Product Stewardship Amendment (Packaging and Certain ......Exposure Draft Product Stewardship...

Product Stewardship Amendment

(Packaging and Certain Plastics) Bill

2019

Exposure Draft (Senator Whish-Wilson)

A Bill for an Act to amend the Product Stewardship

Act 2011, and for related purposes

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Product Stewardship Amendment (Packaging and Certain Plastics)

Bill 2019

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Contents 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedules ........................................................................................... 2

Schedule 1—Amendments 3

Product Stewardship Act 2011 3

Part 4A—Mandatory product stewardship—packaging and

certain plastics 4

Division 1—Guide to this Part 4

Division 2—Establishment and membership of the packaging

and plastics scheme 5

Division 3—Packaging requirements 7

Division 4—Monitoring of, and issuing directions to, packaging

and plastics scheme members 10

Division 5—Prohibition of certain plastics 13

Division 6—Packaging of labelled plastics 17

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OPC drafter to complete

1. Does this Bill need a message? (See H of R Practice, sixth ed,

pp. 423-427, and OGC advice.)

If yes:

List relevant clauses/items—

Prepare message advice (see Drafting Direction 4.9)

Give a copy of the message advice to the Legislation area.

No

2. Does this Bill need a notice? (See H of R Standing Order 178

and Drafting Direction 3.2.)

If no list relevant clauses/items—

Yes

3. Is there any constitutional reason why this Bill should not be

introduced in the Senate?

(See Constitution sections 53 and 55 and Drafting Direction 3.2.)

No

1

A Bill for an Act to amend the Product Stewardship 2

Act 2011, and for related purposes 3

The Parliament of Australia enacts: 4

1 Short title 5

This Act is the Product Stewardship Amendment (Packaging and 6

Certain Plastics) Act 2019. 7

2 Commencement 8

(1) Each provision of this Act specified in column 1 of the table 9

commences, or is taken to have commenced, in accordance with 10

column 2 of the table. Any other statement in column 2 has effect 11

according to its terms. 12

13

Commencement information

Column 1 Column 2 Column 3

Provisions Commencement Date/Details

1. The whole of The day after the end of the period of 6

2 Product Stewardship Amendment (Packaging and Certain Plastics)

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Commencement information

Column 1 Column 2 Column 3

Provisions Commencement Date/Details

this Act months beginning on the day this Act

receives the Royal Assent.

Note: This table relates only to the provisions of this Act as originally 1

enacted. It will not be amended to deal with any later amendments of 2

this Act. 3

(2) Any information in column 3 of the table is not part of this Act. 4

Information may be inserted in this column, or information in it 5

may be edited, in any published version of this Act. 6

3 Schedules 7

Legislation that is specified in a Schedule to this Act is amended or 8

repealed as set out in the applicable items in the Schedule 9

concerned, and any other item in a Schedule to this Act has effect 10

according to its terms. 11

Amendments Schedule 1

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Schedule 1—Amendments 1

2

Product Stewardship Act 2011 3

1 Section 6 4

Insert: 5

container includes (without limitation) any cup, drinkware, pack, 6

carton, box, tin, packet, bag, pouch, tube or other container. 7

engage in conduct includes omitting to perform an act. 8

labelled plastic: see subsection ^40R(1). 9

packaging includes: 10

(a) a container, wrapper, confining band or other thing in which 11

a good is packed, or 2 or more goods are packed; and 12

(b) anything around which a good is wound or wrapped, or 2 or 13

more goods are wound or wrapped; and 14

(c) a container that is designed to contain a liquid for human 15

consumption (whether for the purposes of transporting or 16

storing the liquid, or for the use or consumption of the 17

liquid). 18

packaging and plastics scheme: see subsection ^40B(1). 19

packaging and plastics scheme member: see section ^40C. 20

packaging and plastics targets: see subsection ^40B(2). 21

packaging requirements means regulations made for the purposes 22

of subsection ^40D(1). 23

packaging return payment: see subsection ^40D(4). 24

plastics exempt act: see section ^40N. 25

prohibited plastic: see section ^40M. 26

Schedule 1 Amendments


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2 After Part 4 1

Insert: 2

Part 4A—Mandatory product stewardship—3

packaging and certain plastics 4

Division 1—Guide to this Part 5

^40A Guide to this Part 6

This Part provides for the mandatory product stewardship of 7

packaging and certain plastics. 8

Division 2 of this Part establishes the packaging and plastics 9

scheme and specifies the packaging and plastics scheme members 10

of the scheme. 11

The scheme is directed towards achieving the packaging and 12

plastics targets by: 13

(a) establishing packaging requirements in relation to 14

packaging (see Division 3); and 15

(b) monitoring packaging and plastics scheme members (see 16

sections ^40H and ^40J); and 17

(c) directing a packaging and plastics scheme member to 18

take, or not to take, certain actions (see sections ^40K 19

and ^40L). 20

The scheme also: 21

(a) prohibits certain plastics (Division 5); and 22

(b) requires the packaging of labelled plastics to include 23

certain matters (Division 6). 24


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Division 2—Establishment and membership of the 1

packaging and plastics scheme 2

^40B Packaging and plastics scheme 3

(1) This Part establishes a scheme (the packaging and plastics 4

scheme): 5

(a) that is directed towards achieving the packaging and plastics 6

targets by doing the following: 7

(i) establishing packaging requirements in relation to 8

packaging (see Division 3); 9

(ii) monitoring packaging and plastics scheme members 10

(see sections ^40H and ^40J); 11

(iii) directing a packaging and plastics scheme member to 12

take, or not to take, certain actions (see sections ^40K 13

and ^40L); and 14

(b) that prohibits certain plastics (Division 5); and 15

(c) that requires the packaging of labelled plastics to include 16

certain matters (Division 6). 17

(2) The packaging and plastics targets are the following targets: 18

(a) all packaging used in Australia will be reusable, recyclable or 19

compostable by 2025; 20

(b) 70% of Australia’s packaging will be recycled or composted 21

by 2025; 22

(c) 70% of Australia’s plastic packaging will be recycled or 23

composted by 2025; 24

(d) all packaging used in Australia will include, on average, 30% 25

recycled content by 2025; 26

(e) problematic and unnecessary plastic packaging will be 27

phased out through design, innovation or the introduction of 28

alternatives; 29

(f) in relation to single-use food containers and beverage cups 30

made of plastic: 31



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(i) by 2025, the consumption of such containers and cups 1

will have been reduced by 25% from the level of 2

consumption that existed in 2019; and 3

(ii) beginning on 1 January 2025, 70% of such containers 4

and cups used in a calendar year will be recycled in that 5

year; 6

(g) in relation to beverage containers: 7

(i) beginning on 1 January 2025, 90% of such containers 8

used in a calendar year will be recycled in that year; and 9

(ii) beginning on 1 January 2025, any plastic caps or lids for 10

such containers must remain attached to the container 11

during its use as a beverage container; and 12

(iii) the creation of a national deposit scheme for such 13

containers by 1 January 2021 that refunds at least 20 14

cents for each deposited container; 15

(h) in relation to packaging made in the form of thin-film plastic: 16

(i) by 2025, the consumption of such packaging will have 17

been reduced by 25% from the level of consumption 18

that existed in 2019; and 19

(ii) beginning on 1 January 2025, 70% of such packaging 20

used in a calendar year will be recycled in that year; 21

(i) in relation to filters tips (within the meaning of the Tobacco 22

Plain Packaging Act 2011) containing plastic—by 2025, the 23

consumption of such filters tips will have been reduced by 24

50% from the level of consumption that existed in 2019; 25

(j) any other target prescribed in the regulations for the purposes 26

of this paragraph. 27

^40C Membership of the packaging and plastics scheme 28

A person is a packaging and plastics scheme member of the 29

packaging and plastics scheme if: 30

(a) the person is: 31

(i) a constitutional corporation; or 32

(ii) a body corporate that is incorporated in a Territory; and 33

(b) the person manufactures, imports, distributes or uses 34

packaging for commercial purposes. 35


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Division 3—Packaging requirements 1

^40D Packaging requirements 2

(1) The regulations may require a person to take, or not to take, 3

specified action in relation to packaging. 4

(2) Without limiting subsection (1), regulations made for the purposes 5

of that subsection in relation to packaging may do any or all of the 6

following: 7

(a) prohibit (either absolutely or subject to conditions), limit, 8

restrict or otherwise affect the manufacture, import, export, 9

distribution or use of packaging; 10

(b) prohibit (either absolutely or subject to conditions), limit or 11

restrict substances from being contained in packaging; 12

(c) require packaging to be labelled or marked in accordance 13

with the regulations; 14

(d) specify requirements in relation to communicating 15

information, in accordance with the regulations, in 16

connection with distributing, reusing, recycling, recovering, 17

treating or disposing of packaging; 18

(e) require a person to make a packaging return payment in 19

relation to packaging (see subsection (4)); 20

(f) specify other requirements in relation to reusing, recycling, 21

recovering, treating or disposing of packaging; 22

(g) require a person to keep records relating to a product in that 23

class in accordance with the regulations; 24

(h) require a person to give the Minister specified information 25

relating to packaging in accordance with the regulations; 26

(i) provide for the Minister to exempt a specified person from a 27

requirement specified in regulations made for the purposes of 28

that subsection. 29

(3) The paragraphs of subsection (2) do not limit each other. 30

Meaning of packaging return payment 31

(4) A packaging return payment is a payment, of an amount specified 32

in the regulations in relation to packaging, that a person is required 33



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to make to another person if the other person returns the packaging 1

for reuse, recycling, recovery, treatment or disposal. 2

Packaging return payment not taxation 3

(5) Regulations made for the purposes of subsection (1) that require a 4

person to make a packaging return payment must not amount to 5

taxation. 6

^40E Matters the Minister must be satisfied of before packaging 7

requirements are made 8

Before the Governor-General makes regulations that prescribe 9

packaging requirements, the Minister must: 10

(a) be satisfied that the requirements will further the objects of 11

this Act (see section 4); and 12

(b) be satisfied that the requirements are directed towards 13

achieving the packaging and plastics targets; and 14

(c) have done the following: 15

(i) published a draft of the requirements and invited 16

packaging and plastics scheme members to make 17

submissions on the draft; 18

(ii) considered any submissions that are received within the 19

time limit specified by the Minister when the Minister 20

published the draft. 21

^40F Packaging requirements—constitutional connection 22

(1) One or more of the following must apply in relation to packaging 23

requirements in relation to packaging: 24

(a) the requirements are expressed only to apply in relation to 25

action taken, or not taken, by a constitutional corporation; 26

(b) the requirements are expressed only to apply in relation to the 27

taking of action in the course of constitutional trade or 28

commerce; 29

(c) the requirements are expressed only to apply in relation to an 30

action taken, or not taken, in a Territory. 31


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(2) The packaging requirements in relation to packaging must specify 1

whether they are made in accordance with paragraph (1)(a),(b) or 2

(c). 3

^40G Compliance with packaging requirements 4

(1) A person contravenes this subsection if: 5

(a) the person is subject to a packaging requirement; and 6

(b) the person engages in conduct; and 7

(c) the conduct contravenes the requirement. 8

Fault-based offence 9

(2) A person commits an offence if the person contravenes 10

subsection (1). The physical elements of the offence are set out in 11

that subsection. 12

Penalty: 100 penalty units. 13

Strict liability 14

(3) A person commits an offence of strict liability if the person 15

contravenes subsection (1). 16


Civil liability provision 18

(4) A person is liable to a civil penalty if the person contravenes 19

subsection (1). 20

Civil penalty: 21

(a) if the person is a body corporate—1,000 penalty units; and 22

(b) if the person is not a body corporate—200 penalty units. 23



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Division 4—Monitoring of, and issuing directions to, 1

packaging and plastics scheme members 2

^40H Report from certain packaging and plastics scheme members 3

(1) A packaging and plastics scheme member must provide a written 4

report in accordance with subsection (2) to the Minister if the 5

member has had a reportable financial year. 6

Civil penalty: 200 penalty units. 7

(2) The report must: 8

(a) be in the approved form; and 9

(b) be provided within 2 months after the end of the reportable 10

financial year to which the report relates; and 11

(c) set out: 12

(i) the actions taken, or not taken, by the member to help 13

achieve the packaging and plastics targets during the 14

reportable financial year; and 15

(ii) the actions the member will take to help achieve those 16

targets; and 17

(d) include information about the actions taken, or not taken, by 18

the member in compliance with any packaging requirements; 19

and 20

(e) include any matters specified in regulations made for the 21

purposes of this paragraph. 22

Reportable financial year 23

(3) A financial year is a reportable financial year for a packaging and 24

plastics scheme member if the member had an annual turnover of 25

$5 million or more in the previous financial year. 26

Publishing reports 27

(4) The Minister may, in such manner as the Minister thinks 28

appropriate, cause to be published or made available the report 29

provided to the Minister under subsection (1). 30


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Annual turnover 1

(5) For the purposes of this section, the annual turnover of a 2

packaging and plastics scheme member, during a financial year, is 3

the sum of the values of all the supplies that the member, and any 4

body corporate related to the member, have made, or are likely to 5

make, during that period, other than the following supplies: 6

(a) supplies made from any of those bodies corporate (including 7

the member) to any other of those bodies corporate; 8

(b) supplies that are input taxed; 9

(c) supplies that are not for consideration (and are not taxable 10

supplies under section 72-5 of the A New Tax System (Goods 11

and Services Tax) Act 1999); 12

(d) supplies that are not made in connection with an enterprise 13

that the member carries on. 14

(6) Expressions used in subsection (5) that are also used in the A New 15

Tax System (Goods and Services Tax) Act 1999 have the same 16

meaning in that subsection as they have in that Act. 17

(7) The question whether 2 bodies corporate are related to each other 18

is to be determined for the purposes of this section in the same way 19

as for the purposes of the Corporations Act 2001. 20

^40J Requests for information from packaging and plastics scheme 21

members 22

(1) The Minister may, in writing, request a packaging and plastics 23

scheme member to give the Minister information relating to the 24

actions taken, or not taken, by the member towards achieving the 25

packaging and plastics targets within a period specified in the 26

request. 27

(2) If a packaging and plastics scheme member receives a request from 28

the Minister under subsection (1), the member must provide the 29

information requested within the period specified in the request. 30




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^40K Minister may give directions to packaging and plastics scheme 1

members 2

(1) This section applies if: 3

(a) the Minister has received: 4

(i) a report from a packaging and plastics scheme member 5

under section ^40H; or 6

(ii) information from such a member as requested by the 7

Minister under section ^40J; and 8

(b) the Minister is reasonably satisfied, on the basis of the report 9

or information, that the actions taken, or not taken, by the 10

member are not sufficient in helping to achieve the packaging 11

and plastics targets. 12

(2) The Minister may, in writing, direct the member to take, or not to 13

take actions, specified in the direction. 14

(3) A direction under subsection (2) is not a legislative instrument. 15

Notifying packaging and plastics scheme member of proposed 16

direction 17

(4) Before giving a direction, the Minister must give the member 18

written notice that the Minister is proposing to give the member the 19

direction. 20

(5) The notice to the member must: 21

(a) set out the reasons the Minister is proposing to give the 22

direction; and 23

(b) invite the member to respond, in writing, to the notice within 24

a period specified in the notice. 25

(6) The Minister must consider any response given to the Minister 26

within the specified period. 27

(7) A notice under subsection (4) is not a legislative instrument. 28


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^40L Packaging and plastics scheme member must comply with 1

directions 2

(1) A packaging and plastics scheme member who is given a direction 3

under subsection ^40K(2) must comply with the direction. 4


(2) A packaging and plastics scheme member commits an offence if: 6

(a) the member is given a direction under subsection ^40K(2); 7

and 8

(b) the member engages in conduct; and 9

(c) the conduct contravenes the direction. 10


Civil penalty provision 12

(3) A packaging and plastics scheme member is liable to a civil 13

penalty if the member contravenes subsection (1). 14


Division 5—Prohibition of certain plastics 16

^40M Prohibited plastics 17

(1) On and after 1 January 2021, a product made of, or that contains, 18

plastic is a prohibited plastic if the product: 19

(a) is a lightweight carrier bag; or 20

(b) consists of microbeads; 21

(2) On and after 1 January 2025, a product made of, or that contains, 22

plastic is a prohibited plastic if: 23

(a) the product is manufactured to be principally used by a 24

person only once before being disposed of; and 25

(b) the product: 26

(i) is a set of connected rings to hold things; 27

(ii) is a straw or stirrer made from non-compostable plastic; 28



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(iii) is cutlery or a kitchen utensil made from non-1

compostable plastic; 2

(iv) is a plate, bowl or other dish made from non-3

compostable plastic; 4

(v) is a cotton bud; 5

(vi) is a stick for balloons; or 6

(vii) is a product specified in regulations for the purposes of 7

this subparagraph. 8

(3) On and after 1 January 2025, a product is a prohibited plastic if the 9

product is: 10

(a) a food or beverage container made of, or that contains, 11

polystyrene; or 12

(b) made of, or that contains, oxo-degradable plastic. 13

(4) Regulations may exempt a product from being a prohibited plastic. 14

^40N Plastics exempt act 15

(1) The regulations may provide that a specific act in relation to a 16

prohibited plastic is a plastics exempt act (including by providing 17

that an act is a plastics exempt act if specified conditions are met). 18

(2) Before the Governor-General makes regulations that provide that a 19

specified act in relation to a prohibited plastic is a plastics exempt 20

act, the Minister must be satisfied of one or more of the following 21

in relation to the act: 22

(a) the act is necessary to satisfy food safety requirements; 23

(b) the act is necessary to ensure the access needs of one or more 24

specified persons, or classes of person, are being met; 25

(c) the act relates to medical purposes, therapeutic purposes or 26

other purposes relating to health; 27

(d) the act relates to providing or ensuring the security or 28

personal safety of one or more specified persons, or classes 29

of person. 30

^40P Prohibited plastics—constitutional corporations 31



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(a) the person is a constitutional corporation; and 1

(b) the person manufactures, imports, distributes or uses a 2

prohibited plastic for commercial purposes; and 3

(c) the manufacture, importation, distribution or use of the 4

prohibited plastic occurs: 5

(i) on or after 1 January 2021 for prohibited plastics under 6

subsection ^40M(1); or 7

(ii) on or after 1 January 2025 for prohibited plastics under 8

subsection ^40M(2) or subsection ^40M(3); and 9

(d) the manufacture, importation, distribution or use is not a 10

plastics exempt act. 11




that subsection. 15


Strict liability 17






subsection (1). 23

Civil penalty: 1,000 penalty units. 24

^40Q Prohibited plastics—persons other than constitutional 25

corporations 26


(a) the person manufactures, imports, distributes or uses a 28

prohibited plastic; and 29



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(b) the manufacture, importation, distribution or use of the 1

prohibited plastic was: 2

(i) in the course of, or for the purposes of, constitutional 3

trade and commerce; or 4

(ii) in a Territory for commercial purposes; or 5

(iii) on behalf of a constitutional corporation for commercial 6

purposes; or 7

(iv) for the purposes of supplying goods to a constitutional 8

corporation; and 9

(c) the manufacture, importation, distribution or use of the 10

prohibited plastic occurs on or after 1 January 2025; and 11

(d) the manufacture, importation, distribution or use is not a 12

plastics exempt act. 13




that subsection. 17


Strict liability 19






subsection (1). 25

Civil penalty: 26




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Division 6—Packaging of labelled plastics 1

^40R Packaging of labelled plastics 2

(1) This section applies in relation to a product (the labelled plastic) 3

that is made of, or contains, plastic if: 4

(a) the product is a balloon; or 5

(b) the product is a sanitary product; or 6

(c) the product is specified in regulations made for the purposes 7

of this paragraph. 8

(2) On and after 1 January 2021, the packaging of the labelled plastic 9

must state, in a prominent location on the packaging: 10

(a) that the product is harmful to the environment if the product 11

is released or incorrectly disposed of; and 12

(b) any other matter specified in regulations made for the 13

purposes of this paragraph. 14

^40S Packaging of labelled plastics—constitutional corporations 15


(a) the person is a constitutional corporation; and 17

(b) the person distributes a labelled plastic for commercial 18

purposes; and 19

(c) the distribution of the labelled plastic occurs on or after 20

1 January 2021; and 21

(d) the packaging of the labelled plastic does not comply with 22

subsection ^40R(2). 23




that subsection. 27




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Strict liability 1






subsection (1). 7

Civil penalty: 1,000 penalty units. 8

^40T Packaging of labelled plastics—persons other than 9

constitutional corporations 10


(a) the person distributes a labelled plastic: 12

(i) in the course of, or for the purposes of, constitutional 13

trade and commerce; or 14

(ii) in a Territory for commercial purposes; or 15

(iii) on behalf of a constitutional corporation for commercial 16

purposes; or 17

(iv) for the purposes of supplying goods to a constitutional 18

corporation; and 19

(b) the distribution of the labelled plastic occurs on or after 20

1 January 2021; and 21

(c) the packaging of the labelled plastic does not comply with 22

subsection ^40R(2). 23




that subsection. 27



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Strict liability 1






subsection (1). 7

Civil penalty: 8



3 At the end of paragraph 51(1)(a) 11

Add: 12

; or (iii) subsection ^40G(1) (contravention of packaging 13

requirement); or 14

(iv) subsection ^40H(1) (report from certain packaging and 15

plastics scheme members); or 16

(v) subsection ^40J(2) (packaging and plastics scheme 17

member must provide information requested by the 18

Minister); or 19

(vi) subsection ^40L(1) (packaging and plastics scheme 20

member must comply with directions); or 21

(vii) subsection ^40P(1) (prohibited plastics—constitutional 22

corporations); or 23

(viii) subsection ^40Q(1) (prohibited plastics—persons other 24

than constitutional corporations); or 25

(ix) subsection ^40S(1) (packaging of labelled plastics—26

constitutional corporations); or 27

(x) subsection ^40T(1) (packaging of labelled plastics—28

persons other than constitutional corporations); and 29

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