House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for the Environment and Water Resources, the Honourable John Cobb MP)

General outline

The purpose of this Bill is to amend the Product Stewardship (Oil) Act 2000 (the Act) in order to:

a)

replace the term waste oil throughout the Act with the term used oil which is considered to be more consistent with the objects of the Act;

b)

allow regulations made for the purposes of subsection 10(1) of the Act for the purpose of determining eligibility for product stewardship (oil) benefits, to adopt or incorporate oil testing methods or laboratory accreditation standards as in force or existing from time to time. This will ensure that the re-refined oil which attracts the product stewardship (oil) benefit is consistent with the most up to date quality criteria;

c)

provide that the members of the Oil Stewardship Advisory Council, other than the members appointed to represent the Commonwealth and the Commissioner for Taxation, will be appointed on the basis of their knowledge of, or experience in, a range of prescribed subject areas relevant to product stewardship arrangements for oil. This will enable members with a wider range of expertise to be appointed to the Oil Stewardship Advisory Council than is the case at present;

d)

provide that the members of the Oil Stewardship Advisory Council appointed to represent the Commonwealth and the Commissioner for Taxation will become non-voting members. This will remove the potential for these members to have a conflict of the interest between their roles as Commonwealth employees and as members of the Oil Stewardship Advisory Council;

e)

provide clear and more rigorous procedures for the disclosure of direct and indirect pecuniary interests by members of the Oil Stewardship Advisory Council and for ensuring that any such interests held by members do not compromise the advice provided by the Oil Stewardship Advisory Council.

Financial impact statement

The Bill will have no financial impact.

Notes on individual clauses

Clause 1 - Short title

1. This clause provides that the short title by which the Act may be cited is the Product Stewardship (Oil) Amendment Act 2007.

Clause 2 - Commencement

2. Paragraph 1 of the table in subclause 2(1) provides that the commencement date for sections 1, 2 and 3 and anything in the Bill not covered elsewhere by the table in subclause (1) is the day on which the Bill receives the Royal Assent.

3. Paragraph 2 of the table in subclause 2(1) provides that the commencement date for the provisions in Schedule 1 will be a day to be fixed by Proclamation. However, if any provisions do not commence within 6 months of the day on which the Bill receives the Royal Assent, those provisions will commence on the first day after the period of six months beginning on the day on which the Act receives the Royal Assent.

Clause 3 - Schedule(s)

4. This clause provides that each Act specified in a Schedule is amended or repealed as set out in the Schedule and other items in the Schedule have effect according to their terms.

Schedule 1 - Amendment of the Product Stewardship (Oil) Act 2000

Product Stewardship (Oil) Act 2000

Item 1 - Paragraphs 3(a), (b) and (c)

5. This item replaces the term waste oil in paragraphs 3(a), (b) and (c) of the Product Stewardship (Oil) Act 2000 (the Act) with the term used oil , and is required as a consequence of Items 2 and 4 below.

Item 2 - Subsection 6(1)

6. This item inserts a definition of "used oil" in subsection 6(1) of the Act. The definition of used oil is the same as the current definition of waste oil (which is to be repealed under Item 4 below). However the term waste oil is being replaced throughout the Act with the term used oil which is considered to be more consistent with the objects of the Act.

Item 3 - Subsection 6(1)

7. This item inserts a definition of a voting member in subsection 6(1) of the Act for the purposes of the Oil Stewardship Advisory Council (the Advisory Council). Voting members are those members appointed on the basis of their knowledge or experience in accordance with subsection 14(2) of the Act. As a result, members appointed under new subsection 14(2B) (inserted by Item 8 below) representing the Commissioner and the Commonwealth will not be voting members. This will ensure that any potential conflict of those members between their roles as Commonwealth employees and as members of the Advisory Council is removed.

Item 4 - Subsection 6(1) (definition of waste oil )

8. This item repeals the definition of waste oil as the term has been replaced by used oil throughout the Act (the definition for which is inserted by Item 2 above).

Item 5 - At the end of section 10

9. This item inserts a new subsection 10(5) into the Act which will allow regulations made for the purposes of subsection 10(1) for the purpose of determining eligibility for product stewardship (oil) benefits, to adopt or incorporate oil testing methods or laboratory accreditation standards as in force or existing from time to time. This is despite section 14 of the Legislative Instruments Act 2003 (LI Act).

10. Subsection 14(1) of the LI Act enables a legislative instrument (regulations are deemed to be a legislative instrument for the purposes of the LI Act pursuant to paragraph 6(a) of the LI Act) to make provision for matters by applying, adopting or incorporating (with or without modification) the provisions of any other instrument or writing which is in force at the time of incorporation. Subsection 14(2) of the LI Act provides that unless the enabling legislation allows instruments to be incorporated from time to time, an instrument may only be incorporated in the form in which it exists at the date of incorporation.

11. The regulations currently prescribe test methods for analysing re-refined oil in order to determine eligibility for benefits under the Act, and require testing laboratories to be accredited to a particular standard. Both the test methods and the accreditation standards, published by various expert bodies, are routinely revised. In order to ensure that the re-refined oil which attracts the product stewardship (oil) benefit is consistent with the most up to date quality criteria, it is essential that regulations made for the purposes of subsection 10(1) incorporate those test methods and accreditation standards as are in force or existing from time to time.

Item 6 - Paragraph 12(b)

12. This item substitutes the term waste oil with the term used oil in paragraph 12(b) of the Act and is required as a consequence of Items 2 and 4 above.

Item 7 - Subsection 13(3)

13. This item repeals subsection 13(3) of the Act and replaces it with a new subsection 13(3). Currently, subsection 13(3) of the Act provides that the performance of a function of the Advisory Council is not affected if the Advisory Council's membership does not include all the representatives referred to in subsection 14(2) of the Act. New subsection 13(3) reflects this principle, but has been revised as a consequence of the amendments to the criteria for appointment to the Advisory Council under Item 8 below. As a result, new subsection 13(3) clarifies that the performance of a function of the Advisory Council is not affected by the fact that the Advisory Council does not include any members appointed on the basis of their knowledge of, or experience in, a particular area listed in subsection 14(2) or does not include a representative of the Commissioner or the Commonwealth appointed under new subsection 14(2B) (inserted by Item 8 below).

Item 8 - Subsection 14(2)

14. This item repeals subsection 14(2) of the Act and replaces it with new subsections 14(2), 14(2A), 14(2B) and 14(2C) as follows.

15. New subsection 14(2) provides that Advisory Council members (other than those appointed under new subsection 14(2B)) are to be appointed by the Minister on the basis of their knowledge of, or experience in, specified areas, rather than as representatives of particular bodies as previously required by the Act. This will enable the appointment of members to the Advisory Council with a broader range of relevant knowledge and experience than is the case at present.

16. New subsection 14(2A) requires the Minister, when appointing members to the Advisory Council, to endeavour to constitute the Advisory Council so that it, as a whole, has knowledge and experience in as many of the areas specified in subsection 14(2). This is to ensure that the Advisory Council has access to a broad range of experience and knowledge to draw upon when performing its functions.

17. New subsection 14(2B) clarifies an existing requirement that the Minister must ensure that the membership of the Advisory Council includes representatives of the Commissioner and the Commonwealth.

18. New subsection 14(2C) clarifies that if a representative of the Commissioner or the Commonwealth is unable to attend a meeting of the Advisory Council, the representative of the Commissioner or the Commonwealth, as the case may be, may authorise a substitute to attend the meeting. However, a substitute attending the meeting must be an APS employee. The purpose of this amendment is to formalise administrative arrangements currently followed by the Advisory Council.

Item 9 - Subsection 15(1)

19. This item amends subsection 15(1) of the Act to clarify that when appointing a person as the Chair of the Advisory Council, the Minister must do so subject to new subsection (1A) and subsection (2). This item is required as a consequence of Item 10 below.

Item 10 - After subsection 15(1)

20. This item inserts new subsections 15(1A), 15(1B) and 15(1C) into the Act as follows.

21. New subsection 15(1A) prevents the Minister from appointing as the Chair of the Advisory Council, a member who has a direct or indirect pecuniary interest in the product stewardship arrangements for oil in circumstances where, in the Minister's opinion, that interest could conflict, to a significant extent, with the proper performance of the duties of the Chair.

22. New subsections 15(1B) and 15(1C) deal with the situation where, subsequent to the appointment of the Chair, the Chair acquires a direct or indirect pecuniary interest in the product stewardship arrangements for oil. In these circumstances, the Chair must notify the Minister in writing as soon as practicable after acquiring the interest.

Item 11 - After paragraph 15(4) (a)

23. This item inserts an additional circumstance into subsection 15(4) of the Act under which a member appointed as the Chair of the Advisory Council ceases to be the Chair. This amendment is required as a consequence of Item 12 below.

Item 12 - At the end of section 15

24. This item inserts a new subsection 15(6) into the Act allowing the Minister to terminate the appointment of the Chair of the Advisory Council in circumstances where the Minster becomes aware that the Chair has a direct or indirect pecuniary interest in the product stewardship arrangements for oil and it is the Minister's opinion that such an interest either conflicts with, or could conflict with, the proper performance of the duties of the Chair.

Item 13 - Paragraph 21(2) (d)

25. This item substitutes paragraph 21(2)(d) of the Act with a new paragraph 21(2)(d) to enable the Minister to terminate the appointment of a member of the Advisory Council appointed to represent the Commissioner or the Commonwealth, if the Minister considers that the member is no longer an appropriate representative because of a change in employment, residence or other circumstances. Currently the Minister may terminate the appointment of any member where the Minister considers that, for the above reasons, the member is no longer an appropriate representative of the body that he or she was appointed to represent. This amendment recognises that, following the amendments to section 14 of the Act (see Item 8 above), it will be only the representatives of the Commissioner and the Commonwealth who are appointed as representatives of particular bodies. Other members will be appointed on the basis of their experience in, and knowledge of, specified areas.

Item 14 - Paragraph 22(3) (b)

26. This item amends paragraph 22(3)(b) to clarify that the Chair must convene a meeting of the Advisory Council on receipt of a written request from at least 5 other voting members. This amendment is a consequence of the proposed amendment to subsection 6(1) (see Item 3 above), the effect of which is that not all members of the Advisory Council are voting members. Only those members who are appointed on the basis of their knowledge of, or experience in, one or more of the areas referred to in new subsection 14(2) are voting members. Therefore, the representatives of the Commissioner and the Commonwealth are not voting members.

Item 15 - Subsection 23(2)

27. This item amends subsection 23(2) to clarify that if the Chair is not present at an Advisory Council meeting then the voting members present must elect one of their number to preside over the meeting of the Advisory Council.

Item 16 - Section 24

28. This item amends section 24 of the Act to clarify that a majority of voting members, or 6 voting members, whichever is the greater, form a quorum at a meeting of the Advisory Council.

Item 17 - Subsection 25(1)

29. This item amends subsection 25(1) to clarify that questions arising at an Advisory Council meeting are to be decided by a majority of votes of the voting members present and voting.

Item 18 - Subsection 27(1)

30. This item amends subsection 27(1) to clarify that it is the majority of voting members that can sign a document containing a statement that they are in favour of a resolution of the Advisory Council made out of session.

Item 19 - Subsection 27(2)

31. This item amends subsection 27(2) to clarify the administrative aspects of resolutions made by voting members out of session.

Item 20 - Subsection 27(3)

32. This item amends subsection 27(3) to clarify that a voting member must not support a resolution taken outside an Advisory Council meeting if the member has a direct or indirect pecuniary interest in the matter, and must disclose the nature of any such interest to the Chair.

Item 21 - Subsection 29(2)

33. This item repeals subsection 29(2) of the Act and inserts new subsections 29(2), 29(2A), 29(2B) and 29(2C) as follows.

34. New subsection 29(2) requires that disclosures of any direct or indirect pecuniary interests of a member be recorded in the minutes of the Advisory Council.

35. New subsection 29(2A) sets out the process to be followed by the Advisory Council in circumstances where a member of the Advisory Council (who is not the Chair) discloses the nature of a direct or indirect pecuniary interest the member has in a matter being considered by the Advisory Council. In these circumstances, the Chair may determine whether it is appropriate for the member to be present during any deliberation with respect to the matter or take part in any decision of the Advisory Council with respect to the matter.

36. New subsection 29(2B) sets out the process to be followed by the Advisory Council in circumstances where a member of the Advisory Council (who is not a Chair) discloses the nature of a direct or indirect pecuniary interest the member has in a matter being considered by the Advisory Council and the Chair is not present at the meeting. In the circumstances, the Advisory Council may determine whether it is appropriate for the member to be present during any deliberation with respect to the matter or take part in any decision of the Advisory Council with respect to the matter.

37. New subsection 29(2C) sets out the process to be followed by the Advisory Council in circumstances where the Chair of the Advisory Council discloses the nature of a direct or indirect pecuniary interest the Chair has in a matter being considered by the Advisory Council. In these circumstances, the Advisory Council may determine whether it is appropriate for the Chair to be present during any deliberation with respect to the matter or take part in any decision of the Advisory Council with respect to the matter.

Item 22 - Subsection 29(3)

38. This item amends subsection 29(3) to clarify that when the Advisory Council is making a determination under new subsection 29(2B) or (2C) (inserted by Item 21 above), the member to whom the determination relates must not be present during the deliberation of the Advisory Council, nor take part in the making of the determination by the Advisory Council. This amendment is required as a consequence of Item 21 above.

Item 23 - After subsection 29(3)

39. This item inserts a new subsection 29(3A) which will allow the Minister to direct the Chair not to make, or to rescind, a determination made by the Chair under new subsection 29(2A) (inserted by Item 21 above).

Item 24 - Subsection 29(4)

40. This item amends subsection 29(4) to clarify that the Minister may direct the Advisory Council not to make, or to rescind, a determination made by the Advisory Council under new subsection 29(2B) or (2C) (inserted by Item 21 above).