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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Environment Protection (Beverage Container Deposit and Recovery Scheme)
Bill 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator S Ludlam)
ENVIRONMENT PROTECTION (BEVERAGE CONTAINER DEPOSIT AND RECOVERY SCHEME)
BILL 2010
This bill was introduced by the Australian Greens in the 42nd Parliament.
The following explanatory memorandum reflects the debate at the time of the
bill's original introduction.
Background
The purpose of this Bill is provide for the environmentally sustainable use
of resources and best practice in waste management by establishing a
national beverage container deposit and recovery scheme.
Part 1 - Preliminary
Part 1 of the Bill, Clauses 1-8, relates to preliminary matters including
the Bill's commencement, objects, constitutional basis, application and
relationship with State and Territory law. It also provides for
definitions. The Bill is intended to commence on the day on which it
receives the Royal Assent. The Bill relies on the Commonwealth's
legislative powers under paragraphs 51(xx) (foreign and trading or
financial corporations), 51(xxix) (external affairs), 51(xxxix) (matters
incidental to the execution of powers vested by the Constitution). The
Bill is not intended to exclude or limit the concurrent operation of any
law of a State or Territory, unless the contrary intention appears.
The Bill defines the terms authorised collection depot, authorised transfer
station, beverage, beverage container, beverage container environmental
deposit, department, import, labelled, penalty unit, refund amount, reverse
vending machine and Scheme.
Part 2 - Beverage Container Deposit and Recovery Scheme
Clause 9 establishes a beverage Container Deposit and recovery Scheme.
Clause 10 sets out the functions of the Department in administering the
scheme. The department will manage the operation of the Scheme, collect
the beverage container environmental levy, grant exemptions for products
that will not require the levy, authorise collection depots and transfer
stations to participate in the scheme, enter into agreements with
authorised transfer stations and depots, facilitate and promote the Scheme
and provide information and advice to the Minister in relation to the
operation of the Scheme. It enables levy funds to be used via grants and
other financial incentives to encourage the use of recyclable and reusable
containers and the increased use of recycled material from beverage
containers. It enables levy funds to be used for supporting kerbside
recycling services, offsetting the collection industry costs for the
operation of the Scheme, product development to improve the recyclability
and reusability of beverage containers and other activities and programs
connected with recycling which facilitate environmentally sustainable uses
of resources and promote best practices in waste management. Payment for
the purposes of facilitating and promoting the Scheme and providing grants
or financial incentives under paragraph (h) are to meet from funds
appropriate by the Parliament for those purposes.
Clause 11 provides that an importer or producer of a beverage container is
liable to pay the beverage container environmental levy, unless they are
granted an exemption. Clause 11 is a civil penalty provision. Penalty: 2000
penalty units for an individual and 10,000 penalty units for a body
corporate.
Clause 12 sets the amount of the beverage container environmental levy at
10 cents. It enables a higher amount to be set by regulation. This
section is consistent with the 10 cent levy in the South Australian
container deposit scheme.
Clause 13 provides that a producer or importer must pay the levy within 14
days after the end of the month in which the beverage container was sold to
a wholesaler, retailer or individual, or to a producer or distributor of
beverages in beverage containers. This section enables the funds to be
received by the department before refunds are reimbursed to authorised
depots and transfer stations. Clause 13 is a civil penalty provision.
Penalty: 100 penalty units for individual and 500 penalty units for a body
corporate.
Clause 14 provides that all beverage containers must be labelled as
refundable. The labelling requirements are similar to those required by
the South Australian beverage container scheme. Clause 14 is a civil
penalty provision. Penalty: 100 penalty units for individual and 500
penalty units for a body corporate.
Clause 15 prescribes that a person must not sell a beverage container
unless the container is labelled in accordance with the relevant labelling
requirements. Clause 15 is a civil penalty provision. Penalty: 100 penalty
units for an individual and 500 penalty units for a body corporate.
Clause 16 (1), (2) and (3) provides for the department to approve a
premises to be an authorised collection depot. The department may enter
into an agreement with the operation of such depot in respect of the
location, operation, and functions of the authorised collection depot. The
agreement may include provisions relating to delivery of sorted empty
beverage containers to an authorised transfer station, payment by the
department of refund value paid by the depot, payment of any penalty by the
operator for failure to comply with the agreement.
Clause 16 (4) sets out (but does not limit) the types of collection depots
that may be authorised. Depots may involve manual or mechanised handling,
including reverse vending machines. Depots may be at council sites,
community centres and community based facilities, shopping centres and
centre car parks, service stations or other retailers, schools, "drive
through" recycling centres and at authorised transfer stations. Depots are
intended to collect used beverage containers directly from the public, and
to issue refunds under the Scheme. Depots are intended to sort the used
containers and deliver to an authorised transfer station.
Clause 17 (1), (2) and (3) provides for the department to approve a
premises to be an authorised transfer station. Authorised transfer
stations are intended to receive used containers from authorised depots and
other large collectors. They will generally not deal directly with the
public except via an authorised collection depot on their premises.
The department may enter into an agreement with the operation of such
transfer station in respect of the location, operation, and functions of
the authorised collection depot. The agreement may include provisions
relating to receiving and processing empty beverage containers, payment by
the department of refund value paid by the authorised transfer station,
sale of processed materials, payment of any penalty by the operator of the
authorised transfer station for a failure to comply with the agreement, the
submission of a monthly report to the department on the number and types of
empty beverage containers received and processed. The reports from
authorised transfer stations will provide the department with data for
reporting to the Minister under clause 10(1)(i). Any fees or agreements
between authorised depots and authorised transfer stations are not part of
this legislation.
Clause 17(4) provides for an agreement to be entered into under subsection
(2) provisions relating to accepting and paying a refund on crushed and
broken empty beverage containers using an estimate of refund value.
Clause 18(1) prohibits the claim of a refund of the levy on a beverage
container which the person knows or has reason to believe was not purchased
in Australia. Clause 18(1) is a civil penalty provision. Penalty: 100
penalty units. Clause 18(2) enables the operator of a collection depot to
request a person presenting a beverage container for the purpose of
claiming a refund of the levy to complete a declaration stating that the
person has no reason to believe that the beverage container was not
purchased in Australia. Such declaration is mandatory under clause 18(3)
for any person presenting 3000 or more beverage containers within a 48 hour
period. Clause 18(3) is a civil penalty provision. Penalty: 100 penalty
units for an individual and 500 penalty units for a body corporate. Clause
18(4) provides that where a person has not complied with a request for a
declaration, the depot may not refund the levy. Clause 18(4) is a civil
penalty provision. Penalty: 100 penalty units for an individual and 500
penalty units for a body corporate. Clause 18(5) provides that the
authorised depot must keep any declaration for three years and make it
available for inspection. Penalty: 300 penalty units for an individual and
1,500 penalty units for a body corporate. These provisions are consistent
with the South Australian container deposit scheme.
Clause 19 provides that an authorised collection depot or authorised
transfer station must pay a refund of the levy to a person returning a used
beverage container. Clause 19(2) provides that the operator of an
authorised collection depot must not unreasonably refuse to accept any
unbroken labelled empty beverage containers. Clause 19(2) is a civil
penalty provision. Penalty: 300 penalty units for an individual and 1,500
penalty units for a body corporate. A depot may refuse to accept the
container if the container is in an unsafe condition, or the operator has
reason to believe that the beverage container was not sold in Australia, or
a request to complete a declaration under clause 18 has not been complied
with. Reverse vending machine depots may reject containers which are
returned in a condition which prevents the machine from reading the label.
Clause 20 provides that the department must review the amount of the refund
value at least once every 5 years. The Authority must have regard to the
minimum refund value necessary to maintain the appropriate level of
incentive to reuse or recycle, ensure high rates of recovery, reduce litter
and litter-related costs, reduce waste, disposal and recycling costs and
conserve resources.
Clause 21 enables the department to grant exemptions from the requirement
in clause 11 to pay a beverage container environmental deposit. This is
intended to provide an exemption for beverages sold in containers that are
intended for re-use or re-filling by the producer or retailer, and for
which a separate deposit and refund scheme is provided. Clause 22(5)
provides that if an exemption has been revoked the person must begin to
comply with the Act within the period specified in the notice revoking the
exemption. Clause 21(5) is a civil penalty provision. Penalty: 2,000
penalty units for an individual and 10,000 penalty units for a body
corporate.
Clause 22 provides that this Act does not extend to existing beverage
containers imported into Australia or produced in Australia before the
commencement of the Act.
Part 3 - Enforcement
Part 3 of the Bill relates to enforcement.
Division 1 of Part 3 relates to civil penalties.
Clause 23 identifies the civil penalty provisions of the Bill.
Clause 24 provides that under a civil penalty provision, where an act or
thing is required to be done within a particular period or before a
particular time then the obligation to do that act or thing continues until
the act or thing is done. Clause 24(2) specifically provides that a person
is liable for a civil penalty for each day a person fails to comply with a
requirement under clauses 11 and 13 or subclause 21(5). Clause 24(2) is a
civil penalty provision. Penalty: 1,000 penalty units for an individual and
5,000 penalty units for a body corporate.
Clause 25 provides that, within 6 years of a contravention of a civil
penalty provision, the department may apply, on behalf of the Commonwealth,
to a Court for an order that a wrongdoer pay the Commonwealth a pecuniary
penalty. Further, it provides that where a Court is satisfied that the
wrongdoer has contravened a civil penalty provision, the Court may order
that person to pay to the Commonwealth the pecuniary penalty that the Court
determines appropriate for each contravention but not more than the
relevant amount specified for the provision.
In determining the pecuniary penalty, the court must have regard to all
relevant matters including, the nature and extent of the contravention, the
nature and extent of any loss or damage suffered as a result of the
contravention, the circumstances in which the contravention took place and
whether the person has previously been found to have engaged in any similar
conduct in other proceedings under the Bill.
Clause 26 provides that for the purposes of this Bill, contravening a civil
penalty is not an offence.
Clause 27 provides that a person must not aid, abet, counsel or procure or,
induce by threats, promises or otherwise, or, be in any way directly or
indirectly knowingly concerned in, or party to, a contravention of a civil
penalty provision, or conspire to contravene a civil penalty provision.
Clause 28 provides that if a Court orders a person to pay a pecuniary
penalty, the penalty is payable to the Commonwealth and the Commonwealth
may enforce the order as if it were a judgment of the Court.
Division 2 of Part 3 deals with infringement notices and provides for the
department to issue an infringement notice in respect of a contravention of
the Act.
Clause 29 provides for the Secretary if the department to issue an
infringement notice within 12 months of a contravention of the Act. A
single infringement notice may be given in respect of more than one
contravention. However, the notice must not require the person to pay more
than one penalty in respect of the same conduct.
Clause 30 provides for the matters that must be included in an infringement
notice, including the identify of the person to whom the notice is given,
details of the alleged contravention including the date of the alleged
contravention and the civil penalty provisions that were allegedly
contravened, a statement that proceedings will not be brought in relation
to the alleged contravention if the penalty in the notice is paid with 28
days, a statement that the person may choose not to pay the penalty, an
explanation of how payment of the penalty can be made, and other matters as
set out in regulations.
Clause 31 provides that the amount of penalty in an infringement notice
must be a pecuniary penalty equal to one-fifth of the maximum penalty a
court could impose for the contravention.
Clause 32 provides for the withdrawal of an infringement notice and the
refund of a penalty already paid under a withdrawn infringement notice.
Clause 33 provides that where a penalty under an infringement notice has
been paid the liability of the person for an alleged contravention has been
discharged and proceedings may not be brought against the person for the
alleged contravention. It also provides that payment is not taken as an
admission by the person of liability for the alleged contravention.
Clause 34 provides that there is no requirement for an infringement notice
to be given and that a person is liable for proceedings to be brought if
they do not comply with an infringement notice or a notice is not given or
the notice is withdrawn.
Division 3 of Part 3 deals with enforceable undertakings relating to
contraventions of civil penalty provisions.
Clause 35 provides that the secretary of the department may, instead of
instituting proceedings in a Court, accept a written undertaking given by a
person that the person will take, or refrain from taking, specified action
to comply with the Act. It also provides that a person may withdraw or vary
the undertaking at any time with the consent of the department. The
secretary may cancel the undertaking. It also provides the undertaking may
be published on an appropriate website.
Clause 36 provides that if the secretary of the department considers that a
person who gave an undertaking has breached any of the terms of that
undertaking, the secretary may apply to a court for an order. The Court may
the person to comply the undertaking, direct the person to pay an amount up
to the amount of any financial benefit the person has obtained attributable
to the breach, direct the person to compensate any other person who has
suffered loss or damage as a result of the breach or make any other order
the Court considers appropriate.
Division 4 of Part 3 deals with the liability of executive officers of
corporations.
Clause 37(1) provides that a chief executive officer contravenes this
clause if a corporation contravenes a civil penalty provisions and the
chief executive officer knew or was reckless or negligent as to whether the
contravention would occur and the officer was in a position to influence
the conduct of the corporation in relation to the contravention and the
office failed to take all reasonable steps to prevent the contravention.
Clause 37(1) is a civil penalty provision. The penalty is not more than the
penalty a court could order a corporation to pay for the contravention.
Clause 38 sets out the matters the Court is to have regard to in
determining whether the chief executive officer took all reasonable steps
to prevent the contravention. The matters include any action the officer
took to ensure the corporation regularly assesses its compliance with the
Act and regulations, that the corporation implements appropriate
recommendations from such assessments and that the corporation's employees,
agents and contractors have a reasonable knowledge and understanding of the
requirements of the Act. The court is also to have regard to what action
the officer took when they became aware the corporation was breaching the
Act or regulations.
Part 4 - Miscellaneous
Part 4 of the Bill provides for the preparation of an annual report by the
Minister and the tabling of the report before each House of the Parliament.
Part 4 also provides for the making of regulations prescribing matters
required or permitted by the Bill or necessary or convenient to be
prescribed for carrying out or giving effect to the Bill.