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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
RECYCLING AND WASTE REDUCTION BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Minister for the Environment,
the Hon. Sussan Ley MP)
AMENDMENTS TO THE RECYCLING AND WASTE REDUCTION
BILL 2020
GENERAL OUTLINE
The proposed amendments to the Recycling and Waste Reduction Bill 2020 (the Bill) will
strengthen the objects of the Act in relation to product stewardship, increase transparency
around the granting of export licences and exemptions to waste export provisions, strengthen
the consultation requirements for the Minister's priority list, require the Minister to take
certain action in relation to the Minister's priority list, change the timeframe for a review of
the Bill to five years, and update minor administrative matters.
FINANCIAL IMPACT
The proposed amendments have no financial impact and will not alter the financial impact of
the Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The proposed 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. The full Statement of Compatibility with Human Rights is
at the end of this supplementary explanatory memorandum.
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NOTES ON AMENDMENTS
Amendment 1
This amendment will replace the current text within column 2 of item 1 of the table to
subclause 2(1). The effect of the amendment will be to change the commencement date of the
Recycling and Waste Reduction Act 2020 to the day after the Bill receives the Royal Assent.
It is intended that this amendment will enable the regulation of the export of waste glass to
commence by 1 January 2021 if the Bill is enacted.
Amendment 2
This amendment will omit the word 'promote' from paragraph 3(1)(c) and replace it with
'develop'. Clause 3 deals with the objects of the Bill and the amendment will have the effect
of clarifying that the relevant object is intended to focus on developing a circular economy,
rather than promoting a circular economy.
Amendment 3
This amendment will amend paragraph 3(2)(b) to insert the words 'remanufacture' after
'reuse'.
This amendment recognises that the remanufacture of products complements the reuse,
recycling and recovery of products as a means of developing a circular economy, and thereby
reduces the impacts on human and environmental health of products and waste material.
Amendment 4
This amendment will omit the words 'those responsible for using, designing, manufacturing
and distributing products to take responsibility for those products' from paragraph 3(2)(c) and
will replace those words with 'manufacturers, importers, distributors, designers and other
persons to take responsibility for products'.
This amendment clarifies that persons such as manufacturers, importers, distributors and
designers will primarily be responsible for both the manufacture and end of life of products in
relation to product stewardship measures under the Bill, rather than placing this responsibility
on 'users' or 'consumers'.
Amendment 5
This amendment will amend the simplified outline of Chapter 2 of the Bill to reflect the
changes proposed by amendments 6 and 7 in relation to publishing information about licences
and exemptions that have been granted, and preparing quarterly reports with the information.
Amendment 6
This amendment will substitute a new clause 65 that requires the Minister to publish on the
Department's website certain information in relation to export licences and exemptions
granted under Chapter 2 of the Bill. The information required to be published will include the
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name of the holder of the licence or exemption, the regulated waste material covered by the
licence or exemption and the period of effect for the licence or exemption.
The substituted clause 65 will also provide that the Minister must not publish any information
under the section if the Minister is satisfied that there is a risk that publishing the information
might substantially prejudice the commercial interests of a person and publishing the
information is not in the public interest.
The publishing of this information is intended to provide transparency and assist the waste
export industry in understanding who holds an export licence or exemption and the regulated
waste materials covered by the licences or exemptions.
It is acknowledged that, to the extent that any licence or exemption holders are individuals
rather than body corporates, this clause will require the Minister to publish personal
information within the meaning of the Privacy Act 1988. However, it is anticipated that most
holders of export licences or exemptions will be body corporates, for which the protections in
the Privacy Act 1988 will not apply. In addition, publishing the names of holders of export
licences or exemptions can assist entities to find a licensed exporter, as well as provide
assurance that they are dealing with a person who is legally able to export the relevant waste
material. The advantages of this increased transparency by reporting on licence holders and
exemptions granted will outweigh the potential adverse consequences to the individual's right
to privacy.
Amendment 7
This amendment will insert a new clause 65A.
Subclause 65A(1) and paragraph 65A(3)(a) will have the combined effect of requiring the
Minister to prepare a report in each quarter of the financial year that includes the information
that is published under clause 65. Paragraph 65A(3)(b) will also allow the rules to prescribe
other matters that must be included in the quarterly report. Allowing the rules to prescribe
additional matters that must be included in the quarterly report will provide the necessary
flexibility as the requirements in the quarterly report may need to be tailored to the different
waste streams that are regulated now and in the future.
Subclause 65A(2) will require the Minister to prepare the quarterly report as soon as
practicable after the end of each quarter of each financial year.
Subclause 65A(4) will clarify that the Minister must not publish any information in the report
if the Minister must not publish that information under clause 65.
Subclause 65A(5) will require the Minister to publish a copy of the report on the
Department's website.
Amendment 7 is intended to provide greater transparency in relation to the regulation of waste
material exports under the Bill.
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Amendment 8
This amendment will substitute a new subclause 67(2) requires the Minister, in preparing a
Minister's priority list, to consult with each State and Territory and relevant Centres of
Excellence (if any).
This amendment will ensure that certain key stakeholders, including each State and Territory,
and any relevant product stewardship Centres of Excellence that will be established, must be
consulted each time the Minister's priority list is prepared.
Amendment 9
This amendment will insert a new subclause 67(2A) that provides that the Minister may, in
preparing the Minister's priority list, consult with one or more of the listed stakeholders, or
any other person or organisation the Minister considered should be consulted. The listed
stakeholders are largely the same as the previous subclause 67(2) in the Bill, the only
difference being that States and Territories are now a mandatory consultation requirement
under new subclause 67(2).
This amendment will ensure that appropriate consultation with relevant stakeholders occurs
each time the Minister's priority list is prepared.
Amendment 10
This amendment will require the Minister, when preparing the Minister's priority list, to have
regard to any relevant national waste policy or plans. Current examples of such policies or
plans would include the current National Waste Policy Action Plan 2019 as prepared by the
Commonwealth, State and Territory governments and the Australian Local Government
Association, and the National Waste Policy 2018.
This amendment will ensure that relevant national waste policies or plans will be considered
each time a Minister's priority list is prepared, which is intended to encourage greater
consistency between product stewardship measures taken under this Bill and Australia's
current national waste policies or plans.
Amendment 11
This amendment is a consequential amendment to amendment 9. It will amend clause 67 to
reference the new subclause 67(2A) that will be inserted by amendment 9. The effect will be
that, when preparing the Minister's priority list each financial year, the Minister is able to
have regard to information obtained in any consultations with persons covered by proposed
subclause 67(2A).
Amendment 12
This amendment will omit the word 'may' in paragraph 67(4)(b) and replace the word with 'if
the recommended action has not been taken in relation to the product within the
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recommended time - must'. This will require the Minister to either make further
recommendations, or decide that some form of regulation under the Act is appropriate, where
recommended actions for products have not been taken within the recommended times.
This amendment is intended to ensure that there are consequences for the relevant industry if
recommended actions are not met within the specified timeframes as it will require the
Minister to take further action. This will provide a pathway for transition from a voluntary
scheme to possible regulation under the Bill through a co-regulatory or mandatory scheme,
where the voluntary scheme has not met the recommended actions in the specified
timeframes.
Amendment 13
This amendment will amend subclause 92(8) to insert the word 'remanufacture' after 'reuse'.
This is a consequential amendment consistent with the change to the objects of the Bill
proposed by Amendment 3.
The effect will be to clarify that a product return payment, in relation to a product, includes a
payment that a person is required to make to another person if the other person returns that
kind of product for remanufacture.
Amendment 14
This amendment will amend paragraph 144(2)(a) to insert the word 'remanufacture' after
'reuse'. This is a consequential amendment consistent with the change to the objects of the
Bill proposed by Amendment 3.
The effect will be to expand the rule-making power in clause 144(2) to allow rules to be made
requiring information from constitutional corporations concerning the remanufacture of
products.
Amendment 15
This amendment will amend paragraph 144(2)(e) to insert the word 'remanufacture' after
'reuse'. This is a consequential amendment consistent with the change to the objects of the
Bill proposed by Amendment 3.
The effect will be to expand the rule-making power in clause 144(2) to allow rules to be made
requiring information from constitutional corporations concerning activities relating to the
remanufacturing.
Amendment 16
This amendment will amend subclause 185(2) to provide that a review of the operation of the
Act must commence no later than five years after the commencement of the Act.
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This amendment will ensure the timely review of the new legislation to regulate waste
material exports and product stewardship.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Recycling and Waste Reduction Bill 2020
The proposed amendments to the Bill 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.
Overview of the amendments
The Recycling and Waste Reduction Bill 2020 (the Bill) will strengthen the objects of the Act
in relation to product stewardship, increase transparency around the granting of export
licences and exemptions to waste export provisions, strengthen the consultation requirements
for the Minister's priority list, require the Minister to take certain action in relation to the
Minister's priority list, change the timeframe for a review of the Bill to five years, and update
minor administrative matters.
Human rights implications
The proposed amendments to the Bill engage the following human rights:
the right to privacy in Article 17 of the International Covenant on Civil and Political
Rights (ICCPR).
Right to privacy
Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's
privacy, family, home or correspondence. The United Nations Human Rights Committee has
given a liberal interpretation to the term 'home', which includes a person's workplace. The
right to privacy can be limited to achieve a legitimate objective where the limitations are
lawful and 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 circumstances.
Right to privacy - use and publication of information
Amendment 6 will require the Minister to publish certain information on the Department's
website relating to persons granted export licences and exemptions from provisions in the Bill
relating to the regulation of waste material exports. The relevant information includes the
name of the holder of the exemption or licence, the kind of regulated waste material covered,
and the period the licence or exemption is in effect.
The Minister must not publish any information under clause 65, introduced by amendment 6,
if the Minister is satisfied that there is a risk that publishing the information might
substantially prejudice the commercial interests of a person, and publishing the information is
not in the public interest.
Amendment 7 will insert a new clause 65A that requires the Minister to prepare and publish
on the Department's website a report in relation to exemptions and export licences for each
quarter of each financial year. This report will contain the information set out in clause 65, as
introduced by Amendment 6, along with other information (if any) prescribed by the rules.
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Amendment 7 will also require that the Minister does not publish any information in the
report that the Minister is prevented from publishing under clause 65.
The purpose of such publications of information is to provide transparency to industry and the
public on regulation of waste export operations.
It is acknowledged that, to the extent that any licence or exemption holders are individuals
rather than body corporates, this clause will require the Minister to publish personal
information within the meaning of the Privacy Act 1988. However, it is anticipated that most
holders of export licences or exemptions will be body corporates, for which the protections in
the Privacy Act 1988 will not apply. In addition, publishing the names of holders of export
licences or exemptions can assist entities to find a licensed exporter, as well as provide
assurance that they are dealing with a person who is legally able to export the relevant waste
material. The advantages of this increased transparency by reporting on licence holders and
exemptions granted will outweigh the potential adverse consequences to the individual's right
to privacy.
On this basis, the disclosure of the information specified in new clauses 65 and 65A, to the
extent that they limit the right to privacy, is considered reasonable, necessary and
proportionate to achieve legitimate objectives.
Accordingly, the proposed amendments are consistent with the right to privacy in Article 17
of the ICCPR.
Conclusion
The proposed amendments are compatible with human rights as, to the extent that it engages
and limits human rights (namely those under Article 17 of the ICCPR), those limitations are
reasonable, necessary and proportionate to achieve the legitimate aims of the Bill.
The Hon. Sussan Ley MP, Minister for the Environment
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