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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Industrial Chemicals (Notification and Assessment) Amendment Bill 2012
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Parliamentary Secretary to the Minister for Health and
Ageing, the Honourable Catherine King MP)
INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT
BILL 2012
OUTLINE
The Industrial Chemicals (Notification and Assessment) Amendment Bill 2012 (the Bill)
amends the Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act).
The amendments to the ICNA Act are intended to:
- implement specific measures arising from the National Industrial Chemicals Notification
and Assessment Scheme (NICNAS) Cost Recovery Impact Statement (CRIS) conducted
in accordance with the Government's Cost Recovery Guidelines. These measures are to:
· change the current three-tier NICNAS registration structure to a four-tier structure to
deliver a more equitable charging arrangement for business;
· introduce an application fee for businesses seeking authorisation from NICNAS to
import or export industrial chemicals under the Prior Informed Consent (PIC)
procedure of the Rotterdam Convention;
· remove an obsolete fee for the transfer of a chemical from the non-confidential
section of the Australian Inventory of Chemical Substances (AICS) to the
confidential section of AICS;
- make two minor technical amendments concerning payment of NICNAS registration
charges and differential fees for applications made under the ICNA Act;
- make minor consequential technical amendments arising from the new Model Work
Health and Safety Regulations 2011 (Model Regulations); and
- make a minor consequential amendment to the Agricultural and Veterinary Chemicals
Code Act 1994 (the Agvet Code) which refers to the ICNA Act.
FINANCIAL IMPACT STATEMENT
The initiatives implemented through this Bill are cost neutral.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Industrial Chemicals (Notification and Assessment) Amendment Bill 2012
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Overview of the Bill
The National Industrial Chemicals Notification and Assessment Scheme (NICNAS)
undertook a review of cost recovery arrangements as recommended by the Australian
Government Cost Recovery Guidelines (the Cost Recovery Guidelines). The review
examined the appropriateness of cost recovery, the design of cost recovery charges to
minimise any under/over recovery, and the adequacy of monitoring arrangements.
The purpose of the NICNAS Cost Recovery Impact Statement 2012-13 to 2015-16 (CRIS)
was to transparently demonstrate compliance with the Australian Government Cost Recovery
Guidelines and to outline proposed changes to the existing cost recovery arrangements based
on review outcomes.
Consistent with the Government's decision on the recommendations from the review, the
Industrial Chemicals (Notification and Assessment) Amendment Bill 2012 amends the
Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act) to:
· change the thresholds and tier structure for annual registration charges to make the annual
registration charges more equitable
· introduce an application fee for businesses seeking authorisation from NICNAS to import
or export certain hazardous industrial chemicals under the Rotterdam Convention
· remove an obsolete provision which enables a fee to be levied for an application process
that no longer exists.
The Bill also makes minor, technical amendments to ensure that terminology in the ICNA
Act is consistent with the new work health and safety laws that commenced in the
Commonwealth, and various state and territory jurisdictions, on 1 January 2012. These new
laws are based on the model Work Health and Safety Regulations 2011 (Model Regulations)
developed by Safe Work Australia. The Bill also amends the Agricultural and Veterinary
Chemicals Code Act 1994 which cross-references the ICNA Act.
Human rights implications
Under the NICNAS cost recovery structure, fees and charges are confined to the introducers
of industrial chemicals, that is, manufacturers and importers of industrial chemicals. While
the amendments to the ICNA Act will have an impact on costs for a small number of
manufacturers and importers, there is no impact on the human rights of these introducers or
on other persons or organisations.
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The minor technical amendments are machinery in nature and will have no impact on human
rights.
Overall, the Bill does not engage any of the applicable human rights or freedoms.
Conclusion
The Bill is compatible with human rights as it does not raise any human rights issues.
The Honourable Catherine King, Parliamentary Secretary for Health and Ageing
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INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT
BILL 2012
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides that the Bill, once enacted, may be cited as the Industrial Chemicals
(Notification and Assessment) Amendment Act 2012.
Clause 2 - Commencement
This clause provides that the amendments to the ICNA Act in Schedule 1 of the Bill are to
commence on 1 July 2013 and that the other amendments (in Schedule 2) commence on the
day the Bill receives Royal Assent.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule to this Bill is amended or
repealed as set out in the relevant Schedule. Any other item operates according to its terms.
Schedule 1 - Amendments relating to cost recovery
Part 1 - Amendments
Items 1 to 9 - NICNAS Registration
Replacement of the current three-tier structure for annual registration with a four-tier
structure requires amendment of section 80T, which describes the different levels of
registration, and amendment of various registration-related sections of the ICNA Act that
refer to section 80T.
Currently NICNAS has a three-tier structure for annual registration, with:
· registrants in all tiers subject to an annual registration fee, which is an administrative
fee; and
· registrants in tiers 2 and 3 (chargeable persons) subject to an annual registration
charge, which supports all NICNAS activities except new chemicals assessments.
Currently the threshold value (in relation to relevant industrial chemicals introduced by a
person) above which the annual registration charge is payable is $500,000.
Section 80T currently provides that the rate of registration charge payable by a chargeable
person in relation to a registration year is an amount worked out in accordance with the tier
values in subsection 80T(2).
In accordance with CRIS outcomes, the Bill amends the definition of threshold value in
subsection 5(1) of the ICNA Act to be a threshold value of $100,000 (Item 1).
Section 80A provides an overview of NICNAS registration, with subsection 80A(3)
summarising who must pay the registration charge. However, due to a drafting error, the
current subsection 80A(3) incorrectly provides that, broadly speaking, those persons who
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introduced chemicals of at least the threshold value in the last financial year OR who propose
to introduce chemicals of at least the threshold value in the current financial year must pay a
registration charge. In fact, in accordance with the definition of a chargeable person as
defined in section 5 of the ICNA Act, persons who propose to introduce industrial chemicals
of at least the threshold value during the current registration year (1 September to 31 August),
rather than the current financial year, are liable to a registration charge. Subsection 80A(3) is
therefore amended as an editorial correction (Item 2).
Items 3 to 9
In the CRIS, the number of tiers subject to the annual registration charge is increased from
two to three (from the current tiers 2 and 3 to new tiers 2, 3 and 4). The table below
compares the proposed tier arrangements for NICNAS registration in the Bill with the tier
arrangements currently in the ICNA Act. Persons in tier 1, currently and under the proposed
change, are not subject to the registration charge as the value of relevant industrial chemicals
introduced is below the threshold value.
Current Current New Proposed introduction
Tier introduction value tier value ($)
($)
1 1 - 499 999 1 1 - 99 999
2 500 000 - 4 999 999 2 100 000 - 499 999
3 5 000 000 + 3 500 000 - 4 999 999
4 5 000 000 +
In effect, current tier 1 is split into two new tiers (1 and 2). For practical purposes, no
amendments to the tier structure are made for current tiers 2 and 3 in the table above (which
become new tiers 3 and 4).
Section 80T is amended to reflect this change (Items 8 and 9), with the text-based subsection
80T(2) being replaced by a table to describe the new tiers subject to the annual registration
charge and the introduction values for each new tier. Table items 1 to 4 in Item 9 of the Bill
(which amends subsection 80T(2)) denote the scenarios for which the annual registration
charge is payable. Specifically, comparing each item in Item 9 to the new tiers in the table
above:
· item 1 reflects the new tier 2
· item 2 reflects the new tier 3
· items 3 and 4 reflect the new tier 4.
As a result of the changes to section 80T, consequential amendments to the following
sections, which cross-reference section 80T, are made:
· paragraph 80F(e) - application for new registration (Item 3)
The paragraph has been amended to include the additional tier for which an annual
registration charge is payable.
· paragraph 80KA(1)(e) - renewal of application for registration (Item 4)
The paragraph has been amended to include the additional tier for which an annual
registration charge is payable.
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· paragraph 80KB(2)(c) - late renewal of application for registration (Item 5)
The paragraph has been amended to include the additional tier for which an annual
registration charge is payable.
· subsection 80Q(1) - final statements from registered persons (Item 6)
As subparagraphs 80F(e)(ii), 80KA(1)(e)(ii) and 80KB(2)(c)(ii) are amended, this
subsection must be amended.
· subsection 80QD(1) - retention of records by registrants (Item 7)
As section 80T is amended, this subsection must be amended.
Item 10
One of the CRIS outcomes was to repeal redundant provisions of the ICNA Act, particularly
those associated with fees and charges. Section 18A of the ICNA Act refers to the possible
transfer of a chemical from the non-confidential section of the Australian Inventory of
Chemical Substances (AICS) to the confidential section during a transitional period in 1997
(56 days commencing on 7 August 1997). Any application for such a transfer attracted a fee,
provided for as paragraph 110(1)(c) of the ICNA Act. However, as provision for this transfer
no longer applies, paragraph 110(1)(c) is repealed.
However, other provisions in the ICNA Act associated with this transfer process are not
being repealed as they in fact may not be redundant. A chemical transferred onto the
confidential section of AICS under section 18A has a holder of confidence about the
chemical, as defined in subsection 17(2A). Section 18 requires that particulars about
chemicals on the confidential section of the AICS cannot be disclosed without the consent of
the holder of confidence about that chemical. As the confidential section of AICS may still
contain chemicals transferred during the transitional period in 1997, it is necessary to retain
section 18A and these other sections referring to the holder of confidence about a chemical,
to ensure the rights of the holder of confidence in subsection 17(2A) are maintained should
an enquiry be received regarding a chemical transferred onto the confidential section of the
AICS under section 18A.
Items 11 to 13
Section 106 (in combination with the Regulations) enables applications to be made for
written permission to import or export certain chemicals that are subject to international
conventions. A CRIS outcome was to introduce a fee to recover the cost from the direct
beneficiaries of processing an application for authorisation of the import or export of certain
hazardous chemicals listed under the Rotterdam Convention on the Prior Informed Consent
(PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the
Rotterdam Convention). Currently, the cost of this service is recovered from all chargeable
persons.
To enable NICNAS to charge a fee for this service, new paragraph 110(1)(v) has been added
to the ICNA Act. The fee is for an application for authorisation for the Rotterdam
Convention only (Item 12). Item 11 is an editorial amendment to enable the addition of new
paragraph 110(1)(v) after paragraph 110(1)(ub).
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The CRIS found that the resources required in providing an export authorisation vary
depending on the destination of the proposed export. Therefore, for the purposes of cost
recovery, PIC export authorisations can be further classified into two groups:
· Category A - representing exports to countries whose status regarding the Rotterdam
Convention is unambiguous; and
· Category B - includes any country where additional resources will be required to
determine the destination country's acceptance of the proposed exported chemicals.
There were no PIC annual authorisation applications for the importation of chemicals during
the period of the CRIS. However it was estimated in the CRIS that the resources required to
process import authorisations would be similar to those required for Category B export
authorisations and the fee would be the same.
To enable separate fees for applications for export authorisations under Category A or
Category B above, new subsections 110(1A) and 110(1B) have been inserted into the ICNA
Act (Item 13) to replace the existing subsection 110(1A). These new subsections will allow
for the provision of different fees in the regulations for different chemicals and classes of
chemicals and/or different countries or classes of countries.
The previous subsection 110(1A), which provided for different fees for self-assessment
applications for different classes of chemicals, for example, polymers and non-polymers, has
been repealed by Item 13 as it implied a contrary intention in relation to some other services
listed in subsection 110(1) for which differential fees are charged, yet which do not rely on an
analogous 110(1A) provision.
In fact, the provision of differential fees in relation to applications concerning different
classes of chemicals relies on subsection 33(3A) of the Acts Interpretation Act 1901, hence
the current subsection 110(1A) is unnecessary. The new subsection 110(1A) specifies that
NICNAS may charge differential fees for different countries or classes of countries as it is
not certain the ICNA Act can rely on subsection 33(3A) of the Acts Interpretation Act 1901
to provide a country-related basis for charging differential fees. The new subsection 110(1B)
and the note of emphasis inserted after the new subsection clarify the application of
subsection 33(3A) of the Acts Interpretation Act 1901 to the ICNA Act even further.
Part 2 - Application provision
Item 14
The amendments for items 1 and 3 to 9 apply to registration years beginning on or after
1 September 2013. As a result of the definition of chargeable person in section 5, these items
automatically apply to financial years beginning on or after 1 July 2012.
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Schedule 2 - Other amendments
Part 1 - Amendments
New work health and safety laws commenced in the Commonwealth and various state and
territory jurisdictions on 1 January 2012. These new laws are based on the model Work
Health and Safety Regulations 2011 developed by Safe Work Australia. In the new work
health and safety laws, the term `Material Safety Data Sheet' has been replaced by `Safety
Data Sheet'.
For the purposes of national consistency in the regulation of industrial chemicals across the
various jurisdictions, the term `Material Safety Data Sheet' is replaced with `Safety Data
Sheet' where it occurs in the ICNA Act. Accordingly Items 2 and 3 replace the definition of
a `Material Safety Data Sheet' with the definition of a `Safety Data Sheet' as a consequential
amendment. However, the substance of the definition is not amended - there is only an
editorial correction to format the text after paragraph (f) in the current ICNA Act as a
paragraph (g).
Items 4 to 9 list consequential changes which amend `Material Safety Data Sheet' to `Safety
Data Sheet' throughout the ICNA Act.
The Agricultural and Veterinary Chemicals Code Act 1994 (the Agvet Code) makes
reference to the definition of `Material Safety Data Sheet' in the ICNA Act. Therefore, as the
term `Material Safety Data Sheet' is being amended to `Safety Data Sheet' in the ICNA Act,
a consequential amendment to the Agvet Code is required for regulatory consistency (Item
1).
Part 2 - Transitional provisions
Item 10 ensures that, if any regulations or guidelines which refer to `Material Safety Data
Sheet' are in force, they are to be taken to refer to `Safety Data Sheet' for the purposes of the
ICNA Act.
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