directions).
16
Action under this section does not affect liability to pay relevant
17
Commonwealth liability
18
(3) Action by the Minister under this section does not affect the
19
liability of the debtor to pay the relevant Commonwealth liability.
20
56 Notice of revocation
21
(1) If the Minister decides to revoke an export licence under this
22
Division, the Minister must give the holder of the licence a written
23
notice stating the following:
24
(a) that the licence is to be revoked;
25
(b) the reasons for the revocation;
26
(c) the day the revocation is to take effect.
27
Note:
The notice must also state the matters referred to in section 152.
28
(2) If the holder of the export licence was given a notice under
29
subsection 54(2) that included the request referred to in
30
paragraph 54(3)(b), the revocation must not take effect before the
31
earlier of the following:
32
Regulating the export of waste material
Chapter 2
Revocation of export licence
Part 8
Revocation by Minister
Division 2
Section 56
No. , 2020
Recycling and Waste Reduction Bill 2020
55
(a) the day after any response to the request is received by the
1
Minister;
2
(b) the end of 14 days after the notice was given.
3
Chapter 2
Regulating the export of waste material
Part 8
Revocation of export licence
Division 3
Other provisions
Section 57
56
Recycling and Waste Reduction Bill 2020
No. , 2020
Division 3--Other provisions
1
57 Export operations must not be carried out after export licence
2
revoked
3
(1) A person contravenes this subsection if:
4
(a) the person was the holder of an export licence; and
5
(b) the person was given notice of revocation of the licence
6
under subsection 53(3) or 56(1); and
7
(c) export operations that were covered by the licence were
8
carried out after the revocation took effect.
9
Fault-based offence
10
(2) A person commits an offence if the person contravenes
11
subsection (1).
12
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
240 penalty units.
17
58 Minister may require action to be taken after export licence
18
revoked
19
(1) This section applies if a person:
20
(a) was given notice of revocation of an export licence under
21
subsection 53(3) or 56(1); or
22
(b) was the holder of an export licence revoked under Division 1
23
or 2.
24
(2) The Minister may, in writing, direct the person to take specified
25
action, within a specified period after the export licence is revoked,
26
in relation to the regulated waste material and export operations
27
that were covered by the licence. The action must be action that is
28
Regulating the export of waste material
Chapter 2
Revocation of export licence
Part 8
Other provisions
Division 3
Section 58
No. , 2020
Recycling and Waste Reduction Bill 2020
57
necessary for the purpose of achieving one or more objects of this
1
Act.
2
(3) The direction must state that the person could commit an offence
3
or be liable to a civil penalty if the person fails to comply with the
4
direction.
5
Note:
See also section 107 (general provisions relating to directions).
6
(4) A person contravenes this subsection if:
7
(a) the person is given a direction under subsection (2); and
8
(b) the person engages in conduct; and
9
(c) the conduct contravenes the direction.
10
Fault-based offence
11
(5) A person commits an offence if the person contravenes
12
subsection (4).
13
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
14
Civil penalty provision
15
(6) A person is liable to a civil penalty if the person contravenes
16
subsection (4).
17
Civil penalty:
240 penalty units.
18
Chapter 2
Regulating the export of waste material
Part 9
Obligations of holders of export licences
Section 59
58
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 9--Obligations of holders of export licences
1
2
59 Conditions of export licence must not be contravened
3
Export licence that is not suspended
4
(1) A person contravenes this subsection if:
5
(a) the person is the holder of an export licence; and
6
(b) the licence is not suspended wholly or in part under Part 7;
7
and
8
(c) a condition of the licence is contravened.
9
Fault-based offence
10
(2) A person commits an offence if the person contravenes
11
subsection (1).
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
600 penalty units.
17
Export licence that is suspended
18
(4) A person contravenes this subsection if:
19
(a) the person is the holder of an export licence; and
20
(b) the licence is suspended wholly or in part under Part 7; and
21
(c) a condition of the licence is contravened; and
22
(d) the condition is required to be complied with during the
23
period of the suspension.
24
Regulating the export of waste material
Chapter 2
Obligations of holders of export licences
Part 9
Section 60
No. , 2020
Recycling and Waste Reduction Bill 2020
59
Fault-based offence
1
(5) A person commits an offence if the person contravenes
2
subsection (4).
3
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
4
(6) For the purposes of subsection (5), strict liability applies to
5
paragraph (4)(d).
6
Civil penalty provision
7
(7) A person is liable to a civil penalty if the person contravenes
8
subsection (4).
9
Civil penalty:
600 penalty units.
10
60 Additional or corrected information in relation to application for
11
licence etc.
12
(1) The holder of an export licence must comply with subsection (2) if:
13
(a) the holder becomes aware that information included in an
14
application made by the holder under this Chapter, or
15
information or a document given to the Minister in relation to
16
such an application, was incomplete or incorrect; or
17
(b) a change prescribed by the rules occurs.
18
(2) The holder of the export licence must, as soon as practicable, give
19
the Minister additional or corrected information, to the extent that
20
it is relevant to assessing whether the requirements of this Act in
21
relation to a matter covered by the licence have been, are being or
22
will be complied with.
23
Note:
A person may commit an offence or be liable to a civil penalty if the
24
person makes a false or misleading statement in an application or
25
provides false or misleading information or documents (see
26
sections 145, 146 and 147 of this Act and sections 136.1, 137.1 and
27
137.2 of the
Criminal Code
).
28
Civil penalty provision
29
(3) A person is liable to a civil penalty if:
30
Chapter 2
Regulating the export of waste material
Part 9
Obligations of holders of export licences
Section 61
60
Recycling and Waste Reduction Bill 2020
No. , 2020
(a) the person is required to give information to the Minister by
1
subsection (2); and
2
(b) the person fails to comply with the requirement.
3
Civil penalty:
60 penalty units.
4
61 Holder of export licence must notify the Minister of certain
5
events
6
(1) The holder of an export licence must notify the Minister, in
7
writing, as soon as practicable after any of the following events
8
occurs:
9
(a) there is a change in the holder's business structure;
10
(b) if the holder is an individual--the individual enters into a
11
personal insolvency agreement under Part X of the
12
Bankruptcy Act 1966
;
13
(c) if the holder is a corporation--the corporation:
14
(i) enters into administration (within the meaning of
15
section 435C of the
Corporations Act 2001
); or
16
(ii) is to be wound up (whether by a court or voluntarily);
17
(d) there is a change in the trading name, business address or
18
contact details of the holder;
19
(e) an event prescribed by the rules.
20
(2) A person contravenes this subsection if:
21
(a) the person is required by subsection (1) to notify the Minister
22
of an event; and
23
(b) the person fails to comply with the requirement.
24
Strict liability offence
25
(3) A person commits an offence of strict liability if the person
26
contravenes subsection (2).
27
Penalty: 60 penalty units.
28
Regulating the export of waste material
Chapter 2
Obligations of holders of export licences
Part 9
Section 61
No. , 2020
Recycling and Waste Reduction Bill 2020
61
Civil penalty provision
1
(4) A person is liable to a civil penalty if the person contravenes
2
subsection (2).
3
Civil penalty:
250 penalty units.
4
Chapter 2
Regulating the export of waste material
Part 10
Other matters
Section 62
62
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 10--Other matters
1
2
62 Persons who participate in the management or control of another
3
person's export business
4
For the purposes of this Chapter, a person (the
first person
) is
5
taken to be a person who participates in the management or control
6
of an export business of another person if:
7
(a) the first person has authority to direct the export operations,
8
or an important or substantial part of the export operations,
9
carried out by or in connection with the other person's export
10
business; or
11
(b) the first person has authority to direct another person who has
12
authority of the kind referred to in paragraph (a) in the
13
exercise of that authority.
14
63 Minister's powers in relation to associates of holder of export
15
licence
16
(1) This section applies if the Minister:
17
(a) refuses to grant an export licence to a person; or
18
(b) decides not to renew a person's export licence; or
19
(c) varies a person's export licence; or
20
(d) suspends a person's export licence (wholly or in part) under
21
Part 7; or
22
(e) revokes a person's export licence under Division 2 of Part 8.
23
(2) The Minister may do either or both of the following, on one or
24
more occasions:
25
(a) refuse to grant an export licence to an associate of a person
26
referred to in subsection (1);
27
(b) if an associate of a person referred to in subsection (1) is or
28
becomes the holder of an export licence--give the associate a
29
written notice in accordance with subsection (3).
30
(3) The notice must:
31
Regulating the export of waste material
Chapter 2
Other matters
Part 10
Section 64
No. , 2020
Recycling and Waste Reduction Bill 2020
63
(a) specify the grounds on which the notice is given; and
1
(b) request the associate to give the Minister, within 14 days
2
after the day the notice is given, a written statement showing
3
cause why an export licence held by the associate:
4
(i) should not be suspended, or further suspended, under
5
Part 7; or
6
(ii) should not be revoked under Division 2 of Part 8; and
7
(c) include a statement setting out the associate's right to seek
8
review of a decision:
9
(i) to suspend, or further suspend, under Part 7 an export
10
licence held by the associate; or
11
(ii) to revoke under Division 2 of Part 8 an export licence
12
held by the associate.
13
64 Minister may give directions to holder of export licence
14
(1) The Minister may give written directions to the holder of an export
15
licence.
16
Note 1:
An authorised officer may also give a direction to the holder of the
17
export licence (see section 106).
18
Note 2:
See also section 107 (general provisions relating to directions).
19
(2) Without limiting subsection (1), directions may:
20
(a) require the holder of the licence to give the Minister specified
21
information or documents relating to a kind of export
22
operations carried out in relation to a kind of regulated waste
23
material; and
24
(b) require the holder of the licence to allow the Minister, or a
25
person with appropriate qualifications or expertise, to enter
26
premises where a kind of export operations is being carried
27
out in relation to a kind of regulated waste material covered
28
by the licence.
29
(3) In considering whether to give a direction under subsection (1), the
30
Minister must have regard to:
31
(a) the objects of this Act; and
32
(b) any other matters prescribed by the rules.
33
Chapter 2
Regulating the export of waste material
Part 10
Other matters
Section 65
64
Recycling and Waste Reduction Bill 2020
No. , 2020
(4) An export licence is subject to the condition that the holder of the
1
licence must comply with any directions given to the holder under
2
this section.
3
Note:
The holder of an export licence may commit an offence or be liable to
4
a civil penalty if a condition of the licence is contravened (see
5
section 59).
6
(5) If a direction given to the holder of an export licence under
7
subsection (1) is inconsistent with the rules or a condition of the
8
licence, the direction prevails and the rules or condition, to the
9
extent of the inconsistency, do not have any effect.
10
65 Publishing information about export licences
11
(1) The Minister must publish on the Department's website the
12
following information in relation to each export licence granted by
13
the Minister:
14
(a) the name of the holder of the export licence;
15
(b) each kind of regulated waste material covered by the licence;
16
(c) the day the licence takes effect;
17
(d) whether the licence remains in force for a specified period or
18
until a specified event occurs.
19
(2) However, the Minister must not publish any information under
20
subsection (1) if the Minister is satisfied that:
21
(a) there is a risk that publishing the information might
22
substantially prejudice the commercial interests of a person;
23
and
24
(b) publishing the information is not in the public interest.
25
Product stewardship
Chapter 3
Introduction
Part 1
Section 66
No. , 2020
Recycling and Waste Reduction Bill 2020
65
Chapter 3--Product stewardship
1
Part 1--Introduction
2
3
66 Simplified outline of this Chapter
4
The Minister must also publish on the Department's website a
5
document (called the Minister's priority list) each year that sets out
6
a range of matters, including:
7
(a)
a list of products in relation to which the Minister is
8
proposing to consider whether some form of regulation
9
under this Act might be appropriate; and
10
(b)
the reasons why the Minister is proposing to give that
11
consideration; and
12
(c)
the actions that the Minister recommends be taken in
13
relation to each listed product; and
14
(d)
the times within which the Minister recommends the
15
actions be taken.
16
The Minister must table each Minister's priority list in both Houses
17
of Parliament and may also table a statement regarding the
18
operation, performance and coverage of accredited voluntary
19
arrangements.
20
There are 3 regimes relating to product stewardship under this Act.
21
Under voluntary product stewardship, voluntary arrangements in
22
relation to products that are designed to further the objects of this
23
Act may be accredited by an accrediting authority. A person is
24
authorised to exercise the Commonwealth's intellectual property
25
rights in a product stewardship logo if the exercise of those rights
26
is in accordance with an accredited voluntary arrangement.
27
Under co-regulatory product stewardship, certain kinds of
28
corporations (called liable parties) are required to be members of
29
co-regulatory arrangements approved by the Minister.
30
Chapter 3
Product stewardship
Part 1
Introduction
Section 66
66
Recycling and Waste Reduction Bill 2020
No. , 2020
These arrangements must have outcomes, specified in the rules,
1
that are designed to further the objects of this Act. Administrators
2
of approved co-regulatory arrangements are required to take all
3
reasonable steps to ensure those outcomes are achieved in
4
accordance with the rules.
5
Under mandatory product stewardship, rules may be made that
6
require specified persons to take, or not to take, specified action in
7
relation to products.
8
These requirements might include restricting the manufacture or
9
import of products, prohibiting products from containing particular
10
substances, labelling and packaging requirements and other
11
requirements relating to the design of products or to the reusing,
12
recycling, recovering, treating or disposing of products.
13
The Minister must publish on the Department's website specified
14
information about every accredited voluntary arrangement and
15
approved co-regulatory arrangement.
16
Product stewardship
Chapter 3
Minister's priority list
Part 2
Section 67
No. , 2020
Recycling and Waste Reduction Bill 2020
67
Part 2--Minister's priority list
1
2
67 Minister's priority list
3
Minister's priority list
4
(1) The Minister must publish on the Department's website, before the
5
end of each financial year, a document (a
Minister's priority list
)
6
that sets out the following:
7
(a) a list of products in relation to which the Minister is
8
proposing to consider, during the next financial year, whether
9
some form of regulation under this Act might be appropriate;
10
(b) the reason (or reasons) why the Minister is proposing to give
11
that consideration;
12
(c) the actions that the Minister recommends be taken in relation
13
to each listed product;
14
(d) the times within which the Minister recommends the actions
15
be taken.
16
Example: For the purposes of paragraph (a), the Minister may consider whether
17
to make rules under section 77 requiring specified persons to be
18
members of an approved co-regulatory arrangement in relation to a
19
product. The Minister may also consider whether to make rules for the
20
purposes of section 92 in relation to mandatory product stewardship.
21
Consultations
22
(2) In preparing a Minister's priority list, the Minister may consult
23
with any or all of the following:
24
(a) persons or organisations involved in, or advocating for, best
25
practice in relation to the reuse, recycling and recovery of
26
products, waste from products and waste material;
27
(b) industry groups;
28
(c) consumer groups;
29
(d) environmental groups;
30
(e) State, Territory and local government authorities;
31
(f) any other person or organisation the Minister considers
32
should be consulted.
33
Chapter 3
Product stewardship
Part 2
Minister's priority list
Section 67
68
Recycling and Waste Reduction Bill 2020
No. , 2020
Matters to be considered
1
(3) In preparing a list of products for inclusion in a Minister's priority
2
list, the Minister may have regard to any matter the Minister
3
considers relevant, including:
4
(a) whether any of the products has been included in a Minister's
5
priority list in a previous financial year and, if so, whether the
6
actions recommended by the Minister were taken in relation
7
to the product; and
8
(b) whether the product stewardship criteria are satisfied in
9
relation to the products; and
10
(c) any information obtained from consultations under
11
subsection (2); and
12
(d) whether one or more of the following apply in relation to the
13
products:
14
(i) reusing, recycling, recovering, treating or disposing of
15
the products involves a significant cost to the
16
Commonwealth, or State, Territory or local
17
governments;
18
(ii) consumers are willing to pay for action that reduces the
19
impact that the products have on the environment, or
20
that substances contained in the products have on the
21
environment, or on the health or safety of humans;
22
(iii) taking action to reduce that impact will offer business
23
opportunities to make a contribution to the economy.
24
Review of recommended action
25
(4) The Minister:
26
(a) must, after the recommended time for each recommended
27
action in relation to each listed product, review whether the
28
recommended action has been taken in relation to the
29
product; and
30
(b) may:
31
(i) make further recommendations in relation to the
32
product; or
33
(ii) decide that some form of regulation under this Act is
34
appropriate in relation to the product.
35
Product stewardship
Chapter 3
Minister's priority list
Part 2
Section 68
No. , 2020
Recycling and Waste Reduction Bill 2020
69
68 Tabling of Minister's priority list and statement relating to
1
product stewardship arrangements
2
Minister's priority list to be tabled in Parliament
3
(1) The Minister must cause a Minister's priority list to be tabled in
4
both Houses of Parliament within 15 sitting days after the
5
publication of the list.
6
Statement about accredited voluntary arrangements may be tabled
7
in Parliament
8
(2) The Minister may at any time cause a statement to be tabled in
9
each House of the Parliament regarding the operation, performance
10
and coverage of accredited voluntary arrangements.
11
(3) Without limiting subsection (2), the statement may:
12
(a) name the persons who are authorised by an accredited
13
voluntary arrangement to exercise the Commonwealth's
14
intellectual property rights in a product stewardship logo; and
15
(b) name persons who the Minister considers could be, but are
16
not currently, authorised by an accredited voluntary
17
arrangement to exercise the Commonwealth's intellectual
18
property rights in a product stewardship logo; and
19
(c) set out the Minister's views in relation to the performance of
20
an accredited voluntary arrangement by reference to the
21
persons referred to in paragraphs (a) and (b).
22
Chapter 3
Product stewardship
Part 3
Voluntary product stewardship
Section 69
70
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 3--Voluntary product stewardship
1
2
69 Exercising rights in product stewardship logo in accordance with
3
accredited voluntary arrangement
4
A person is authorised to exercise the Commonwealth's intellectual
5
property rights in a product stewardship logo if that exercise is in
6
accordance with an accredited voluntary arrangement.
7
70 Accreditation of voluntary arrangements
8
(1) An
accredited voluntary arrangement
is a voluntary arrangement
9
that is accredited in relation to a product in accordance with rules
10
made for the purposes of this section.
11
Note 1:
Obligations imposed by this Act in relation to voluntary arrangements
12
and their administrators do not apply to an arrangement that is not
13
accredited.
14
Note 2:
A voluntary arrangement that does not meet the conditions in
15
section 71 cannot be accredited, and the accrediting authority must
16
refuse to accredit a voluntary arrangement in certain circumstances
17
(see subsections (3) and (4) of this section and rules made for the
18
purposes of this section).
19
(2) The rules may provide for or in relation to matters concerning the
20
accreditation of voluntary arrangements in relation to a product.
21
(3) Without limiting subsection (2), the rules may provide for any or
22
all of the following:
23
(a) who may apply for accreditation of a voluntary arrangement
24
in relation to a product;
25
(b) the circumstances in which a person may apply for such an
26
accreditation;
27
(c) who may make a decision on such an application (the
28
accrediting authority
);
29
(d) matters in relation to which the accrediting authority must be
30
satisfied before accrediting a voluntary arrangement in
31
relation to a product;
32
Product stewardship
Chapter 3
Voluntary product stewardship
Part 3
Section 70
No. , 2020
Recycling and Waste Reduction Bill 2020
71
(e) grounds on which the accrediting authority may or must
1
refuse to accredit a voluntary arrangement in relation to a
2
product;
3
(f) the imposition of conditions by the accrediting authority on a
4
voluntary arrangement's accreditation in relation to a
5
product;
6
(g) cancellation by an accrediting authority of a voluntary
7
arrangement's accreditation in relation to a product;
8
(h) the giving of information in relation to an accredited
9
voluntary arrangement.
10
Note 1:
See sections 172, 173 and 174 for additional matters relating to
11
applications.
12
Note 2:
The following are examples for the purposes of paragraph (f):
13
(a) a condition that the administrator of an accredited voluntary
14
arrangement take reasonable steps to ensure the arrangement's
15
outcomes are achieved;
16
(b) a condition relating to the exercise of the Commonwealth's
17
intellectual property rights in the product stewardship logo in
18
accordance with the arrangement.
19
Note 3:
The rules may also provide for the making and retention of records
20
(see section 142).
21
Preconditions to accreditation
22
(4) Without limiting subsection (2) or (3), the rules must require the
23
accrediting authority to refuse to accredit a voluntary arrangement
24
in relation to a product if the accrediting authority is satisfied that:
25
(a) an outcome of the arrangement in relation to the product will
26
not further the objects of this Act; or
27
(b) the arrangement is unlikely to achieve one or more of those
28
outcomes; or
29
(c) the product stewardship criteria are not satisfied in relation to
30
the product; or
31
(d) the persons authorised by the arrangement to exercise the
32
Commonwealth's intellectual property rights in a product
33
stewardship logo in connection with the product, or the
34
circumstances in which those persons are authorised, are not
35
appropriate; or
36
(e) it is not in the public interest to accredit the arrangement.
37
Chapter 3
Product stewardship
Part 3
Voluntary product stewardship
Section 71
72
Recycling and Waste Reduction Bill 2020
No. , 2020
Note:
See also section 71 (a voluntary arrangement that does not meet
1
certain conditions cannot be accredited).
2
Public interest and appropriate use of logo--relevant matters
3
(5) In determining whether the accrediting authority is satisfied as
4
mentioned in paragraph (4)(d) or (e), the accrediting authority:
5
(a) must have regard to the objects of this Act; and
6
(b) may have regard to any other matter.
7
71 Only certain kinds of voluntary arrangements can be accredited
8
A voluntary arrangement cannot be accredited unless the following
9
conditions are satisfied:
10
(a) the arrangement is designed to further the objects of this Act
11
by achieving one or more measurable outcomes in relation to
12
a product;
13
(b) there is a written document setting out:
14
(i) the persons that will be authorised by the arrangement
15
to exercise the Commonwealth's intellectual property
16
rights in a product stewardship logo in connection with
17
the product; and
18
(ii) the circumstances in which those persons will be
19
authorised by the arrangement to exercise those rights in
20
connection with the product;
21
(c) the arrangement provides for there to be a person (the
22
administrator
) who is responsible for ensuring the outcomes
23
referred to in paragraph (a) are achieved;
24
(d) the administrator is a body corporate.
25
72 Administrator of accredited voluntary arrangement must notify
26
the Minister of certain events
27
(1) The administrator of an accredited voluntary arrangement must
28
notify the Minister, in writing, as soon as practicable after any of
29
the following events occurs:
30
(a) there is a change to who the administrator of the arrangement
31
is;
32
Product stewardship
Chapter 3
Voluntary product stewardship
Part 3
Section 73
No. , 2020
Recycling and Waste Reduction Bill 2020
73
(b) an event that may affect whether the administrator is a fit and
1
proper person;
2
(c) an event that hinders the ability of the arrangement to achieve
3
its outcomes;
4
(d) an event prescribed by the rules.
5
(2) A person contravenes this subsection if:
6
(a) the person is required by subsection (1) to notify the Minister
7
of an event; and
8
(b) the person fails to comply with the requirement.
9
Strict liability offence
10
(3) A person commits an offence of strict liability if the person
11
contravenes subsection (2).
12
Penalty: 60 penalty units.
13
Civil penalty provision
14
(4) A person is liable to a civil penalty if the person contravenes
15
subsection (2).
16
Civil penalty:
250 penalty units.
17
73 What is a
product stewardship logo
18
(1) This section sets out what is a
product stewardship logo
.
19
Artistic works
20
(2) An artistic work is a
product stewardship logo
if:
21
(a) copyright subsists in the artistic work; and
22
(b) the Commonwealth is the owner of the copyright in the
23
artistic work; and
24
(c) the artistic work is reproduced on the Department's website
25
for the purposes of this section.
26
Trade marks
27
(3) A trade mark is a
product stewardship logo
if:
28
Chapter 3
Product stewardship
Part 3
Voluntary product stewardship
Section 74
74
Recycling and Waste Reduction Bill 2020
No. , 2020
(a) the trade mark is registered under the
Trade Marks Act 1995
;
1
and
2
(b) the Commonwealth is the registered owner of the trade mark
3
for the purposes of that Act; and
4
(c) the trade mark is represented on the Department's website for
5
the purposes of this section.
6
74 What are the Commonwealth's
intellectual property rights
in a
7
product stewardship logo
8
The Commonwealth's
intellectual property rights
in a product
9
stewardship logo are:
10
(a) if the product stewardship logo is an artistic work--the
11
Commonwealth's right under the
Copyright Act 1968
to do
12
an act comprised in the copyright of the artistic work; and
13
(b) if the product stewardship logo is a trade mark--the rights
14
held by the Commonwealth as the registered owner of the
15
trade mark under the
Trade Marks Act 1995
.
16
75 Commonwealth's intellectual property rights not limited
17
This Part does not limit:
18
(a) the Commonwealth's intellectual property rights in a product
19
stewardship logo; or
20
(b) the operation of the
Copyright Act 1968
or the
Trade Marks
21
Act 1995
.
22
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Requirements for liable parties and administrators of co-regulatory arrangements
Division 1
Section 76
No. , 2020
Recycling and Waste Reduction Bill 2020
75
Part 4--Co-regulatory product stewardship
1
Division 1--Requirements for liable parties and
2
administrators of co-regulatory arrangements
3
Subdivision A--Requirement for liable party to be member of
4
approved co-regulatory arrangement
5
76 Liable party to be member of approved co-regulatory
6
arrangement
7
(1) A liable party in relation to a product must be a member of an
8
approved co-regulatory arrangement in relation to that product.
9
Strict liability offence
10
(2) A person commits an offence of strict liability if the person
11
contravenes subsection (1).
12
Penalty: 60 penalty units.
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
250 penalty units.
17
Minister to give notice before applying for civil penalty order
18
(4) The Minister cannot apply for a civil penalty order in relation to a
19
contravention of subsection (1) by a person unless:
20
(a) the Minister has given the person a written notice requiring
21
the person to become a member of an arrangement referred to
22
in subsection (1) before the day specified in the notice; and
23
(b) the person has failed to comply with the notice.
24
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 1
Requirements for liable parties and administrators of co-regulatory
arrangements
Section 76
76
Recycling and Waste Reduction Bill 2020
No. , 2020
(5) The day specified in the notice must be at least 14 days after the
1
day the notice is given.
2
Variation and revocation of notice
3
(6) A person to whom a notice has been given under subsection (4)
4
may apply to the Minister to:
5
(a) vary the notice to specify a later day; or
6
(b) revoke the notice.
7
(7) The application must be:
8
(a) in writing; and
9
(b) made before the day specified in the notice under
10
subsection (4).
11
(8) The Minister may, by written notice given to the person:
12
(a) if paragraph (6)(a) applies--vary the notice to specify a later
13
day; or
14
(b) if paragraph (6)(b) applies--revoke the notice.
15
Note:
A decision under this subsection is a reviewable decision (see
16
section 151) and the Minister must give the person written notice of
17
the decision (see section 152).
18
(9) Otherwise, the Minister must refuse the application.
19
(10) Subsections (6) and (8) of this section do not affect the operation of
20
subsection 33(3) of the
Acts Interpretation Act 1901
in relation to a
21
notice under subsection (4) of this section.
22
Continuing contraventions
23
(11) Section 4K of the
Crimes Act 1914
and section 93 of the
24
Regulatory Powers Act apply in relation to a contravention of
25
subsection (1) of this section as if the liable party were required by
26
that subsection to be a member of an approved co-regulatory
27
arrangement before the day specified in the notice under
28
subsection (4) of this section.
29
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Requirements for liable parties and administrators of co-regulatory arrangements
Division 1
Section 77
No. , 2020
Recycling and Waste Reduction Bill 2020
77
77 Who is a
liable party
in relation to a product
1
Rules may specify liable parties
2
(1) A
liable party
, in relation to a product, is a person specified as a
3
liable party in relation to that product in the rules.
4
(2) However, a person is a
liable party
in relation to a product only if
5
the person:
6
(a) is a constitutional corporation; and
7
(b) has at any time:
8
(i) manufactured the product in Australia; or
9
(ii) imported the product into Australia; or
10
(iii) distributed the product in Australia; or
11
(iv) used the product in Australia.
12
Satisfying product stewardship criteria and furthering objects etc.
13
(3) Before the Minister makes rules for the purposes of subsection (1)
14
in relation to a product, the Minister must be satisfied that:
15
(a) making the rules in relation to the product will further the
16
objects of this Act; and
17
(b) the product stewardship criteria are satisfied in relation to the
18
product; and
19
(c) if rules made for the purposes of subsection (1) are not
20
already in force in relation to the product:
21
(i) the product has been notified by being included in a
22
Minister's priority list at least 12 months beforehand; or
23
(ii) there are special circumstances justifying the making of
24
the rules without that notification.
25
(4) If the Minister makes rules to which subparagraph (3)(c)(ii) applies
26
in relation to a product, the explanatory statement (within the
27
meaning of the
Legislation Act 2003
) for the rules must include a
28
statement setting out the special circumstances mentioned in that
29
subparagraph.
30
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 1
Requirements for liable parties and administrators of co-regulatory
arrangements
Section 78
78
Recycling and Waste Reduction Bill 2020
No. , 2020
Exempting liable parties
1
(5) The rules may provide for the Minister to determine that this Act
2
has effect as if a particular person who would otherwise have been
3
a liable party in relation to a product were not such a liable party:
4
(a) during a specified period; or
5
(b) indefinitely.
6
(6) The determination has effect accordingly.
7
78 What is an
approved co-regulatory arrangement
8
An
approved co-regulatory arrangement
is a co-regulatory
9
arrangement that is approved by the Minister under section 85 in
10
relation to a product.
11
Note 1:
Obligations imposed by this Act in relation to co-regulatory
12
arrangements and their administrators do not apply to an arrangement
13
that is not approved.
14
Note 2:
See section 85 for when the Minister must, or may, refuse to approve a
15
co-regulatory arrangement in certain circumstances.
16
79 Outcomes for approved co-regulatory arrangements
17
(1) Rules made for the purposes of subsection 77(1) specifying liable
18
parties in relation to a product must also specify one or more
19
outcomes to be achieved by an approved co-regulatory
20
arrangement that relates to that product.
21
(2) The rules may also do one or more of the following:
22
(a) specify a method or formula by reference to which such an
23
outcome may be determined, or for working out whether
24
such an outcome has been achieved;
25
(b) require different outcomes to be achieved by the end of
26
different periods;
27
(c) specify requirements for achieving those outcomes with
28
which the administrator must comply.
29
(3) Outcomes specified under subsection (1) must relate to the objects
30
of this Act.
31
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Requirements for liable parties and administrators of co-regulatory arrangements
Division 1
Section 80
No. , 2020
Recycling and Waste Reduction Bill 2020
79
80 Matters to be dealt with by co-regulatory arrangements
1
(1) The rules may specify matters to be dealt with by a co-regulatory
2
arrangement that relates to a specified product.
3
(2) Those matters must relate to one or more of the following:
4
(a) the governance of the arrangement (including resolving
5
disputes and replacing the administrator);
6
(b) membership of the arrangement (including requirements for
7
becoming or ceasing to be a member of the arrangement);
8
(c) communicating information to the public about the
9
arrangement;
10
(d) any other matter relevant to the operation of the arrangement
11
or the achievement of the outcomes specified under
12
section 79 in relation to that product.
13
Note:
Approval of a co-regulatory arrangement must be refused, and may be
14
cancelled, if the Minister is not satisfied the arrangement adequately
15
deals with these matters (see paragraphs 85(2)(c) and 87(1)(c)).
16
Subdivision B--Requirements for administrators of approved
17
co-regulatory arrangements
18
81 Administrator to achieve outcomes for co-regulatory
19
arrangement
20
(1) The administrator of an approved co-regulatory arrangement in
21
relation to a product must:
22
(a) take all reasonable steps to ensure that the arrangement
23
achieves the outcomes specified under section 79 in relation
24
to that product; and
25
(b) comply with any requirements prescribed by rules made for
26
the purposes of that section for achieving those outcomes.
27
Note 1:
The Minister may give an improvement notice, and require an audit of
28
the arrangement to be carried out under section 109, if the
29
administrator does not comply with this section.
30
Note 2:
The Minister may cancel the arrangement's approval if the
31
administrator does not comply with this section (see section 87).
32
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 1
Requirements for liable parties and administrators of co-regulatory
arrangements
Section 82
80
Recycling and Waste Reduction Bill 2020
No. , 2020
Strict liability offence
1
(2) A person commits an offence of strict liability if the person
2
contravenes subsection (1).
3
Penalty: 60 penalty units.
4
Civil penalty provision
5
(3) A person is liable to a civil penalty if the person contravenes
6
subsection (1).
7
Civil penalty:
250 penalty units.
8
82 Administrator must notify the Minister of certain events
9
(1) The administrator of an approved co-regulatory arrangement must
10
notify the Minister, in writing, as soon as practicable after any of
11
the following events occur:
12
(a) an event that hinders the ability of the arrangement to achieve
13
its outcomes;
14
(b) a liable party becomes, or ceases to be, a member of the
15
arrangement;
16
(c) an event prescribed by the rules.
17
(2) A person contravenes this subsection if:
18
(a) the person is required by subsection (1) to notify the Minister
19
of an event; and
20
(b) the person fails to comply with the requirement.
21
Strict liability offence
22
(3) A person commits an offence of strict liability if the person
23
contravenes subsection (2).
24
Penalty: 60 penalty units.
25
Civil penalty provision
26
(4) A person is liable to a civil penalty if the person contravenes
27
subsection (2).
28
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Requirements for liable parties and administrators of co-regulatory arrangements
Division 1
Section 83
No. , 2020
Recycling and Waste Reduction Bill 2020
81
Civil penalty:
250 penalty units.
1
Subdivision C--Requirements for liable parties and
2
administrators
3
83 Requirement to give reports to the Minister
4
(1) The rules may make provision for and in relation to requiring a
5
person who is a liable party in relation to a product, or the
6
administrator of an approved co-regulatory arrangement in relation
7
to a product, to give specified reports to the Minister.
8
Note:
The rules may also provide for the making and retention of records
9
(see section 142).
10
(2) Without limiting subsection (1), the rules may make provision for
11
and in relation to any of the following:
12
(a) the matters to which a report must relate (which may be
13
determined by the Minister);
14
(b) the manner in which a report must be given (which may be
15
determined by the Minister);
16
(c) the timing of giving of reports (which may be determined by
17
the Minister);
18
(d) the circumstances in which a report must be given (which
19
may depend on a request by the Minister).
20
(3) A person contravenes this subsection if:
21
(a) the person is subject to a requirement under rules made for
22
the purposes of subsection (1); and
23
(b) the person fails to comply with the requirement.
24
Strict liability offence
25
(4) A person commits an offence of strict liability if the person
26
contravenes subsection (3).
27
Penalty: 60 penalty units.
28
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 1
Requirements for liable parties and administrators of co-regulatory
arrangements
Section 83
82
Recycling and Waste Reduction Bill 2020
No. , 2020
Civil penalty provision
1
(5) A person is liable to a civil penalty if the person contravenes
2
subsection (3).
3
Civil penalty:
250 penalty units.
4
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Approving co-regulatory arrangements
Division 2
Section 84
No. , 2020
Recycling and Waste Reduction Bill 2020
83
Division 2--Approving co-regulatory arrangements
1
84 Approving co-regulatory arrangements--application
2
(1) The administrator of a co-regulatory arrangement may apply for
3
the Minister to approve the arrangement in relation to a product,
4
specified under section 77, to which the arrangement relates.
5
(2) The application must be accompanied by a written description of
6
the arrangement that sets out:
7
(a) how the arrangement proposes to achieve the outcomes
8
specified under section 79 in relation to the product; and
9
(b) the matters dealt with by the arrangement; and
10
(c) any other matter prescribed by the rules.
11
Note:
See sections 172, 173 and 174 for additional matters relating to
12
applications.
13
85 Approving co-regulatory arrangements--decision
14
Minister to approve or refuse to approve arrangement
15
(1) The Minister must, on application under section 84, either:
16
(a) approve the co-regulatory arrangement in relation to the
17
product to which the arrangement relates; or
18
(b) refuse to approve the co-regulatory arrangement in relation to
19
the product.
20
Note:
A decision to refuse to approve an arrangement in relation to the
21
product is a reviewable decision (see section 151) and the Minister
22
must give the applicant written notice of the decision (see
23
section 152).
24
When Minister must refuse to approve arrangement
25
(2) The Minister must refuse to approve a co-regulatory arrangement
26
in relation to the product if the Minister is satisfied that:
27
(a) a condition in subsection (3) is not satisfied in relation to the
28
arrangement; or
29
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 2
Approving co-regulatory arrangements
Section 85
84
Recycling and Waste Reduction Bill 2020
No. , 2020
(b) the arrangement is unlikely to achieve one or more of the
1
outcomes specified under section 79 for the product; or
2
(c) the arrangement does not adequately deal with any matters
3
specified for the product in rules made for the purposes of
4
section 80; or
5
(d) the administrator is not a fit and proper person; or
6
(e) it is not in the public interest to approve the arrangement.
7
Note:
The Minister must have regard to the matters in section 175 in
8
considering whether the administrator is a fit and proper person for the
9
purposes of paragraph (d).
10
(3) The conditions are as follows:
11
(a) the arrangement is designed to achieve the outcomes
12
specified under section 79 in relation to a product;
13
(b) the arrangement deals with the matters prescribed by rules (if
14
any) made for the purposes of section 80 in relation to that
15
product;
16
(c) the arrangement provides for there to be one or more
17
members of the arrangement;
18
(d) only a liable party may, under the arrangement, be a member
19
of the arrangement;
20
(e) the arrangement provides for there to be a person (the
21
administrator
) who:
22
(i) is responsible for ensuring the outcomes referred to in
23
paragraph (a) are achieved; and
24
(ii) may also be a member of the arrangement;
25
(f) the administrator is a body corporate.
26
Public interest
27
(4) For the purposes of paragraph (2)(e), in determining whether it is
28
in the public interest to approve the co-regulatory arrangement, the
29
Minister:
30
(a) must have regard to the objects of this Act; and
31
(b) may have regard to any other matter.
32
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Approving co-regulatory arrangements
Division 2
Section 85
No. , 2020
Recycling and Waste Reduction Bill 2020
85
When Minister may refuse to approve arrangement
1
(5) The Minister may refuse to approve a co-regulatory arrangement in
2
relation to the product if:
3
(a) the applicant has not given the Minister further information
4
or documents within the period specified in a request made
5
under section 174 in relation to the application; or
6
(b) the information or a document provided in the application, or
7
as requested under section 174, is false or misleading.
8
Notice of decision
9
(6) The Minister must give the applicant written notice of the decision
10
on the application.
11
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 3
Reviewing co-regulatory arrangements and cancelling approvals
Section 86
86
Recycling and Waste Reduction Bill 2020
No. , 2020
Division 3--Reviewing co-regulatory arrangements and
1
cancelling approvals
2
86 Reviewing approved co-regulatory arrangements
3
(1) The Minister must review the operation of an approved
4
co-regulatory arrangement before the end of:
5
(a) 5 years starting on the day the arrangement is approved; and
6
(b) each successive 5-year period.
7
(2) Subsection (1) does not limit:
8
(a) the Minister's ability to review the operation of an approved
9
co-regulatory arrangement at any other time; or
10
(b) the Minister's power under section 87 to cancel the approval
11
of a co-regulatory arrangement.
12
87 Cancelling approvals of co-regulatory arrangements
13
General grounds for cancelling arrangement's approval
14
(1) The Minister may cancel the approval of a co-regulatory
15
arrangement in relation to a product if the Minister is satisfied that:
16
(a) a condition in subsection 85(3) is not satisfied in relation to
17
the arrangement; or
18
(b) the arrangement has not achieved, or is unlikely to achieve,
19
one or more of the outcomes specified under section 79 for
20
the product; or
21
(c) the arrangement does not adequately deal with any matters
22
specified for the product in rules made for the purposes of
23
section 80; or
24
(d) the arrangement's administrator is not a fit and proper
25
person; or
26
(e) the arrangement's administrator has not complied with one or
27
more of the following in relation to the arrangement:
28
(i) section 81 (which requires the administrator to take
29
reasonable steps to achieve the outcomes referred to in
30
paragraph (b) in accordance with the rules);
31
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Reviewing co-regulatory arrangements and cancelling approvals
Division 3
Section 87
No. , 2020
Recycling and Waste Reduction Bill 2020
87
(ii) an improvement notice given under section 88;
1
(iii) section 115 (which requires the administrator to provide
2
an auditor with facilities and assistance in relation to
3
conducting an audit);
4
(iv) rules made for the purposes of section 142 (making and
5
retaining records); or
6
(f) subsection 91(1) (replacing administrator) has not been
7
complied with in relation to the arrangement; or
8
(g) there has been a material change in circumstances since the
9
arrangement was approved; or
10
(h) any of the following information or documents were false or
11
misleading:
12
(i) information or documents given in connection with the
13
application for approval;
14
(ii) information or documents given in connection with an
15
application under subsection 91(1) (replacing
16
administrator);
17
(iii) information or documents given at any other time in
18
relation to this Act; or
19
(i) a ground for cancelling the approval prescribed by the rules
20
exists.
21
Note 1:
The Minister must have regard to the matters in section 175 in
22
considering whether the administrator is a fit and proper person for the
23
purposes of paragraph (d).
24
Note 2:
A decision to cancel the approval of a co-regulatory arrangement in
25
relation to a product is a reviewable decision (see section 151) and the
26
Minister must give the administrator of the arrangement written notice
27
of the decision (see section 152).
28
Cancelling arrangement's approval on application by
29
administrator
30
(2) The Minister may cancel the approval of a co-regulatory
31
arrangement if the administrator of the arrangement applies for the
32
Minister to do so.
33
Note 1:
See sections 172, 173 and 174 for additional matters relating to
34
applications.
35
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 3
Reviewing co-regulatory arrangements and cancelling approvals
Section 87
88
Recycling and Waste Reduction Bill 2020
No. , 2020
Note 2:
A decision to refuse to cancel the approval of a co-regulatory
1
arrangement in relation to a product is a reviewable decision (see
2
section 151) and the Minister must give the administrator of the
3
arrangement written notice of the decision (see section 152).
4
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Improvement notices
Division 4
Section 88
No. , 2020
Recycling and Waste Reduction Bill 2020
89
Division 4--Improvement notices
1
88 Improvement notices
2
(1) The Minister may give an administrator of an approved
3
co-regulatory arrangement a notice (an
improvement notice
) under
4
this section if the Minister:
5
(a) believes on reasonable grounds that the administrator has not
6
complied, or is unlikely to comply, with section 81
7
(administrator to achieve outcomes); and
8
(b) is satisfied that it is in the public interest to do so.
9
(2) The notice must:
10
(a) specify the grounds on which the Minister believes that the
11
administrator has not complied, or is unlikely to comply, with
12
section 81; and
13
(b) specify a reasonable period within which the administrator
14
must take the action necessary to comply with section 81.
15
(3) The notice may specify action that the administrator must take
16
during the period.
17
(4) Before the end of the period, the Minister may extend the period in
18
writing.
19
Varying or revoking a notice
20
(5) If the Minister is satisfied that it is in the public interest to vary or
21
revoke an improvement notice (the
original notice
), the Minister
22
may do so by giving a written notice (the
new notice
) to the
23
administrator.
24
(6) If the original notice is varied, the new notice must set out the text
25
of the original notice and the variations to it.
26
(7) An administrator must comply with an improvement notice given
27
to the administrator under this section.
28
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 4
Improvement notices
Section 88
90
Recycling and Waste Reduction Bill 2020
No. , 2020
Strict liability offence
1
(8) A person commits an offence of strict liability if the person
2
contravenes subsection (7).
3
Penalty: 60 penalty units.
4
Civil penalty provision
5
(9) A person is liable to a civil penalty if the person contravenes
6
subsection (7).
7
Civil penalty:
250 penalty units.
8
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Other matters relating to co-regulatory product stewardship
Division 5
Section 89
No. , 2020
Recycling and Waste Reduction Bill 2020
91
Division 5--Other matters relating to co-regulatory
1
product stewardship
2
89 Co-regulatory product stewardship--anti-avoidance
3
Minister may determine Act has effect as if person were a liable
4
party
5
(1) The Minister may, by writing, determine that this Act has effect,
6
and is taken always to have had effect, as if a specified person (the
7
prospective liable party
) were a liable party in relation to a product
8
in relation to which rules have been made for the purposes of
9
subsection 77(1).
10
Note:
A determination under this subsection is a reviewable decision (see
11
section 151) and the Minister must give the person written notice of
12
the decision (see section 152).
13
Conditions for making determination--avoidance scheme etc.
14
(2) However, the Minister may make the determination only if:
15
(a) one or more persons (whether or not the prospective liable
16
party) engaged in any or all of the following conduct:
17
(i) entering into a scheme;
18
(ii) beginning to carry out a scheme;
19
(iii) carrying out a scheme; and
20
(b) the Minister believes, on reasonable grounds, that any person
21
who engaged in that conduct did so for the purpose (or for
22
purposes that included the substantial purpose) of enabling
23
the prospective liable party to avoid being a liable party in
24
relation to a product; and
25
(c) the prospective liable party is a constitutional corporation.
26
Determination has effect
27
(3) The determination has effect accordingly.
28
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 5
Other matters relating to co-regulatory product stewardship
Section 90
92
Recycling and Waste Reduction Bill 2020
No. , 2020
Period during which determination has effect
1
(4) The determination:
2
(a) takes effect on the day specified in the determination, which
3
must not be before the day the rules specifying the liable
4
parties in relation to the product came into force; and
5
(b) remains in effect:
6
(i) if a day is specified in the determination--until that day;
7
or
8
(ii) otherwise--indefinitely.
9
Determination not a legislative instrument
10
(5) A determination made under subsection (1) is not a legislative
11
instrument.
12
Meaning of
scheme
13
(6) In this Act:
14
scheme
means:
15
(a) any agreement, arrangement, understanding, promise or
16
undertaking, whether express or implied and whether or not
17
enforceable, or intended to be enforceable, by legal
18
proceedings; or
19
(b) any scheme, plan, proposal, action, course of action or course
20
of conduct, whether there are 2 or more parties or only one
21
party involved.
22
90 Additional or corrected information in relation to approved
23
co-regulatory arrangements
24
(1) The administrator of an approved co-regulatory arrangement must
25
comply with subsection (2) if:
26
(a) the administrator becomes aware that information included in
27
an application made under section 84, or information or a
28
document given to the Minister in relation to such an
29
application, was incomplete or incorrect; or
30
(b) a change prescribed by the rules occurs.
31
Product stewardship
Chapter 3
Co-regulatory product stewardship
Part 4
Other matters relating to co-regulatory product stewardship
Division 5
Section 91
No. , 2020
Recycling and Waste Reduction Bill 2020
93
(2) The administrator of the approved co-regulatory arrangement must,
1
as soon as practicable, give the Minister additional or corrected
2
information, to the extent that it is relevant to assessing whether the
3
requirements of this Act in relation to a matter covered by the
4
approval have been, are being or will be complied with.
5
Note:
A person may commit an offence or be liable to a civil penalty if the
6
person makes a false or misleading statement in an application or
7
provides false or misleading information or documents (see
8
sections 145, 146 and 147 of this Act and sections 136.1, 137.1 and
9
137.2 of the
Criminal Code
).
10
Civil penalty provision
11
(3) A person is liable to a civil penalty if:
12
(a) the person is required to give information to the Minister by
13
subsection (2); and
14
(b) the person fails to comply with the requirement.
15
Civil penalty:
60 penalty units.
16
91 Co-regulatory product stewardship--replacing administrator
17
(1) A person cannot be appointed to replace an administrator of an
18
approved co-regulatory arrangement unless the Minister, on
19
application by the person, approves the appointment.
20
Note 1:
See sections 172, 173 and 174 for additional matters relating to
21
applications.
22
Note 2:
The Minister may cancel the arrangement's approval if this subsection
23
is not complied with (see section 87).
24
(2) The Minister must decide to:
25
(a) approve the appointment; or
26
(b) refuse to approve the appointment.
27
Note:
A decision to refuse to approve the appointment is a reviewable
28
decision (see section 151) and the Minister must give the person
29
written notice of the decision (see section 152).
30
(3) In deciding whether to approve the appointment, the Minister must
31
have regard to the following matters:
32
Chapter 3
Product stewardship
Part 4
Co-regulatory product stewardship
Division 5
Other matters relating to co-regulatory product stewardship
Section 91
94
Recycling and Waste Reduction Bill 2020
No. , 2020
(a) whether the Minister would have approved the arrangement
1
if the person had been the administrator at the time the
2
application for approval of the co-regulatory arrangement
3
was made;
4
(b) if a request has been made under subsection 174(1) in
5
relation to the application--whether the person has given the
6
Minister further information or documents within the period
7
specified in the request in relation to the application;
8
(c) whether information or a document provided in the
9
application under subsection (1) of this section, or as
10
requested under section 174, is false or misleading;
11
(d) any other matters prescribed by the rules.
12
Note:
For approval requirements relating to administrators, see:
13
(a) paragraph 85(2)(d) (administrator to be a fit and proper person);
14
and
15
(b) paragraph 85(3)(f) (administrator to be a body corporate).
16
(4) In deciding whether to approve the appointment, the Minister may
17
have regard to any other matter that the Minister considers
18
relevant.
19
(5) The Minister must give the person written notice of the Minister's
20
decision on an application under subsection (1).
21
Product stewardship
Chapter 3
Mandatory product stewardship
Part 5
Section 92
No. , 2020
Recycling and Waste Reduction Bill 2020
95
Part 5--Mandatory product stewardship
1
2
92 Mandatory product stewardship requirements may be prescribed
3
by rules
4
Basic rule--requiring person to take, or not take, specified action
5
(1) The rules may require one or more specified persons to take, or not
6
to take, specified action in relation to a specified product.
7
(2) The action must relate to the objects of this Act.
8
Note:
For limitations on the power to make rules for the purposes of this
9
Part, see sections 93 (satisfying product stewardship criteria and
10
furthering objects of this Act) and 94 (constitutional connection).
11
Specific action covered by subsection (1)
12
(3) Without limiting subsection (1), rules made for the purposes of that
13
subsection in relation to a product may do any or all of the
14
following:
15
(a) prohibit (either absolutely or subject to conditions), limit,
16
restrict or otherwise affect the manufacture, import, export,
17
distribution or use of the product;
18
(b) prohibit (either absolutely or subject to conditions), limit or
19
restrict substances from being contained in the product;
20
(c) require the product to be labelled or marked in accordance
21
with the rules;
22
(d) specify requirements in relation to packaging the product;
23
(e) specify requirements in relation to the durability, reparability
24
and reusability of the product;
25
(f) specify requirements in relation to communicating
26
information, in accordance with the rules, in connection with
27
distributing, reusing, recycling, recovering, treating or
28
disposing of the product;
29
(g) require a person to make a product return payment in relation
30
to the product;
31
Chapter 3
Product stewardship
Part 5
Mandatory product stewardship
Section 92
96
Recycling and Waste Reduction Bill 2020
No. , 2020
(h) specify requirements in relation to product design for the
1
product;
2
(i) specify other requirements in relation to reusing, recycling,
3
recovering, treating or disposing of the product;
4
(j) provide for the Minister to exempt a specified person from a
5
requirement prescribed by rules made for the purposes of
6
subsection (1).
7
(4) The paragraphs of subsection (3) do not limit each other.
8
(5) A person contravenes this subsection if:
9
(a) the person is subject to a requirement under rules made for
10
the purposes of subsection (1); and
11
(b) the person fails to comply with the requirement.
12
Fault-based offence
13
(6) A person commits an offence if the person contravenes
14
subsection (5).
15
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
16
Civil penalty provision
17
(7) A person is liable to a civil penalty if the person contravenes
18
subsection (5).
19
Civil penalty:
240 penalty units.
20
Meaning of
product return payment
21
(8) A
product return payment
is a payment, of an amount prescribed
22
by the rules in relation to a product, that a person is required to
23
make to another person if the other person returns that kind of
24
product for reuse, recycling, recovery, treatment or disposal.
25
Note:
The Minister must be satisfied of certain matters before rules are made
26
requiring a person to pay a product return payment in relation to a
27
product (see paragraph 93(1)(c)).
28
Product stewardship
Chapter 3
Mandatory product stewardship
Part 5
Section 93
No. , 2020
Recycling and Waste Reduction Bill 2020
97
Product return payment not taxation
1
(9) Rules made for the purposes of subsection (1) that require a person
2
to make a product return payment must not amount to taxation.
3
93 Mandatory product stewardship--satisfying product stewardship
4
criteria and furthering objects etc.
5
(1) Before the Minister makes rules for the purposes of section 92 in
6
relation to a product, the Minister must be satisfied that:
7
(a) making the rules in relation to the product will further the
8
objects of this Act; and
9
(b) the product stewardship criteria are satisfied in relation to the
10
product; and
11
(c) if the rules would require a person to make a product return
12
payment in relation to the product:
13
(i) making the rules will encourage reusing, recycling,
14
recovering, treating or disposing of that kind of product,
15
or waste from such products, in a safe, scientific and
16
environmentally sound way; and
17
(ii) the persons required to make product return payments in
18
relation to the product are likely to be appropriately
19
compensated; and
20
(d) if rules made for the purposes of section 92 are not already in
21
force in relation to the product:
22
(i) the product has been notified in a Minister's priority list
23
at least 12 months beforehand; or
24
(ii) there are special circumstances justifying the making of
25
the rules without that notification.
26
Example: For the purposes of subparagraph (c)(ii), the persons would be
27
appropriately compensated if they:
28
(a) are able to pass the costs of the payments on to consumers; or
29
(b) will be reimbursed for the payments by other participants in the
30
supply chain for the product.
31
(2) If the Minister makes rules to which subparagraph (1)(d)(ii) applies
32
in relation to a product, the explanatory statement (within the
33
meaning of the
Legislation Act 2003
) for the rules must include a
34
Chapter 3
Product stewardship
Part 5
Mandatory product stewardship
Section 94
98
Recycling and Waste Reduction Bill 2020
No. , 2020
statement setting out the special circumstances mentioned in that
1
subparagraph.
2
94 Mandatory product stewardship--constitutional connection
3
(1) Rules made for the purposes of this Part must:
4
(a) be expressed to apply in relation to acts and omissions of
5
constitutional corporations; or
6
(b) be expressed to apply in relation to acts and omissions in the
7
course of constitutional trade or commerce; or
8
(c) be appropriate and adapted to give effect to Australia's
9
obligations under an agreement with one or more other
10
countries.
11
(2) Rules made for the purposes of this Part must:
12
(a) specify whether they are made in accordance with
13
paragraph (1)(a), (b) or (c); and
14
(b) if they are made in accordance with paragraph (1)(c)--
15
identify the agreement referred to in that paragraph.
16
Product stewardship
Chapter 3
Other matters
Part 6
Section 95
No. , 2020
Recycling and Waste Reduction Bill 2020
99
Part 6--Other matters
1
2
95 Publishing information about arrangements
3
(1) The Minister must publish on the Department's website, for each
4
accredited voluntary arrangement and each approved co-regulatory
5
arrangement:
6
(a) a summary of the arrangement; and
7
(b) the name of the arrangement's administrator; and
8
(c) the contact details for the arrangement's administrator that
9
are prescribed by the rules; and
10
(d) a copy of any report on the operation of the arrangement
11
given to the Minister:
12
(i) for an accredited voluntary arrangement--in accordance
13
with a condition of the arrangement's accreditation (see
14
paragraph 70(3)(f)); or
15
(ii) for an approved co-regulatory arrangement--in
16
accordance with rules made for the purposes of
17
section 83 (requirement to give reports to the Minister);
18
and
19
(e) for an accredited voluntary arrangement--the persons
20
authorised by the arrangement to exercise the
21
Commonwealth's intellectual property rights in a product
22
stewardship logo;
23
(f) for an approved co-regulatory arrangement--a copy of any
24
audit report in relation to the arrangement given to the
25
Minister in accordance with rules made for the purposes of
26
section 112.
27
(2) However, the Minister must not publish any information under
28
subsection (1) if the Minister is satisfied that:
29
(a) there is a risk that publishing the information might
30
substantially prejudice the commercial interests of a person;
31
and
32
(b) publishing the information is not in the public interest.
33
Chapter 4
Administration
Part 1
Introduction
Section 96
100
Recycling and Waste Reduction Bill 2020
No. , 2020
Chapter 4--Administration
1
Part 1--Introduction
2
3
96 Simplified outline of this Chapter
4
Authorised officers have powers to ensure people are complying
5
with this Act, to investigate non-compliance and to enforce this
6
Act. Enforcement mechanisms include infringement notices,
7
enforceable undertakings and injunctions.
8
Auditors can conduct audits in relation to product stewardship
9
arrangements, export operations and the performance of functions
10
and the exercise of powers under this Act.
11
The rules may require persons who have obligations under this Act
12
to make and retain specified kinds of records.
13
The Minister has various powers to gather information relating to
14
regulated waste material, product stewardship, the objects of this
15
Act and other matters.
16
Information obtained by or disclosed to persons under or for the
17
purposes of this Act (called protected information) must not be
18
used or disclosed if the use or disclosure might substantially
19
prejudice the commercial interests of a person. There are some
20
exceptions.
21
Certain decisions under this Act may be reviewed by the Minister
22
and by the Administrative Appeals Tribunal.
23
Fees may be charged relating to activities carried out by, or on
24
behalf of, the Commonwealth in the performance of functions or
25
the exercise of powers under this Act.
26
Administration
Chapter 4
Introduction
Part 1
Section 96
No. , 2020
Recycling and Waste Reduction Bill 2020
101
The rules may also make provision in relation to the payment of
1
waste material export charge (which is a tax imposed under related
2
legislation).
3
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 1
Powers of investigation and enforcement
Section 97
102
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 2--Compliance and enforcement
1
Division 1--Powers of investigation and enforcement
2
97 General monitoring powers
3
Provisions subject to monitoring
4
(1) A provision is subject to monitoring under Part 2 of the Regulatory
5
Powers Act if it is:
6
(a) a provision of this Act; or
7
(b) an offence provision of the
Crimes Act 1914
or the
Criminal
8
Code
, to the extent
that the provision relates to this Act.
9
Note:
Part 2 of the Regulatory Powers Act creates a framework for
10
monitoring whether this Act has been complied with. It includes
11
powers of entry and inspection.
12
Information subject to monitoring
13
(2) Information given in compliance or purported compliance with a
14
provision of this Act is subject to monitoring under Part 2 of the
15
Regulatory Powers Act.
16
Note:
Part 2 of the Regulatory Powers Act creates a framework for
17
monitoring whether the information is correct. It includes powers of
18
entry and inspection.
19
Related provisions, authorised applicant, authorised person,
20
issuing officer, relevant chief executive and relevant court
21
(3) For the purposes of Part 2 of the Regulatory Powers Act, as that
22
Part applies in relation to the provisions mentioned in
23
subsection (1) and information mentioned in subsection (2):
24
(a) there are no related provisions; and
25
(b) an authorised government enforcement officer is an
26
authorised applicant; and
27
(c) an authorised government enforcement officer is an
28
authorised person; and
29
(d) a magistrate is an issuing officer; and
30
Administration
Chapter 4
Compliance and enforcement
Part 2
Powers of investigation and enforcement
Division 1
Section 98
No. , 2020
Recycling and Waste Reduction Bill 2020
103
(e) the Secretary is the relevant chief executive; and
1
(f) each relevant court (as defined in section 10 of this Act) is a
2
relevant court.
3
Person assisting
4
(4) An authorised person may be assisted by other persons in
5
exercising powers or performing functions or duties under Part 2 of
6
the Regulatory Powers Act in relation to the provisions mentioned
7
in subsection (1) or information mentioned in subsection (2).
8
Extension to external Territories
9
(5) Part 2 of the Regulatory Powers Act, as that Part applies in relation
10
to
the provisions mentioned in subsection (1) and information
11
mentioned in subsection (2) extends to every external Territory.
12
98 Additional monitoring powers etc.
13
Additional monitoring powers
14
(1) For the purposes of Part 2 of the Regulatory Powers Act, the
15
additional powers mentioned in subsection (2) are also taken to be
16
monitoring powers for the purposes of determining:
17
(a) whether a provision of this Act, or an offence provision of
18
the
Crimes Act 1914
or the
Criminal Code
, to the extent
that
19
the provision relates to this Act, has been, or is being,
20
complied with; or
21
(b) the correctness of information given in compliance or
22
purported compliance with a provision of this Act.
23
(2) The additional monitoring powers are:
24
(a) the powers to take, test and analyse samples of any thing on
25
premises entered under Part 2 of the Regulatory Powers Act;
26
and
27
(b) the power to secure premises entered under Part 2 of the
28
Regulatory Powers Act; and
29
(c) the power to secure things on premises entered under Part 2
30
of the Regulatory Powers Act for the purpose of testing or
31
analysing those things.
32
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 1
Powers of investigation and enforcement
Section 99
104
Recycling and Waste Reduction Bill 2020
No. , 2020
Identity cards
1
(3) Part 2 of the Regulatory Powers Act applies in relation to the
2
provisions of this Act as if a reference in that Part to an identity
3
card were a reference to an identity card issued under section 123
4
of this Act.
5
(4) The following provisions of the Regulatory Powers Act do not
6
apply in relation to the provisions of this Act:
7
(a) the definition of
identity card
in section 4;
8
(b) section 13;
9
(c) Division 8 of Part 2.
10
Use of reasonable force
11
(5) In executing a monitoring warrant:
12
(a) an authorised person may use such force against things as is
13
necessary and reasonable in the circumstances; and
14
(b) a person assisting the authorised person may use such force
15
against things as is necessary and reasonable in the
16
circumstances.
17
99 General investigation powers
18
Provisions subject to investigation
19
(1) A provision is subject to investigation under Part 3 of the
20
Regulatory Powers Act if it is:
21
(a) an offence provision of this Act; or
22
(b) a civil penalty provision of this Act; or
23
(c) an offence provision of the
Crimes Act 1914
or the
Criminal
24
Code
, to the extent that the provision relates to this Act.
25
Note:
Part 3 of the Regulatory Powers Act creates a framework for
26
investigating whether a provision has been contravened. It includes
27
powers of entry, search and seizure.
28
Administration
Chapter 4
Compliance and enforcement
Part 2
Powers of investigation and enforcement
Division 1
Section 100
No. , 2020
Recycling and Waste Reduction Bill 2020
105
Related provisions, authorised applicant, authorised person,
1
issuing officer, relevant chief executive and relevant court
2
(2) For the purposes of Part 3 of the Regulatory Powers Act, as it
3
applies in relation to evidential material that relates to a provision
4
mentioned in subsection (1):
5
(a) there are no related provisions; and
6
(b) an authorised government enforcement officer is an
7
authorised
applicant; and
8
(c) an authorised government enforcement officer is an
9
authorised person; and
10
(d) a magistrate is an issuing officer; and
11
(e) the Secretary is the relevant chief executive; and
12
(f) each relevant court (as defined in section 10 of this Act) is a
13
relevant court.
14
Person assisting
15
(3) An authorised person may be assisted by other persons in
16
exercising powers or performing functions or duties under Part 3 of
17
the Regulatory Powers Act in relation to evidential material that
18
relates to a provision mentioned in subsection (1).
19
Extension to external Territories
20
(4) Part 3 of the Regulatory Powers Act, as it applies in relation to a
21
provision
mentioned in subsection (1), extends to every external
22
Territory.
23
100 Additional investigation powers etc.
24
Additional investigation powers
25
(1) For the purposes of Part 3 of the Regulatory Powers Act, the
26
additional powers mentioned in subsection (2) are also taken to be
27
investigation powers in relation to evidential material that relates to
28
a provision referred to in subsection 99(1).
29
(2) The additional investigation powers are:
30
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 1
Powers of investigation and enforcement
Section 101
106
Recycling and Waste Reduction Bill 2020
No. , 2020
(a) the powers to take, test and analyse samples of any thing on
1
premises entered under Part 3 of the Regulatory Powers Act;
2
and
3
(b) if the authorised person has the power to seize a thing (the
4
seizable thing
) under that Part--the power to seize a
5
container that contains the seizable thing, and any other thing
6
contained in the container, if the authorised person
7
reasonably believes that it is not reasonably practicable to
8
seize the seizable thing without also seizing the container.
9
Identity cards
10
(3) Part 3 of the Regulatory Powers Act applies in relation to a
11
provision referred to in subsection 99(1) of this Act as if a
12
reference in that Part to an identity card were a reference to an
13
identity card issued under section 123 of this Act.
14
(4) The following provisions of the Regulatory Powers Act do not
15
apply in relation to a provision referred to in subsection 99(1) of
16
this Act:
17
(a) the definition of
identity card
in section 4;
18
(b) section 43;
19
(c) Division 9 of Part 3.
20
Use of necessary and reasonable force
21
(5) In executing an investigation warrant:
22
(a) an authorised person may use such force against things as is
23
necessary and reasonable in the circumstances; and
24
(b) a person assisting the authorised person may use such force
25
against things as is necessary and reasonable in the
26
circumstances.
27
101 Civil penalty provisions
28
Enforceable civil penalty provisions
29
(1) Each civil penalty provision of this Act is enforceable under Part 4
30
of the Regulatory Powers Act.
31
Administration
Chapter 4
Compliance and enforcement
Part 2
Powers of investigation and enforcement
Division 1
Section 102
No. , 2020
Recycling and Waste Reduction Bill 2020
107
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
1
be enforced by obtaining an order for a person to pay a pecuniary
2
penalty for the contravention of the provision.
3
Authorised applicant
4
(2) For the purposes of Part 4 of the Regulatory Powers Act, the
5
Secretary is an authorised applicant in relation to the civil penalty
6
provisions of this Act.
7
Relevant court
8
(3) For the purposes of Part 4 of the Regulatory Powers Act, each
9
relevant court (as defined in section 10 of this Act) is a relevant
10
court in relation to the civil penalty provisions of this Act.
11
Extension to external Territories
12
(4) Part 4 of the Regulatory Powers Act, as it applies in relation to the
13
civil penalty provisions
of this Act, extends to every external
14
Territory.
15
102 Infringement notices
16
Provisions subject to an infringement notice
17
(1) The following provisions of this Act are subject to an infringement
18
notice under Part 5 of the Regulatory Powers Act:
19
(a) subsection 60(3);
20
(b) subsection 61(3);
21
(c) subsection 61(4);
22
(d) subsection 72(3);
23
(e) subsection 72(4);
24
(f) subsection 76(2);
25
(g) subsection 76(3);
26
(h) subsection 81(2);
27
(i) subsection 81(3);
28
(j) subsection 82(3);
29
(k) subsection 82(4);
30
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 1
Powers of investigation and enforcement
Section 102
108
Recycling and Waste Reduction Bill 2020
No. , 2020
(l) subsection 83(4);
1
(m) subsection 83(5);
2
(n) subsection 88(8);
3
(o) subsection 88(9);
4
(p) subsection 90(3);
5
(q) subsection 92(7);
6
(r) subsection 105(4);
7
(s) subsection 106(8);
8
(t) subsection 120(6);
9
(u) subsection 121(3);
10
(v) subsection 124(3);
11
(w) subsection 142(4);
12
(x) subsection 142(5);
13
(y) subsection 144(8);
14
(z) subsection 144(9);
15
(za) subsection 173(3).
16
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
17
infringement notices in relation to provisions.
18
Infringement officer
19
(2) For the purposes of Part 5 of the Regulatory Powers Act, the
20
Secretary is an infringement officer in relation to the provisions
21
mentioned in subsection (1).
22
Relevant chief executive
23
(3) For the purposes of Part 5 of the Regulatory Powers Act, the
24
Secretary is the relevant chief executive in relation to the
25
provisions mentioned in subsection (1).
26
Extension to external Territories
27
(4) Part 5 of the Regulatory Powers Act, as that Part applies in relation
28
to
the provisions mentioned in subsection (1), extends to every
29
external Territory.
30
Administration
Chapter 4
Compliance and enforcement
Part 2
Powers of investigation and enforcement
Division 1
Section 103
No. , 2020
Recycling and Waste Reduction Bill 2020
109
103 Enforceable undertakings
1
Enforceable provisions
2
(1) The provisions of this Act are enforceable
under Part 6 of the
3
Regulatory Powers Act.
4
Note:
Part 6 of the Regulatory Powers Act creates a framework for accepting
5
and enforcing undertakings relating to compliance with provisions.
6
Authorised person
7
(2) For the purposes of Part 6 of the Regulatory Powers Act, the
8
Secretary is an authorised person in relation to the provisions
9
mentioned in subsection (1).
10
Relevant court
11
(3) For the purposes of Part 6 of the Regulatory Powers Act, each
12
relevant court (as defined in section 10 of this Act) is a relevant
13
court in relation to the provisions mentioned in subsection (1).
14
Extension to external Territories
15
(4) Part 6 of the Regulatory Powers Act, as it applies in relation to
the
16
provisions mentioned in subsection (1), extends to every external
17
Territory.
18
104 Injunctions
19
Enforceable provisions
20
(1) The provisions of this Act are enforceable
under Part 7 of the
21
Regulatory Powers Act.
22
Note:
Part 7 of the Regulatory Powers Act creates a framework for using
23
injunctions to enforce provisions.
24
Authorised person
25
(2) For the purposes of Part 7 of the Regulatory Powers Act, the
26
Secretary is an authorised person in relation to the provisions
27
mentioned in subsection (1).
28
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 1
Powers of investigation and enforcement
Section 104
110
Recycling and Waste Reduction Bill 2020
No. , 2020
Relevant court
1
(3) For the purposes of Part 7 of the Regulatory Powers Act, each
2
relevant court (as defined in section 10 of this Act) is a relevant
3
court in relation to the provisions mentioned in subsection (1).
4
Extension to external Territories
5
(4) Part 7 of the Regulatory Powers Act, as it applies in relation to
the
6
provisions mentioned in subsection (1), extends to every external
7
Territory.
8
Administration
Chapter 4
Compliance and enforcement
Part 2
Power to give directions
Division 2
Section 105
No. , 2020
Recycling and Waste Reduction Bill 2020
111
Division 2--Power to give directions
1
2
105 Direction to assist persons performing functions etc. under this
3
Act
4
(1) If:
5
(a) an authorised officer is performing functions or exercising
6
powers under this Act; and
7
(b) the authorised officer reasonably believes that a person (the
8
relevant person
) is able to provide reasonable assistance or
9
facilities to the authorised officer, or to any other person who
10
is performing functions or exercising powers under this Act;
11
the authorised officer may direct the relevant person to provide that
12
assistance or those facilities.
13
Note:
See also section 107 (general provisions relating to directions).
14
(2) A person contravenes this subsection if:
15
(a) the person is given a direction under subsection (1); and
16
(b) the person engages in conduct; and
17
(c) the conduct contravenes the direction.
18
Fault-based offence
19
(3) A person commits an offence if the person contravenes
20
subsection (2).
21
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
22
Civil penalty provision
23
(4) A person is liable to a civil penalty if the person contravenes
24
subsection (2).
25
Civil penalty:
60 penalty units.
26
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 2
Power to give directions
Section 106
112
Recycling and Waste Reduction Bill 2020
No. , 2020
106 Direction to deal with non-compliance with the requirements of
1
this Act etc.
2
Grounds for giving direction
3
(1) An authorised officer may give a direction to a person (a
relevant
4
person
) referred to in column 1 of an item in the following table if
5
an authorised officer reasonably believes that a ground referred to
6
in column 2 of that item exists.
7
8
Directions to deal with non-compliance with the requirements of this Act etc.
Item
Column 1
Relevant person
Column 2
Grounds for giving direction
1
The holder of an export
licence
Any of the following:
(a) a condition of the export licence has been
contravened, or it is likely that such a
condition will be contravened;
(b) the holder has not complied, or is likely not to
comply, with a requirement of this Act;
(c) particular regulated waste material, or a kind
of regulated waste material, covered by the
licence does not comply, or is not likely to
comply, with a requirement of this Act that
applies in relation to the waste material
2
A person authorised by
an accredited voluntary
arrangement to
exercise the
Commonwealth's
intellectual property
rights in a product
stewardship logo in
connection with a
product
The person has not complied, or is not likely to
comply, with a requirement of this Act
3
An administrator of an
accredited voluntary
arrangement
The administrator has not complied, or is not
likely to comply, with a requirement of this Act
4
The accrediting
authority (other than
The accrediting authority has not complied, or is
not likely to comply, with a requirement of this
Administration
Chapter 4
Compliance and enforcement
Part 2
Power to give directions
Division 2
Section 106
No. , 2020
Recycling and Waste Reduction Bill 2020
113
Directions to deal with non-compliance with the requirements of this Act etc.
Item
Column 1
Relevant person
Column 2
Grounds for giving direction
the Minister) of an
accredited voluntary
arrangement
Act
5
An administrator of a
co-regulatory
arrangement
The administrator has not complied, or is not
likely to comply, with a requirement of this Act
6
A liable party in
relation to a product
The liable party has not complied, or is not likely
to comply, with a requirement of this Act
7
A person specified by
rules made for the
purposes of
subsection 92(1) (about
mandatory product
stewardship)
The person has not complied, or is not likely to
comply, with a requirement specified by the rules
8
A person of a kind
prescribed by the rules
(who may be a relevant
person referred to in
another item of this
table)
A ground prescribed by the rules
Content of direction
1
(2) The direction must require the relevant person to take specified
2
action within a specified period, to deal with the ground for giving
3
the direction.
4
Note 1:
An authorised officer may give more than one direction relating to a
5
ground (see subsection 33(1) of the
Acts Interpretation Act 1901
).
6
Note 2:
See also section 107 (general provisions relating to directions).
7
(3) Without limiting subsection (2), a relevant person may be directed
8
to cease carrying out export operations in relation to particular
9
regulated waste material or a kind of regulated waste material.
10
(4) However, a direction must not require the relevant person to cease
11
carrying out export operations in relation to particular regulated
12
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 2
Power to give directions
Section 106
114
Recycling and Waste Reduction Bill 2020
No. , 2020
waste material, or a kind of regulated waste material, unless an
1
authorised officer reasonably believes that:
2
(a) one or more of the following grounds exists:
3
(i) the waste material does not comply, or it is likely that
4
the waste material does not comply, with a requirement
5
of this Act that applies in relation to the waste material;
6
(ii) a ground prescribed by the rules; and
7
(b) that ground, or those grounds, cannot be dealt with other than
8
by ceasing the relevant export operations.
9
(5) A direction that is given in writing must state that, if the person
10
fails to comply with the direction, the person may commit an
11
offence or be liable to a civil penalty.
12
(6) A person contravenes this subsection if:
13
(a) the person is given a direction under subsection (1); and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the direction.
16
Fault-based offence
17
(7) A person commits an offence if the person contravenes
18
subsection (6).
19
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
20
Civil penalty provision
21
(8) A person is liable to a civil penalty if the person contravenes
22
subsection (6).
23
Civil penalty:
60 penalty units.
24
(9) Subsection (6) does not apply if:
25
(a) the direction was given in writing and the direction did not
26
include the statement referred to in subsection (5); or
27
(b) the direction was given orally and the authorised officer did
28
not take reasonable steps to inform the person that the person
29
may commit an offence or be liable to a civil penalty for
30
failing to comply with the direction.
31
Administration
Chapter 4
Compliance and enforcement
Part 2
Power to give directions
Division 2
Section 107
No. , 2020
Recycling and Waste Reduction Bill 2020
115
Note:
A defendant bears an evidential burden in relation to the matters
1
mentioned in this subsection (see subsection 13.3(3) of the
Criminal
2
Code
and section 96 of the Regulatory Powers Act).
3
107 General provisions relating to directions
4
(1) Unless otherwise provided by this Act, a person who is permitted
5
to give a direction under this Act may give the direction orally or
6
in writing.
7
Written copy of oral direction must be given
8
(2) If a person gives a direction under this Act orally, the person must,
9
as soon as practicable after giving the direction, also give the
10
direction in writing.
11
Directions are not legislative instruments
12
(3) Unless otherwise provided by this Act, a direction that is given
13
under this Act in writing is not a legislative instrument.
14
Inconsistent directions
15
(4) Subject to subsection (5), a later direction overrides an earlier
16
direction to the extent of any inconsistency.
17
(5) If:
18
(a) a direction (
direction A
) is given by a State or Territory
19
authorised officer or a third party authorised officer; and
20
(b) the direction is inconsistent with a direction (
direction B
)
21
given by a Commonwealth authorised officer;
22
then direction B prevails and direction A, to the extent of the
23
inconsistency, does not have any effect.
24
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 3
Audits
Section 108
116
Recycling and Waste Reduction Bill 2020
No. , 2020
Division 3--Audits
1
Subdivision A--Minister may require audits to be conducted
2
108 Audit of export operations
3
Export operations in relation to which audit may be required
4
(1) The Minister may require an audit to be conducted of any of the
5
following:
6
(a) regulated waste material covered by an export licence or an
7
exemption;
8
(b) export operations covered by an export licence or an
9
exemption;
10
(c) export operations proposed to be carried out in relation to a
11
kind of regulated waste material by a person who has applied
12
for an export licence or an exemption in relation to the
13
operations;
14
(d) export operations carried out in relation to a kind of regulated
15
waste material by a person to whom an export licence for the
16
operations has been granted, but which has been suspended;
17
(e) export operations carried out in relation to a kind of regulated
18
waste material by a person to whom an export licence or
19
exemption for the operations has been granted, but which has
20
been revoked;
21
(f) export operations of a kind prescribed by the rules.
22
Matters to which audit must relate
23
(2) The audit must relate to one or more of the following matters:
24
(a) if the audit is in relation to an export licence:
25
(i) whether a kind of export operations or a kind of
26
regulated waste material complies, has complied or will
27
comply with a requirement of this Act that relates to the
28
export operations or the waste material; or
29
(ii) whether conditions of the export licence are being, have
30
been or are likely to be complied with;
31
Administration
Chapter 4
Compliance and enforcement
Part 2
Audits
Division 3
Section 109
No. , 2020
Recycling and Waste Reduction Bill 2020
117
(b) if the audit is in relation to an exemption:
1
(i) whether a kind of export operations or a kind of
2
regulated waste material complies, has complied or will
3
comply with a requirement of this Act that relates to the
4
export operations or the waste material;
5
(ii) whether conditions of the exemption are being, have
6
been or are likely to be complied with;
7
(c) in any case--any other matter prescribed by the rules.
8
(3) The audit may include an audit of financial statements conducted
9
in accordance with any standard issued by the Auditing and
10
Assurance Standards Board that applies to the audit, as in force
11
from time to time.
12
(4) The audit may deal with anything that is:
13
(a) reasonably necessary for the effective conduct of the audit; or
14
(b) incidental to the matter to which the audit relates.
15
(5) Without liming subsection (1), the audit may include inspections of
16
regulated waste material.
17
Who may conduct audit
18
(6) The audit may be conducted by:
19
(a) an authorised officer; or
20
(b) an approved auditor.
21
109 Audit of product stewardship arrangements
22
(1) The Minister may require an audit to be conducted in relation to:
23
(a) an accredited voluntary arrangement; or
24
(b) an approved co-regulatory arrangement; or
25
(c) a member of an approved co-regulatory arrangement; or
26
(d) an accrediting authority other than the Minister; or
27
(e) persons required by rules made for the purposes of
28
subsection 92(1) to take, or not to take, specified action in
29
relation to a specified product.
30
(2) The audit must relate to one or more of the following matters:
31
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 3
Audits
Section 109
118
Recycling and Waste Reduction Bill 2020
No. , 2020
(a) for an audit mentioned in paragraph (1)(a)--whether the
1
administrator of the arrangement is ensuring, or is likely to
2
ensure, the outcomes referred to in paragraph 71(a) are
3
achieved;
4
(b) for an audit mentioned in paragraph (1)(b)--whether the
5
administrator of the arrangement is complying with, or is
6
likely to comply with, section 81;
7
(c) for an audit mentioned in paragraph (1)(c)--activities of the
8
member in relation to the arrangement;
9
(d) for an audit mentioned in paragraph (1)(d)--whether the
10
accrediting authority is complying with, or is likely to
11
comply with, rules made for the purposes of section 70;
12
(e) for an audit mentioned in paragraph (1)(e)--whether the
13
person is taking, or is likely to take, the specified action in
14
relation to the product;
15
(f) any other matter prescribed by the rules.
16
(3) The audit may include an audit of financial statements conducted
17
in accordance with any standard issued by the Auditing and
18
Assurance Standards Board that applies to the audit, as in force
19
from time to time.
20
(4) The audit may deal with anything that is:
21
(a) reasonably necessary for the effective conduct of the audit; or
22
(b) incidental to the matter to which the audit relates.
23
(5) Without liming subsection (1), an audit may include inspections of
24
products covered by the arrangement or the rules (as the case may
25
be).
26
Who may conduct audit
27
(6) The audit may be conducted by:
28
(a) an authorised officer; or
29
(b) an approved auditor.
30
Administration
Chapter 4
Compliance and enforcement
Part 2
Audits
Division 3
Section 110
No. , 2020
Recycling and Waste Reduction Bill 2020
119
110 Audit in relation to persons performing functions or exercising
1
powers under this Act
2
The Minister may require an audit to be conducted by an auditor in
3
relation to:
4
(a) the performance of functions and the exercise of powers
5
under this Act by a person who is, or was:
6
(i) an approved auditor; or
7
(ii) any other person (other than a Commonwealth
8
authorised officer or a State or Territory authorised
9
officer) who performs or performed functions, or
10
exercises or exercised powers, under this Act; or
11
(b) compliance by a person referred to subparagraph (a)(i) or (ii)
12
with the conditions applying to the performance of functions
13
or the exercise of powers by the person under this Act.
14
111 Single audit or program of audits may be required
15
The Minister may require, under this Division, a single audit, or a
16
program of audits, to be conducted in relation to a specified matter.
17
Note:
If the Minister has required a program of audits to be conducted in
18
relation to a matter, the Minister may also require additional audits to
19
be conducted in relation to the matter (see subsection 33(1) of the
Acts
20
Interpretation Act 1901
).
21
112 Matters relating to audits
22
(1) The Minister need not give notice of an audit required under this
23
Division.
24
(2) The rules may make provision for and in relation to audits.
25
(3) Without limiting subsection (2), the rules may make provision for
26
and in relation to the following:
27
(a) requirements relating to giving a description of the scope of
28
an audit to the relevant person before the audit starts;
29
(b) requirements relating to showing identity cards;
30
(c) processes to be followed after an audit has been completed;
31
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 3
Audits
Section 113
120
Recycling and Waste Reduction Bill 2020
No. , 2020
(d) information that must be provided to the relevant person for
1
the audit during the audit or after the audit is completed;
2
(e) requirements for, and in relation to, reports to be provided in
3
relation to an audit;
4
(f) actions the Minister may require the relevant person for the
5
audit to take after the audit has been completed.
6
113 Powers of auditors
7
(1) For the purpose of conducting an audit under this Division, an
8
auditor may do anything the auditor considers necessary, including
9
the following:
10
(a) request a person who the auditor reasonably believes has
11
information or documents that are relevant to the audit to
12
answer questions, provide information in writing, or produce
13
the documents;
14
(b) take samples of products or waste material, or from
15
equipment or other things used in export operations, to which
16
the audit relates;
17
(c) if the auditor is an authorised officer--take, test or analyse
18
samples of products or waste material, or from equipment or
19
other things used in export operations, to which the audit
20
relates;
21
(d) arrange for another person with appropriate qualifications or
22
expertise to take
,
test or analyse samples of products or waste
23
material, or from equipment or other things used in export
24
operations, to which the audit relates;
25
(e) any other thing prescribed by the rules.
26
Note 1:
An auditor who is an authorised officer may also give a direction
27
under section 106.
28
Note 2:
A person may commit an offence or be liable to a civil penalty if the
29
person provides false or misleading information or documents (see
30
sections 146 and 147 of this Act and sections 137.1 and 137.2 of the
31
Criminal Code
).
32
(2) An auditor:
33
(a) may make copies of, or take extracts from, a document or
34
record produced under paragraph (1)(a); and
35
Administration
Chapter 4
Compliance and enforcement
Part 2
Audits
Division 3
Section 114
No. , 2020
Recycling and Waste Reduction Bill 2020
121
(b) for that purpose, may remove the document or record from
1
the place where it was produced.
2
114 Relevant person for an audit
3
The
relevant person
for an audit under this Division is as follows:
4
(a) for an audit of an accredited voluntary arrangement--the
5
administrator of the arrangement;
6
(b) for an audit of an approved co-regulatory arrangement--the
7
administrator of the arrangement;
8
(c) for an audit of a member of an approved co-regulatory
9
arrangement--the member;
10
(d) for an audit in relation to an accrediting authority--the
11
accrediting authority;
12
(e) for an audit in relation to a person required by rules made for
13
the purposes of subsection 92(1) to take, or not to take,
14
specified action--the person;
15
(f) for an audit of export operations covered by an export
16
licence--the holder, or former holder, of the export licence;
17
(g) for an audit of export operations covered by an exemption--
18
the holder, or former holder, of the exemption;
19
(h) for an audit of export operations proposed to be carried out in
20
relation to a kind of regulated waste material by a person who
21
has applied for an export licence or an exemption in relation
22
to the operation--the applicant;
23
(i) for an audit of export operations of a kind prescribed by the
24
rules for the purposes of paragraph 108(1)(f)--the person
25
prescribed by the rules;
26
(j) for an audit under section 110--the person to whom the audit
27
relates.
28
115 Relevant person for an audit must provide facilities and
29
assistance
30
The relevant person for an audit must provide the auditor with the
31
facilities and assistance that are reasonably necessary for the
32
conduct of the audit.
33
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 3
Audits
Section 116
122
Recycling and Waste Reduction Bill 2020
No. , 2020
Subdivision B--Approved auditors
1
116 Minister may approve persons to conduct audits
2
(1) The Minister may, in writing, approve a person to conduct audits
3
under this Division.
4
(2) An instrument of approval under subsection (1) is not a legislative
5
instrument.
6
(3) The Minister must not approve a person to conduct audits under
7
this Division unless:
8
(a) the Minister is satisfied that the person has the knowledge,
9
training or experience necessary to properly exercise the
10
powers of an auditor; or
11
(b) the person is a registered company auditor (within the
12
meaning of the
Corporations Act 2001
); or
13
(c) the person is an authorised audit company (within the
14
meaning of the
Corporations Act 2001
).
15
(4) The rules may make provision for and in relation to matters
16
relating to the approval of persons under subsection (1).
17
(5) Without limiting subsection (4), the rules may make provision for
18
and in relation to the following:
19
(a) applications for approval;
20
(b) dealing with such applications;
21
(c) additional requirements that must be met for approval;
22
(d) matters to which the Minister may or must have regard in
23
considering an application for approval;
24
(e) conditions of an approval;
25
(f) the period of effect of an approval;
26
(g) assessment of the competency of applicants;
27
(h) suspension and revocation of an approval.
28
Administration
Chapter 4
Compliance and enforcement
Part 2
Audits
Division 3
Section 117
No. , 2020
Recycling and Waste Reduction Bill 2020
123
117 Approved auditors may charge fees
1
(1) An approved auditor may charge a fee in relation to things done in
2
the performance of the approved auditor's functions or the exercise
3
of the approved auditor's powers under this Act.
4
(2) A fee must not be such as to amount to taxation.
5
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 4
Miscellaneous
Section 118
124
Recycling and Waste Reduction Bill 2020
No. , 2020
Division 4--Miscellaneous
1
118 Physical elements of offences
2
(1) This section applies if a provision of this Act provides that a person
3
contravening another provision of this Act (the
conduct provision
)
4
commits an offence.
5
(2) For the purposes of applying Chapter 2 of the
Criminal Code
to the
6
offence, the physical elements of the offence are set out in the
7
conduct provision.
8
Note:
Chapter 2 of the
Criminal Code
sets out general principles of criminal
9
responsibility.
10
119 Contravening an offence provision or a civil penalty provision
11
(1) This section applies if a provision of this Act provides that a person
12
contravening another provision of this Act (the
conduct provision
)
13
commits an offence or is liable to a civil penalty.
14
(2) For the purposes of this Act, and the Regulatory Powers Act to the
15
extent that it relates to this Act, a reference to a contravention of an
16
offence provision or a civil penalty provision includes a reference
17
to a contravention of the conduct provision.
18
120 Notification of conviction of offence, order to pay pecuniary
19
penalty etc.--participants in product stewardship
20
arrangements, export licence holders and applicants for
21
licences
22
(1) This section applies to a person who is:
23
(a) an accrediting authority other than the Minister; or
24
(b) an administrator of an accredited voluntary arrangement; or
25
(c) an administrator of an approved co-regulatory arrangement;
26
or
27
(d) an applicant for an export licence; or
28
(e) the holder of an export licence; or
29
(f) prescribed by the rules.
30
Administration
Chapter 4
Compliance and enforcement
Part 2
Miscellaneous
Division 4
Section 120
No. , 2020
Recycling and Waste Reduction Bill 2020
125
(2) If, under a law of a State or Territory, the person is given a notice
1
(however described) that:
2
(a) relates to an environmental matter; and
3
(b) requires the person to take, or not to take, specified action to
4
remedy non-compliance, or suspected non-compliance, with
5
the law;
6
the person must notify the Minister, in writing, of that fact as soon
7
as practicable after the notice is given to the person.
8
(3) If the person is convicted of an offence against, or ordered to pay a
9
pecuniary penalty under, any Australian law for a contravention
10
involving fraud, dishonesty or an environmental matter, the person
11
must notify the Minister, in writing, of the conviction or order as
12
soon as practicable after the person is convicted or the order is
13
made.
14
(4) If the person becomes aware that an associate of the person has
15
been convicted of an offence against, or ordered to pay a pecuniary
16
penalty under, any Australian law for a contravention involving
17
fraud, dishonesty or an environmental matter, the person must
18
notify the Minister, in writing, of the conviction or order as soon as
19
practicable after the person becomes aware of the conviction or
20
order.
21
(5) The rules may require the person to give to the Minister, as soon as
22
practicable or within a specified period, notification of any other
23
specified matters.
24
Civil penalty provision
25
(6) A person is liable to a civil penalty if:
26
(a) the person is required to notify the Minister of a matter:
27
(i) under subsection (2), (3) or (4); or
28
(ii) under rules made for the purposes of subsection (5); and
29
(b) the person fails to comply with the requirement.
30
Civil penalty:
60 penalty units.
31
(7) Nothing in this section affects the operation of Part VIIC of the
32
Crimes Act 1914
.
33
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 4
Miscellaneous
Section 121
126
Recycling and Waste Reduction Bill 2020
No. , 2020
Note:
Part VIIC of the
Crimes Act 1914
includes provisions that, in certain
1
circumstances, relieve persons from the requirement to disclose spent
2
convictions and require persons aware of such convictions to disregard
3
them.
4
121 Notification of conviction of offence or order to pay pecuniary
5
penalty--third party authorised officers etc.
6
(1) This section applies to a person who is:
7
(a) a third party authorised officer; or
8
(b) a person prescribed by the rules.
9
(2) If the person is convicted of an offence against, or ordered to pay a
10
pecuniary penalty under, any Australian law for a contravention
11
involving fraud or dishonesty, the person must notify the Minister,
12
in writing, of the conviction or order as soon as practicable after
13
the person is convicted or the order is made.
14
Civil penalty provision
15
(3) A person is liable to a civil penalty if:
16
(a) the person is required to notify the Minister of a matter under
17
subsection (2); and
18
(b) the person fails to comply with the requirement.
19
Civil penalty:
60 penalty units.
20
(4) Nothing in this section affects the operation of Part VIIC of the
21
Crimes Act 1914
.
22
Note:
Part VIIC of the
Crimes Act 1914
includes provisions that, in certain
23
circumstances, relieve persons from the requirement to disclose spent
24
convictions and require persons aware of such convictions to disregard
25
them.
26
122 Minister may publicise certain offences, contraventions and
27
decisions
28
(1) The Minister may publicise, in any way the Minister thinks
29
appropriate, any or all of the following:
30
(a) an offence against this Act of which a person has been
31
convicted, and the person's name;
32
Administration
Chapter 4
Compliance and enforcement
Part 2
Miscellaneous
Division 4
Section 122
No. , 2020
Recycling and Waste Reduction Bill 2020
127
(b) a contravention of a civil penalty provision of this Act in
1
relation to which a civil penalty order has been made against
2
a person, and the person's name;
3
(c) the acceptance of an undertaking given under section 114 of
4
the Regulatory Powers Act (as it applies because of this Part)
5
by a person, the terms of the undertaking, and the person's
6
name;
7
(d) a breach of an undertaking given under section 114 of the
8
Regulatory Powers Act (as it applies because of this Part) in
9
relation to which an order has been made against a person
10
under subsection 115(2) of that Act (as it applies because of
11
this Part), the terms of the order and the person's name;
12
(e) the granting or varying of an injunction under Part 7 of the
13
Regulatory Powers Act (as it applies because of this Part)
14
restraining a person from engaging in conduct, or requiring a
15
person to do an act or thing, the nature of the conduct, act or
16
thing and the person's name;
17
(f) a decision to:
18
(i) give the administrator of an approved co-regulatory
19
arrangement an improvement notice; or
20
(ii) require an audit of an approved co-regulatory
21
arrangement to be conducted; or
22
(iii) cancel the accreditation of a voluntary arrangement or
23
the approval of a co-regulatory arrangement;
24
(g) the reasons for a decision referred to in paragraph (f);
25
(h) the name of the administrator of an arrangement referred to
26
in paragraph (f).
27
Note:
This subsection constitutes an authorisation for the purposes of other
28
laws, such as paragraph 6.2(b) of Australian Privacy Principle 6.
29
(2) This section does not:
30
(a) limit the power of the Minister or anyone else to publicise a
31
matter or a person's name; or
32
(b) prevent anyone else from publicising a matter or a person's
33
name; or
34
(c) affect any obligation (however imposed) on anyone to
35
publicise a matter or a person's name.
36
Chapter 4
Administration
Part 2
Compliance and enforcement
Division 4
Miscellaneous
Section 123
128
Recycling and Waste Reduction Bill 2020
No. , 2020
123 Identity cards
1
(1) The Secretary may issue an identity card to any of the following:
2
(a) an authorised officer;
3
(b) an approved auditor;
4
(c) any other person who performs functions or duties or
5
exercises powers under this Act and is prescribed by the
6
rules.
7
(2) The identity card must:
8
(a) be in the form approved by the Secretary; and
9
(b) contain a recent photograph of the person.
10
(3) Subject to subsection (6), if the Secretary issues an identity card to
11
an authorised officer under paragraph (1)(a), the authorised officer
12
must carry the identity card at all times when performing functions
13
or duties or exercising powers as an authorised officer.
14
(4) Subject to subsection (6), if the Secretary issues an identity card to
15
an approved auditor under paragraph (1)(b), the approved auditor
16
must carry the identity card at all times when conducting an audit
17
under Division 4 of Part 2.
18
(5) Subject to subsection (6), if the Secretary issues an identity card to
19
a person under paragraph (1)(c), the person must carry the identity
20
card at all times when performing functions or duties or exercising
21
powers under this Act.
22
(6) A person need not carry the identity card in the circumstances
23
prescribed by the rules.
24
124 Offence--failure to return identity card
25
(1) A person contravenes this subsection if:
26
(a) the person has been issued with an identity card under
27
subsection 123(1); and
28
(b) the person ceases to be a person referred to in
29
paragraph 123(1)(a), (b) or (c); and
30
(c) the person does not, within 14 days after so ceasing, return
31
the person's identity card to the Secretary.
32
Administration
Chapter 4
Compliance and enforcement
Part 2
Miscellaneous
Division 4
Section 124
No. , 2020
Recycling and Waste Reduction Bill 2020
129
(2) Subsection (1) does not apply:
1
(a) to an authorised officer whose authorisation has been
2
suspended; or
3
(b) if the identity card was lost or destroyed.
4
Note:
A defendant bears an evidential burden in relation to the matter in this
5
subsection (see subsection 13.3(3) of the
Criminal Code
).
6
(3) A person commits an offence of strict liability if the person
7
contravenes subsection (1).
8
Penalty: 1 penalty unit.
9
Chapter 4
Administration
Part 3
Authorised officers
Division 1
Authorisation
Section 125
130
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 3--Authorised officers
1
Division 1--Authorisation
2
125 Authorisation of persons to be authorised officers
3
Commonwealth authorised officers and State or Territory
4
authorised officers
5
(1) The Secretary may, in writing, authorise a person to be an
6
authorised officer under this Act if:
7
(a) the person is an officer or employee of:
8
(i) the Commonwealth; or
9
(ii) an authority of the Commonwealth; or
10
(b) the person is an officer or employee of:
11
(i) a State or Territory; or
12
(ii) an authority of a State or Territory.
13
(2) The Secretary must not authorise an officer or employee of a State
14
or Territory, or an authority of a State or Territory, to be an
15
authorised officer unless an arrangement is in force under
16
section 128 in relation to the officer or employee.
17
Third party authorised officers
18
(3) A person who is not an officer or employee of the Commonwealth,
19
an authority of the Commonwealth, a State or Territory, or an
20
authority of a State or Territory may apply to the Secretary to be a
21
third party authorised officer.
22
Secretary must decide whether to authorise person to be third
23
party authorised officer
24
(4) On receiving an application from a person made under
25
subsection (3), the Secretary must decide:
26
(a) to authorise the person to be a third party authorised officer;
27
or
28
Administration
Chapter 4
Authorised officers
Part 3
Authorisation
Division 1
Section 125
No. , 2020
Recycling and Waste Reduction Bill 2020
131
(b) to refuse to authorise the person to be a third party authorised
1
officer.
2
Note:
A decision to refuse to authorise the person to be a third party
3
authorised officer is a reviewable decision (see section 151) and the
4
Secretary must give the person written notice of the decision (see
5
section 152).
6
(5) The Secretary may, in writing, authorise a person to be a third
7
party authorised officer if:
8
(a) the person has made an application under subsection (3); and
9
(b) the person has given the Secretary a written notice stating:
10
(i) the interests, pecuniary or otherwise, of the person that
11
conflict or could conflict with the proper performance of
12
functions or exercise of powers by the person as an
13
authorised officer; or
14
(ii) if the person has no such interests--that fact; and
15
(c) any other requirement prescribed by the rules is met.
16
Note:
A Commonwealth authorised officer or a State or Territory authorised
17
officer may be required under other legislation to disclose interests
18
that conflict or could conflict with the proper performance of
19
functions or exercise of powers by the person as an authorised officer
20
(see, for example, the
Public Governance, Performance and
21
Accountability Act 2013
).
22
Training and qualification requirements
23
(6) The Secretary must not authorise a person to be an authorised
24
officer unless the Secretary is satisfied that:
25
(a) the person satisfies the training and qualification
26
requirements determined under subsection (7); or
27
(b) the person will satisfy those training and qualification
28
requirements before the person exercises any powers, or
29
performs any functions, as an authorised officer.
30
(7) The Secretary must determine, in writing, training and qualification
31
requirements for authorised officers.
32
(8) A determination made under subsection (7) is not a legislative
33
instrument.
34
Chapter 4
Administration
Part 3
Authorised officers
Division 1
Authorisation
Section 126
132
Recycling and Waste Reduction Bill 2020
No. , 2020
Instrument of authorisation
1
(9) The instrument of authorisation of a person as an authorised
2
officer:
3
(a) must specify:
4
(i) the functions and powers that the person may perform
5
or exercise as an authorised officer under this Act; and
6
(ii) any conditions prescribed by the rules that the Secretary
7
has decided, under paragraph 126(1)(a), are not to be
8
conditions of the authorisation; and
9
(iii) any additional conditions of the authorisation imposed
10
under paragraph 126(1)(b); and
11
(b) may specify the period during which the authorisation has
12
effect.
13
126 Conditions of authorisation
14
(1) If the Secretary authorises a person to be an authorised officer, the
15
authorisation is subject to:
16
(a) the conditions (if any) in relation to the authorisation
17
prescribed by the rules (other than any of those conditions
18
that the Secretary decides are not to be conditions of the
19
authorisation); and
20
(b) any additional conditions that the Secretary considers
21
appropriate; and
22
(c) if the person is authorised to be a third party authorised
23
officer--the condition that the officer must comply with
24
subsections (2) and (3).
25
Note 1:
A person who is third party authorised officer may commit an offence
26
or be liable to a civil penalty if the person contravenes a condition of
27
the person's authorisation (see section 127).
28
Note 2:
If a person who is a Commonwealth authorised officer or a State or
29
Territory authorised officer contravenes a condition of the person's
30
authorisation, the person may breach a code of conduct that applies to
31
the person (see, for example, the Code of Conduct under the
Public
32
Service Act 1999
).
33
Note 3:
A decision to authorise a person to be a third party authorised officer
34
subject to additional conditions is a reviewable decision (see
35
section 151).
36
Administration
Chapter 4
Authorised officers
Part 3
Authorisation
Division 1
Section 127
No. , 2020
Recycling and Waste Reduction Bill 2020
133
Third party authorised officer must disclose conflicts
1
(2) A third party authorised officer must give written notice to the
2
Secretary of each interest, pecuniary or otherwise, that the
3
authorised officer acquires and that conflicts or could conflict with
4
the proper performance of the authorised officer's functions or
5
exercise of the authorised officer's powers.
6
Note:
A Commonwealth authorised officer or a State or Territory authorised
7
officer may be required under other legislation to disclose interests
8
that conflict or could conflict with the proper performance of
9
functions or exercise of powers by the person as an authorised officer
10
(see, for example, the
Public Governance, Performance and
11
Accountability Act 2013
).
12
(3) A third party authorised officer who is required to give notice of an
13
interest under subsection (2) must give the notice as soon as
14
practicable after the authorised officer acquires the interest.
15
127 Third party authorised officers must not contravene conditions
16
of authorisation
17
(1) A person contravenes this subsection if:
18
(a) the person is a third party authorised officer; and
19
(b) the person engages in conduct; and
20
(c) the conduct contravenes a condition of the person's
21
authorisation as a third party authorised officer.
22
Fault-based offence
23
(2) A person commits an offence if the person contravenes
24
subsection (1).
25
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
26
Civil penalty provision
27
(3) A person is liable to a civil penalty if the person contravenes
28
subsection (1).
29
Civil penalty:
240 penalty units.
30
Chapter 4
Administration
Part 3
Authorised officers
Division 1
Authorisation
Section 128
134
Recycling and Waste Reduction Bill 2020
No. , 2020
128 Arrangements for State or Territory officers or employees to be
1
authorised officers
2
(1) The Secretary may enter into an arrangement with a State or
3
Territory, or an authority of a State or Territory, for officers or
4
employees of the State, Territory or authority to be authorised to be
5
authorised officers.
6
(2) An arrangement under subsection (1) is not a legislative
7
instrument.
8
129 Training and qualification requirements for authorised
9
government enforcement officers
10
(1) The Secretary must determine, in writing, training and qualification
11
requirements for authorised government enforcement officers in
12
relation to the performance of functions or duties and the exercise
13
of powers under Division 1 of Part 2 or the Regulatory Powers Act.
14
(2) A determination made under subsection (1) is not a legislative
15
instrument.
16
Administration
Chapter 4
Authorised officers
Part 3
Variation, suspension and revocation of authorisation
Division 2
Section 130
No. , 2020
Recycling and Waste Reduction Bill 2020
135
Division 2--Variation, suspension and revocation of
1
authorisation
2
Subdivision A--Variation, suspension and revocation on
3
Secretary's own initiative
4
130 Variation of authorisation
5
(1) Subject to section 133 (which applies in relation to third party
6
authorised officers), the Secretary may, at any time, by notice in
7
writing given to a person who is an authorised officer, do any of
8
the following in relation to the person's authorisation as an
9
authorised officer:
10
(a) vary the functions that the person may perform, or the powers
11
that the person may exercise, as an authorised officer under
12
this Act;
13
(b) vary any conditions to which the person's authorisation is
14
subject under paragraph 126(1)(b) (including by imposing
15
new conditions);
16
(c) if the person's instrument of authorisation specifies a period
17
during which it has effect--vary the period during which the
18
authorisation has effect;
19
(d) if the person's instrument of authorisation does not specify a
20
period during which it has effect--vary the authorisation to
21
specify a period during which the authorisation is to have
22
effect;
23
(e) vary any other aspect of the person's authorisation.
24
Note:
A decision under this subsection in relation to a third party
authorised
25
officer is a reviewable decision (see section 151).
26
(2) If the person was given a notice in accordance with
27
subsection 133(3) that included the request referred to in
28
paragraph 133(3)(b), the variation must not take effect before the
29
earlier of the following:
30
(a) the day after any response to the request is received by the
31
Secretary;
32
(b) the end of 14 days after the notice was given.
33
Chapter 4
Administration
Part 3
Authorised officers
Division 2
Variation, suspension and revocation of authorisation
Section 131
136
Recycling and Waste Reduction Bill 2020
No. , 2020
(3) If the Secretary makes a variation in relation to a person's
1
authorisation as an authorised officer under subsection (1), the
2
Secretary must:
3
(a) vary the person's instrument of authorisation to include the
4
variation; and
5
(b) give the person the varied instrument of authorisation.
6
131 Suspension of authorisation
7
(1) Subject to section 133 (which applies in relation to third party
8
authorised officers), the Secretary may, at any time, by notice in
9
writing given to a person who is an authorised officer, suspend the
10
person's authorisation as an authorised officer.
11
Note:
A decision under this subsection in relation to a third party
authorised
12
officer is a reviewable decision (see section 151).
13
Period of suspension
14
(2) A suspension must not be for more than 12 months.
15
(3) If the person was given a notice in accordance with
16
subsection 133(3) that included the request referred to in
17
paragraph 133(3)(b), the suspension must not start before the
18
earlier of the following:
19
(a) the day after any response to the request is received by the
20
Secretary;
21
(b) the end of 14 days after the notice was given.
22
(4) The Secretary may vary the period of a suspension by written
23
notice to the person. However, the total period of the suspension
24
must not be more than 12 months.
25
Note:
A decision to extend the period of a suspension of a person's
26
authorisation as a third party authorised officer is a reviewable
27
decision (see section 151).
28
Effect of suspension
29
(5) If a person's authorisation as an authorised officer is suspended for
30
a period under subsection (1), the person is taken not to be an
31
authorised officer during the period of the suspension.
32
Administration
Chapter 4
Authorised officers
Part 3
Variation, suspension and revocation of authorisation
Division 2
Section 132
No. , 2020
Recycling and Waste Reduction Bill 2020
137
Note:
If a person's authorisation as a third party authorised officer is
1
suspended:
2
(a) the Minister may require an audit to be conducted in relation to
3
the performance of functions and the exercise of powers by the
4
person as a third party authorised officer (see section 110); or
5
(b) the Secretary request the person to notify the Secretary of certain
6
events (see section 137).
7
Revocation of suspension
8
(6) The Secretary may revoke a suspension of a person's authorisation
9
as an authorised officer under subsection (1) by written notice to
10
the person.
11
Note:
For the purpose of deciding whether to revoke the suspension, the
12
Secretary may request the person to notify the Secretary of certain
13
events (see section 137).
14
132 Revocation of authorisation
15
(1) Subject to section 133 (which applies in relation to third party
16
authorised officers), the Secretary may, at any time, revoke the
17
authorisation of a person as an authorised officer (including a
18
person in relation to whom a suspension is in effect under
19
section 131 or 135) by notice in writing given to the person.
20
Note:
A decision under this subsection in relation to a third party
authorised
21
officer is a reviewable decision (see section 151).
22
(2) If the person was given a notice in accordance with
23
subsection 133(3) that included the request referred to in
24
paragraph 133(3)(b), the revocation must not take effect before the
25
earlier of the following:
26
(a) the day after any response to the request is received by the
27
Secretary;
28
(b) the end of 14 days after the notice was given.
29
133 Notice of proposed action must be given to third party
30
authorised officer
31
(1) The Secretary must not take action (the
proposed action
) under
32
subsection 130(1), 131(1) or 132(1) in relation to a person who is a
33
third party authorised officer unless the Secretary has given a
34
Chapter 4
Administration
Part 3
Authorised officers
Division 2
Variation, suspension and revocation of authorisation
Section 134
138
Recycling and Waste Reduction Bill 2020
No. , 2020
written notice to the person in accordance with subsection (3) of
1
this section.
2
(2) Subsection (1) does not apply if the Secretary reasonably believes
3
that the proposed action is necessary to prevent or lessen a serious
4
and imminent threat to human or environmental health.
5
(3) The notice must:
6
(a) state that the Secretary is considering taking the proposed
7
action and the reasons for the proposed action; and
8
(b) request the person to give the Secretary, within 14 days after
9
the day the notice is given to the person, a written statement
10
showing cause why the proposed action should not be taken;
11
and
12
(c) include a statement setting out the person's right to seek
13
review of a decision to take the proposed action.
14
Subdivision B--Variation, suspension and revocation on
15
application or request by third party authorised
16
officer
17
134 Application for variation of authorisation
18
(1) A person who is a third party authorised officer may apply to the
19
Secretary to:
20
(a) vary the functions that the person may perform, or the powers
21
that the person may exercise, as a third party authorised
22
officer under this Act; or
23
(b) vary any conditions to which the person's authorisation is
24
subject under paragraph 126(1)(b) (including by imposing
25
new conditions); or
26
(c) vary any other aspect of the person's authorisation.
27
Secretary must decide whether to make variation
28
(2) The Secretary must decide:
29
(a) to make the variation; or
30
(b) to refuse to make the variation.
31
Administration
Chapter 4
Authorised officers
Part 3
Variation, suspension and revocation of authorisation
Division 2
Section 135
No. , 2020
Recycling and Waste Reduction Bill 2020
139
Note:
A decision to refuse to make the variation is a reviewable decision
1
(see section 151) and the Secretary must give the applicant written
2
notice of the decision (see section 152).
3
Notice of decision
4
(3) If the Secretary makes a variation under paragraph (2)(a) in
5
relation to the person's authorisation as a third party authorised
6
officer, the Secretary must:
7
(a) vary the person's instrument of authorisation to include the
8
variation; and
9
(b) give the person the varied instrument of authorisation.
10
135 Request for suspension of authorisation
11
(1) A person who is a third party authorised officer may request the
12
Secretary, in writing, to suspend the person's authorisation as a
13
third party authorised officer.
14
(2) The Secretary must, by written notice to the person, suspend the
15
person's authorisation as a third party authorised officer as
16
requested, with effect on the day specified in the notice.
17
Effect of suspension
18
(3) If a person's authorisation as a third party authorised officer is
19
suspended for a period under subsection (2), the person is taken not
20
to be a third party authorised officer during the period.
21
Note:
If a person's authorisation as a third party authorised officer is
22
suspended:
23
(a) the Minister may require an audit to be conducted in relation to
24
the performance of functions and the exercise of powers by the
25
person as a third party authorised officer (see section 110); or
26
(b) the Secretary may request the person to notify the Secretary of
27
certain events (see section 137).
28
Request to revoke suspension
29
(4) If a person's authorisation as a third party authorised officer is
30
suspended under subsection (2), the person may request the
31
Secretary, in writing, to revoke the suspension.
32
Chapter 4
Administration
Part 3
Authorised officers
Division 2
Variation, suspension and revocation of authorisation
Section 136
140
Recycling and Waste Reduction Bill 2020
No. , 2020
(5) The Secretary may:
1
(a) if the Secretary is satisfied there is no reason why the
2
suspension should not be revoked--revoke the suspension by
3
written notice to the person; or
4
(b) in any other case:
5
(i) suspend the person's authorisation as a third party
6
authorised officer under subsection 131(1); or
7
(ii) revoke the person's authorisation as a third party
8
authorised officer under subsection 132(1).
9
Note 1:
For the purpose of deciding whether to revoke the suspension, the
10
Secretary may request the person to notify the Secretary of certain
11
events (see section 137).
12
Note 2:
A decision to suspend or revoke a person's authorisation as a third
13
party authorised officer under subsection 131(1) or 132(1) is a
14
reviewable decision (see section 151).
15
136 Request for revocation of authorisation
16
(1) A person who is a third party authorised officer (including a person
17
in relation to whom a suspension is in effect under section 131 or
18
135) may request the Secretary, in writing, to revoke the person's
19
authorisation as a third party authorised officer.
20
(2) The Secretary must, by written notice to the person, revoke the
21
person's authorisation as a third party authorised officer with effect
22
on the day specified in the notice.
23
Subdivision C--Other provisions
24
137 Secretary may request notification of certain events by
25
suspended third party authorised officer
26
(1) This section applies in relation to a person whose authorisation as a
27
third party authorised officer is suspended for a period under
28
section 131 or 135.
29
(2) For the purpose of deciding whether to revoke the suspension, the
30
Secretary may, in writing, request the person to notify the
31
Secretary, in writing, within 14 days after the request is made:
32
Administration
Chapter 4
Authorised officers
Part 3
Variation, suspension and revocation of authorisation
Division 2
Section 137
No. , 2020
Recycling and Waste Reduction Bill 2020
141
(a) of any notifiable event in relation to the person that has
1
occurred since the person's authorisation was suspended; or
2
(b) if no notifiable event in relation to the person has occurred
3
since the person's authorisation was suspended--of that fact.
4
Note:
A person may commit an offence or be liable to a civil penalty if the
5
person provides false or misleading information or documents (see
6
sections 146 and 147 of this Act and sections 137.1 and 137.2 of the
7
Criminal Code
).
8
(3) Each of the following is a notifiable event in relation to a person
9
for the purposes of paragraph (2)(a):
10
(a) the person has been convicted of an offence against, or
11
ordered to pay a pecuniary penalty under, an Australian law
12
for a contravention involving fraud or dishonesty;
13
(b) the person acquired an interest, pecuniary or otherwise, that
14
conflicts or could conflict with the proper performance of
15
functions or exercise of powers by the person as an
16
authorised officer;
17
(c) a pecuniary penalty imposed on the person for a
18
contravention of a provision of a law that is administered by
19
the Minister became due and payable;
20
(d) a liability of the person for an amount under a
21
Commonwealth law prescribed by the rules became due and
22
payable.
23
Chapter 4
Administration
Part 3
Authorised officers
Division 3
Functions and powers
Section 138
142
Recycling and Waste Reduction Bill 2020
No. , 2020
Division 3--Functions and powers
1
138 Rules may confer functions or powers on authorised officers
2
The rules may confer functions or powers on authorised officers
3
that are necessary or convenient to be performed or exercised for
4
the purposes of achieving the objects of this Act.
5
139 Functions and powers of authorised officers
6
(1) An authorised officer has the functions and powers conferred on an
7
authorised officer by this Act that are specified in the authorised
8
officer's instrument of authorisation.
9
Note:
The reference to this Act includes a reference to instruments made
10
under this Act (see the definition of
this Act
in section 10). See also
11
section 138 which provides for the rules to confer functions or powers
12
on an authorised officer.
13
Secretary may give directions to authorised officer
14
(2) The Secretary may give a direction to an authorised officer about
15
the performance of the authorised officer's functions or the
16
exercise of the authorised officer's powers.
17
Note:
See also section 107 (general provisions relating to directions).
18
Commonwealth authorised officer may give directions to third
19
party authorised officers
20
(3) A Commonwealth authorised officer may give a direction to a third
21
party authorised officer about the performance of functions or the
22
exercise of powers by the third party authorised officer.
23
Note:
See also section 107 (general provisions relating to directions).
24
Authorised officer must comply with directions
25
(4) In performing functions or exercising powers under this Act, an
26
authorised officer must comply with any directions given to the
27
authorised officer under subsection (2) or (3).
28
Administration
Chapter 4
Authorised officers
Part 3
Functions and powers
Division 3
Section 140
No. , 2020
Recycling and Waste Reduction Bill 2020
143
140 Third party authorised officer must not contravene direction
1
Fault-based offence
2
(1) A third party authorised officer commits an offence if:
3
(a) the authorised officer is given a direction under
4
subsection 139(2) or (3); and
5
(b) the authorised officer engages in conduct; and
6
(c) the conduct contravenes the direction.
7
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
8
Civil penalty provision
9
(2) A third party authorised officer is liable to a civil penalty if the
10
authorised officer contravenes subsection 139(4).
11
Civil penalty:
240 penalty units.
12
141 Certain authorised officers may charge fees
13
(1) A State or Territory authorised officer, or a third party authorised
14
officer, may charge a fee in relation to things done in the
15
performance of the authorised officer's functions, or the exercise of
16
the authorised officer's powers, under this Act.
17
Note:
Fees may also be charged in relation to the performance of functions,
18
or the exercise of powers, by or on behalf of a Commonwealth
19
authorised officer (see section 155).
20
(2) A fee must not be such as to amount to taxation.
21
Chapter 4
Administration
Part 4
Record-keeping
Section 142
144
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 4--Record-keeping
1
2
142 Requirements to make and retain records
3
(1) The rules may make provision for and in relation to requiring
4
records to be made and retained by one or more of the following:
5
(a) holders, or former holders, of export licences;
6
(b) persons who carry out, or have carried out, export operations
7
in relation to regulated waste material;
8
(c) accrediting authorities;
9
(d) administrators of accredited voluntary arrangements;
10
(e) liable parties in relation to products;
11
(f) administrators of approved co-regulatory arrangements;
12
(g) persons who are required to take, or not to take, specified
13
action in relation to products under rules made for the
14
purposes of section 92;
15
(h) any person who is performing functions or exercising powers
16
under this Act;
17
(i) any person who has performed functions or exercised powers
18
under this Act;
19
(j) any other person prescribed by the rules.
20
(2) Without limiting subsection (1), the rules may make provision for
21
and in relation to any of the following:
22
(a) the kind of records that must be made and retained;
23
(b) the form in which records must be made and retained;
24
(c) the period for which records must be retained;
25
(d) the secure retention of records.
26
(3) A person contravenes this subsection if:
27
(a) the person is subject to a requirement under rules made for
28
the purposes of subsection (1); and
29
(b) the person fails to comply with the requirement.
30
Administration
Chapter 4
Record-keeping
Part 4
Section 142
No. , 2020
Recycling and Waste Reduction Bill 2020
145
Strict liability offence
1
(4) A person commits an offence of strict liability if the person
2
contravenes subsection (3).
3
Penalty: 60 penalty units.
4
Civil penalty provision
5
(5) A person is liable to a civil penalty if the person contravenes
6
subsection (3).
7
Civil penalty:
250 penalty units.
8
Chapter 4
Administration
Part 5
Information management
Division 1
Information gathering powers
Section 143
146
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 5--Information management
1
Division 1--Information gathering powers
2
143 Power to require information or documents
3
(1) The Minister may, by notice in writing given to a person, require
4
the person, within a reasonable time stated in the notice, to give the
5
Minister any information, or produce to the Minister any
6
documents, specified in the notice that relate to:
7
(a) any regulated waste material that has been, or is intended to
8
be, exported; or
9
(b) waste material export charge; or
10
(c) an accredited voluntary arrangement; or
11
(d) an approved co-regulatory arrangement in relation to a
12
product; or
13
(e) requirements made under rules made for the purposes of
14
subsection 92(1) (mandatory product stewardship
15
requirements); or
16
(f) a matter prescribed by the rules.
17
(2) A person contravenes this subsection if:
18
(a) the person is subject to a requirement under subsection (1);
19
and
20
(b) the person fails to comply with the requirement.
21
Note:
A person may commit an offence or be liable to a civil penalty if the
22
person provides false or misleading information or documents (see
23
sections 146 and 147 of this Act and sections 137.1 and 137.2 of the
24
Criminal Code
).
25
Fault-based offence
26
(3) A person commits an offence if the person contravenes
27
subsection (2).
28
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
29
Administration
Chapter 4
Information management
Part 5
Information gathering powers
Division 1
Section 144
No. , 2020
Recycling and Waste Reduction Bill 2020
147
Civil penalty provision
1
(4) A person is liable to a civil penalty if the person contravenes
2
subsection (2).
3
Civil penalty:
240 penalty units.
4
Interaction with section 144
5
(5) This section does not limit section 144.
6
144 Providing and disseminating information
7
Provision of information
8
(1) The rules may require a person to provide to the Minister
9
information relating to the objects of this Act, for statistical
10
purposes (including purposes in connection with the collation,
11
analysis and dissemination of statistical information).
12
(2) The rules may also require a constitutional corporation to provide
13
to the Minister information relating to:
14
(a) products used, designed, manufactured or distributed by the
15
corporation, including the reuse, recycling or recovery of
16
those products; or
17
(b) waste from products used, designed, manufactured or
18
distributed by the corporation; or
19
(c) actions taken by the corporation to:
20
(i) reduce or avoid generating waste from products through
21
improvements in the design of products; or
22
(ii) improve the durability, reparability and reusability of
23
products; or
24
(d) waste from products generated by the corporation; or
25
(e) activities relating to reuse, recycling or recovery undertaken
26
by the corporation, including use by the corporation of
27
recycled materials.
28
(3) The rules may also require a person to provide to the Minister
29
information relating to activities conducted by the person in
30
relation to:
31
Chapter 4
Administration
Part 5
Information management
Division 1
Information gathering powers
Section 144
148
Recycling and Waste Reduction Bill 2020
No. , 2020
(a) importing or exporting waste from products; or
1
(b) importing or exporting waste material; or
2
(c) importing or exporting products that contain, or are derived
3
from, recycled waste material.
4
(4) Subsections (1), (2) and (3) do not limit each other.
5
Collating, analysis and disseminating information
6
(5) The Minister may collate, analyse and disseminate information
7
(including by publishing reports and papers) provided under rules
8
made for the purposes of subsection (1), (2) or (3).
9
(6) Disseminating information (including by publishing reports and
10
papers) for the purposes of subsection (5) must be in accordance
11
with any requirements prescribed by the rules.
12
(7) A person contravenes this subsection if:
13
(a) the person is subject to a requirement under rules made for
14
the purposes of subsection (1), (2) or (3); and
15
(b) the person fails to comply with the requirement.
16
Strict liability offence
17
(8) A person commits an offence of strict liability if the person
18
contravenes subsection (7).
19
Penalty: 60 penalty units.
20
Civil penalty provision
21
(9) A person is liable to a civil penalty if the person contravenes
22
subsection (7).
23
Civil penalty:
250 penalty units.
24
25
Administration
Chapter 4
Information management
Part 5
False or misleading information or documents
Division 2
Section 145
No. , 2020
Recycling and Waste Reduction Bill 2020
149
Division 2--False or misleading information or documents
1
145 False or misleading statements in applications
2
(1) A person is liable to a civil penalty if:
3
(a) the person makes a statement (whether orally, in a document
4
or in any other way) in, or in connection with, an application
5
made under this Act; and
6
(b) the person does so knowing that the statement:
7
(i) is false or misleading; or
8
(ii) omits any matter or thing without which the statement is
9
misleading.
10
Civil penalty:
600 penalty units.
11
(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i)
12
if the statement is not false or misleading in a material particular.
13
Note:
A defendant bears an evidential burden in relation to the matter in this
14
subsection (see section 96 of the Regulatory Powers Act).
15
(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii)
16
if the statement did not omit any matter or thing without which the
17
statement is misleading in a material particular.
18
Note:
A defendant bears an evidential burden in relation to the matter in this
19
subsection (see section 96 of the Regulatory Powers Act).
20
146 False or misleading information
21
(1) A person is liable to a civil penalty if:
22
(a) the person gives information in compliance or purported
23
compliance with this Act; and
24
(b) the person does so knowing that the information:
25
(i) is false or misleading; or
26
(ii) omits any matter or thing without which the information
27
is misleading.
28
Civil penalty:
600 penalty units.
29
Chapter 4
Administration
Part 5
Information management
Division 2
False or misleading information or documents
Section 147
150
Recycling and Waste Reduction Bill 2020
No. , 2020
(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i)
1
if the information is not false or misleading in a material particular.
2
Note:
A defendant bears an evidential burden in relation to the matter in this
3
subsection (see section 96 of the Regulatory Powers Act).
4
(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii)
5
if the information did not omit any matter or thing without which
6
the information is misleading in a material particular.
7
Note:
A defendant bears an evidential burden in relation to the matter in this
8
subsection (see section 96 of the Regulatory Powers Act).
9
(4) Subsection (1) does not apply if, before the information was given
10
by a person to another person (the
official
) in compliance or
11
purported compliance with this Act, the official did not take
12
reasonable steps to inform the person that the person may be liable
13
to a civil penalty for contravening subsection (1).
14
Note:
A defendant bears an evidential burden in relation to the matter in this
15
subsection (see section 96 of the Regulatory Powers Act).
16
147 False or misleading documents
17
(1) A person is liable to a civil penalty if:
18
(a) the person produces a document to another person; and
19
(b) the person does so knowing that the document is false or
20
misleading; and
21
(c) the document is produced in compliance or purported
22
compliance with this Act.
23
Civil penalty:
600 penalty units.
24
(2) Subsection (1) does not apply if the document is not false or
25
misleading in a material particular.
26
Note:
A defendant bears an evidential burden in relation to the matter in this
27
subsection (see section 96 of the Regulatory Powers Act).
28
(3) Subsection (1) does not apply to a person who produces a
29
document if the document is accompanied by a written statement
30
signed by the person or, in the case of a body corporate, by a
31
competent officer of the body corporate:
32
Administration
Chapter 4
Information management
Part 5
False or misleading information or documents
Division 2
Section 147
No. , 2020
Recycling and Waste Reduction Bill 2020
151
(a) stating that the document is, to the knowledge of the
1
first-mentioned person, false or misleading in a material
2
particular; and
3
(b) setting out, or referring to, the material particular in which
4
the document is, to the knowledge of the first-mentioned
5
person, false or misleading.
6
Note:
A defendant bears an evidential burden in relation to the matter in this
7
subsection (see section 96 of the Regulatory Powers Act).
8
Chapter 4
Administration
Part 5
Information management
Division 3
Protecting information
Section 148
152
Recycling and Waste Reduction Bill 2020
No. , 2020
Division 3--Protecting information
1
148 Offence--using or disclosing commercially sensitive information
2
Offence
3
(1) A person commits an offence if:
4
(a) the person obtains protected information in the course of, or
5
for the purposes of, performing functions or duties or
6
exercising powers under this Act; and
7
(b) the person uses or discloses the information; and
8
(c) there is a risk that the use or disclosure might substantially
9
prejudice the commercial interests of another person.
10
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
11
Exception--authorised use or disclosure
12
(2) Subsection (1) does not apply if the use or disclosure is authorised
13
by section 149 (authorised uses and disclosures).
14
Note:
A defendant bears an evidential burden in relation to a matter in this
15
subsection (see subsection 13.3(3) of the
Criminal Code
).
16
Definition of
protected information
17
(3)
Protected information
is information that was disclosed or
18
obtained under or for the purposes of this Act.
19
149 Authorised uses and disclosures
20
(1) A person may use or disclose protected information if:
21
(a) the use or disclosure is made for the purposes of:
22
(i) performing a duty or function, or exercising a power,
23
under or in relation to this Act; or
24
(ii) enabling another person to perform duties or functions,
25
or exercise powers, under or in relation to this Act; or
26
(iii) assisting in the administration or enforcement of another
27
Australian law; or
28
Administration
Chapter 4
Information management
Part 5
Protecting information
Division 3
Section 149
No. , 2020
Recycling and Waste Reduction Bill 2020
153
(b) the use or disclosure is required or
authorised by or under:
1
(i) a Commonwealth law (including this Act); or
2
(ii) a law, of a State or Territory, that is prescribed by the
3
rules; or
4
(c) the person referred to in paragraph 148(1)(c) has consented to
5
the use or disclosure; or
6
(d) at the time of the use or disclosure, the protected information
7
is already lawfully publicly available; or
8
(e) both:
9
(i) the use or disclosure is, or is a kind of use or disclosure
10
that is, certified in writing by the Minister to be in the
11
public interest; and
12
(ii) the use or disclosure is made in accordance with any
13
requirements prescribed by the rules; or
14
(f) both:
15
(i) the person believes on reasonable grounds that the use
16
or disclosure is necessary to prevent or lessen a serious
17
and imminent threat to the life or health of a person; and
18
(ii) the use or disclosure is for the purposes of preventing or
19
lessening that threat; or
20
(g) both:
21
(i) the person believes on reasonable grounds that the use
22
or disclosure is necessary to prevent or lessen a serious
23
threat to environmental health; and
24
(ii) the use or disclosure is for the purposes of preventing or
25
lessening that threat; or
26
(h) both:
27
(i) the information used or disclosed is a summary of, or
28
statistics derived from, protected information; and
29
(ii) the information is not likely to enable the identification
30
of a person.
31
(2) An instrument made under subparagraph (1)(e)(i) certifying that a
32
particular use or disclosure is in the public interest is not a
33
legislative instrument.
34
Chapter 4
Administration
Part 5
Information management
Division 3
Protecting information
Section 150
154
Recycling and Waste Reduction Bill 2020
No. , 2020
(3) An instrument made under subparagraph (1)(e)(i) certifying that a
1
kind of use or disclosure is in the public interest is a legislative
2
instrument.
3
150 Disclosing commercially sensitive information to courts and
4
tribunals etc.
5
(1) This section applies if:
6
(a) information or a document is disclosed to, or obtained by, a
7
person (the
public official
) in the course of the person
8
performing a function or duty, or exercising a power, under
9
or in relation to this Act; and
10
(b) there is a risk that disclosure of the information or document
11
might substantially prejudice the commercial interests of a
12
person other than the public official.
13
Information not to be disclosed to court or tribunal
14
(2) The public official must not, except for the purposes of this Act, be
15
required to disclose the information to, or produce the document in
16
or to, a court, tribunal, authority or other person having power to
17
require the production of documents or the answering of questions.
18
Administration
Chapter 4
Review of decisions
Part 6
Section 151
No. , 2020
Recycling and Waste Reduction Bill 2020
155
Part 6--Review of decisions
1
2
151 Persons
affected
by
reviewable decisions
3
(1) Column 1 of the table sets out each person
affected
by a
4
reviewable decision. Column 2 of the table sets out the
reviewable
5
decision
that a particular person is affected by.
6
7
Persons affected by reviewable decisions
Item
Column 1
Person
affected
Column 2
Reviewable decision
1
A person who applies for an
exemption under section 25
A decision by the Minister under
paragraph 26(1)(b) to refuse to grant
the exemption
2
A person who applies for an export
licence under section 33
A decision by the Minister under
paragraph 34(1)(b) to refuse to grant
the export licence
3
A person who applies for an export
licence under section 33
A decision by the Minister under
paragraph 35(1)(c) to grant the
export licence subject to additional
conditions
4
The applicant for the renewal
A decision by the Minister under
paragraph 39(1)(b) to refuse to
renew the export licence
5
The holder of an export licence
A decision by the Minister under
paragraph 40(1)(c) to subject a
renewed export licence to additional
conditions
6
The holder of an export licence
A decision by the Minister under
paragraph 42(3)(b) to refuse to make
a variation in relation to the export
licence
7
The holder of an export licence
A decision by the Minister under
subsection 44(1) to vary the export
licence
8
The holder of an export licence
A decision by the Minister under
Chapter 4
Administration
Part 6
Review of decisions
Section 151
156
Recycling and Waste Reduction Bill 2020
No. , 2020
Persons affected by reviewable decisions
Item
Column 1
Person
affected
Column 2
Reviewable decision
section 46 or 47 to suspend the
export licence wholly or in part
9
The holder of an export licence
A decision by the Minister under
subsection 49(2) to extend the
period of a suspension of an export
licence
10
The former holder of an export
licence
A decision by the Minister under
subsection 54(1) or 55(1) to revoke
the export licence
11
The applicant for accreditation of a
voluntary arrangement
A decision by an accrediting
authority under rules made for the
purposes of section 70 to refuse to
accredit the voluntary arrangement
in relation to a product
12
The applicant for accreditation of a
voluntary arrangement
A decision by an accrediting
authority under rules made for the
purposes of section 70 to impose
conditions on the voluntary
arrangement's accreditation in
relation to a product
13
The following persons:
(a) the administrator of an accredited
voluntary arrangement;
(b) a person authorised in
accordance with an accredited
voluntary arrangement to
exercise the Commonwealth's
intellectual property rights in a
product stewardship logo
A decision by an accrediting
authority under rules made for the
purposes of section 70 to cancel, or
refuse to cancel, the accreditation of
the voluntary arrangement in
relation to a product
14
A person who applies to the Minister
to vary or revoke a notice given
under subsection 76(4)
A decision by the Minister under
subsection 76(8) or (9) to vary the
notice, or to refuse to vary or revoke
the notice
15
The administrator of a co-regulatory
arrangement
A decision by the Minister under
section 85 to refuse to approve the
co-regulatory arrangement in
Administration
Chapter 4
Review of decisions
Part 6
Section 151
No. , 2020
Recycling and Waste Reduction Bill 2020
157
Persons affected by reviewable decisions
Item
Column 1
Person
affected
Column 2
Reviewable decision
relation to a product
16
The administrator of an approved
co-regulatory arrangement
A decision by the Minister under
section 87 to cancel or to refuse to
cancel the approval of the
co-regulatory arrangement in
relation to a product
17
A prospective liable party in relation
to whom the Minister has made a
determination under section 89
A decision by the Minister under
section 89 to make the determination
18
A person who applies for approval
under section 91 of the person's
appointment as a replacement
administrator of an approved
co-regulatory arrangement
A decision by the Minister under
section 91 to refuse to approve the
appointment
19
A person who has applied to be a
third party authorised officer
A decision by the Secretary under
paragraph 125(4)(b) to refuse to
authorise the person
20
A person whom the Secretary
authorises to be a third party
authorised officer
A decision by the Secretary under
paragraph 126(1)(b) to authorise the
person subject to additional
conditions
21
A third party authorised officer
A decision by the Secretary under
paragraph 130(1)(a) to vary the
functions or powers that the third
party authorised officer may perform
or exercise
22
A third party authorised officer
A decision by the Secretary under
paragraph 130(1)(b) to vary the
conditions to which the officer's
authorisation as a third party
authorised officer is subject
23
A third party authorised officer
A decision by the Secretary under
paragraph 130(1)(c) to shorten the
period of effect of the officer's
authorisation as a third party
Chapter 4
Administration
Part 6
Review of decisions
Section 151
158
Recycling and Waste Reduction Bill 2020
No. , 2020
Persons affected by reviewable decisions
Item
Column 1
Person
affected
Column 2
Reviewable decision
authorised officer
24
A third party authorised officer
A decision by the Secretary under
paragraph 130(1)(d) to specify a
period of effect of the officer's
authorisation as a third party
authorised officer
25
A third party authorised officer
A decision by the Secretary under
subsection 131(1) to suspend the
officer's authorisation as a third
party authorised officer
26
A third party authorised officer
A decision by the Secretary under
subsection 131(4) to extend the
period of a suspension of the
officer's authorisation as a third
party authorised officer
27
A former third party authorised
officer
A decision by the Secretary under
subsection 132(1) to revoke the
former officer's authorisation as a
third party authorised officer
28
A third party authorised officer
A decision by the Secretary under
paragraph 134(2)(b) to refuse to
make a variation in relation to the
officer's authorisation as a third
party authorised officer
(2) The rules may also:
1
(a) provide that a decision made under a specified provision of
2
this Act is a
reviewable decision
; and
3
(b) specify the person who is a person
affected
by the reviewable
4
decision.
5
Note:
The reference to this Act includes a reference to instruments made
6
under this Act (see the definition of
this Act
in section 10).
7
Administration
Chapter 4
Review of decisions
Part 6
Section 152
No. , 2020
Recycling and Waste Reduction Bill 2020
159
152 Notice of decisions and review rights
1
As soon as practicable after making a reviewable decision, the
2
person who made the decision must give a written notice to each
3
person affected by the decision, containing:
4
(a) the terms of the decision; and
5
(b) the reasons for the decision; and
6
(c) a statement setting out particulars of the person's review
7
rights.
8
153 Internal review
9
(1) A person affected by a reviewable decision (other than a decision
10
made by the Minister personally) may apply in writing to the
11
Minister for review (the
internal review
) of the decision.
12
(2) An application for internal review must be made within:
13
(a) 30 days after the day on which the decision first came to the
14
notice of the applicant; or
15
(b) such further period (if any) as the Minister allows (either
16
before or after the end of the 30 days).
17
(3) On receiving an application, the Minister must review the
18
reviewable decision.
19
(4) The Minister may:
20
(a) make a decision affirming, varying or revoking the
21
reviewable decision; and
22
(b) if the Minister revokes the decision, make such other
23
decision (if any) as the Minister thinks appropriate.
24
154 Review of decisions by Administrative Appeals Tribunal
25
(1) Applications may be made to the Administrative Appeals Tribunal
26
for review of the following decisions:
27
(a) a reviewable decision made by the Minister personally;
28
(b) an internal review decision made by the Minister under
29
subsection 153(4).
30
Chapter 4
Administration
Part 6
Review of decisions
Section 154
160
Recycling and Waste Reduction Bill 2020
No. , 2020
(2) An application under subsection (1) may be made only by, or on
1
behalf of, a person affected by the reviewable decision.
2
(3) Subsection (2) has effect despite subsection 27(1) of the
3
Administrative Appeals Tribunal Act 1975
.
4
Administration
Chapter 4
Fees and charges
Part 7
Fees
Division 1
Section 155
No. , 2020
Recycling and Waste Reduction Bill 2020
161
Part 7--Fees and charges
1
Division 1--Fees
2
155 Charging of fees
3
(1) The rules may make provision in relation to the charging of fees
4
relating to activities carried out by, or on behalf of, the
5
Commonwealth in the performance of functions or the exercise of
6
powers under this Act.
7
Note:
Fees may also be charged by:
8
(a) approved auditors (see section 117); and
9
(b) State or Territory authorised officers and third party authorised
10
officers (see section 141).
11
(2) Without limiting subsection (1), the rules may do any of the
12
following:
13
(a) prescribe a fee by specifying the amount of the fee or a
14
method of working out the fee;
15
(b) specify that the amount of a fee is the cost incurred by the
16
Commonwealth in arranging and paying for another person
17
to carry out the relevant activity;
18
(c) make provision in relation to deposits to be paid in relation to
19
fees;
20
(d) prescribe one or more persons who are liable to pay a
21
specified fee;
22
(e) prescribe the time when a specified fee is due and payable;
23
(f) make provision in relation to penalties for late payment of
24
specified fees;
25
(g) make provision in relation to the refund, remission or waiver
26
of specified fees or penalties for late payment of specified
27
fees;
28
(h) make provision in relation to:
29
(i) the liability of a person's agent to pay fees on behalf of
30
the person; and
31
(ii) the recovery of such fees from the person by the agent.
32
Chapter 4
Administration
Part 7
Fees and charges
Division 1
Fees
Section 156
162
Recycling and Waste Reduction Bill 2020
No. , 2020
(3) Without limiting subsection (1) or (2), the rules may provide for
1
the Minister to make decisions in relation to the matters mentioned
2
in paragraph (2)(e) or (g).
3
(4) A fee prescribed for the purposes of subsection (1) must not be
4
such as to amount to taxation.
5
156 Commonwealth not liable to pay a fee
6
(1) The Commonwealth is not liable to pay a fee that is payable under
7
this Act. However, it is the Parliament's intention that the
8
Commonwealth should be notionally liable to pay such a fee.
9
(2) The Finance Minister may give such written directions as are
10
necessary or convenient for carrying out or giving effect to
11
subsection (1) and, in particular, may give directions in relation to
12
the transfer of money within an account, or between accounts,
13
operated by the Commonwealth.
14
(3) Directions under subsection (2) have effect, and must be complied
15
with, despite any other Commonwealth law.
16
(4) Directions under subsection (2) are not legislative instruments.
17
(5) In subsections (1) and (2):
18
Commonwealth
includes a Commonwealth entity (within the
19
meaning of the
Public Governance, Performance and
20
Accountability Act 2013
) that cannot be made liable to taxation by
21
a Commonwealth law.
22
157 Recovery of fees
23
A fee that is due and payable to the Commonwealth under this Act
24
may be recovered as a debt due to the Commonwealth by action in
25
a relevant court.
26
158 Minister may direct that activities not be carried out
27
If a fee under this Act is due and payable by a person (the
debtor
),
28
the Minister may refuse to carry out, and direct a person not to
29
Administration
Chapter 4
Fees and charges
Part 7
Fees
Division 1
Section 158
No. , 2020
Recycling and Waste Reduction Bill 2020
163
carry out, specified activities or kinds of activities in relation to the
1
debtor under this Act until the fee has been paid.
2
Chapter 4
Administration
Part 7
Fees and charges
Division 2
Waste material export charge
Section 159
164
Recycling and Waste Reduction Bill 2020
No. , 2020
Division 2--Waste material export charge
1
159 Rules relating to waste material export charge
2
The rules may make provision for, or in relation to, all or any of
3
the following matters:
4
(a) when a specified waste material export charge is due and
5
payable;
6
(b) the issue of notices setting out the amount of waste material
7
export charges payable by persons who are liable to pay the
8
charges;
9
(c) the issue of notices extending the time for payment of waste
10
material export charges;
11
(d) penalties for late payment of waste material export charges;
12
(e) to whom waste material export charges and any penalties for
13
late payment are payable;
14
(f) the refund, remission or waiver of waste material export
15
charges or penalties for late payment;
16
(g) the review of decisions made under the rules in relation to the
17
collection or recovery of waste material export charges;
18
(h) the giving of information and keeping of records relating to a
19
person's liability to pay waste material export charges;
20
(i) any other matters relating to the collection or recovery of
21
waste material export charges.
22
160 Recovery of waste material export charge and late payment
23
penalty
24
Waste material export charge, or a penalty for late payment of
25
waste material export charge, that is due and payable to the
26
Commonwealth under this Act may be recovered as a debt due to
27
the Commonwealth by action in a relevant court.
28
Administration
Chapter 4
Fees and charges
Part 7
Waste material export charge
Division 2
Section 161
No. , 2020
Recycling and Waste Reduction Bill 2020
165
161 Minister may direct that activities not be carried out
1
(1) This section applies if a person (the
debtor
) is liable to pay waste
2
material export charge, or a penalty for late payment of waste
3
material export charge, that is due and payable.
4
(2) The Minister may refuse to carry out, or direct a person not to carry
5
out, specified activities or kinds of activities in relation to the
6
debtor under this Act until the charge or penalty has been paid.
7
162 Commonwealth liable to pay waste material export charge and
8
late payment penalties
9
(1) The Commonwealth is not liable to pay waste material export
10
charge or a penalty for late payment of waste material export
11
charge that is payable under this Act. However, it is the
12
Parliament's intention that the Commonwealth should be
13
notionally liable to pay such a charge or penalty.
14
(2) The Finance Minister may give such written directions as are
15
necessary or convenient for carrying out or giving effect to
16
subsection (1) and, in particular, may give directions in relation to
17
the transfer of money within an account, or between accounts,
18
operated by the Commonwealth.
19
(3) Directions under subsection (2) have effect, and must be complied
20
with, despite any other Commonwealth law.
21
(4) Directions under subsection (2) are not legislative instruments.
22
(5) In subsections (1) and (2):
23
Commonwealth
includes a Commonwealth entity (within the
24
meaning of the
Public Governance, Performance and
25
Accountability Act 2013
) that cannot be made liable to taxation by
26
a Commonwealth law.
27
Chapter 4
Administration
Part 8
Other matters
Section 163
166
Recycling and Waste Reduction Bill 2020
No. , 2020
Part 8--Other matters
1
2
163 Methods for taking, testing and analysing certain samples
3
(1) This section applies in relation to a sample of waste material or any
4
other thing that is to be taken, tested or analysed under this Act
5
(other than in the performance of functions or duties or the exercise
6
of powers under Part 2 of Chapter 4 (compliance and enforcement)
7
or the Regulatory Powers Act).
8
(2) The sample must be taken, tested or analysed in accordance with:
9
(a) if a method is prescribed by the rules for that kind of
10
sample--the prescribed method; or
11
(b) in any other case:
12
(i) an applicable method specified in an Australian
13
Standard published by, or on behalf of, Standards
14
Australia; or
15
(ii) any other appropriate, validated and science-based
16
method approved by the Secretary.
17
164 Storage of samples
18
The rules may make provision for and in relation to the storage of
19
samples that may be tested or analysed under this Act.
20
165 Test or analysis may result in destruction or reduction in value
21
of sample
22
A person who is required or permitted to test or analyse a sample
23
of waste material or any other thing under this Act may carry out
24
tests or analysis that result in the destruction, or a reduction in the
25
value, of the sample or a package or waste material associated with
26
the sample.
27
Administration
Chapter 4
Other matters
Part 8
Section 166
No. , 2020
Recycling and Waste Reduction Bill 2020
167
166 Appointment of analyst
1
(1) The Secretary may appoint a person to be an analyst for the
2
purposes of this Act.
3
(2) The Secretary must not appoint a person to be an analyst for the
4
purposes of this Act unless the Secretary is satisfied that:
5
(a) the person satisfies the training and qualification
6
requirements determined under subsection (3); or
7
(b) the person will satisfy those training and qualification
8
requirements before the person exercises any powers as an
9
analyst for the purposes of this Act.
10
(3) The Secretary must determine, in writing, training and qualification
11
requirements for analysts.
12
(4) A determination under subsection (3) is not a legislative
13
instrument.
14
167 Analyst may give certificate
15
(1) If a person is alleged to have contravened this Act in relation to
16
waste material or any other thing, an analyst appointed under
17
section 166 may give a written certificate stating one or more of
18
the following matters:
19
(a) when and from whom the waste material or other thing was
20
received;
21
(b) what (if any) labels or other means of identifying the waste
22
material or other thing accompanied the waste material or
23
other thing when it was received;
24
(c) what covering the waste material or other thing was in when
25
it was received;
26
(d) a description, and the weight, of the waste material or other
27
thing received;
28
(e) when the waste material or other thing, or a portion or sample
29
of the waste material or other thing, was tested or analysed;
30
(f) a description of the method of testing or analysis;
31
(g) the results of the testing or analysis;
32
Chapter 4
Administration
Part 8
Other matters
Section 168
168
Recycling and Waste Reduction Bill 2020
No. , 2020
(h) how the waste material or other thing was dealt with after
1
handling by the analyst, including details of:
2
(i) the quantity retained; and
3
(ii) the name of any person to whom any retained quantity
4
was given; and
5
(iii) measures taken to secure any retained quantity.
6
Note:
In certain circumstances, the certificate may be admitted as evidence
7
in proceedings in relation to the contravention (see section 168).
8
(2) A certificate under subsection (1) must be in a form approved by
9
the Secretary.
10
168 Admission of analyst's certificate in proceedings
11
(1) A certificate given under section 167 is (if the procedure in
12
subsection (2) of this section is complied with) admissible, in any
13
proceedings in relation to a contravention of this Act, as prima
14
facie evidence of:
15
(a) the matters in the certificate; and
16
(b) the correctness of the result of the analysis to which the
17
certificate relates.
18
Procedure to be followed before admitting certificate
19
(2) At least 14 days before the certificate is admitted as evidence in the
20
proceedings, the following must be given to the person (the
21
defendant
) who is alleged to have contravened this Act, or a legal
22
practitioner who is appearing for the defendant in the proceedings:
23
(a) a copy of the certificate;
24
(b) notice of the intention to produce the certificate as evidence
25
in the proceedings.
26
Analyst may be required to attend for cross-examination
27
(3) The defendant may (subject to subsection (4)) require the analyst
28
who gave the certificate to be:
29
(a) called as a witness for the person who instituted the
30
proceedings; and
31
Administration
Chapter 4
Other matters
Part 8
Section 169
No. , 2020
Recycling and Waste Reduction Bill 2020
169
(b) cross-examined (as if the analyst had given evidence of the
1
matters stated in the certificate).
2
Requirements for cross-examining analyst
3
(4) The analyst may be required to be called as a witness for the
4
person who instituted the proceedings only if:
5
(a) the person who instituted the proceedings has been given at
6
least 4 days' notice of the defendant's intention to require the
7
analyst to be called; or
8
(b) the court, by order, allows the defendant to require the
9
analyst to be called.
10
Proof of certificate
11
(5) For the purposes of this Act, a document purporting to be a
12
certificate given under section 167 is taken to be a certificate that
13
has been given in accordance with that section, unless the contrary
14
is established.
15
169 Hindering compliance with this Act etc.
16
(1) A person must not engage in conduct that hinders or prevents
17
another person from:
18
(a) performing functions or exercising powers under this Act; or
19
(b) complying with this Act or a direction given under this Act.
20
Fault-based offence
21
(2) A person commits an offence if the person contravenes
22
subsection (1).
23
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
24
Civil penalty provision
25
(3) A person is liable to a civil penalty if the person contravenes
26
subsection (1).
27
Civil penalty:
600 penalty units.
28
Chapter 4
Administration
Part 8
Other matters
Section 170
170
Recycling and Waste Reduction Bill 2020
No. , 2020
170 Influencing a person performing functions or duties or
1
exercising powers
2
(1) A person contravenes this subsection if:
3
(a) the person engages in conduct; and
4
(b) the person does so with the intention of dishonestly
5
influencing another person in the performance of the other
6
person's functions or duties, or the exercise of the other
7
person's powers, under this Act.
8
Fault-based offence
9
(2) A person commits an offence if the person contravenes
10
subsection (1).
11
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
12
Civil penalty provision
13
(3) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Civil penalty:
600 penalty units.
16
Other matters
Chapter 5
Section 171
No. , 2020
Recycling and Waste Reduction Bill 2020
171
Chapter 5--Other matters
1
2
3
171 Simplified outline of this Chapter
4
Applications under this Act must comply with certain
5
requirements. A person who has made an application under this
6
Act must give the recipient of the application additional or
7
corrected information in certain circumstances.
8
There is a test for determining whether a person is a fit and proper
9
person for the purposes of this Act, which includes the Minister
10
having regard to whether the person is financially viable and
11
whether the person has been convicted of certain offences.
12
The Minister must prepare an annual report on the operation of this
13
Act and must also cause a review in relation to its operation and
14
objects to be conducted within 10 years after the Act commences.
15
The Minister and the Secretary may delegate their powers and
16
functions to certain persons. However, the Minister cannot delegate
17
the power to make the rules or to publish a Minister's priority list.
18
This Chapter also deals with other miscellaneous matters (such as
19
treatment of partnerships and protection from civil proceedings).
20
This Chapter also gives the Minister the power to make rules for
21
the purposes of this Act. The rules are a disallowable legislative
22
instrument.
23
172 General requirements for making applications
24
(1) An application under this Act must:
25
(a) if the Minister has approved, in writing, a manner for making
26
an application--be made in an approved manner; and
27
(b) if the Minister has approved a form for making an
28
application:
29
Chapter 5
Other matters
Section 173
172
Recycling and Waste Reduction Bill 2020
No. , 2020
(i) include the information required by the form; and
1
(ii) be accompanied by any documents required by the
2
form; and
3
(c) include the information (if any) prescribed by the rules; and
4
(d) be accompanied by any documents prescribed by the rules;
5
and
6
(e) if rules made for the purposes of section 155 specify a fee
7
that must accompany the application and payment of the fee
8
has not been waived--be accompanied by the fee.
9
Note:
A person may commit an offence or be liable to a civil penalty if the
10
person makes a false or misleading statement in an application or
11
provides false or misleading information or documents (see
12
sections 145, 146 and 147 of this Act and sections 136.1, 137.1 and
13
137.2 of the
Criminal Code
).
14
(2) The Minister may accept any information or document previously
15
given to the Minister in connection with an application made under
16
this Act as satisfying any requirement to give that information or
17
document under subsection (1).
18
(3) An application is taken not to have been made if the application
19
does not comply with the requirements in subsection (1) for the
20
application.
21
(4) To avoid doubt, the Minister may approve:
22
(a) different forms for applications relating to different matters;
23
or
24
(b) a single form for more than one kind of application.
25
173 Additional or corrected information in relation to applications
26
(1) A person who has made an application to another person (the
27
recipient
) under this Act must comply with subsection (2) if:
28
(a) the person becomes aware that information included in the
29
application, or information or a document given in relation to
30
the application to the recipient, was incomplete or incorrect;
31
or
32
(b) a change prescribed by the rules occurs.
33
Other matters
Chapter 5
Section 174
No. , 2020
Recycling and Waste Reduction Bill 2020
173
(2) The person must, as soon as practicable, give the recipient
1
additional or corrected information, to the extent that it is relevant
2
to the consideration of the application.
3
Note:
A person may commit an offence or be liable to a civil penalty if the
4
person makes a false or misleading statement in an application or
5
provides false or misleading information or documents (see
6
sections 145, 146 and 147 of this Act and sections 136.1, 137.1 and
7
137.2 of the
Criminal Code
).
8
Civil penalty provision
9
(3) A person is liable to a civil penalty if:
10
(a) the person is subject to a requirement under subsection (2);
11
and
12
(b) the person fails to comply with the requirement.
13
Civil penalty:
60 penalty units.
14
174 Dealing with applications
15
(1) The person to whom an application is made may do any of the
16
following in relation to the application:
17
(a) request the applicant, or another person who the person
18
considers may have information or documents relevant to the
19
application or the applicant, to give the person further
20
specified information or documents relevant to the
21
application or the applicant;
22
(b) any other thing prescribed by the rules.
23
(2) A request under subsection (1) must:
24
(a) be in writing; and
25
(b) specify the period (which must not be longer than the period
26
prescribed by the rules) within which the request must be
27
complied with.
28
175 Fit and proper persons
29
(1) This section applies for the purposes of determining whether a
30
person is a fit and proper person for the purposes of this Act.
31
Chapter 5
Other matters
Section 175
174
Recycling and Waste Reduction Bill 2020
No. , 2020
Note:
The reference to this Act includes a reference to instruments made
1
under this Act (see the definition of
this Act
in section 10).
2
(2) In determining whether the person is a fit and proper person for the
3
purposes of a provision of this Act, the Minister must have regard
4
to the following matters:
5
(a) whether the person is financially viable;
6
(b) whether the person has been convicted of an offence against,
7
or ordered to pay a pecuniary penalty under, any of the
8
following:
9
(i) this Act;
10
(ii) the
Biosecurity Act 2015
;
11
(iii) the
Carbon Credits (Carbon Farming Initiative) Act
12
2011
;
13
(iv) the
Environment Protection and Biodiversity
14
Conservation Act 1999
;
15
(v) the
Export Control Act 2020
;
16
(vi) the
Hazardous Waste (Regulation of Exports and
17
Imports) Act 1989
;
18
(vii) the
National Greenhouse and Energy Reporting Act
19
2007
;
20
(viii) the repealed
Product Stewardship Act 2011
;
21
(ix) the
Product Stewardship (Oil) Act 2000
;
22
(x) another Act prescribed by the rules;
23
(xi) the
Criminal Code
or the
Crimes Act 1914
, to the extent
24
that it relates to an Act referred to in another
25
subparagraph of this paragraph;
26
(c) the person's history of compliance with this Act;
27
(d) if the person has been an administrator of a co-regulatory
28
arrangement--whether the Minister did not approve, or
29
cancelled the approval of, the co-regulatory arrangement
30
because the Minister was satisfied that the administrator was
31
not a fit and proper person;
32
(e) if the person has made an application for an export licence or
33
an application for renewal of an export licence--whether the
34
application was refused;
35
(f) whether the person:
36
Other matters
Chapter 5
Section 175
No. , 2020
Recycling and Waste Reduction Bill 2020
175
(i) has made a false or misleading statement in an
1
application under this Act; or
2
(ii) gave false or misleading information or documents to a
3
person performing functions or exercising powers under
4
this Act;
5
(g) the history of the person in relation to environmental matters;
6
(h) whether a debt is due and payable by the person to the
7
Commonwealth under any Act referred to in paragraph (b);
8
(i) any other matter prescribed by the rules in relation to the
9
provision.
10
(3) In determining whether the person is a fit and proper person, the
11
Minister may also have regard to the following matters:
12
(a) whether, under a law of a State or Territory, the person has
13
been given a notice (however described) that:
14
(i) relates to an environmental matter; and
15
(ii) requires the person to take, or not to take, specified
16
action to remedy non-compliance, or suspected
17
non-compliance, with the law;
18
(b) the matters mentioned in subsection (2) as they apply to an
19
associate of the person;
20
(c) whether the person, or an associate of the person, has been
21
convicted of an offence against, or ordered to pay a pecuniary
22
penalty under, an Australian law (other than an Act referred
23
to in paragraph (2)(b));
24
(d) whether a debt is due and payable by the person, or an
25
associate of the person:
26
(i) to the Commonwealth under any Act (other than one
27
referred to in paragraph (2)(b)); or
28
(ii) to a State or Territory, under a law of the State or
29
Territory.
30
(e) any other relevant matter.
31
(4) Nothing in this section affects the operation of Part VIIC of the
32
Crimes Act 1914
.
33
Note:
Part VIIC of the
Crimes Act 1914
includes provisions that, in certain
34
circumstances, relieve persons from the requirement to disclose spent
35
Chapter 5
Other matters
Section 176
176
Recycling and Waste Reduction Bill 2020
No. , 2020
convictions and require persons aware of such convictions to disregard
1
them.
2
176 Treatment of partnerships
3
(1) This Act applies to a partnership as if it were a person, but with the
4
changes set out in this section.
5
(2) An obligation that would otherwise be imposed on the partnership
6
by this Act is imposed on each partner instead, but may be
7
discharged by any of the partners.
8
(3) An offence against this Act that would otherwise have been
9
committed by the partnership is taken to have been committed by
10
each partner in the partnership at the time the offence was
11
committed who:
12
(a) did the relevant act or made the relevant omission; or
13
(b) aided, abetted, counselled or procured the relevant act or
14
omission; or
15
(c) was in any way knowingly concerned in, or party to, the
16
relevant act or omission (whether directly or indirectly and
17
whether by any act or omission of the partner).
18
(4) This section applies to a contravention of a civil penalty provision
19
in a corresponding way to the way in which it applies to an
20
offence.
21
(5) For the purposes of this Act, a change in the composition of a
22
partnership does not affect the continuity of the partnership.
23
177 Treatment of unincorporated associations
24
(1) This Act applies to an unincorporated association as if it were a
25
person, but with the changes set out in this section.
26
(2) An obligation that would otherwise be imposed on the association
27
by this Act is imposed on each member of the association's
28
committee of management instead, but may be discharged by any
29
of the members.
30
Other matters
Chapter 5
Section 178
No. , 2020
Recycling and Waste Reduction Bill 2020
177
(3) An offence against this Act that would otherwise have been
1
committed by the association is taken to have been committed by
2
each member of the association's committee of management at the
3
time the offence was committed who:
4
(a) did the relevant act or made the relevant omission; or
5
(b) aided, abetted, counselled or procured the relevant act or
6
omission; or
7
(c) was in any way knowingly concerned in, or party to, the
8
relevant act or omission (whether directly or indirectly and
9
whether by any act or omission of the member).
10
(4) This section applies to a contravention of a civil penalty provision
11
in a corresponding way to the way in which it applies to an
12
offence.
13
178 Treatment of trusts
14
(1) This Act applies to a trust as if it were a person, but with the
15
changes set out in this section.
16
Trusts with a single trustee
17
(2) If the trust has a single trustee:
18
(a) an obligation that would otherwise be imposed on the trust by
19
this Act is imposed on the trustee instead; and
20
(b) an offence against this Act that would otherwise have been
21
committed by the trust is taken to have been committed by
22
the trustee.
23
Trusts with multiple trustees
24
(3) If the trust has 2 or more trustees:
25
(a) an obligation that would otherwise be imposed on the trust by
26
this Act is imposed on each trustee instead, but may be
27
discharged by any of the trustees; and
28
(b) an offence against this Act that would otherwise have been
29
committed by the trust is taken to have been committed by
30
each trustee of the trust at the time the offence was
31
committed who:
32
Chapter 5
Other matters
Section 179
178
Recycling and Waste Reduction Bill 2020
No. , 2020
(i) did the relevant act or made the relevant omission; or
1
(ii) aided, abetted, counselled or procured the relevant act or
2
omission; or
3
(iii) was in any way knowingly concerned in, or party to, the
4
relevant act or omission (whether directly or indirectly
5
and whether by any act or omission of the trustee).
6
Contraventions of civil penalty provisions
7
(4) This section applies to a contravention of a civil penalty provision
8
in a corresponding way to the way in which it applies to an
9
offence.
10
179 Arrangements with States and Territories to help give effect to
11
this Act
12
The Minister may enter into an arrangement with a relevant
13
Minister of a State or Territory in relation to either or both of the
14
following:
15
(a) the use of any place in the State or Territory for the purposes
16
of this Act, and the control and management of the place;
17
(b) any matters necessary or convenient to be arranged in order
18
to enable the Commonwealth, the State or the Territory to
19
assist each other for the purposes of achieving the objects of
20
this Act.
21
Note:
The Secretary may enter into arrangements with State or Territory
22
bodies for officers or employees of those bodies to be authorised
23
officers under this Act (see section 128).
24
180 Protection from civil proceedings
25
Protection for the Commonwealth and protected persons
26
(1) No civil proceeding lies against the Commonwealth or a person (a
27
protected person
) covered by subsection (3) in relation to anything
28
done, or omitted to be done, in good faith:
29
(a) by a protected person in the performance or purported
30
performance of a function or duty, or the exercise or
31
purported exercise of a power, conferred by this Act; or
32
Other matters
Chapter 5
Section 181
No. , 2020
Recycling and Waste Reduction Bill 2020
179
(b) by a person in providing, or purporting to provide, assistance,
1
information or a document to a protected person, as a result
2
of a request, direction or other requirement made by the
3
protected person in the performance or purported
4
performance of a function or duty, or the exercise or
5
purported exercise of a power, conferred by this Act.
6
Protection for persons assisting protected persons
7
(2) No civil proceeding lies against a person in relation to anything
8
done, or omitted to be done, in good faith by the person in
9
providing, or purporting to provide, assistance, information or a
10
document to a protected person, as a result of a request, direction
11
or other requirement made by the protected person in the
12
performance or purported performance of a function or duty, or the
13
exercise or purported exercise of a power, conferred by this Act.
14
Protected persons
15
(3) A person is covered by this subsection if the person is, or was, any
16
of the following:
17
(a) the Minister;
18
(b) the Secretary;
19
(c) an authorised officer;
20
(d) an officer or employee of the Department.
21
Relationship to section 183
22
(4) Subsection (1) is subject to section 183 (compensation for
23
acquisition of property).
24
181 Circumstances in which relevant Commonwealth liability of a
25
person is taken to have been paid
26
A relevant Commonwealth liability of a person is taken to have
27
been paid for the purposes of a specified provision of this Act in
28
the circumstances prescribed by the rules.
29
Chapter 5
Other matters
Section 182
180
Recycling and Waste Reduction Bill 2020
No. , 2020
182 Power to arrange for certain decisions to be made by computer
1
programs
2
(1) The Secretary may arrange for the use, under the Secretary's
3
control, of computer programs for any purposes for which the
4
Secretary or the Minister may, or must, make a decision covered
5
by subsection (2).
6
(2) A decision is covered by this subsection if the decision is made
7
under this Act and is prescribed by the rules.
8
(3) The Secretary must take all reasonable steps to ensure that
9
decisions made by the operation of a computer program under an
10
arrangement made under subsection (1) are correct.
11
(4) A decision made by the operation of a computer program under an
12
arrangement made under subsection (1) is taken to be a decision
13
made by the Secretary or the Minister (as the case requires).
14
(5) The Secretary or the Minister (as the case requires) may substitute
15
a decision for a decision (the
initial decision
) made by the
16
operation of a computer program if the Secretary or Minister is
17
satisfied that the initial decision is incorrect.
18
183 Compensation for acquisition of property
19
(1) If the operation of this Act would result in an acquisition of
20
property (within the meaning of paragraph 51(xxxi) of the
21
Constitution) from a person otherwise than on just terms (within
22
the meaning of that paragraph), the Commonwealth is liable to pay
23
a reasonable amount of compensation to the person.
24
(2) If the Commonwealth and the person do not agree on the amount
25
of the compensation, the person may institute proceedings in the
26
Federal Court of Australia or the Supreme Court of a State or
27
Territory for the recovery from the Commonwealth of such
28
reasonable amount of compensation as the court determines.
29
Other matters
Chapter 5
Section 184
No. , 2020
Recycling and Waste Reduction Bill 2020
181
184 Annual report
1
(1) The Minister must prepare a report on the operation of this Act
2
during each financial year.
3
(2) The Minister must do so as soon as practicable after the end of the
4
financial year.
5
(3) The Minister must cause a copy of the report to be tabled in each
6
House of the Parliament within 15 sitting days of the day on which
7
the report is completed.
8
185 Review of operation of this Act
9
(1) The Minister must cause a review of the following matters to be
10
undertaken:
11
(a) the operation of this Act;
12
(b) the extent to which the objects of this Act have been
13
achieved.
14
(2) The review must be undertaken no later than 10 years after the
15
commencement of this Act
16
(3) The persons who undertake the review must give the Minister a
17
written report of the review.
18
(4) The Minister must cause a copy of the report of the review to be
19
tabled in each House of the Parliament within 15 sitting days of the
20
day the Minister receives the report.
21
186 Delegation--Minister
22
(1) The Minister may, in writing, delegate all or any of the Minister's
23
functions or powers under this Act to:
24
(a) the Secretary of the Department; or
25
(b) an SES employee or acting SES employee in the Department.
26
(2) Subsection (1) does not apply in relation to the Minister's power to
27
make rules under section 188 or to prepare and publish a Minister's
28
priority list.
29
Chapter 5
Other matters
Section 187
182
Recycling and Waste Reduction Bill 2020
No. , 2020
(3) In exercising powers or functions under a delegation, the delegate
1
must comply with any directions of the Minister.
2
187 Delegation--Secretary
3
(1) The Secretary may, in writing, delegate all or any of the
4
Secretary's powers or functions under this Act to an SES employee
5
or acting SES employee in the Department.
6
(2) In exercising powers or functions under a delegation, the delegate
7
must comply with any directions of the Secretary.
8
188 Rules
9
(1) The Minister may, by legislative instrument, make rules
10
prescribing matters:
11
(a) required or permitted by this Act to be prescribed by the
12
rules; or
13
(b) necessary or convenient to be prescribed for carrying out or
14
giving effect to this Act.
15
(2) Without limiting subsection 33(3A) of the
Acts Interpretation Act
16
1901
, the rules may prescribe a matter or thing differently for
17
different kinds of persons, things or circumstances.
18
(3) Despite subsection 14(2) of the
Legislation Act 2003
, the rules may
19
make provision in relation to a matter by applying, adopting or
20
incorporating, with or without modification, any matter contained
21
in any other instrument or other writing as in force or existing from
22
time to time.
23
(4) To avoid doubt, the rules may not do the following:
24
(a) create an offence or civil penalty;
25
(b) provide powers of:
26
(i) arrest or detention; or
27
(ii) entry, search or seizure;
28
(c) impose a tax;
29
(d) set an amount to be appropriated from the Consolidated
30
Revenue Fund under an appropriation in this Act;
31
Other matters
Chapter 5
Section 188
No. , 2020
Recycling and Waste Reduction Bill 2020
183
(e) directly amend the text of this Act.
1
(5) In this section, a reference to this Act does not include a reference
2
to the rules.
3