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2002-2003-2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INDUSTRIAL CHEMICALS (NOTIFICATION AND
ASSESSMENT) AMENDMENT (ROTTERDAM CONVENTION) BILL
2004
(Circulated by
authority of the Parliamentary Secretary to the Minister for
Health and
Ageing, the Hon Trish Worth)
INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT
(ROTTERDAM CONVENTION) BILL 2004
The Industrial Chemicals (Notification and Assessment) Amendment
(Rotterdam Convention Bill 2004 makes amendments to the Industrial Chemicals
(Notification and Assessment) Act 1989 (the Act) to give effect to
Australia’s obligations under the Rotterdam Convention on the Prior
Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade (-“the Convention”-). The Act establishes a
system of notification and assessment of industrial chemicals to protect health,
safety and the environment, provides for registration of certain persons
proposing to introduce industrial chemicals into Australia and provides for
Australia to comply with obligations under international
agreements.
Australia is in the process of ratifying the Convention. The
objective of the Convention is to promote shared responsibility and cooperative
efforts among Parties in the international trade of certain hazardous pesticide
and industrial chemicals in order to protect human health and the environment
from potential harm and to contribute to their environmentally sound use, by
facilitating information exchange about their characteristics. Following
ratification of the Convention, the National Industrial Chemicals Notification
and Assessment Scheme (NICNAS), will be implementing Australia’s
obligations under the Convention as they relate to industrial chemicals, except
in relation to direct liaison with the Convention Secretariat. International
liaison, and in particular, information exchange with the Convention Secretariat
and regulatory authorities of other countries that are Parties to the
Convention, is the responsibility of the Designated National Authority (DNA).
The DNA for industrial chemicals is currently the Department of the Environment
and Heritage.
The main purpose of the Bill is to implement
Australia’s obligations under the Convention, and in particular, Articles
5(1) and 14(1). Article 5(1) obliges Australia as a Party to notify the
Convention Secretariat of a final regulatory action, which is an action taken by
a Party, which does not require subsequent regulatory action by that Party, the
purpose of which is to ban or severely restrict the use of a
“chemical” as defined in Article 2. The Bill obliges the Director
of NICNAS to notify the DNA of final regulatory actions taken by the
Commonwealth, States and the Territories, which have the effect of banning or
severely restricting the use of industrial chemicals in Australia. Paragraph
1(a) of Article 14 of the Convention obliges a Party to facilitate the exchange
of scientific, technical, economic and legal information concerning chemicals
within the scope of the Convention, including toxicological, ecotoxicological
and safety information. The Bill requires the Director within a specified time
to provide information of the kind mentioned in paragraph 1(a) of Article 14
about a notified industrial chemical. The Bill will also allow the Director to
obtain the information required under the Convention from relevant persons. The
Director of NICNAS will provide the information to the DNA, and the DNA must
then provide that information to the Secretariat.
The Bill will extend
the present notification, information exchange and information gathering powers
in the Act.
Currently, section 106 of the Act gives the Minister the
power to inform a country, the appropriate authority of a country or a relevant
international organisation regarding movements (importation into or exportation)
from and to Australia of industrial chemicals that are the subject of prescribed
international agreements. Section 48 of the Act also allows information to be
gathered, by the Director, for chemicals that are being considered for
recommendation as a Priority Existing Chemical (PEC). These powers are not
sufficient to allow Australia to fully meet its obligations under the
Convention.
The financial impact is low. The changes facilitate implementation of
the Convention in relation to information exchange, and are not expected to be a
significant burden for industry or government.
Importers of chemicals
under the Convention would be unaffected by ratification and would incur no
additional costs, as there would be no changes to the domestic regulatory
scheme.
All exporters of industrial chemicals would need to establish
procedures to determine whether an export authorisation is necessary (i.e.
whether their exports contain any chemicals covered by the Convention). The
initial costs to exporters for this familiarisation are expected to range from
approximately $500 per company for major exporters (with many chemicals and
preparations), down to $50 for companies exporting a simple range of chemicals.
Exporters of chemicals covered by the Convention would be required to ensure
that their exports meet the requirements of the Convention and incur ongoing
costs ranging from approximately $150 to $170.
States and Territories and relevant interest groups such as the chemical
industry and other non-governmental organisations have been consulted. The
Office of Regulation Review (ORR) has been consulted, and the Regulation Impact
Statement (RIS) and the National Interest Analysis (NIA) were prepared in
consultation with the Attorney General’s Department and ORR. The NIA and
RIS were tabled in both Houses of Parliament on 9 September
2003.
INDUSTRIAL CHEMICALS (NOTIFICATION AND ASSESSMENT) AMENDMENT
(ROTTERDAM CONVENTION) BILL 2004
Clause 1: Short Title
The short title of the legislation is the Industrial Chemicals
(Notification and Assessment) Amendment (Rotterdam Convention) Act
2004.
The commencement date for Sections 1 to 3 of the legislation is the day
on which the Act receives Royal Assent.
The commencement date for
Schedule 1 is the later of the following: (a) the day on which the Act receives
Royal Assent and (b) the day on which the Convention enters into force for
Australia. If the commencement date is the day on which the Convention enters
into force for Australia, the Minister must announce through a notice in the
Gazette the day of commencement of the provisions in Schedule 1.
Clause 3 has the effect of stating that the Act will be amended in the
manner specified in Schedule 1.
Industrial Chemicals (Notification and Assessment) Act 1989
Section 100D provides definitions of new terms inserted into the Act which are consistent with those used in the Convention. Section 100D provides the definitions of Australia’s designated national authority, Convention, notified industrial chemical and Secretariat which are referred to in new Part 5A. As there are two designated national authorities in Australia for the purposes of Article 4 of the Convention (one for veterinary chemicals and one for industrial chemicals), the definition of ‘Australia’s designated national authority’ makes it clear it is the designated national authority for industrial chemicals.
Section 100E relates to Australia’s obligations under paragraph 1 of
Article 5 of the Convention. Paragraph 1 of Article 5 obliges a Party to notify
the Convention Secretariat of final regulatory action, which is an action taken
by a Party, which does not require subsequent regulatory action from that Party,
the purpose of which is to ban or severely restrict the use of a chemical. The
final regulatory action must be notified as soon as possible and not later than
90 days after the action has taken effect. In addition, the Party is also
required to provide the information contained in Annex 1 to the Convention,
where available.
NICNAS assesses new industrial chemicals before they are
imported into or manufactured in Australia. It also assesses substances listed
on the Australian Inventory of Chemical Substances (AICS) through the Priority
Existing Chemicals Program, on its own initiative or in response to concerns
raised by other jurisdictions, industry or the community about the effects of
the industrial chemical on public health, occupational health and safety, or the
environment. NICNAS makes recommendations to other Federal and State and
Territory regulatory bodies. The majority of legislation that enables use of
industrial chemicals to be banned or severely restricted is enacted and
administered by State and Territory governments. There are also a number of
Commonwealth enactments which authorise the banning or severe restriction of the
use of an industrial chemical by the Commonwealth.
Subsection 100E(2)
provides that the Director must notify Australia’s DNA in writing if he or
she is satisfied that the Commonwealth has one or more laws banning or severely
restricting the use of an industrial chemical in Australia.
Subsection
100E(3) provides that the Director must notify Australia’s DNA if the
Director is satisfied that both of the following apply:
(a) one or more
of a State, the ACT and the Northern Territory have one or more laws banning or
severely restricting the use of an industrial chemical in their jurisdiction;
and
(b) the law or those laws have the effect of banning or severely
restricting the use of the industrial chemical in Australia.
As a final
regulatory action is defined in the Convention as an action taken by a Party,
that does not require subsequent regulatory action by that Party, a regulatory
action in one or more States or Territories would not necessarily constitute a
final regulatory action unless the law has the effect of severely restricting or
banning the use of the chemical in Australia. For example, if only Victoria and
NSW manufacture and use an industrial chemical (and no other States or
Territories manufacture and use that chemical) and both States enact a law
banning the use of that industrial chemical, the ban would have the effect of
banning the use of the industrial chemical in Australia. In this situation, the
Director may be satisfied that the laws have the effect of banning the use of
the industrial chemical in Australia, and would be required to notify the DNA
under subsection 100E(3).
Subsection 100E(4) provides that the
notification must specify the industrial chemical and specify the relevant
provision of the law or those laws, and contain the information set out in Annex
1 to the Convention to the extent that it is available. Notification must occur
as soon as practicable after the Director is satisfied that the law or laws have
the effect of banning or severely restricting the use of the industrial chemical
in Australia.
Subsections 100E(5) and (6) stipulate that the information
is to be provided by the DNA to the Convention Secretariat as soon as possible
but no later than 90 days after the first day on which all the relevant
provisions of the law or laws are in force. Accordingly, if there are two or
more laws which have the effect of severely restricting or banning the use of an
industrial chemical, the 90 days will only commence when the last of those
provisions come into force. Subsection 100E(7) also requires information
relating to the final regulatory action to be published in the Chemical Gazette.
The Director must, as soon as practicable after the Director’s
notification to the DNA, publish a notice setting out the information referred
to in paragraphs 100E(4)(a) and (b). However, the Director is given a
discretion whether to publish the information referred to in paragraph
100E(4)(c) (refer to subsection 100E(8)).
Section 100F relates to Australia’s obligations under paragraph 1(a) of
Article 14 of the Convention. Paragraph 1(a) of Article 14 provides that each
Party shall, as appropriate and in accordance with the objective of the
Convention, facilitate the exchange of scientific, technical, economic and legal
information concerning the chemicals within the scope of the Convention,
including toxicological, ecotoxicological and safety information. Section 100F
broadens the scope of the Act and requires s provision to the DNA, by the
Director, of information referred to in Article 14.1(a) concerning industrial
chemicals. The Director must, as soon as practicable after 1 February each
year, give to the DNA such information that the Director considers appropriate
about a notified industrial chemical that was obtained during the preceding 12
month period. The DNA must then forward the information to the Secretariat as
soon as practicable after receiving it. The DNA can also give a country that is
a Party to the Convention, or the appropriate authority of such a country, all
or some of the information provided by the Director.
Subsection 100G (1) allows the Director to obtain any information or document
from a person, if the Director believes on reasonable grounds that the person
has particular information or a particular document and it is necessary to
obtain the information or document to allow Australia to comply with the
obligations under the Convention. A Memorandum of Understanding will be
negotiated with State and Territory Governments to ensure that required
information under the Convention is provided within the required time
limits.
Subsection 100G (2) specifies how the request is to be made by
the Director, the minimum timeframe for the information to be provided (which
gives the person at least 14 days after the request to give or produce the
information or document) and that the Director is to specify what and how the
information is to be provided and include a statement that failure to provide
the specified information is an offence.
Subsection 100G (3) provides
that failure to comply with a request for information is an offence and
establishes a penalty of 60 penalty units.
Subsection 100H(1) provides that an individual is not excused from complying
with a request under section 100G on the ground that the information or the
production of the document might tend to incriminate the individual or expose
the individual to a penalty. However, subsection 100H(2) provides that any
information given or documents produced, or the giving of information or
producing the document, or any information, document or thing obtained as a
consequence of giving the information or producing the document, is not
admissible in evidence against the individual in criminal proceedings, other
than proceedings for an offence against subsection 100G(3) or an offence against
section 137.1 or 137.2 of the Criminal Code that relates to Division 4 of Part
5A of the Act.
Section 100J - Copies of documents
Section 100J
enables the Director to inspect any document produced under section 100G.
Section 100J also allows the Director to make and retain copies of the document
or extracts from the document.
This section allows the Director to retain a document produced under section
100G for as long as necessary. A person entitled to possession of the document
is entitled to be supplied, as soon as practicable, with a certified true copy.
The certified copy can be used in all courts and tribunals as if it were the
original. Until a certified copy is supplied the person, the Director will
permit a person or a person authorised by the supplier of information to inspect
the document and make copies of it or take extract from it.