Explanatory Memorandum
(Circulated by authority of the Assistant Minister for Health, the Hon Dr David Gillespie MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
INDUSTRIAL CHEMICALS (CONSEQENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2017
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 (Consequential Amendments and Transitional Provisions) Bill 2017 (the Bill) is a Bill addressing consequential and transitional matters arising out of the Industrial Chemicals Bill 2017 (the Industrial Chemicals Bill).
The purpose of the Bill is to:
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- repeal the Industrial Chemicals (Notification and Assessment) Act 1989
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- repeal the Industrial Chemicals Charges (Customs) Act 1997
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- repeal the Industrial Chemicals Charges (Excise) Act 1997
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- repeal the Industrial Chemicals Charges (General) Act 1997
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- make consequential amendments to Acts that reference the Industrial Chemicals (Notification and Assessment) Act 1989, and
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- provide for certain matters under the Industrial Chemicals (Notification and Assessment) Act 1989 to transition to being managed under the Industrial Chemicals Bill.
Human rights implications
The Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017 (the Bill) is a companion bill to the Industrial Chemicals Bill 2017. This Bill is necessary to give effect to the Government's reforms to the regulation of industrial chemicals.
This Bill engages the following rights:
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- Right to health - Article 12 of the International Covenant on Economic, Social and Cultural Rights ('the ICESCR')
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- Right to privacy and reputation under Article 17 of the International Covenant on Civil and Political Rights ('the ICCPR').
Right to health
Article 12(1) of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This includes the improvement of all aspects of environmental and industrial hygiene (Article 12(2)(b)). While the ICESR does not define health, the UN Committee on Economic Social and Cultural Rights (the Committee) interprets the right to health in article 12.1 as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.
While this Bill does not explicitly engage the right of a person to enjoy the highest attainable standard of physical and mental health, this Bill provides transitional arrangements for a new regulatory scheme that provides a system of checks and balances necessary to protect human health and the environment. The Industrial Chemicals Bill focuses on reducing unnecessary regulatory burdens and rebalancing regulatory effort towards higher risk chemicals and existing chemicals, and providing improved compliance powers.
This Bill assists in achieving this objective by transitioning assessment certificates and permits for industrial chemicals issued under the Industrial Chemicals (Notification and Assessment) Act 1989 and chemicals listed on the Inventory established under that Act to regulation under the Industrial Chemicals Bill, subjecting them to the reforms of that Bill that maintain protections for human health and the environment (including through improved compliance powers).
The measures in this Bill are therefore consistent with the right to health as they promote the improvement of all aspects of environmental and industrial hygiene by minimising, as far as is practicable, the causes of health hazards inherent in a working environment that involves industrial chemicals.
Right to privacy
Lawful interference with the right to privacy is permitted under Article 17 of the ICCPR, provided it is not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR, and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances.
The provisions of this Bill engage the right to privacy insofar as they provide transitional arrangements for the treatment of the confidential section of the Australian Inventory of Chemical Substances (the confidential AICS). The Industrial Chemicals Bill replaces the confidential AICS with a new scheme for the protection of confidential business information.
This Bill transitions chemicals from the confidential section of the AICS to the new Australian Inventory of Industrial Chemicals (the Inventory). However, in order to continue protections for confidential business information that were granted under the Industrial Chemicals (Notification and Assessment) Act 1989, the terms of the listing will not be disclosed publicly (instead the word confidential is published in relation to the terms of the listing). These protections are then subject to 5 yearly review, whereby the Executive Director considers whether the commercial prejudice reasonably likely to be suffered by the holder of the confidential business information (because of disclosure) is outweighed by the public interest in disclosure. If no application for continued protection is made, or an application is unsuccessful, then the Executive Director will publish all details of the listing.
These changes ensure that the need to protect confidential business information is maintained and appropriately balanced with the public interest in the publication of information about industrial chemicals to promote their safe introduction and use in Australia.
The interferences with privacy allowed for by this Bill (such as the disclosure of information in circumstances where the public interest outweighs the commercial prejudice likely to be suffered by the holder of the confidential business information as a result of disclosure) are lawful and reasonable, necessary and proportionate to the interests of the public in the publication of information about industrial chemicals to promote their safe introduction and use in Australia.
Conclusion
This Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate for the protection of human health and the environment.