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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INDUSTRIAL CHEMICALS LEGISLATION AMENDMENT BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Environment, the Hon. Sussan Ley MP)
INDUSTRIAL CHEMICALS LEGISLATION AMENDMENT BILL 2020
GENERAL OUTLINE
The Industrial Chemicals Legislation Amendment Bill 2020 (the Bill) would make
consequential amendments to support the commencement of the Industrial Chemicals
Environmental Management (Register) Bill 2020 (ICEMR Bill) and would also make other
minor amendments to the Industrial Chemicals Act 2019 to correct an error.
The ICEMR Bill would establish a national framework to manage the ongoing use, handling
and disposal of industrial chemicals, in order to reduce impacts on the environment and limit
people's exposure to industrial chemicals.
Currently industrial chemicals are assessed for health and environmental risks through the
Australian Industrial Chemical Introduction Scheme (AICIS) under the Industrial Chemicals
Act 2019, which replaced the National Industrial Chemicals Notification and Assessment
Scheme (NICNAS) under the Industrial Chemicals (Notification and Assessment) Act 1989
on 1 July 2020. Under AICIS (and formerly NICNAS), scientific risk assessments are
undertaken on industrial chemicals proposed to be manufactured in or imported into
Australia, and on new uses of industrial chemicals already in Australia. These risk
assessments generally include recommendations to prevent harm to the environment and
human health from environmental exposure to industrial chemicals.
Under the current regulatory framework for environmental risk management of industrial
chemicals, there is no mechanism to consistently implement the recommendations for the
management of risks to the environment made by AICIS. This was also the case under
NICNAS.
Without a national approach, inconsistent implementation of recommendations for managing
the risks from the use of industrial chemicals may lead to uncertainty, increased costs for
business, and inadequate environmental protection.
By enabling the establishment of standards in the form of scheduling decisions, the ICEMR
Bill will drive national consistency in the way that environmental risks from industrial
chemicals are managed. The risk-based, outcome-focussed standards it establishes will
support effective management of the impact of chemicals on the environment using a
transparent standard-setting framework that is straightforward for industry to engage with.
The Industrial Chemicals Environmental Management (Register) Charge (General) Bill 2020,
Industrial Chemicals Environmental Management (Register) Charge (Customs) Bill 2020 and
the Industrial Chemicals Environmental Management (Register) Charge (Excise) Bill 2020
would provide a framework for applying cost recovery charges to ensure that the
Commonwealth's costs of administering the framework in the ICEMR Bill can be recovered
appropriately. These charges will be known as the scheduling charge.
The Bill would make a number of consequential amendments to the Industrial Chemicals Act
2019 to ensure that the scheduling charge can be collected under the framework of that Act,
in conjunction with the registration charge. This is appropriate as registered introducers of
industrial chemicals will be liable to pay the registration charge under the Industrial
Chemicals Act 2019 and the scheduling charge under the ICEMR Bill (once enacted) at the
same time.
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The Bill would also make minor consequential amendments to the Industrial Chemicals Act
2019 to ensure that monies from the scheduling charge is not credited to the Industrial
Chemicals Special Account under that Act.
The Bill would also make minor amendments to a delegations power in the Industrial
Chemicals Act 2019 to correct an error.
FINANCIAL IMPACT STATEMENT
The Bill would have no financial impact on the Australian Government Budget.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The 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.
The full statement of compatibility with human rights is attached to this explanatory
memorandum.
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INDUSTRIAL CHEMICALS LEGISLATION AMENDMENT BILL 2020
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 would provide that the Industrial Chemicals Legislation Amendment Bill
2020 (the Bill) may be cited as the Industrial Chemicals Legislation Amendment Act
2020.
Clause 2 - Commencement
2. The table at clause 2 would provide for the commencement of the Bill.
3. Item 1 of the table would provide that clauses 1 to 3, and anything else not covered in
the table, commence on the day the Bill receives the Royal Assent.
4. Item 2 of the table would provide that Schedule 1 commences on the day after the Bill
receives the Royal Assent.
5. Item 3 of the table would provide that Schedule 2 commences on the later of the day
the Bill receives the Royal Assent and immediately after the Industrial Chemicals
Environmental Management (Register) Act 2020 commences. However, Schedule 2
would not commence at all if the Industrial Chemicals Environmental Management
(Register) Act 2020 does not commence. This is because Schedule 2 would make
necessary amendments to the Industrial Chemicals Act 2019 as a result of the
Industrial Chemicals Environmental Management (Register) Act 2020.
6. Item 4 of the table would provide that Schedule 3 commences on the later of the
commencement of the Industrial Chemicals Environmental Management (Register)
Act 2020, and the commencement of the Federal Circuit and Family Court of
Australia Act 2020. However, Schedule 3 would not commence at all unless both of
these events occur as this Schedule is contingent and would make amendments
consequential to the commencement of the latter Bill.
Clause 3 - Schedules
7. Clause 3 would provide that the legislation that is specified to be amended or repealed
as set out in the Schedules has effect according to the terms of the relevant Schedule.
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SCHEDULE 1 - AMENDMENTS RELATING TO DELEGATION BY THE
EXECUTIVE DIRECTOR
Industrial Chemicals Act 2019
Item 1 - Paragraphs 177(1)(a) and (b)
8. Item 1 would repeal existing paragraphs 177(1)(a) and 177(1)(b) and substitute a new
subsection 177(1) that would have the effect that the Executive Director is able to
delegate his or her powers and functions under the Industrial Chemicals Act 2019 to
an SES employee (or acting SES employee) of the Department or another non-
corporate Commonwealth entity, or an APS employee of the Department or another
non-corporate Commonwealth entity who holds, or is acting in, an Executive Level 1
or 2, or equivalent, position in the Department or entity (as the case may be).
9. This amendment is necessary to correct an error that confined delegations to
Executive Level 1 employees only.
10. The reference to 'the Department' in subsection 177(1) would refer to the Department
responsible for the administration of the Industrial Chemicals Act 2019, currently the
Health Department.
11. In performing functions or exercising powers, delegates must comply with any
directions of the Executive Director (subsection 177(2) of the Industrial Chemicals
Act 2019). This will ensure that powers and functions exercised by delegates are
exercised appropriately and consistently.
12. Effective delegation is a fundamental component of good governance and risk
management. It enables powers and functions (including decision-making) to be
exercised by persons other than the person to whom the power or function is vested in
circumstances where it is not practical or reasonable for the one person to exercise the
power or function themselves. For example, it is anticipated that in excess of 100
industrial chemicals will be registered annually and it may not be reasonable or
practical for the Executive Director to have to make each decision personally.
13. Limiting delegations to officials at the Executive level ensures that only persons with
appropriate seniority and expertise would be exercising any legislative powers or
functions, including decision-making powers. Delegating powers and functions to
Executive Level officers is consistent with the Australian Administrative Law Policy
Guide which suggests that it may be appropriate for junior officers to make decisions
involving a limited exercise of discretion, or under provisions which will give rise to a
high volume of decisions. This would not prevent significant decisions being made by
persons of higher classifications (such as SES employees or acting SES employees)
and it is intended that such limitations would be operationally imposed in the
administration of the Industrial Chemicals Act 2019.
14. As an additional safeguard to ensure the appropriate and reasonable use of
delegations, the giving of delegations and the exercise of delegated powers are also
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subject to fraud control procedures, risk management processes and other protocols.
These are designed to ensure delegated decision-making is made at the appropriate
level and in a transparent and accountable manner.
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SCHEDULE 2 - AMENDMENTS RELATING TO SCHEDULING CHARGE ETC.
Industrial Chemicals Act 2019
Item 1 - Section 9
15. Item 1 would insert a definition of scheduling charge into section 9 of the Industrial
Chemicals Act 2019, which sets out defined terms for the purposes of that Act. The
term would have the same meaning as in the Industrial Chemicals Environmental
Management (Register) Act 2020.
16. This definition is necessary as the term scheduling charge will be referenced in
sections 16 and 157 of the Industrial Chemicals Act 2019 (as amended by the Bill).
Item 2 - Subsection 16(2)
17. Item 2 would amend the Industrial Chemicals Act 2019 to substitute a new subsection
16(2).
18. New subsection 16(2) would require an application for registration for a registration
year to be accompanied by both the registration charge and the scheduling charge that
the person is liable to pay for the registration year.
19. This amendment is necessary because existing subsection 16(2) only requires an
application for registration for a registration year to include the registration charge.
Under the Industrial Chemicals Environmental Management (Register) Act 2020, a
registered introducer will also be liable to pay a scheduling charge for a registration
year. It is intended that both charges will be paid at the same time, being the time that
the person applies for registration under the Industrial Chemicals Act 2019.
20. The first note following new subsection 16(2) would explain that section 21 of the
Industrial Chemicals Act 2019 provides for the amount of the registration charge.
21. The second note following new subsection 16(2) would explain that the Industrial
Chemicals Environmental Management (Register) Charge (Customs) Act 2020, the
Industrial Chemicals Environment Management (Register) Charge (Excise) Act 2020
and the Industrial Chemicals Environmental Management (Register) Charge
(General) Act 2020 (once enacted) would provide for the amount of the scheduling
charge.
Item 3 - Subsection 17(1)
22. Item 3 would amend subsection 17(1) of the Industrial Chemicals Act 2019 to replace
the existing reference to sections 16 and 167 with more specific reference to
paragraph 16(2)(a), subsection 16(3) and section 167.
23. Subsection 17(1) of the Industrial Chemicals Act 2019 sets out when the Executive
Director must grant an application for registration for a registration year under that
Act. Currently, Executive Director must grant an application for registration for a
registration year if the application is in accordance with sections 16 and 167. Item 3
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would amend this requirement to make it clear that failure to include the scheduling
charge in an application will not prevent the application for registration being granted
under the Industrial Chemicals Act 2019.
Item 4 - Paragraph 156(a)
24. Item 4 would amend paragraph 156(a) of the Industrial Chemicals Act 2019 to clarify
that amounts equal to the amounts received by the Commonwealth in connection with
the scheduling charge will not be credited to the Industrial Chemicals Special Account
under that Act.
25. It is intended that the Executive Director will have the function of collecting the
scheduling charge on behalf of the Minister administering the Industrial Chemicals
Environmental Management (Register) Act 2020. Item 10 is included to remove any
doubt that such monies will go into the ordinary Consolidated Revenue Fund even
where they are collected by the Executive Director.
Item 5 Application provision
26. Item 5 is an application provision that would provide that the new subsection 16(2)
(see item 2 above) will only apply to applications for registration made on or after the
commencement of this item if the application relates to a registration year beginning
on 1 September 2021 or a later date.
27. This would have the effect that applications for registration under the Industrial
Chemicals Act 2019 that are made prior to commencement of this item will not have
to be accompanied by the scheduling charge.
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SCHEDULE 3 CONTINGENT AMENDMENTS
Industrial Chemicals Environmental Management (Register) Act 2020
Item 1 Section 7 (definition of Federal Circuit Court)
28. Item 1 would repeal the definition of Federal Circuit Court in section 7 of the
Industrial Chemicals Environmental Management (Register) Act 2020, as that term
will no longer apply once the Federal Circuit and Family Court of Australia Act 2020
commences.
Item 2 Subparagraphs 65(2)(b)(ii)
29. Item 2 would substitute new subparagraph 65(2)(b)(ii) of the Industrial Chemicals
Environmental Management (Register) Act 2020. The purpose of this amendment is to
remove the reference to Federal Circuit Court from these provisions and substitute a
reference to the Federal Circuit and Family Court of Australia (Division 2). This will
ensure that the reference is correct, up to date and consistent with the Federal Circuit
and Family Court of Australia Act 2020 once it commences.
Item 3 Subparagraphs 70(1)(b)(ii) and 2(b)(ii)
30. Item 3 would substitute new subparagraphs 70(1)(b)(ii) and 70(2)(b)(ii) of the
Industrial Chemicals Environmental Management (Register) Act 2020. Again, the
purpose of these amendments is to remove the reference to Federal Circuit Court from
these provisions and substitute a reference to the Federal Circuit and Family Court of
Australia (Division 2). This will ensure that the reference is correct, up to date and
consistent with the Federal Circuit and Family Court of Australia Act 2020 once it
commences.
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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 Legislation Amendment Bill 2020
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 Industrial Chemicals Legislation Amendment Bill 2020 (the Bill) would make
consequential amendments to support the commencement of the Industrial Chemicals
Environmental Management (Register) Bill 2020 (ICEMR Bill) and would also make other
minor amendments to the Industrial Chemicals Act 2019 to correct an error.
The ICEMR Bill would establish a national and consistent framework to manage the ongoing
use and disposal of industrial chemicals, in order to reduce impacts on the environment and
limit people's exposure to industrial chemicals and would strengthen the environmental risk
management responses available to all jurisdictions by enabling environmental management
conditions on an industrial chemical across its lifecycle. This would be done by the Minister
making scheduling decisions that set out the controls applicable to the use and disposal of an
industrial chemical.
The Industrial Chemicals Environmental Management (Register) Charge (General) Bill 2020,
Industrial Chemicals Environmental Management (Register) Charge (Customs) Bill 2020 and
the Industrial Chemicals Environmental Management (Register) Charge (Excise) Bill 2020
would provide a framework for applying cost recovery charges to ensure that the
Commonwealth's costs of administering the framework in the ICEMR Bill can be recovered
appropriately. These charges would be known as the scheduling charge.
The Bill would make a number of consequential amendments to the Industrial Chemicals Act
2019 to ensure that the scheduling charge can be collected under the framework of that Act,
in conjunction with the registration charge. This is appropriate as registered introducers of
industrial chemicals would be liable to pay the registration charge under the Industrial
Chemicals Act 2019 and the scheduling charge under the ICEMR Bill (once enacted) at the
same time.
The Bill would also make minor consequential amendments to the Industrial Chemicals Act
2019 to ensure that the scheduling charge is not credited to the Industrial Chemicals Special
Account under the Industrial Chemicals Act 2019.
The Bill would also make minor amendments to a delegations power in the Industrial
Chemicals Act 2019 to correct an error.
Human rights implications
The Bill would make a number of consequential amendments to the Industrial Chemicals Act
2019 to ensure that:
1
the scheduling charge can be collected under the framework of that Act, in
conjunction with the registration charge; and
the scheduling charge is not credited to the Industrial Chemicals Special Account
under that Act.
The Bill would also make minor amendments to a delegations power in the Industrial
Chemicals Act 2019 to correct an error, with the effect that the Executive Director will also
be able to delegate his or her powers and functions to SES employees and APS employees in
an Executive Level 2 (or equivalent) position (in addition to Executive Level 1 employees).
Therefore, the Bill does not engage any of the applicable rights or freedoms.
Conclusion
The Bill is compatible with human rights as it does not raise any human rights issues.
(Circulated by authority of the Minister for the Environment, the Hon. Sussan Ley MP)
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