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2023
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Transport and City Services)
Contents
Page
2023
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Transport and City Services)
A Bill for
An Act to reduce waste and promote a circular economy, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Circular Economy Act 2023
.
This Act commences on the day after its notification day.
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.
For example, the signpost definition ‘waste—see the
, section 10.’ means that the term ‘waste’ is defined in that section and the definition applies to this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see
, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this Act.
5 Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The
, ch 2 applies to all offences against this Act (see Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
Note 2 Penalty units
The
, s 133 deals with the meaning of offence penalties that are expressed in penalty units.
(1) The objects of this Act are to—
(a) minimise the generation of waste; and
(b) maximise the recovery and re-use of resources; and
(c) minimise the amount of waste that goes to landfill; and
(d) reduce the harm of plastic and other waste on the natural and built environment and public health; and
(e) promote other features of a circular economy including by encouraging the design and manufacture of products that—
(i) use less resources during manufacturing; and
(ii) use more renewable, reusable or nontoxic resources during manufacturing; and
(iii) are more durable, repairable, reusable, recyclable or compostable.
(2) The precautionary principle must be taken into account in giving effect to the objects of this Act.
(3) In this section:
precautionary principle means that, if there is a threat of
serious or irreversible environmental damage, a lack of full scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation.
Part 2 Waste reduction measures
In this part:
business—
(a) includes—
(i) a trade, industry or profession; and
(ii) any other activity carried on for fee, benefit or reward; and
(iii) a person or activity prescribed by regulation; but
(b) does not include a person or activity excluded by regulation.
Division 2.2 Waste requirements for businesses
8 Requirements for reducing waste produced by businesses
A regulation may require a person conducting a business to do any of the following to reduce the amount of waste produced by the business (a waste reduction requirement):
(a) prepare a plan to reduce the amount of waste produced by the business;
(b) keep records about, and report on, the person’s compliance with a regulation made for paragraph (a).
9 Requirements for dealing with waste produced by businesses
A regulation may require a person conducting a business to do any of the following in relation to waste produced by a business (a waste processing requirement):
(a) sort the waste at the business’s premises in a stated way before processing or disposal;
(b) dispose of the waste in a stated way;
(c) keep records about, and report on, the person’s compliance with a regulation made for paragraph (a) or (b).
10 Consultation requirements—proposed waste reduction or processing requirements
Before a regulation may be made prescribing a requirement for section 8 or section 9—
(a) the Minister must give a public notice in relation to the proposed regulation that includes the following information:
(i) details about the requirements to be prescribed;
(ii) a statement that anyone may give a written submission to the Minister about the proposed regulation;
(iii) a statement that submissions may be given only in the period starting on the day the notice is published and ending 12 weeks later or any later day stated in the notice; and
(b) the Executive must consider the following:
(i) any written submissions received in accordance with the public notice;
(ii) the financial and operational impact of the proposed waste reduction
requirement or waste processing requirement on the people and businesses to whom
the requirement applies.
Division 3.1 Important concepts
In this part:
beverage includes water.
plastic product means a product made, in whole or in part, of plastic.
prohibited plastic product—see section 13 (1).
prohibited product—see section 12 (1).
single-use, in relation to a plastic product—see section 14 (1).
supply, a prohibited product to a person—see section 15.
12 Meaning of prohibited product—pt 3
(1) In this part:
prohibited product—
(a) means—
(i) a prohibited plastic product; or
(ii) any other product prescribed by regulation if—
(A) the production or use of the product is harmful to the natural or built environment or human health; or
(B) there is a reasonably available and affordable alternative product that better promotes a circular economy; but
(b) does not include a product excluded by regulation.
(2) For this section, an alternative product better promotes a circular economy than another product if it—
(a) uses less resources during manufacturing than the other product; and
(b) uses more renewable, reusable or nontoxic resources during manufacturing than the other product; and
(c) is more durable, repairable, reusable, recyclable or compostable than the other product.
13 Meaning of prohibited plastic product—pt 3
(1) In this part:
prohibited plastic product—
(a) means any of the following:
(i) a single-use plastic product prescribed by regulation;
(ii) a non-compostable degradable plastic product prescribed by regulation; but
(b) does not include an integrated packaging item.
(2) In this section:
non-compostable, in relation to a plastic product, means a plastic product that is not designated—
(a) compostable in accordance with AS 4736-2006 (Biodegradable plastics—Biodegradable plastics suitable for composting and other microbial treatment) as in force from time to time; or
(b) home compostable in accordance with AS 5810-2010 (Biodegradable plastics—Biodegradable plastics suitable for home composting) as in force from time to time.
Note AS 4736-2006 and AS 5810-2010 may be purchased at www.standards.org.au
.
integrated packaging item—
(a) means an item that is an integral part of the packaging in which goods, including pre-packaged portions of food or a beverage, are sealed before the goods are supplied; but
(b) does not include an item prescribed by regulation.
Examples—par (a)
1 a sealed expanded polystyrene cup containing dry noodles with flavouring
2 a sealed expanded polystyrene tray containing fruit, vegetables or uncooked meat
3 a plastic bag containing cereal inside a cardboard box
4 a fork included in a pre-packed salad
5 a spoon attached to an ice-cream cup
6 a plate forming part of a frozen meal
(1) For this part, a single-use product means a product designed or intended to be used only once.
Example
A cafe sells coffee in plastic takeaway cups under a cup-return scheme. Under the scheme, a customer buys their coffee in a plastic takeaway cup and returns the empty cup to the cafe or any other participating cafe to be washed and reused by other customers of the cafe. The use and return of the plastic takeaway cups is tracked using a mobile phone app. The plastic takeaway cups are not intended to be used once only.
(2) Subsection (1) applies even if a single-use product is able to be re-used.
Example—re-use
A restaurant selling takeaway food places the prepared food in plastic takeaway food containers and then in a single-use plastic shopping bag along with plastic cutlery for a customer to take away and eat. The customer washes the empty plastic takeaway containers and re-uses them to take their lunch to work. The customer also re-uses the single-use plastic shopping bag as a bin liner and the plastic cutlery as planting labels for seedlings. The subsequent re-use of these items is unrelated to the restaurant’s original intended use.
(3) For subsection (1), used only once includes multiple purposes within the 1 use.
Example—multiple purposes
Fresh herbs are placed in a plastic sleeve by the grower. The plastic sleeve has the following purposes:
(a) portioning the herbs for sale;
(b) protecting the herbs during transport to the supermarket;
(c) extending the shelf-life of the herbs at the supermarket;
(d) protecting the herbs during purchase and transport to the home of the consumer.
In this part:
supply, a prohibited product to a person—
(a) means sell or otherwise provide a prohibited product to the person; and
(b) includes the following:
(i) offer to provide the product to the person;
(ii) receive or possess the product for the purpose of providing it to the person;
(iii) display the product for the purpose of providing it to the person;
(iv) cause or permit the product to be provided to the person; and
(c) for a plastic product—
(i) includes providing the plastic product to the person—
(A) as a container or packaging for another product provided to the person; or
(B) for use with, or in relation to, another product provided to the person; but
(ii) does not include providing the plastic product to the person in a domestic setting.
Example—par (c) (i) (A)
giving a customer in a restaurant a plastic takeaway container to put uneaten restaurant food into
Example—par (c) (i) (B)
making plastic beverage stirrers available on the counter at a coffee shop
Example—par (c) (ii)
a parent providing a plastic fork for a school lunch
16 Consultation requirements—prohibited products and prohibited plastic products
(1) Before a regulation may be made prescribing a product for a relevant section—
(a) the Minister must give a public notice in relation to the proposed regulation that includes the following:
(i) details about the product to be prescribed by the proposed regulation;
(ii) the reasons for prescribing the product;
(iii) information about any proposed declaration to be made under section 23 in relation to the product;
(iv) a statement that anyone may give a written submission to the Minister about the proposed regulation;
(v) a statement that submissions may be given only in the period starting on the day the notice is published and ending 12 weeks later or any later day stated in the notice; and
(b) the Executive must consider the following:
(i) any written submissions received in accordance with the public notice;
(ii) the availability and utility of alternative products to replace the proposed prohibited product.
(2) In this section:
relevant section means—
(a) section 12 (1), definition of prohibited product, paragraph (a) (ii); or
(b) section 13 (1), definition of prohibited plastic product, paragraph (a) (i) or (ii).
Division 3.2 Supplying prohibited products
17 Person must not supply prohibited product
(1) A person must not supply a prohibited product to another person.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability offence.
18 Person must not make false representation about prohibited product
A person commits an offence if the person—
(a) supplies a prohibited product to another person; and
(b) intentionally or recklessly represents to the other person that the product is not a prohibited product.
Maximum penalty: 50 penalty units.
19 Notice to dispose of prohibited products
(1) This section applies if an authorised person believes on reasonable grounds that a person has contravened section 17.
(2) The authorised person may give the person written notice requiring the person to dispose of the prohibited product in a stated way within a reasonable stated period.
Note If the notice is given to a person who may apply to the ACAT for review of the decision, the notice must be a reviewable decision notice (see s 53).
(3) For subsection (2), the authorised person may only require a person to dispose of the prohibited product in a way that—
(a) does not unreasonably financially disadvantage the person; and
(b) is consistent with the objects of this Act.
Example—par (b)
a direction to take the prohibited product to a waste management and resource recovery centre for appropriate disposal
(4) The notice must contain a statement to the effect that if the person does not dispose of the prohibited product in accordance with the notice—
(a) an authorised person may remove and dispose of the product or authorise a stated person to remove and dispose of the product; and
(b) the person must pay to the Territory the reasonable cost of any removal and disposal of the product.
Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act
, s 177).
(5) A person must comply with a notice given to the person under subsection (2).
Maximum penalty: 20 penalty units.
(6) An offence against this section is a strict liability offence.
20 Authorised person may remove and dispose of prohibited products if notice not complied with
(1) If a person fails to comply with a notice under section 19 in relation to a prohibited product, an authorised person may—
(a) remove and dispose of the product; or
(b) authorise a stated person to remove and dispose of the product.
(2) However, the authorised person or stated person must not remove or dispose of the prohibited product unless—
(a) the period in which the person may make an application for review of the decision to which the notice relates has ended and the person has not made an application; or
(b) if the person applies to the ACAT for a review of the decision—
(i) the ACAT confirms the decision; or
(ii) if the ACAT varies or substitutes the decision and the varied or substituted decision requires the person to dispose of the product—the person fails to comply with the varied or substituted decision; or
(iii) the person withdraws the application.
(3) A person who fails to comply with a requirement in a notice under section 19 must pay to the Territory the reasonable cost of any removal or disposal carried out under this section.
Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act
, s 177).
Division 3.3 Supply of declared products at public events
21 Minister may declare prohibitable product must not be supplied at public event
(1) The Minister may declare that a person must not supply a stated prohibitable product to another person at a stated public event.
(2) For a public event that is not a government event, the Minister may only make a declaration if—
(a) the declaration is made not less than 3 months before the day the event starts; and
(b) after consulting the person conducting the public event, the Minister is satisfied that—
(i) there is a reasonably available and affordable alternative product; and
(ii) the declaration will not have an unreasonable impact on the event.
(3) A declaration is a disallowable instrument.
(4) In this section:
government event means an event conducted by the Territory or a territory entity.
prohibitable product means a product that may be, but is not, prescribed as a prohibited product for—
(a) section 12 (1), definition of prohibited product, paragraph (a) (ii); or
(b) section 13 (1), definition of prohibited plastic product, paragraph (a) (i) or (ii).
22 Person must not supply declared product at public event
(1) A person must not supply a declared product to another person at a declared public event.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability offence.
(3) In this section:
declared product means a product the subject of a declaration made under section 21 (1).
declared public event means an event the subject of a
declaration made under section 21 (1).
23 Minister may disapply Act for person or prohibited product
(1) The Minister may, on application or on the Minister’s own initiative, declare that a provision of this Act does not apply (with or without conditions) in relation to—
(a) a person; or
(b) a prohibited product.
(2) An application must include any information prescribed by regulation.
(3) The Minister may make a declaration in relation to a provision of this Act only if satisfied that—
(a) for subsection (1) (a)—
(i) it is not reasonably practicable or in the public interest for the person to comply with the provision; or
(ii) it is not consistent with the person’s human rights for the person to comply with the provision; and
(b) disapplication of the provision will not have any significant adverse effect on public health, property or the environment.
(4) A declaration is a disallowable instrument.
(5) A declaration may commence on a day earlier than its notification day.
(6) A person commits an offence if—
(a) a declaration subject to a condition applies to the person or a prohibited product; and
(b) the person supplies a prohibited product in contravention of the condition.
Maximum penalty: 50 penalty units.
(7) An offence against subsection (6) is a strict liability offence.
In this part:
authorised person means—
(a) a person appointed as an authorised person under section 25; or
(b) a person appointed as an investigator under the Fair Trading (Australian Consumer Law) Act 1992
, section 36; or
(c) a public health officer authorised under the Public Health Act 1997
, section 12A (2) as an authorised officer for the Food Act 2001
or a provision of that Act.
connected—a thing is connected with an offence if—
(a) the offence has been committed in relation to it; or
(b) it will provide evidence of the commission of the offence; or
(c) it was used, is being used, or is intended to be used, to commit the offence.
occupier, of premises, includes—
(a) a person an authorised person believes on reasonable grounds to be an occupier of the premises; and
(b) a person apparently in charge of the premises.
offence includes an offence that there are reasonable grounds for believing has been, is being, or will be, committed.
premises includes the following:
(a) land (whether or not vacant);
(b) any part of a building, tent, stall or other structure (whether of a permanent or temporary nature);
(c) a vehicle.
warrant means a warrant issued under division 5.5.
25 Appointment of authorised people
The director-general may appoint a public servant as an authorised person for this Act.
Note For laws about appointments, see the Legislation Act
, pt 19.3.
(1) The director-general must give an authorised person an identity card that—
(a) states the authorised person’s name; and
(b) states that the person is an authorised person; and
(c) includes a recent photograph of the person; and
(d) states the card’s date of issue and expiry; and
(e) includes anything else prescribed by regulation.
(2) A person must return their identity card to the director-general within 7 days after the day the person stops being an authorised person.
Maximum penalty: 1 penalty unit.
(3) Subsection (2) does not apply to a person if their identity card is—
(a) lost or stolen; or
(b) destroyed by someone else.
Note The defendant has an evidential burden in relation to the matters
mentioned in s (3) (see
, s 58).
(4) An offence against this section is a strict liability offence.
Division 5.2 Exercise of powers generally
27 Requirements before certain powers can be exercised
(1) This section applies if an authorised person intends to exercise any of the following powers:
(a) giving a direction under section 29 (1) (Direction to give information);
(b) giving a direction under section 30 (1) or (2) (Direction to give name and address);
(c) entering premises under section 31 (1) (b) or (c) (Powers of authorised person to enter premises);
(d) giving a direction under section 34 (1) (e) (General powers on entry to premises).
(2) Before exercising the power, the authorised person must—
(a) either—
(i) show their identity card to the affected person; or
(ii) if the authorised person intends to exercise the power other than in person—provide other evidence of the authorised person’s identity to the affected person; and
(b) tell the affected person the reason for exercising the power; and
(c) tell the affected person about any relevant offence in relation to the power.
Examples—exercise of powers other than in person
1 an authorised person emails a person giving them a direction to provide information
2 an authorised person emails a person asking for consent to enter and search the person’s premises using a remote-controlled surveillance device
(3) The authorised person must ensure the matters mentioned in subsection (2) are communicated in a way that the authorised person believes the affected person is likely to understand.
(4) In this section:
affected person, in relation to the exercise of a power under this part, means—
(a) the individual affected by the exercise of the power; or
(b) if the person is not an individual—an employee, officer or agent of the person affected by the exercise of the power.
relevant offence means an offence against—
(a) for a direction under section 29 (1)—section 29 (2); or
(b) for a direction under section 30 (1) or (2)—section 30 (3); or
(c) for a direction under section 34 (1) (e)—section 34 (2).
28 Privilege against self-incrimination does not apply
(1) If an authorised person gives a person a direction to provide information, a document or other thing under this part, the person is not excused from complying with the direction on the ground that doing so may—
(a) tend to incriminate the person; or
(b) expose the person to a penalty.
(2) However, any information, document or thing obtained, directly or indirectly, because of the person’s compliance with the direction is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for an offence arising out of the false or misleading nature of the information, document or thing.
Division 5.3 Power to obtain information
29 Direction to give information
(1) An authorised person may, in writing, direct a relevant person to give the authorised person information, a document or other thing within a stated reasonable period if the information, document or thing is reasonably required by the authorised person for this Act.
Note The
, s 171 deals with the application of client legal privilege.
(2) A relevant person must take reasonable steps to comply with the direction.
Maximum penalty: 50 penalty units.
(3) Subsection (2) does not apply to a relevant person unless the authorised person—
(a) complies with section 27 (Requirements before certain powers can be exercised); and
(b) explains the effect of section 28 (Privilege against self-incrimination does not apply).
Note The defendant has an evidential burden in relation to the matters
mentioned in s (3) (see
, s 58).
(4) In this section:
beverage—see section 11.
plastic product—see section 11.
relevant person means—
(a) a person to whom a waste reduction requirement or waste processing requirement applies; or
(b) a person who supplies food or beverages in the ACT; or
(c) a person who supplies or manufactures plastic products in the ACT; or
(d) any other person prescribed by regulation.
supply, a prohibited product to a person—see section 15.
30 Direction to give name and address
(1) An authorised person may direct a person to state the person’s name and home address if the authorised person believes on reasonable grounds that the person—
(a) is involved in the commission of an offence against this Act; or
(b) may be able to assist in the investigation of an offence against this Act.
(2) If the authorised person believes on reasonable grounds that information given in response to a direction under subsection (1) is false or misleading, the authorised person may direct the person to produce evidence of the correctness of the information within a stated reasonable period.
(3) A person must comply with a direction given to the person under this section.
Maximum penalty: 5 penalty units.
Note It is an offence to make a false or misleading statement or give false or misleading information (see Criminal Code
, pt 3.4).
(4) An offence against this section is a strict liability offence.
(5) Subsection (3) does not apply to a person unless the authorised person complies with section 27 (Requirements before certain powers can be exercised).
Note The defendant has an evidential burden in relation to the matter
mentioned in s (5) (see
, s 58).
Division 5.4 Power to enter premises
31 Powers of authorised person to enter premises
(1) For this Act, an authorised person may—
(a) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment of money); or
(b) at any time, enter premises with the occupier’s consent; or
(c) at any time, enter premises if the authorised person believes on reasonable grounds that—
(i) an offence against this Act is being, or is likely to be, or has just been, committed at the premises; and
(ii) the risk to the environment or public health resulting from the offence is so serious and urgent that immediate entry to the premises without the authority of a warrant is necessary; or
(d) enter premises in accordance with a warrant.
(2) However, subsection (1) (a) or (c) do not authorise entry into a part of the premises that is being used only for residential purposes.
(3) If an authorised person wants to ask for consent to enter a building or other structure on the premises, the authorised person may, without the occupier’s consent, enter any land that forms part of the premises to ask for the consent.
(4) To remove any doubt, an authorised person may enter premises under subsection (1) without payment of an entry fee or other charge.
(5) An authorised person may—
(a) enter the premises with 1 or more people who, in the opinion of the authorised person, have knowledge or skills that could assist the authorised person to carry out their functions; and
(b) if entering the premises in accordance with a warrant—also enter the premises with necessary force.
(1) For section 31 (1) (b), an authorised person must—
(a) before asking the occupier for consent—tell the occupier—
(i) the purpose of the proposed entry; and
(ii) the reason for, and identity of, any other person accompanying the authorised person; and
(iii) that anything found and seized under this part may be used in evidence in court; and
(iv) that consent may be refused; and
(b) if the occupier consents to the entry—give the occupier a written record confirming—
(i) the matters mentioned in paragraph (a); and
(ii) that the occupier was told about those matters; and
(iii) the date and time when the consent was given.
(2) A court must find that the occupier did not consent if—
(a) a question arises, in a proceeding in the court, whether the occupier consented to the authorised person entering the premises under this part; and
(b) a record mentioned in subsection (1) (b) is not produced in evidence; and
(c) it is not proved that the occupier consented to the entry.
33 Consent to enter taken to be given if premises entered under other Act
An occupier of premises is taken to have given consent under this division for an authorised person to enter the premises if—
(a) the occupier consents to an authorised person entering the premises
under the
or the
; and
(b) before obtaining the occupier’s consent, the authorised person told the occupier in writing that the authorised person intends to exercise a power under this division in relation to the premises.
34 General powers on entry to premises
(1) An authorised person who enters premises under this division may do 1 or more of the following in relation to the premises or anything at the premises:
(a) examine anything;
(b) take a measurement or conduct a test;
(c) take a sample;
(d) take images, make audio or video recordings or any other kind of record;
(e) if reasonably required for an authorised person to exercise a power under this division, direct the occupier of the premises, or anyone at the premises, to do 1 or more of the following:
(i) give information, a document or other thing (including information, document or thing that is not at the premises);
(ii) produce a document or anything else (including a document or other thing that is not at the premises);
(iii) answer a question;
(iv) give the authorised person reasonable help to exercise a power under this part.
Note The
, s 171 deals with the application of client legal privilege.
(2) A person must take all reasonable steps to comply with a direction given under subsection (1) (e).
Maximum penalty: 50 penalty units.
(3) Subsection (2) does not apply in relation to a direction given to a person under subsection (1) (e) (i), (ii) or (iii) unless, before giving the direction, the authorised person—
(a) complies with section 27 (Requirements before certain powers can be exercised); and
(b) explains the effect of section 28 (Privilege against self-incrimination does not apply) to the person.
Note The defendant has an evidential burden in relation to the matters
mentioned in s (3) (see
, s 58).
In this division:
remote application—see section 36 (3).
warrant form—see section 39 (2).
warrant terms—see section 38 (2).
(1) An authorised person may apply to a magistrate for a warrant to enter premises.
(2) The application must—
(a) be sworn; and
(b) state the grounds on which the warrant is sought.
(3) However, if the authorised person considers it necessary because of urgent or other special circumstances, the authorised person may make an application (a remote application) by—
(a) preparing a written application stating the grounds on which a warrant is sought; and
(b) applying to the magistrate for the warrant other than in person before the written application is sworn.
37 Magistrate may refuse to consider application for warrant until authorised person gives relevant information
The magistrate may refuse to consider an application for a warrant made under section 36 until the authorised person gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
38 Decision on application for warrant
(1) If an application for a warrant is made under section 36, the magistrate may issue the warrant only if satisfied there are reasonable grounds for suspecting—
(a) there is a particular thing or activity connected with an offence against this Act; and
(b) the thing or activity—
(i) is, or is being engaged in, at the premises; or
(ii) may be, or may be engaged in, at the premises within the next 14 days.
(2) The warrant must include the following information (the warrant terms):
(a) a statement that an authorised person may, with any necessary assistance and force, enter the premises and exercise the authorised person’s powers under this part;
(b) details of the offence for which the warrant is issued;
(c) the things that may be seized under the warrant;
(d) the hours when the premises may be entered;
(e) the date, within 14 days after the day of the warrant’s issue, when the warrant ends.
39 Warrant issued on remote application
(1) A magistrate may issue a warrant on a remote application by—
(a) immediately giving a written copy of the warrant to the authorised person if it is practicable to do so; or
(b) if it is not practicable to do so—tell the authorised person the following:
(i) the warrant terms;
(ii) the date and time the warrant was issued.
(2) If the magistrate issues a warrant under subsection (1) (b), the authorised person must complete a form of warrant (the warrant form) stating—
(a) the magistrate’s name; and
(b) the date and time the magistrate issued the warrant; and
(c) the warrant terms.
(3) The written copy of the warrant, or the warrant form properly completed by the authorised person, authorises the entry and the exercise of the authorised person’s powers under this division.
(4) The authorised person must, as soon as is reasonably practicable—
(a) swear the remote application; and
(b) give the magistrate—
(i) the sworn application; and
(ii) if the authorised person completed a warrant form—the warrant form.
(5) On receiving the documents mentioned in subsection (4) (b), the magistrate must attach them to the warrant.
(6) A court must find that a power exercised by an authorised person was not authorised by a warrant under this section if—
(a) a question arises in a proceeding before the court whether the exercise of the power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of the power was authorised by a warrant under this section.
40 Announcement before entry under warrant
(1) Before anyone enters premises under a warrant, an authorised person must—
(a) announce that the authorised person is authorised to enter the premises; and
(b) give anyone at the premises an opportunity to allow entry to the premises; and
(c) if the occupier of the premises is present at the premises—identify themself to the person.
(2) The authorised person is not required to comply with subsection (1) if the authorised person believes on reasonable grounds that immediate entry to the premises is required to ensure—
(a) the safety of anyone (including the authorised person or any person assisting the authorised person); or
(b) that the effective execution of the warrant is not frustrated.
41 Warrant etc to be given to occupier
If the occupier of premises is present at the premises while a warrant is being executed, the authorised person must give to the person—
(a) a copy of—
(i) the warrant; or
(ii) if section 39 (1) (b) applies—the warrant form; and
(b) a document setting out the rights and obligations of the person.
42 Occupier entitled to watch search etc
(1) If the occupier of premises is present at the premises while a warrant is being executed, the person is entitled to watch the authorised person, and any person assisting the authorised person, conduct any search and exercise any other power authorised by the warrant.
(2) However, the person is not entitled to watch the authorised person or a person assisting the authorised person, exercise their powers if—
(a) to do so would interfere with the powers being exercised; or
(b) the person is under arrest, and allowing the person to watch the powers being exercised would interfere with the objective of the warrant.
(3) This section does not prevent an authorised officer exercising powers under this part in 2 or more areas of the premises at the same time.
Division 5.6 Power to seize things
43 Authorised person may seize things at premises
(1) An authorised person who enters premises under this part—
(a) may seize anything at the premises if satisfied on reasonable grounds that—
(i) the thing is connected with an offence against this Act; and
(ii) the seizure is necessary to prevent the thing from being—
(A) concealed, lost or destroyed; or
(B) used to commit, continue or repeat the offence; and
(b) if the premises were entered with the occupier’s consent—may also seize anything at the premises if seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent; and
(c) if the premises were entered under a warrant—may also seize anything at the premises that the authorised person is authorised to seize under the warrant.
(2) Having seized a thing, the authorised person may—
(a) remove the thing from the premises where it was seized to another place; or
(b) leave the thing at the premises where it is seized and restrict access to it.
Note If an authorised person seizes a thing, the authorised person must give a receipt for it to the person from whom it was seized (see s 47).
(3) If access to a seized thing is restricted under subsection (2) (b), the authorised person must secure, in a conspicuous place at the premises, a notice identifying that the thing is seized.
44 Moving things to another place for examination or processing under warrant
(1) A thing found at premises entered under a warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates;
(ii) it is significantly more practicable to do so taking into account the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; or
(b) the occupier of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing for not longer than 72 hours.
(3) An authorised person may apply to a magistrate for an extension of time if the authorised person believes on reasonable grounds that the thing cannot be examined or processed within 72 hours.
(4) The authorised person must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application.
(5) If a thing is moved to another place under this section, the authorised person must, if practicable—
(a) tell the person from whom the thing was seized the address of the place where, and time when, the examination or processing will be carried out; and
(b) allow the person from whom the thing was seized or their representative to be present during the examination or processing.
(6) The provisions of this part relating to the issue of warrants apply, with any necessary changes, to the giving of an extension under subsection (3).
45 Owner etc may access seized things
A person who would, apart from the seizure, be entitled to inspect a thing seized under this division may—
(a) inspect the thing; and
(b) make a visual recording of the thing; and
(c) if the thing is a document—take extracts from, or make copies of, the thing.
46 Person must not interfere with seized things
(1) A person commits an offence if—
(a) a thing has been seized under this division; and
(b) the person interferes with the thing, or anything containing the thing; and
(c) the person does not have the approval of an authorised person to interfere with the thing.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability offence.
47 Authorised person must give receipt for seized things
(1) If an authorised person seizes a thing under this division, the authorised person must—
(a) as soon as practicable after seizing the thing, give the person from whom the thing was seized a receipt for the thing; or
(b) if complying with paragraph (a) is not practicable—secure a receipt for the thing in a conspicuous place at the premises where the thing was seized.
(2) A receipt must include the following information:
(a) a description of the thing seized;
(b) the reasons why the thing was seized;
(c) the authorised person’s name, and how the authorised person can be contacted;
(d) if the thing is moved from the premises where it was seized—where the thing will be taken.
(1) A thing seized under this division must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, if—
(a) an infringement notice for an offence connected with the thing is not served on the owner within 1 year after the day of the seizure and either—
(i) a prosecution for an offence connected with the thing is not started within the 1-year period; or
(ii) a prosecution for an offence connected with the thing is started within the 1-year period but the person is not convicted or found guilty; or
(b) an infringement notice for an offence connected with the thing is served on the owner within 1 year after the day of the seizure and—
(i) the infringement notice is withdrawn; and
(ii) either—
(A) a prosecution for an offence connected with the thing is not started within 1 year after the day of the seizure; or
(B) a prosecution for an offence connected with the thing is started within 1 year after the day of the seizure but the person is not convicted or found guilty; or
(c) an infringement notice for an offence connected with the thing is served on the owner within 1 year after the day of the seizure and—
(i) the owner gives notice disputing liability for the offence in accordance
with the
, section 132 (Disputing liability for infringement notice offence); and
(ii) either—
(A) an information is not laid in the Magistrates Court against the person for the offence within 60 days after the day the notice is given; or
(B) an information is laid in the Magistrates Court against the person for the offence within 60 days after the day the notice is given but the person is not convicted or found guilty.
(2) However, subsection (1) does not apply if—
(a) the thing seized is a prohibited product; or
(b) a prosecution for an offence connected with the thing is started within 1 year after the day the thing is seized and—
(i) the thing is required to be produced in evidence in the prosecution; and
(ii) the prosecution (including any appeal) has not been finalised; and
(iii) for subsection (1) (c) (ii) (B)—the proceeding is discontinued
under the
, section 134 (3); or
(c) a court has made an order under a territory law that the thing is forfeited to the Territory or must be otherwise dealt with.
(3) If anything seized under this division is not required to be returned or reasonable compensation is not required to be paid under subsection (1), the thing—
(a) is forfeited to the Territory; and
(b) the director-general may direct that the thing be sold, destroyed or otherwise disposed of.
(4) In this section:
prohibited product—see section 12 (1).
(1) If a thing is seized under this division, a person claiming to be entitled to the thing may apply to the Magistrates Court for an order disallowing the seizure.
(2) The application—
(a) must be made not later than 10 days after the day the thing is seized; and
(b) must not be heard unless the applicant has served a copy of the application on the director-general.
(3) The director-general is entitled to appear as a respondent at the hearing of the application.
(4) The court must make an order disallowing the seizure of the thing if satisfied that—
(a) the applicant would, apart from the seizure, be entitled to the return of the seized thing; and
(b) the thing is not connected with an offence against this Act; and
(c) possession of the thing by the person would not be an offence.
(5) The court may also make an order disallowing the seizure if satisfied there are exceptional circumstances justifying the making of the order.
(6) If the court makes an order disallowing the seizure, the court may make 1 or more of the following ancillary orders:
(a) an order directing the director-general to return the thing to the applicant or to someone else who appears to be entitled to it;
(b) if the thing cannot be returned or has depreciated in value because of the disallowed seizure—an order directing the Territory to pay reasonable compensation;
(c) an order about costs in relation to the application.
(1) In the exercise, or purported exercise, of a function under this part, an authorised person must take all reasonable steps to ensure that the authorised person, and any person assisting the authorised person, causes as little inconvenience, detriment and damage as is practicable.
(2) If an authorised person, or a person assisting an authorised person, damages anything in the exercise or purported exercise of a function under this part, the authorised person must give written notice of the particulars of the damage to the person whom the authorised person believes on reasonable grounds is the owner of the thing.
(3) If the damage happens at premises entered under this part in the absence of the occupier, the notice may be given by leaving it secured in a conspicuous place at the premises.
51 Compensation for exercise of enforcement powers
(1) A person may claim compensation from the Territory if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this part by—
(a) an authorised person; or
(b) a person assisting an authorised person.
(2) Compensation may be claimed and ordered in a proceeding for—
(a) compensation brought in a court of competent jurisdiction; or
(b) an offence against this Act brought against the person making the claim for compensation.
(3) A court may order the payment of reasonable compensation for the loss or expense only if satisfied it is just to make the order in the circumstances of the particular case.
(4) A regulation may prescribe matters that may, must or must not be taken
into account by the court in considering whether it is just to make the
order.
(1) In this part:
affected person means a person given a notice to dispose of a prohibited product under section 19 (2).
reviewable decision means a decision under section 19 (2) to give an affected person a notice requiring the affected person to dispose of a prohibited product.
(2) In this section:
prohibited product—see section 12 (1).
53 Reviewable decision notices
If an authorised person makes a reviewable decision, the person must give a reviewable decision notice to the affected person in relation to the decision.
Note 1 The person must also take reasonable steps to give a reviewable
decision notice to any other person whose interests are affected by the decision
(see
, s 67A).
Note 2 The requirements for reviewable decision notices are prescribed
under the
.
The following people may apply to the ACAT for review of a reviewable decision:
(a) the affected person;
(b) any other person whose interests are affected by the decision.
55 Incorporating, applying or adopting documents in regulations and instruments
(1) A regulation or instrument may incorporate, apply or adopt (with or without change or modification)—
(a) a law or an Australian Standard as in force from time to time; or
(b) another instrument as in force from time to time.
(2) The
, section 47 (5) and (6) do not apply to a document incorporated, applied or adopted under subsection (1).
(3) The director-general must ensure that an instrument that is incorporated, applied or adopted under subsection (1) is—
(a) on the ACT legislation register; or
(b) available for inspection by anyone without charge during ordinary business hours at an ACT government office; or
(c) accessible on an ACT government website, or by a link on an ACT government website.
(4) An instrument that is incorporated, applied or adopted under subsection (1) is not enforceable by or against the Territory or anyone else unless it is made accessible in accordance with subsection (3).
(5) In this section:
ACT legislation register—see the Legislation Act
, section 18 (1).
(1) The Executive may make regulations for this Act.
(2) A regulation may create offences and fix maximum penalties of not more
than 50 penalty units for the offences.
(1) The following legislation is repealed:
•
(A2021-4)
•
(SL2023-10)
•
(SL2022-7)
•
(SL2021-12).
(2) All other statutory instruments made under the Plastic Reduction Act 2021
are repealed.
58 Meaning of commencement day—pt 9
In this part:
commencement day means the day this Act, section 3 commences.
59 Disapplication of s 16 (1) requirements for certain regulations
Section 16 (1) (Consultation requirements—prohibited products and prohibited plastic products) does not apply to a proposed regulation if it—
(a) commences on the commencement day; or
(b) provides for a matter substantially in the same terms as a matter
provided for in the
.
60 Disapplication of s 21 (2) requirements for certain declarations
Section 21 (2) (Minister may declare prohibitable products must not be supplied at public event) does not apply to a declaration proposed to be made under section 21 (1) in relation to a stated public event if—
(a) the proposed declaration commences on the commencement day; and
(b) a declaration (a repealed declaration) under the Plastic Reduction Act 2021
, section 15 is in force immediately before the commencement day; and
(c) the repealed declaration applies to the stated public event.
This part expires on the commencement day.
Note A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act
, s 88).
(see s 3)
Note The
contains definitions relevant to this Act. For example:
• magistrate
• Minister (see s 162)
• public notice
• the Territory.
affected person, for part 6 (Reviewable decisions)—see section 52.
authorised person, for part 5 (Enforcement)—see section 24.
beverage, for part 3 (Prohibited products)—see section 11.
business, for part 2 (Waste reduction measures)—see section 7.
connected, for part 5 (Enforcement)—see section 24.
occupier, of premises, for part 5 (Enforcement)—see section 24.
offence, for part 5 (Enforcement)—see section 24.
plastic means material made from, or containing, organic polymers from plant extracts or fossil fuels.
plastic product, for part 3 (Prohibited products)—see section 11.
premises, for part 5 (Enforcement)—see section 24.
prohibited plastic product, for part 3 (Prohibited products)—see section 13 (1).
prohibited product, for part 3 (Prohibited products)—see section 12 (1).
remote application, for division 5.5 (Warrants)—see section 36 (3).
reviewable decision, for part 6 (Reviewable decisions)—see section 52.
single-use, in relation to a plastic product, for part 3 (Prohibited products)—see section 14 (1).
supply, a prohibited product to a person, for part 3 (Prohibited products)—see section 15.
warrant, for part 5 (Enforcement)—see section 24.
warrant form, for division 5.5 (Warrants)—see section 39 (2).
warrant terms, for division 5.5 (Warrants)—see section 38 (2).
waste—see the Waste Management and Resource Recovery Act 2016
, section 10.
waste processing requirement—see section 9
waste reduction requirement—see section 8.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 30 August 2023.
2 Notification
Notified under the
on 2023.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2023
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