Senate

Supplementary Explanatory Memorandum

(Circulated by authority of the Minister for Regional Services, Minister for Sport and the Minister for Local Government and Decentralisation, Senator the Hon Bridget McKenzie)

Outline

The Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017 (the bill) was introduced to the House of Representatives on 1 June 2017.

The bill is part of a legislative package that establishes the legislative framework for a new risk-based regulatory scheme for the Commonwealth to continue to regulate the introduction of industrial chemicals in Australia. The scheme will see regulatory effort more proportionate to the level of risk to human health and safety or the environment from the introduction and use of industrial chemicals, while maintaining Australia's robust health, safety and environmental standards.

The bill provides the legal framework to deal with transitional matters that arise from the enactment of the Industrial Chemicals Bill 2017 (referred to throughout this supplementary explanatory memorandum as 'the new law') as it replaces the Industrial Chemicals (Notification and Assessment) Act 1989 (referred to throughout this supplementary explanatory memorandum as 'the old law').

The amendments to the bill included in this Supplementary Explanatory Memorandum will change specific dates throughout the bill consistent with amendments to the Industrial Chemicals Bill 2017 that change the commencement date of the new scheme to 1 July 2020 and will align and clarify certain aspects of the transitional arrangements to reduce the need to rely on the rule making power for modification of the bill provided for in item 50 of the bill.

The amendments in relation to changing specific dates will:

•

change all references to 1 July 2018 to the new commencement date of 1 July 2020.

•

change all references relating to the registration year at the time of commencement of the new scheme from the registration year beginning on 1 September 2017 to the registration year beginning on 1 September 2019.

•

change all references to the new registration year commencing under the new law from the registration year beginning on 1 September 2018 to the registration year beginning on 1 September 2020.

•

change all references to the end of the 12 month transition period occurring on 1 July 2019 to 1 July 2021 to reflect that this will occur 12 months after commencement of the new scheme.

•

change references to the end of the 24 month period for potential modifications under the rules from 1 July 2020 to 1 July 2022.

The amendments that align and clarify certain aspects of the transitional arrangements will:

•

put beyond doubt the intent to preserve any conditions relating to early introduction permits issued under the old law which will continue to authorise the introduction of a low risk chemical under the new law until a decision is made on the related application for an assessment certificate;

•

make it clear that existing notification obligations under the old law relating to assessment certificates, which apply if additional information becomes available regarding an adverse effect of a chemical, will continue to apply to assessment certificates issued under the old law and transitioned to the new law; and

•

remove the reference to pending applications for renewal of commercial evaluation, low volume and controlled use permits from the bill, which will instead be dealt with in the rules. The rules will set out that a pending renewal application will be treated as though it was an application to vary the period of a commercial evaluation authorisation or an assessment certificate consistent with the arrangements under the new law.

Financial Impact Statement

There are no financial impacts from introducing these amendments.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendments to the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017

The government amendments are 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.

Human rights implications

The amendments engage the following human rights.

•

Right to health: Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

Article 12(1) of the ICESCR promotes the right of all individuals to enjoy the highest attainable standard of physical and mental health. This includes the improvements of all aspects of environmental and industrial hygiene (Article 12(2)(b)). While the ICESCR contains no definition of health, the UN Committee on Economic Social and Cultural Rights ('the Committee') provides further guidance, stating that the right to health is not to be understood as a right to be healthy. Accordingly the right also contains entitlements, which include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

The amendments will further strengthen a system of health protection for Australians by, amongst other things, ensuring that the regulated industry and the regulator are able to transition from the regulatory arrangements under the old law to those under the new law as pragmatically and quickly as possible which will provide for the necessary regulatory certainty to protect human health and the environment to be in place from implementation.

Conclusion

The amendments are compatible with human rights because they advance the protection of human rights, specifically the right to health.

Notes on Clauses

Amendments in relation to changing specific dates

The following amendments reflect that the commencement date of the reformed industrial chemicals scheme, established by the Industrial Chemicals Bill 2017, has been deferred by 24 months, from 1 July 2018 to 1 July 2020. This new commencement date is implemented through an amendment to the date in the table of the commencement provision (Clause 2) of the Industrial Chemicals Bill 2017.

As a consequence of the change to commencement date of the new scheme five types of amendments are required throughout this bill as summarised below. Further detail about each of the amendments is also provided below.

Amendments to reflect the new commencement date of 1 July 2020

Amendment clauses 1-5, 7, 9-18, 20-41, 44, 47-63 change references to 1 July 2018 to the new commencement date of 1 July 2020 throughout the following items in Schedule 2 of the bill

•

1 - Interpretation

•

2 - Registration Charge

•

3 - Registration for registration year beginning on 1 September 2017 and earlier years

•

5 - Review of Decisions made before 1 July 2018

•

6 - Director under old law

•

7 - Inspectors under old law

•

8 - Register of Industrial Chemical Introducers

•

9 - Persons registered under old law

•

10 - Pending applications for registration or renewal of registration

•

11 - Assessment certificates issued under old law

•

13 - Pending applications for assessment certificates

•

17 - Commercial evaluation permits issued under old law

•

18 - Pending applications for commercial evaluation permits

•

19 - Low volume permits issued under old law

•

21 - Pending applications for low volume permits

•

26 - Controlled use permits issued under old law

•

28 - Pending applications for controlled use permits

•

33 - Introductions under section 21 of old law

•

34 - Introductions under paragraph 21(6)(a) of old law

•

35 - Holders of a confidence under old law

•

37 - Pending applications for information to be treated as exempt information

•

39 - Industrial chemicals included in old Inventory

•

40 - Industrial chemicals included in confidential section of old Inventory

•

41 - Pending applications for early listing in non-confidential section of old Inventory

•

42 - Pending applications for listing in confidential section of old Inventory

•

43 - Application for confidential listing

•

48 - Things done by, or in relation to, the Director, before 1 July 2018

Amendments to references to the current registration year at the time of commencement

Clauses 6, 8, 16, 42 and 45 change references to the registration year commencing on 1 September 2017 to the registration year commencing on 1 September 2019, throughout the following items in Schedule 2 of the bill:

•

3 - Registration for registration year beginning on 1 September 2017 and earlier years

•

8 - Register of Industrial Chemical Introducers

•

33 - Introductions under section 21 of old law

•

34 - Introductions under paragraph 21(6)(a) of old law

Amendments to references to the new registration year commencing under the new law

Clauses 17, 18 and 19 change references to the registration year commencing on 1 September 2018 to the registration year commencing on 1 September 2020 throughout the following items in Schedule 2 of the bill:

•

9 - Persons registered under old law

•

10 - Pending applications for registration or renewal of registration

Amendments to the end of the 12 month transition period

Clauses 43 and 46 change references to the date on which the one-year transition period ends from 1 July 2019 to 1 July 2021 throughout the following items in Schedule 2 of the bill:

•

33 - Introductions under section 21 of old law

•

34 - Introductions under paragraph 21(6)(a) of old law

Amendments to the end of the 24 month potential modification period

Clauses 64 and 65 change references to the last date which rules which modify provisions of the new law or transitional provisions in this bill may be made from 1 July 2020 to 1 July 2022 throughout the following item in Schedule 2 of the bill:

•

50 - Transitional rules

The following paragraphs describe each of the amendments in order:

Clause 1

This amendment to the definition of old law in Schedule 2, item 1 substitutes the date of 1 July 2018 with 1 July 2020, to reflect the new commencement date of the reformed industrial chemicals scheme (the new law) as amended in the Industrial Chemicals Bill 2017.

Clauses 2-5

These amendments in Schedule 2, item 2 (relating to the transitional arrangements for registration charge) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017. The amendments ensure continuity of registration charge arrangements that were in place under the old law immediately before commencement of the new law.

Clauses 6-8

These amendments in Schedule 2, item 3 ensure that the old law continues to apply in relation to registrations in the registration year beginning on 1 September 2019, and earlier registration years. The purpose of these provisions is to ensure that the registrations made for that current registration year will continue to be subject to the systems and processes that are in place for registration under the old law.

Clauses 9-10

These amendments in Schedule 2, item 3 (relating to review of decisions) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017. The amendments ensure continuity of the rights to review of reviewable decisions.

Clauses 11-15

These amendments in Schedule 2, items 6 and 7 (relating to persons appointed under the old law) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017. The amendments ensure that persons appointed under the old law, transition into the equivalent appointments under the new law. For example, the Director under the old law transitions to the Executive Director under the new law.

Clause 16

This amendment in Schedule 2, item 8 ensures that the register of chemical introducers established under the old law continues after the commencement of the new scheme in relation to the registration year beginning on 1 September 2019.

Clauses 17-18

These amendments in Schedule 2, item 9 ensure that a person registered under the old law immediately before the commencement of the new scheme on 1 July 2020 in relation to registration year beginning on 1 September 2020 remains registered under the new law. This provision ensures continuity in existing arrangements by providing that registrants are not required to re-register.

Clauses 19-21

These amendments in Schedule 2, item 10 ensure that a pending application for registration or renewal of registration in relation to the registration year beginning on 1 September 2020 transitions to an application for registration under the new law on the commencement of the new scheme on 1 July 2020.

Clauses 22-24

These amendments in Schedule 2, item 11 (relating to assessment certificates issued under the old law) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017. This provision ensures continuity of assessment arrangements that were in place under the old law immediately before commencement of the new law.

Clauses 25-26

These amendments in Schedule 2, item 13 (relating to pending applications for assessment certificates) substitute all references 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017. This provision provides that a pending application for an assessment certificates under the old law will transition to application for an assessment certificate under the new law.

Clauses 27-31

These amendments in Schedule 2, items 17 and 18 (relating to commercial evaluation permits issued under the old law and pending applications for commercial evaluation permits) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017.

Clauses 32-36

These amendments in Schedule 2, items 19 and 21 (relating to low volume permits issued under the old law and pending applications for low volume permits) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017.

Clauses 37-41

These amendments in Schedule 2, items 26 and 28 (relating to controlled use permits issued under the old law and pending applications for controlled use permits) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017.

Clauses 42-47

These amendments in Schedule 2, items 33 and 34 (relating to introductions under the old law) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017. To align with this new commencement date all references to the registration year commencing on 1 September 2017 are substituted with 1 September 2019, so that the registration year that will be the current registration year for transitional purposes at the time of commencement on 1 July 2020 will be the registration year commencing on 1 September 2019.

These amendments also substitute each instance of 1 July 2019 with 1 July 2021 to specify the date on which the one-year transition period ends after commencement of the new scheme. During this transition period, it is expected that introducers will re-categorise and introduce their chemicals in line with the new categories of introduction at the end of the prescribed 12 month transition period.

Clauses 48-51

These amendments in Schedule 2, items 35 and 37 (relating to the protection of confidential business information) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017.

Clauses 48-51

These amendments in Schedule 2, items 35 and 37 (relating to the protection of confidential business information) substitute all references 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017.

Clauses 52-60

These amendments in Schedule 2, items 39-43 (relating to the transition arrangements from the old Inventory to the Inventory under the new law) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017.

Clauses 61-63

These amendments in Schedule 2, item 48 (relating to things done by, or in relation to, the Director, before the commencement of the new scheme) substitute all references to 1 July 2018 with 1 July 2020 which, in all instances, means the commencement date of the new Australian Industrial Chemicals Introduction Scheme established under the Industrial Chemicals Bill 2017.

Clauses 64 and 65

These amendments to paragraphs 50(3) and 50(4) substitute each instance of 1 July 2020 with 1 July 2022 to specify the last date which rules which modify provisions of the new law or transitional provisions in this bill may be made. Modifications may be necessary to deal with unforeseen transitional issues which may for example arise due to the complexity of the old law.

Amendments that align and clarify certain aspects of the transitional arrangements

Clause 1 - Early introduction permits

This amendment puts beyond doubt that early introduction permits issued under the Industrial Chemicals (Notification and Assessment) Act 1989 (the old law) will continue to authorise the introduction of the chemical under the Industrial Chemicals Act (the new law, when enacted) until a decision is made on the related application for an assessment certificate. This clause makes it clear that the authorisation for the purposes of paragraph 24(1)(b) of the new law is dependent on the introduction being made in accordance with any conditions that were specified in the permit under the old law.

Clause 2 - Assessment certificate notification obligations

Clause 11 of the bill provides for assessment certificates issued under the old law to be transitioned to assessment certificates under the new law. Amendment 2 ensures that the obligation to report additional information regarding an adverse effect of a chemical if it becomes available will continue.

Subclause 100(1) of the new law requires a person who holds, or who is covered by, an assessment certificate, or a person who has introduced an industrial chemical that is listed on the Inventory (and for which there is an assessment statement or an evaluation statement) within the previous 12 months, to report certain additional information that becomes available regarding an adverse effect of a chemical.

As assessment certificates transitioned under clause 11 of the bill will not have an associated assessment statement (because assessment statements are specific to the new law), this amendment ensures that the obligation to report certain additional information regarding the adverse effect of the chemical also applies in relation to certificates issued under the old law. This ensures the same obligations apply in relation to chemical introductions whether they are assessed under the old law or the new law.

Clause 3 - Pending applications for renewal of commercial evaluation permits

The bill provides that an existing application for a commercial evaluation permit will transition to an application for a commercial evaluation authorisation under the new law. This amends subclause 18(1) of the bill so that pending applications for a renewal of a commercial evaluation permit which will be dealt with in the rules. The rules will treat the application for renewal of the commercial evaluation permit made under the old law as an application to vary a commercial evaluation authorisation made under the new law.

Treating the pending application for renewal as though it was an application to vary the terms of an authorisation (in this case, the period for which the authorisation is in force) rather than as a new application, better aligns the transitional arrangements with the new law.

Clause 4 - Pending applications for renewal of low volume permits

The bill provides that existing applications for a low volume permit will transition to an application for an assessment certificate under the new law which, if issued, will be a time limited assessment certificate. This clause amends subclause 21(1) of the bill so that pending applications for a renewal of a low volume permit can be dealt within the rules. The rules will treat the application for renewal of the low volume permit as an application to vary the terms of an assessment certificate under the new law.

Treating the pending application for renewal of a low volume permit as though it was an application to vary a term of an assessment certificate (in this case the period for which the certificate is in force) will better align the transitional arrangements with the new law.

Clause 5 - Pending applications for renewal of controlled use permits

The bill provides for existing applications for a controlled use permit to be transitioned to an application for an assessment certificate under the new law which, if issued, will be a time limited assessment certificate.

This clause amends subclause 28(1) of the bill so that pending applications for a renewal of a controlled use permit can be dealt with in the rules. The rules will treat the application for renewal as an application to vary the terms of an assessment certificate under the new law.

Treating the pending application for renewal of a controlled use permit as though it was an application to vary a term of an assessment certificate (in this case the period for which the certificate is in force) will better align the transitional arrangements with the new law.