PRODUCT STEWARDSHIP BILL 2011

i Product Stewardship Bill 2011 No. , 2011

Contents

Part 1--Introduction

Division 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

Division 2--Guide to this Act

Guide to this Act ................................................................................ 3

Division 3--Objects of this Act and product stewardship criteria

Objects of this Act ............................................................................. 7

5 Product

stewardship criteria ............................................................... 8

Division 4--The Dictionary

6 The

Dictionary

...................................................................................

Division 5--Application of this Act

7 Act

binds

Crown

..............................................................................

Extension to external Territories ...................................................... 13

Relationship to State and Territory laws .......................................... 13

Part 2--Voluntary product stewardship

Division 1--Guide to this Part

Guide to this Part ............................................................................. 15

Division 2--Voluntary product stewardship

Exercising rights in product stewardship logo in accordance

with accredited voluntary arrangement ............................................ 16

What is an accredited voluntary arrangement ................................. 16

Accreditation of voluntary arrangements ......................................... 17

What is a product stewardship logo ................................................. 18

What are the Commonwealth's intellectual property rights in

a product stewardship logo .............................................................. 19

16 Commonwealth's

intellectual property rights not limited ................ 19

Part 3--Co-regulatory product stewardship

Division 1--Guide to this Part

Guide to this Part ............................................................................. 21

Division 2--Requirements for liable parties and administrators

of co-regulatory arrangements

Subdivision A--Requirement for liable party to be member of

approved co-regulatory arrangement

Product Stewardship Bill 2011 No. , 2011 ii

Liable party to be member of approved co-regulatory

arrangement ..................................................................................... 23

19 Who

liable party in relation to a class of products .................... 24

What is an approved co-regulatory arrangement ............................ 25

Outcomes for co-regulatory arrangements ....................................... 26

Matters to be dealt with by co-regulatory arrangements .................. 27

Subdivision B--Requirements for administrators of approved

co-regulatory arrangements

Administrator to achieve outcomes for co-regulatory

arrangement ..................................................................................... 27

Subdivision C--Requirements for liable parties and

administrators

Requirements relating to record-keeping, giving information

and reporting .................................................................................... 28

Division 3--Approving co-regulatory arrangements

25 Approving

co-regulatory

arrangements--application ...................... 30

26 Approving

co-regulatory

arrangements--decision .......................... 30

Division 4--Reviewing co-regulatory arrangements and

cancelling approvals

Reviewing approved co-regulatory arrangements ........................... 32

Cancelling approvals of a co-regulatory arrangements .................... 32

Division 5--Enforcing approved co-regulatory arrangements

29 Improvement

notices........................................................................

30 Directed

audits--general

.................................................................

Directed audits--appointing auditor and carrying out audit ............ 36

Division 6--Other matters relating to co-regulatory product

stewardship

32 Co-regulatory

product

stewardship--anti-avoidance ...................... 37

33 Co-regulatory

product

stewardship--replacing administrator ......... 38

34 Co-regulatory

product

stewardship--constitutional

connection ........................................................................................ 39

Co-regulatory product stewardship--reading down provision

for administrators ............................................................................. 40

Part 4--Mandatory product stewardship

Division 1--Guide to this Part

Guide to this Part ............................................................................. 41

Division 2--Mandatory product stewardship

Mandatory product stewardship requirements may be

specified in regulations .................................................................... 42

iii Product Stewardship Bill 2011 No. , 2011

Contravening mandatory product stewardship requirements ........... 44

Mandatory product stewardship--satisfying product

stewardship criteria and furthering objects etc. ................................ 44

40 Mandatory

product

stewardship--constitutional connection ........... 45

Part 5--Enforcing this Act

Division 1--Guide to this Part

Guide to this Part ............................................................................. 46

Division 2--Civil penalty provisions

Subdivision A--Obtaining a civil penalty order

Civil penalty orders .......................................................................... 47

Maximum amount of pecuniary penalty .......................................... 48

Involvement in contravening civil penalty provision ....................... 49

45 Civil

enforcement of penalty ........................................................... 49

Conduct contravening more than one civil penalty provision .......... 49

47 Multiple

contraventions

...................................................................

Proceedings may be heard together ................................................. 50

Civil evidence and procedure rules for civil penalty orders ............. 50

Contravening a civil penalty provision is not an offence ................. 50

Subdivision B--Civil liability of executive officers of bodies

corporate

Civil liability of executive officer of body corporate ....................... 51

Reasonable steps to prevent contravention ...................................... 52

Subdivision C--Civil proceedings and criminal proceedings

Civil proceedings after criminal proceedings .................................. 53

54 Criminal

proceedings

during civil proceedings ............................... 53

55 Criminal

proceedings

after civil proceedings .................................. 53

Evidence given in civil proceedings not admissible in

criminal proceedings ........................................................................ 54

Subdivision D--Miscellaneous

Mistake of fact ................................................................................. 54

State of mind .................................................................................... 55

59 Continuing

contraventions ............................................................... 55

Division 3--Publicising offences, contraventions and decisions

Minister may publicise certain offences, contraventions and

decisions .......................................................................................... 57

Division 4--Enforceable undertakings

61 Acceptance

undertakings ............................................................. 59

62 Enforcement

undertakings ........................................................... 59

Product Stewardship Bill 2011 No. , 2011 iv

Division 5--Injunctions

63 Injunctions

.......................................................................................

64 Granting

interim

injunctions ............................................................ 61

65 Discharging

varying injunctions .................................................. 62

Certain limits on granting injunctions not to apply .......................... 62

Part 6--Compliance powers

Division 1--Guide to this Part

Guide to this Part ............................................................................. 63

Division 2--Powers of inspectors

Subdivision A--Appointment of inspectors

Minister may appoint inspectors ...................................................... 64

69 Identity

cards

...................................................................................

Offence for failing to return identity card ........................................ 65

Subdivision B--Powers of inspectors

Purposes for which powers can be used ........................................... 66

72 Inspection

powers--with consent .................................................... 66

Refusing consent is not an offence .................................................. 67

74 Inspection

powers--with warrant .................................................... 67

Announcement before entry under warrant ..................................... 68

Copy of warrant to be given to occupier .......................................... 68

Occupier entitled to observe execution of warrant .......................... 69

Occupier to provide inspector with facilities and assistance ............ 69

Subdivision C--General provisions relating to seizure

Copies of seized things to be provided ............................................ 69

Receipts for things seized ................................................................ 70

Return of seized things .................................................................... 70

Magistrate may permit a thing to be retained .................................. 71

Disposal if thing cannot be returned ................................................ 72

Subdivision D--Applying for warrants to enter premises

84 Ordinary

warrants

............................................................................

Warrants by telephone, fax etc. ........................................................ 73

Signed form of warrant not produced in evidence ........................... 75

Subdivision E--Powers of magistrates

87 Federal

Magistrates--consent to nomination .................................. 75

88 Powers

magistrates

......................................................................

Division 3--Information gathering powers

89 Meaning

person who has product stewardship

information ...................................................................................... 77

v Product Stewardship Bill 2011 No. , 2011

Minister may require a person to provide information .................... 77

Minister may require a person to appear before an inspector .......... 78

Part 7--Reviewing decisions

Division 1--Guide to this Part

Guide to this Part ............................................................................. 80

Division 2--Reviewing decisions

Persons affected by reviewable decisions ........................................ 81

Notification of decisions and review rights ..................................... 82

95 Internal

review

.................................................................................

Review of decisions by Administrative Appeals Tribunal ............... 83

Part 8--Protecting information

Division 1--Guide to this Part

Guide to this Part ............................................................................. 84

Division 2--Protecting information

98 Offence--Disclosing

commercially sensitive information .............. 85

99 Authorised

disclosures

.....................................................................

100

Disclosing commercially sensitive information to courts and

tribunals etc. ..................................................................................... 87

Part 9--Miscellaneous

Division 1--Guide to this Part

101

Guide to this Part ............................................................................. 88

Division 2--Miscellaneous

102 General

requirements

for

making applications ................................ 89

103 Applications--requesting

additional information ............................ 89

104

Privilege against self-incrimination not affected ............................. 90

105

Compensation for damage to electronic equipment ......................... 90

106

Compensation for acquisition of property ....................................... 91

107 Annual

report

...................................................................................

108

Publishing material on Department's website ................................. 92

109

Review of operation of this Act ....................................................... 92

110 Delegation

........................................................................................

111 Regulations

......................................................................................

Part 1 Introduction

Division 1 Preliminary

Section 2

2 Product Stewardship Bill 2011 No. , 2011

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

111

A day or days to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

Introduction Part 1

Guide to this Act Division 2

Section 3

Product Stewardship Bill 2011 No. , 2011 3

Division 2--Guide to this Act

3 Guide to this Act

This Act is about product stewardship.

Product stewardship is an approach to reducing the environmental

and other impacts of products by encouraging or requiring

manufacturers, importers, distributors and other persons to take

responsibility for those products.

This Act provides a framework for 3 kinds of product stewardship.

Voluntary product stewardship

Part 2 is about voluntary product stewardship. This involves

accrediting voluntary arrangements designed to further the objects

of this Act in relation to products, and authorising the use of

product stewardship logos in connection with such arrangements.

Co-regulatory product stewardship

Part 3 is about co-regulatory product stewardship. This involves

requiring some manufacturers, importers, distributors and users of

products (called liable parties), who have been specified in the

regulations, to be members of co-regulatory arrangements

approved by the Minister.

These arrangements must have outcomes, specified in the

regulations, that are designed to further the objects of this Act.

Administrators of approved co-regulatory arrangements are

required to take all reasonable steps to ensure those outcomes are

achieved in accordance with the regulations.

Mandatory product stewardship

Part 1 Introduction

Division 2 Guide to this Act

Section 3

4 Product Stewardship Bill 2011 No. , 2011

Part 4 is about mandatory product stewardship. This involves

enabling regulations to be made that would require some persons to

take, or not to take, specified action in relation to products.

Objects of this Act and product stewardship criteria

Before regulations are made specifying liable parties for a class of

products under Part 3 (co-regulatory product stewardship), or

requiring action to be taken in relation to products under Part 4

(mandatory product stewardship), the Minister must be satisfied

that:

(a)

making the regulations will further the objects of

this Act; and

(b)

the product stewardship criteria are satisfied.

The objects of this Act and the product stewardship criteria are also

relevant to determining whether to accredit a voluntary

arrangement under Part 2. They are set out in Division 3 of Part 1.

Other introductory matters

Part 1 also contains the Dictionary. The Dictionary is a list of every

term that is defined in this Act. A term will either be defined in the

Dictionary itself, or in another provision of this Act. If another

provision defines the term, the Dictionary will have a signpost to

that definition.

In addition, Part 1 deals with the application of this Act to the

Crown and in the external Territories. It also deals with the

relationship between this Act and State and Territory laws.

Enforcing this Act

Part 5 deals with enforcing this Act, including regulations and

legislative instruments made under it.

Introduction Part 1

Guide to this Act Division 2

Section 3

Product Stewardship Bill 2011 No. , 2011 5

Division 2 of that Part allows courts to order persons to pay

pecuniary penalties for contravening provisions of this Act called

civil penalty provisions.

Division 3 of that Part allows contraventions of this Act and

adverse decisions (such as cancelling an arrangement's

accreditation or approval) to be publicised.

Division 4 of that Part deals with enforceable undertakings. If a

person makes an undertaking relating to complying with this Act,

the undertaking may be enforced by a court order.

Division 5 of that Part allows injunctions to be sought for

contraventions, or potential contraventions, of this Act.

Compliance powers

Part 6 is about ensuring compliance with this Act.

Division 2 of that Part is about the powers of inspectors. These

powers may be used for the purposes of determining whether a

person is complying with this Act or for the purposes of

investigating a possible contravention of this Act.

Division 3 of that Part is about gathering information for the

purposes of investigating or preventing a possible contravention of

a civil penalty provision or an offence provision in this Act.

Reviewing decisions

Part 7 is about reviewing some decisions made under this Act

(called reviewable decisions).

Reviewable decisions (other than those made by the Minister

personally) can be reviewed by the Minister (an internal review).

Reviewable decisions made by the Minister personally or on an

internal review can be reviewed by the Administrative Appeals

Tribunal.

Part 1 Introduction

Division 2 Guide to this Act

Section 3

6 Product Stewardship Bill 2011 No. , 2011

Protecting information

Part 8 is about protecting information (called protected

information) obtained by or disclosed to persons in connection

with this Act.

Disclosing protected information is an offence if it might

substantially prejudice the commercial interests of a person, and

the disclosure is not authorised by this Part.

There is also a limitation on the ability of courts and tribunals to

require the disclosure of protected information.

Miscellaneous matters

Part 9 deals with a variety of miscellaneous matters, such as

making applications, delegations and the power to make

regulations.

Introduction Part 1

Objects of this Act and product stewardship criteria Division 3

Section 4

Product Stewardship Bill 2011 No. , 2011 7

Division 3--Objects of this Act and product stewardship

criteria

4 Objects of this Act

Object--reducing impact of products

(1) It is an object of this Act to reduce the impact:

(a) that products have on the environment, throughout their lives;

and

(b) that substances contained in products have on the

environment, and on the health and safety of human beings,

throughout the lives of those products.

(2) It is Parliament's intention that this object be achieved by

encouraging or requiring manufacturers, importers, distributors and

other persons to take responsibility for those products, including by

taking action that relates to the following:

(a) avoiding generating waste from products;

(b) reducing or eliminating the amount of waste from products to

be disposed of;

in waste from products;

(d) managing waste from products as a resource;

(e) ensuring that products and waste from products are reused,

recycled, recovered, treated and disposed of in a safe,

scientific and environmentally sound way.

Other objects

(3) The following are also objects of this Act:

(a) to contribute to Australia meeting its international obligations

concerning the impacts referred to in subsection (1);

(b) to contribute to reducing the amount of greenhouse gases

emitted, energy used and water consumed in connection with

products and waste from products.

Part 1 Introduction

Division 3 Objects of this Act and product stewardship criteria

Section 5

8 Product Stewardship Bill 2011 No. , 2011

5 Product stewardship criteria

The

product stewardship criteria are satisfied in relation to a class

of products if 2 or more of the following paragraphs apply in

relation to products in the class:

(a) the products are in a national market;

(b) the products contain hazardous substances;

(i) increase the conservation of materials used in the

products, or increase the recovery of resources

(including materials and energy) from waste from the

products; and

(ii) contribute to reducing the amount of greenhouse gases

emitted, energy used or water consumed in connection

with products and waste from products;

(d) reusing, recycling, recovering, treating or disposing of the

products involves a significant cost to the Commonwealth, or

State, Territory or local governments;

(e) the consumer is willing to pay for action that reduces the

impact:

(i) that the products have on the environment, throughout

the lives of those products; or

(ii) that substances contained in the products have on the

environment, or on the health or safety of human

beings, throughout the lives of those products;

(f) taking action to reduce those impacts will offer business

opportunities that would make a contribution to the economy.

Note:

Whether the product stewardship criteria are satisfied in relation to a

class of products is relevant for determining whether:

(a) to accredit a voluntary arrangement in relation to that class of

products (see subsection 13(3)); or

(b) regulations can be made under this Act in relation to the class of

products (see sections 19 (co-regulatory product stewardship--

liable parties for class of products) and 39 (mandatory product

stewardship requirements)).

Introduction Part 1

The Dictionary Division 4

Section 6

Product Stewardship Bill 2011 No. , 2011 9

Division 4--The Dictionary

6 The Dictionary

In this Act:

accredited voluntary arrangement: see subsection 12(1).

accrediting authority: see paragraph 13(2)(c).

acquisition of property: see subsection 106(3).

administrator:

(a) of a co-regulatory arrangement: see paragraph 20(2)(e); and

(b) of a voluntary arrangement: see paragraph 12(2)(c).

affected: for when a person is affected by a reviewable decision,

see section 93.

agency means:

(a) a Department of State; or

(b) any agency, authority or body (whether incorporated or not)

established for a public purpose by or under a law of the

Commonwealth or of a State or Territory.

approved co-regulatory arrangement: see subsection 20(1).

artistic work has the same meaning as in the Copyright Act 1968.

Australia, when used in a geographical sense, includes the external

Territories.

civil penalty order: see subsection 42(3).

civil penalty provision means:

(a) a subsection, or a section that is not divided into subsections;

(b) a subregulation, or a regulation that is not divided into

subregulations;

that has set out at its foot the words "civil penalty" and one or more

amounts in penalty units, or that another provision of this Act

declares to be a civil penalty provision.

Part 1 Introduction

Division 4 The Dictionary

Section 6

10 Product Stewardship Bill 2011 No. , 2011

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

(a) between Australia and a place outside Australia; or

(b) among the States; or

(d) between 2 Territories.

co-regulatory arrangement: see subsection 20(2).

damage, in relation to data: see subsection 105(5).

distribute includes sell and supply, whether for consideration or

not.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

evidential material means any thing that may be relevant to:

(a) the investigation or prosecution of:

(i) an offence against this Act; or

(ii) an offence against the Crimes Act 1914 or the Criminal

Code that relates to this Act; or

(b) the investigation or bringing of proceedings in relation to a

contravention of a civil penalty provision in this Act.

Note: The

expression

this Act has an extended meaning (see the definition in

this section).

executive officer, of a body corporate: see subsection 51(4).

export means export from Australia.

Federal Magistrate means a Federal Magistrate of the Federal

Magistrates Court.

import means import into Australia, and includes bring into

Australia.

improvement notice means an improvement notice given under

section 29.

Introduction Part 1

The Dictionary Division 4

Section 6

Product Stewardship Bill 2011 No. , 2011 11

inspector means an inspector appointed under subsection 68(1).

intellectual property rights: see section 15.

just terms: see subsection 106(3).

liable party in relation to a class of products: see section 19.

life of a product includes:

(a) the time when the product begins to be manufactured; and

(b) the time when the product is waste.

magistrate includes a Federal Magistrate in respect of whom a

consent under subsection 87(1) and a nomination under subsection

87(2) are in force.

negligent: for when an executive officer of a body corporate is

negligent in relation to a contravention by the body corporate of a

civil penalty provision, see subsection 51(6).

penalty unit, in relation to a civil penalty provision, has the same

meaning as in section 4AA of the Crimes Act 1914.

person who has product stewardship information: see section 89.

product means a thing (including a substance or mixture of

substances) that is:

(a)

manufactured;

(b) specified in regulations made for the purposes of this

paragraph.

product return payment: see subsection 37(5).

product stewardship criteria: see section 5.

product stewardship logo: see section 14.

prospective liable party: see subsection 32(1).

protected information: see subsection 98(3).

reckless: for when an executive officer of a body corporate is

reckless in relation to a contravention by the body corporate of a

civil penalty provision, see subsection 51(5).

Part 1 Introduction

Division 4 The Dictionary

Section 6

12 Product Stewardship Bill 2011 No. , 2011

recover in relation to products or waste from products, includes

recover resources, material or energy from those products or that

waste.

relevant court means:

(a) the Federal Court of Australia; or

(b) a Supreme Court of a State or Territory.

reviewable decision: see section 93.

scheme: see subsection 32(6).

this Act includes regulations, and other legislative instruments,

made under this Act.

trade mark has the same meaning as in the Trade Marks Act 1995.

voluntary arrangement: see subsection 12(2).

waste, in relation to a product, means waste associated with the

product after it is disposed of.

Introduction Part 1

Application of this Act Division 5

Section 7

Product Stewardship Bill 2011 No. , 2011 13

Division 5--Application of this Act

7 Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to a pecuniary penalty or

to be prosecuted for an offence.

(3) The protection in subsection (2) does not apply to an authority of

the Crown.

8 Extension to external Territories

This Act extends to every external Territory.

9 Relationship to State and Territory laws

(1) Subject to subsections (2) and (3), this Act is not intended to

exclude the operation of any law of a State or Territory, to the

extent that that law is capable of operating concurrently with this

Act.

(2) Parts 3 and 4, regulations made under one of those Parts, and the

other provisions of this Act in so far as they apply in relation to a

provision of one of those Parts, apply to the exclusion of a law of a

State or Territory (the excluded law) if the excluded law is

prescribed by the regulations for the purposes of this subsection.

Note 1:

Part 3 is about co-regulatory product stewardship, and Part 4 is about

mandatory product stewardship.

Note 2:

The expression this Act has an extended meaning (see the Dictionary

in section 6).

(3) However, subsection (2) only applies in relation to the excluded

law:

(a) if regulations have been made in relation to a class of

products under:

(i) subsection 19(1) (co-regulatory product stewardship--

liable parties for class of products) for the purposes of

Part 3 of this Act; or

Part 1 Introduction

Division 5 Application of this Act

Section 9

14 Product Stewardship Bill 2011 No. , 2011

(ii) subsection 37(1) (mandatory product stewardship

requirements) for the purposes of Part 4 of this Act; and

(b) to the extent that the excluded law deals with the following

matters:

(i) avoiding generating waste from products in that class;

(ii) reducing or eliminating the amount of waste to be

disposed of from products in that class;

(iii) reducing or eliminating hazardous substances in

products in that class and in waste from such products;

(iv) managing waste from products in that class as a

resource;

(v) ensuring that products in that class and waste from such

products are reused, recycled, recovered, treated and

disposed of in a safe, scientific and environmentally

sound way; and

section:

(i) apply to or affect the activities of a constitutional

corporation; or

(ii) apply to or affect constitutional trade or commerce; or

(iii) deal with a matter with respect to which the Parliament

has power to make laws under paragraph 51(xxix) of the

Constitution (external affairs).

Voluntary product stewardship Part 2

Guide to this Part Division 1

Section 10

Product Stewardship Bill 2011 No. , 2011 15

Part 2--Voluntary product stewardship

Division 1--Guide to this Part

10 Guide to this Part

This Part is about voluntary product stewardship.

This involves accrediting voluntary arrangements designed to

further the objects of this Act in relation to products, and

authorising the use of product stewardship logos in connection

with such arrangements.

In accrediting a voluntary arrangement, the accrediting authority

must have regard to matters such as:

(a)

whether the arrangement's outcomes will further

the objects of this Act and are likely to be

achieved; and

(b)

whether the product stewardship criteria are

satisfied in relation to the products to which the

arrangement relates; and

(c)

the appropriate use of product stewardship logos

under the arrangement; and

(d)

the public interest.

Other matters relating to accreditation can be dealt with in

legislative instruments.

Part 2 Voluntary product stewardship

Division 2 Voluntary product stewardship

Section 11

16 Product Stewardship Bill 2011 No. , 2011

Division 2--Voluntary product stewardship

11 Exercising rights in product stewardship logo in accordance with

accredited voluntary arrangement

A person is licensed, or authorised, to exercise the

Commonwealth's intellectual property rights in a product

stewardship logo if the exercise of those rights is in accordance

with an accredited voluntary arrangement.

Note 1:

For what is an accredited voluntary arrangement, see section 12.

Note 2:

For accreditation of voluntary arrangements, see section 13.

Note 3:

For what is a product stewardship logo, see section 14.

Note 4:

For what are the Commonwealth's intellectual property rights in a

product stewardship logo, see section 15.

12 What is an accredited voluntary arrangement

Accredited voluntary arrangements

(1)

accredited voluntary arrangement is a voluntary arrangement

that is accredited in relation to a class of products in accordance

with a determination by the Minister under section 13.

Voluntary arrangements

(2)

voluntary arrangement is an arrangement (however described)

in relation to which the following conditions are satisfied:

(a) the arrangement is designed to further the objects of this Act

by achieving one or more measurable outcomes in relation to

a class of products;

(b) there is a written document setting out:

(i) the persons, or classes of person, who are authorised by

the arrangement to exercise the Commonwealth's

intellectual property rights in a product stewardship

logo in connection with products in that class; and

(ii) the circumstances in which those persons are authorised

by the arrangement to exercise those rights in

connection with those products;

Voluntary product stewardship Part 2

Voluntary product stewardship Division 2

Section 13

Product Stewardship Bill 2011 No. , 2011 17

administrator) who is responsible for ensuring the outcomes

referred to in paragraph (a) are achieved;

(d) the administrator is a body corporate.

13 Accreditation of voluntary arrangements

(1) The Minister may, by legislative instrument, determine matters

relating to the accreditation of voluntary arrangements in relation

to classes of products.

(2) Without limiting subsection (1), the determination may provide for

any or all of the following:

(a) who may apply for accreditation of a voluntary arrangement

in relation to a class of products;

(b) the circumstances in which a person may apply for such an

accreditation;

accrediting authority);

(d) matters in relation to which the accrediting authority must be

satisfied before accrediting a voluntary arrangement in

relation to a class of products;

(e) grounds on which the accrediting authority may or must

refuse to accredit a voluntary arrangement in relation to a

class of products;

(f) the imposition of conditions by the accrediting authority on a

voluntary arrangement's accreditation in relation to a class of

products;

(g) reviewing the operation of accredited voluntary

arrangements;

(h) cancellation by an accrediting authority of a voluntary

arrangement's accreditation in relation to a class of products.

Note 1:

See sections 102 and 103 for additional matters relating to

applications.

Note 2:

The following are examples for paragraph (f):

(a) a condition that the administrator of a voluntary arrangement take

reasonable steps to ensure the arrangement's outcomes are

achieved;

Part 2 Voluntary product stewardship

Division 2 Voluntary product stewardship

Section 14

18 Product Stewardship Bill 2011 No. , 2011

(b) a condition relating to the exercise of the Commonwealth's

intellectual property rights in the product stewardship logo in

accordance with the arrangement.

Preconditions to accreditation

(3) Without limiting subsection (1) or (2), the determination must

require the accrediting authority to refuse to accredit a voluntary

arrangement in relation to a class of products if the accrediting

authority is satisfied that:

(a) an outcome of the arrangement in relation to the class of

products will not further the objects of this Act; or

(b) the arrangement is unlikely to achieve one or more of those

outcomes; or

the class of products (see section 5); or

(d) the persons licensed or authorised by the arrangement to

exercise the Commonwealth's intellectual property rights in a

product stewardship logo in connection with products in that

class, or the circumstances in which those persons are

licensed or authorised, are not appropriate (see

subsection (4)); or

(e) it is not in the public interest to accredit the arrangement (see

subsection (4)).

Public interest and appropriate use of logo--relevant matters

(4) In determining whether the accrediting authority is satisfied as

mentioned in paragraph (3)(d) or (e), the accrediting authority:

(a) must have regard to the objects of this Act; and

(b) may have regard to any other matter.

14 What is a product stewardship logo

(1) This section sets out what is a product stewardship logo.

Artistic works

(2) An artistic work is a product stewardship logo if:

(a) copyright subsists in the artistic work; and

Voluntary product stewardship Part 2

Voluntary product stewardship Division 2

Section 15

Product Stewardship Bill 2011 No. , 2011 19

(b) the Commonwealth is the owner of the copyright in the

artistic work; and

subsection (4).

Trade marks

(3) A trade mark is a product stewardship logo if:

(a) the trade mark is registered under the Trade Marks Act 1995;

and

(b) the Commonwealth is the registered owner of the trade mark

for the purposes of that Act; and

subsection (4) of this section.

Designation by Minister

(4) The Minister may, by legislative instrument, designate:

(a) for the purposes of paragraph (2)(c)--an artistic work

reproduced in the instrument; and

(b) for the purposes of paragraph (3)(c)--a trade mark

represented in the instrument.

15 What are the Commonwealth's intellectual property rights in a

product stewardship logo

The

Commonwealth's intellectual property rights in a product

stewardship logo are:

(a) if the product stewardship logo is an artistic work--the

Commonwealth's right under the Copyright Act 1968 to do

an act comprised in the copyright of the artistic work; and

(b) if the product stewardship logo is a trade mark--the rights

held by the Commonwealth as the registered owner of the

trade mark under the Trade Marks Act 1995.

16 Commonwealth's intellectual property rights not limited

This Part does not limit:

Co-regulatory product stewardship Part 3

Guide to this Part Division 1

Section 17

Product Stewardship Bill 2011 No. , 2011 21

Part 3--Co-regulatory product stewardship

Division 1--Guide to this Part

17 Guide to this Part

This Part is about co-regulatory product stewardship.

Under Division 2, some manufacturers, importers, distributors and

users of products (called liable parties) are required to be members

of co-regulatory arrangements approved by the Minister (see

section 18). Liable parties are specified in the regulations (see

section 19).

These arrangements must have outcomes, specified in the

regulations, that are designed to further the objects of this Act (see

section 21).

Administrators of approved co-regulatory arrangements are

required to take all reasonable steps to ensure those outcomes are

achieved in accordance with the regulations (see section 23).

Before regulations are made specifying liable parties in relation to

a class of products, the Minister must be satisfied that:

(a)

making the regulations will further the objects of

this Act; and

(b)

the product stewardship criteria are satisfied.

Division 2 also contains requirements for liable parties and

administrators of co-regulatory arrangements relating to

record-keeping, giving information and reporting (see section 24).

Division 3 deals with approving co-regulatory arrangements.

Division 4 deals with reviewing co-regulatory arrangements and

cancelling approvals.

Co-regulatory product stewardship Part 3

Requirements for liable parties and administrators of co-regulatory arrangements

Division 2

Section 18

Product Stewardship Bill 2011 No. , 2011 23

Division 2--Requirements for liable parties and

administrators of co-regulatory arrangements

Subdivision A--Requirement for liable party to be member of

approved co-regulatory arrangement

18 Liable party to be member of approved co-regulatory

arrangement

(1) A liable party in relation to a class of products must be a member

of an approved co-regulatory arrangement in relation to that class

of products.

Civil penalty:

200 penalty units.

Note 1:

For liable parties, see section 19.

Note 2:

For approved co-regulatory arrangements, see sections 20, 21 and 22.

Note 3:

For approval of co-regulatory arrangements, see Division 3.

Note 4:

For additional requirements for liable parties, see Subdivision C of

this Division.

Minister to give notice before applying for civil penalty order

(2) The Minister cannot apply for a civil penalty order in relation to a

contravention of subsection (1) by a person unless:

(a) the Minister has given the person a written notice requiring

the person to become a member of an arrangement referred to

in subsection (1) before the day specified in the notice; and

(b) the person has failed to comply with the notice.

(3) The day specified in the notice must be at least 14 days after the

day the notice is given.

Variation and revocation of notice

(4) A person to whom a notice has been given under subsection (2)

may apply to the Minister to:

(a) vary the notice to specify a later day; or

(b) revoke the notice.

Part 3 Co-regulatory product stewardship

Division 2 Requirements for liable parties and administrators of co-regulatory

arrangements

Section 19

24 Product Stewardship Bill 2011 No. , 2011

(5) The application must be:

(a) in writing; and

(b) made before the day specified in the notice under

subsection (2).

(6) The Minister may, by written notice given to the person:

(a) if paragraph (4)(a) applies--vary the notice under

subsection (2) to specify a later day; or

(b) if paragraph (4)(b) applies--revoke the notice under

subsection (2).

(7) Otherwise, the Minister must refuse the application.

(8) Subsections (4) and (6) do not affect the operation of subsection

33(3) of the Acts Interpretation Act 1901 in relation to a notice

under subsection (2).

Continuing contraventions

(9) Section 59 (continuing contraventions) applies in relation to

subsection (1) of this section as if the liable party were required by

that subsection to be a member of an approved co-regulatory

arrangement before the day specified in the notice under

subsection (2) of this section.

19 Who is a liable party in relation to a class of products

Regulations may specify liable parties

(1)

liable party, in relation to a class of products, is a person in a

class (or classes) of persons specified as liable parties in relation to

that class of products in regulations made for the purposes of this

subsection.

(2) However, a person is only a liable party in relation to a class of

products if the person has at any time:

(a) manufactured a product in that class in Australia; or

(b) imported a product in that class into Australia; or

(d) used a product in that class in Australia.

Co-regulatory product stewardship Part 3

Requirements for liable parties and administrators of co-regulatory arrangements

Division 2

Section 20

Product Stewardship Bill 2011 No. , 2011 25

Satisfying product stewardship criteria and furthering objects

(3) Before the Governor-General makes regulations for the purposes of

subsection (1) in relation to a class of products, the Minister must

be satisfied that:

(a) making the regulations in relation to the class of products

will further the objects of this Act (see section 4); and

(b) the product stewardship criteria are satisfied in relation to the

class of products (see section 5).

Note:

For a limitation on the power to make regulations under this Part, see

section 34 (constitutional connection).

Exempting liable parties

(4) The regulations may provide for the Minister to determine that this

Act has effect as if a particular person who would otherwise have

been a liable party in relation to a class of products were not such a

liable party during a particular or an indefinite period.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

(5) A determination referred to in subsection (4) has effect

accordingly.

20 What is an approved co-regulatory arrangement

Approved co-regulatory arrangements

(1)

approved co-regulatory arrangement is a co-regulatory

arrangement that is approved by the Minister under section 26 in

relation to a class of products.

Co-regulatory arrangements

(2)

co-regulatory arrangement is an arrangement (however

described) in relation to which the following conditions are

satisfied:

(a) the arrangement is designed to achieve the outcomes

specified under section 21 in relation to a class of products;

Part 3 Co-regulatory product stewardship

Division 2 Requirements for liable parties and administrators of co-regulatory

arrangements

Section 21

26 Product Stewardship Bill 2011 No. , 2011

(b) the arrangement deals with the matters specified in

regulations made under section 22 (if any) in relation to that

class of products;

members of the arrangement;

(d) only a liable party may, under the arrangement, be a member

of the arrangement;

(e) the arrangement provides for there to be a person (the

administrator) who:

(i) is responsible for ensuring the outcomes referred to in

paragraph (a) are achieved; and

(ii) may also be a member of the arrangement;

(f) the administrator is a body corporate.

21 Outcomes for co-regulatory arrangements

(1) Regulations made under subsection 19(1) specifying liable parties

in relation to a class of products must also specify one or more

outcomes to be achieved by a co-regulatory arrangement that

relates to that class of products.

(2) The regulations may also do one or more of the following:

(a) specify a method or formula by reference to which such an

outcome may be determined, or for working out whether

such an outcome has been achieved;

(b) require different outcomes to be achieved by the end of

different periods;

which the administrator must comply.

(3) Outcomes specified under subsection (1) must relate to one or

more of the following:

(a) avoiding generating waste from products;

(b) reducing or eliminating the amount of waste from products to

be disposed of;

in waste from products;

(d) managing waste from products as a resource;

Co-regulatory product stewardship Part 3

Requirements for liable parties and administrators of co-regulatory arrangements

Division 2

Section 22

Product Stewardship Bill 2011 No. , 2011 27

(e) ensuring that products and waste from products are reused,

recycled, recovered, treated and disposed of in a safe,

scientific and environmentally sound way.

Note:

For an additional limitation on the power to make regulations under

this Part, see section 34 (constitutional connection).

22 Matters to be dealt with by co-regulatory arrangements

(1) The regulations may specify matters to be dealt with by a

co-regulatory arrangement that relates to a specified class of

products.

(2) Those matters must relate to one or more of the following:

(a) the governance of the arrangement (including resolving

disputes and replacing the administrator);

(b) membership of the arrangement (including requirements for

becoming or ceasing to be a member of the arrangement);

arrangement;

(d) any other matter relevant to the operation of the arrangement

or the achievement of the outcomes specified under

section 21 in relation to that class of products.

Note 1:

Approval of a co-regulatory arrangement must be refused, and may be

cancelled, if the Minister is not satisfied the arrangement adequately

deals with these matters (see paragraphs 26(2)(c) and 28(1)(c)).

Note 2:

For a limitation on the power to make regulations under this Part, see

section 34 (constitutional connection).

Subdivision B--Requirements for administrators of approved

co-regulatory arrangements

23 Administrator to achieve outcomes for co-regulatory

arrangement

The administrator of an approved co-regulatory arrangement in

relation to a class of products must:

(a) take all reasonable steps to ensure that the arrangement

achieves the outcomes specified under section 21 in relation

to that class of products; and

Part 3 Co-regulatory product stewardship

Division 2 Requirements for liable parties and administrators of co-regulatory

arrangements

Section 24

28 Product Stewardship Bill 2011 No. , 2011

(b) comply with any requirements specified in regulations made

under that section for achieving those outcomes.

Note 1:

The Minister may give an improvement notice under section 29 and

require an audit of the arrangement to be carried out under section 30

if the administrator does not comply with this section.

Note 2:

The Minister may cancel the arrangement's approval if the

administrator does not comply with this section (see section 28).

Note 3:

For additional requirements for administrators, see Subdivision C of

this Division.

Subdivision C--Requirements for liable parties and

administrators

24 Requirements relating to record-keeping, giving information and

reporting

Record-keeping and giving information

(1) The regulations may require a person who is a liable party in

relation to a class of products, or the administrator of an approved

co-regulatory arrangement in relation to a class of products, to do

either or both of the following:

(a) make and keep records, in accordance with the regulations;

(b) give information to the Minister or an inspector, in

accordance with the regulations.

Note:

The Minister may cancel a co-regulatory arrangement's approval if the

administrator of the arrangement does not comply with regulations

made under this section (see section 28).

(2) The records and information must relate to:

(a) products in that class; or

(b) an approved co-regulatory arrangement of which the person

is a member or the administrator.

(3) Without limiting paragraph (1)(b), the regulations may require the

administrator of an approved co-regulatory arrangement to notify

the Minister or an inspector of specified matters, including:

(a) material changes of circumstances; and

(b) changes to the operation or membership of the arrangement.

Co-regulatory product stewardship Part 3

Requirements for liable parties and administrators of co-regulatory arrangements

Division 2

Section 24

Product Stewardship Bill 2011 No. , 2011 29

Reporting

(4) The regulations may require the administrator of an approved

co-regulatory arrangement to give the Minister reports on the

operation of the arrangement, in accordance with the regulations.

Civil penalty provisions

(5) Without limiting subsection (1) or (4), the regulations may make

provision in relation to pecuniary penalties not exceeding:

(a) in the case of a body corporate--250 penalty units; or

(b) in any other case--50 penalty units;

for contravening civil penalty provisions in regulations made for

the purposes of those subsections.

Part 3 Co-regulatory product stewardship

Division 3 Approving co-regulatory arrangements

Section 25

30 Product Stewardship Bill 2011 No. , 2011

Division 3--Approving co-regulatory arrangements

25 Approving co-regulatory arrangements--application

(1) The administrator of a co-regulatory arrangement may apply for

the Minister to approve the arrangement in relation to a class of

products, specified under section 19, to which the arrangement

relates.

(2) The application must be accompanied by a written description of

the arrangement that sets out:

(a) how the arrangement proposes to achieve the outcomes

specified under section 21 in relation to the class of products;

and

(b) the matters dealt with by the arrangement; and

purposes of this paragraph.

Note:

See sections 102 and 103 for additional matters relating to

applications.

26 Approving co-regulatory arrangements--decision

Minister to approve or refuse to approve arrangement

(1) The Minister must, on application under section 25, either:

(a) approve the arrangement in relation to a class of products to

which the arrangement relates; or

(b) refuse to approve the arrangement in relation to that class.

When Minister must refuse to approve arrangement

(2) The Minister must refuse to approve the arrangement in relation to

the class of products if the Minister is satisfied that:

(a) a condition in subsection 20(2) (what is a co-regulatory

arrangement) is not satisfied in relation to the arrangement;

(b) the arrangement is unlikely to achieve one or more of the

outcomes specified under section 21 for the class of products;

Co-regulatory product stewardship Part 3

Approving co-regulatory arrangements Division 3

Section 26

Product Stewardship Bill 2011 No. , 2011 31

specified for the class of products in regulations made under

section 22; or

(d) the administrator is not a fit and proper person (see

subsection (3)); or

(e) it is not in the public interest to approve the arrangement (see

subsection (4)).

Fit and proper person

(3) For the purposes of paragraph (2)(d), in determining whether the

administrator is a fit and proper person, the Minister:

(a) must have regard to the matters specified in regulations made

for the purposes of this subsection; and

(b) may have regard to any other matter.

Public interest

(4) For the purposes of paragraph (2)(e), in determining whether it is

in the public interest to approve the arrangement, the Minister:

(a) must have regard to the objects of this Act; and

(b) may have regard to any other matter.

When Minister may refuse to approve arrangement

(5) The Minister may refuse to approve the arrangement in relation to

the class of products if:

(a) the applicant has not given the Minister further

documentation or information before the day specified in a

notice given under section 103 in relation to the application;

(b) the documentation or other information provided in the

application, or as requested by a notice under section 103, is

false or misleading.

Notice of decision

(6) The Minister must give the applicant written notice of his or her

decision on the application.

Part 3 Co-regulatory product stewardship

Division 4 Reviewing co-regulatory arrangements and cancelling approvals

Section 27

32 Product Stewardship Bill 2011 No. , 2011

Division 4--Reviewing co-regulatory arrangements and

cancelling approvals

27 Reviewing approved co-regulatory arrangements

(1) The Minister must review the operation of an approved

co-regulatory arrangement before the end of:

(a) the period of 5 years starting on the day the arrangement is

approved; and

(b) each successive 5 year period.

(2) Subsection (1) does not limit:

(a) the Minister's ability to review the operation of an approved

co-regulatory arrangement at any other time; or

(b) the Minister's power under section 28 to cancel the approval

of a co-regulatory arrangement.

28 Cancelling approvals of a co-regulatory arrangements

General grounds for cancelling arrangement's approval

(1) The Minister may cancel the approval of a co-regulatory

arrangement in relation to a class of products if the Minister is

satisfied that:

(a) a condition in subsection 20(2) (what is a co-regulatory

arrangement) is not satisfied in relation to the arrangement;

(b) the arrangement has not achieved, or is unlikely to achieve,

one or more of the outcomes specified under section 21 for

the class of products; or

specified for the class of products in regulations made under

section 22; or

(d) the arrangement's administrator is not a fit and proper person

(see subsection (2)); or

(e) the arrangement's administrator has not complied with one or

more of the following in relation to the arrangement:

Co-regulatory product stewardship Part 3

Reviewing co-regulatory arrangements and cancelling approvals Division 4

Section 28

Product Stewardship Bill 2011 No. , 2011 33

(i) section 23 (which requires the administrator to take

reasonable steps to achieve the outcomes referred to in

paragraph (b) in accordance with the regulations);

(ii) regulations made under section 24 (requirements

relating to record-keeping, giving information and

reporting);

(iii) an improvement notice given under section 29;

(iv) subsection 31(1) (which requires the administrator to

appoint an auditor and arrange for the auditor to carry

out an audit of the arrangement); or

(f) subsection 33(1) (replacing administrator) has not been

complied with in relation to the arrangement; or

(g) there has been a material change in circumstances since the

arrangement was approved; or

(h) any of the following information or documentation given to

the Minister or an inspector was false or misleading:

(i) information or documentation given in connection with

the application for approval;

(ii) information or documentation given in connection with

an application under subsection 33(1) (replacing

administrator);

(iii) information or documentation given at any other time

(whether or not as required by this Act); or

(i) there is a ground for cancelling the approval specified in

regulations made for the purposes of this paragraph.

Fit and proper person

(2) For the purposes of paragraph (1)(d), in determining whether the

administrator is a fit and proper person, the Minister:

(a) must have regard to the matters specified in regulations made

for the purposes of this subsection; and

(b) may have regard to any other matter.

Co-regulatory product stewardship Part 3

Enforcing approved co-regulatory arrangements Division 5

Section 29

Product Stewardship Bill 2011 No. , 2011 35

Division 5--Enforcing approved co-regulatory

arrangements

29 Improvement notices

(1) The Minister may give an administrator of an approved

co-regulatory arrangement an improvement notice if the Minister:

(a) believes on reasonable grounds that the administrator has

contravened section 23 (administrator to achieve outcomes);

and

(b) is satisfied that it is in the public interest to do so.

(2) The notice must:

(a) specify the contravention that the Minister believes is

occurring, and set out the reasons for that belief; and

(b) specify a reasonable period within which the administrator

must take the action necessary to prevent any further

contravention of section 23.

(3) The notice may specify action that the administrator must take

during that specified period.

(4) Before the end of the specified period, the Minister may extend

that period in writing.

Varying or revoking a notice

(5) If the Minister is satisfied that it is in the public interest to vary or

revoke an improvement notice given under subsection (1) (the

original notice), the Minister may do so by giving a written notice

(the new notice) to the administrator.

(6) If the original notice is varied, the new notice must set out the text

of the original notice and the variations to it.

Civil penalty provision

(7) An administrator must comply with an improvement notice given

to the administrator under subsection (1).

Civil penalty:

100 penalty units.

Part 3 Co-regulatory product stewardship

Division 5 Enforcing approved co-regulatory arrangements

Section 30

36 Product Stewardship Bill 2011 No. , 2011

30 Directed audits--general

(1) The Minister may require an administrator of an approved

co-regulatory arrangement to carry out an audit of the arrangement

if the Minister believes on reasonable grounds that the

administrator has not complied, or is unlikely to comply, with:

(a) section 23 (administrator to achieve outcomes); or

(b) an improvement notice given to the administrator under

section 29.

(2) The requirement must be included in a written notice given to the

administrator.

(3) The notice must specify:

(a) the matters to be covered by the audit; and

(b) the form of the audit report and the kinds of particulars it is to

contain; and

Minister.

31 Directed audits--appointing auditor and carrying out audit

(1) If the Minister gives an administrator of an approved co-regulatory

arrangement a notice under section 30, the administrator must

appoint an auditor and arrange for the auditor to carry out an audit

in accordance with the notice.

(2) An administrator who is given a notice under section 30 must

comply with subsection (1) of this section.

Civil penalty:

100 penalty units.

(3) The administrator must not appoint a person to be an auditor unless

the Minister has approved the person for such appointment before

the appointment is made.

(4) The administrator must not appoint an officer or employee of the

administrator to be an auditor.

(5) An appointment of a person as an auditor made otherwise than in

accordance with subsections (3) and (4) has no effect.

Co-regulatory product stewardship Part 3

Other matters relating to co-regulatory product stewardship Division 6

Section 32

Product Stewardship Bill 2011 No. , 2011 37

Division 6--Other matters relating to co-regulatory

product stewardship

32 Co-regulatory product stewardship--anti-avoidance

Minister may determine Act has effect as if person were a liable

party

(1) The Minister may, by writing, determine that this Act has effect,

and is taken always to have had effect, during a period as if a

specified person (the prospective liable party) were a liable party

in relation to a specified class of products in relation to which

regulations have been made under subsection 19(1).

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

Conditions for making determination--avoidance scheme etc.

(2) However, the Minister may only make the determination if:

(a) at any time after the commencement of this Act, one or more

persons (whether or not the prospective liable party) engaged

in any or all of the following conduct:

(i) entering into a scheme;

(ii) beginning to carry out a scheme;

(iii) carrying out a scheme; and

(b) the Minister believes, on reasonable grounds, that any person

who engaged in that conduct did so for the purpose (or for

purposes that included the substantial purpose) of enabling

the prospective liable party to avoid being a liable party in

relation to the class of products; and

the class of products are made in accordance with paragraph

34(1)(a) (constitutional connection)--the prospective liable

party is a constitutional corporation.

Determination has effect

(3) The determination has effect accordingly.

Part 3 Co-regulatory product stewardship

Division 6 Other matters relating to co-regulatory product stewardship

Section 33

38 Product Stewardship Bill 2011 No. , 2011

Period during which determination has effect

(4) The period referred to in subsection (1):

(a) may be a specified or an indefinite period; and

(b) must not begin before the day the regulations specifying the

liable parties in relation to the class of products came into

force.

Determination not a legislative instrument

(5) A determination made under subsection (1) is not a legislative

instrument.

Meaning of scheme

(6) In this Act, scheme means:

(a) any agreement, arrangement, understanding, promise or

undertaking, whether express or implied and whether or not

enforceable, or intended to be enforceable, by legal

proceedings; or

(b) any scheme, plan, proposal, action, course of action or course

of conduct, whether there are 2 or more parties or only one

party involved.

33 Co-regulatory product stewardship--replacing administrator

Minister's consent required for appointment of new administrator

(1) A person cannot be appointed to replace an administrator of an

approved co-regulatory arrangement unless the Minister, on

application by the person, consents to the appointment.

Note 1:

See sections 102 and 103 for additional matters relating to

applications.

Note 2:

The Minister may cancel the arrangement's approval if this subsection

is not complied with (see section 28).

Determining whether to consent

(2) The Minister must refuse to consent to the appointment if the

Minister is satisfied that:

Co-regulatory product stewardship Part 3

Other matters relating to co-regulatory product stewardship Division 6

Section 34

Product Stewardship Bill 2011 No. , 2011 39

(a) the Minister would not have approved the arrangement if the

person had been the administrator at the time the application

for approval of the co-regulatory arrangement was made; or

(b) there is a ground for refusing to consent to the appointment

specified in regulations made for the purposes of this

paragraph.

Note:

For approval requirements relating to administrators, see:

(a) paragraph 20(2)(f) (administrator to be a body corporate); and

(b) paragraph 26(2)(d) (administrator to be a fit and proper person).

(3) The Minister may refuse to consent to the appointment if:

(a) the person has not given the Minister further documentation

or information before the day specified in a notice given

under section 103 in relation to the application under

subsection (1) of this section; or

(b) the documentation or other information provided in the

application under subsection (1) of this section, or as

requested by a notice under section 103, is false or

misleading.

(4) Otherwise, the Minister must consent to the appointment.

Notice of decision

(5) The Minister must give the person written notice of the Minister's

decision on an application under subsection (1).

34 Co-regulatory product stewardship--constitutional connection

(1) Either or both of the following must apply in relation to regulations

made under this Part in relation to a class of products, or

co-regulatory arrangements that relate to a class of products:

(a) each liable party in relation to the class of products is a

constitutional corporation;

(b) the regulations are appropriate and adapted to give effect to

Australia's obligations under an agreement with one or more

other countries.

Part 3 Co-regulatory product stewardship

Division 6 Other matters relating to co-regulatory product stewardship

Section 35

40 Product Stewardship Bill 2011 No. , 2011

(2) Regulations made under this Part in relation to a class of products,

or co-regulatory arrangements that relate to a class of products,

must:

(a) specify whether they are made in accordance with

paragraph (1)(a) or (b); and

(b) if they are made in accordance with paragraph (1)(b)--

identify the agreement referred to in that paragraph.

35 Co-regulatory product stewardship--reading down provision for

administrators

In addition to its effect apart from this section, this Act also has the

effect it would have if the administrator of a co-regulatory

arrangement were, by express provision, required to be a

constitutional corporation.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

Mandatory product stewardship Part 4

Guide to this Part Division 1

Section 36

Product Stewardship Bill 2011 No. , 2011 41

Part 4--Mandatory product stewardship

Division 1--Guide to this Part

36 Guide to this Part

This Part is about mandatory product stewardship.

This involves enabling regulations to be made that would require

some persons to take, or not to take, specified action in relation to

products (see section 37).

These requirements might include restricting the manufacture or

import of products, prohibiting products from containing particular

substances, labelling and packaging requirements and other

requirements relating to reusing, recycling, recovering, treating or

disposing of products.

Before regulations are made in relation to a class of products, the

Minister must be satisfied that:

(a)

making the regulations will further the objects of

this Act; and

(b)

the product stewardship criteria are satisfied.

Part 4 Mandatory product stewardship

Division 2 Mandatory product stewardship

Section 37

42 Product Stewardship Bill 2011 No. , 2011

Division 2--Mandatory product stewardship

37 Mandatory product stewardship requirements may be specified

in regulations

Basic rule--requiring person to take, or not take, specified action

(1) The regulations may require one or more specified persons, or

classes of person, to take, or not to take, specified action in relation

to a product, or products, in a specified class.

(2) The action must relate to one or more of the following:

(a) avoiding generating waste from products;

(b) reducing or eliminating the amount of waste from products to

be disposed of;

in waste from products;

(d) managing waste from products as a resource;

(e) ensuring that products and waste from products are reused,

recycled, recovered, treated and disposed of in a safe,

scientific and environmentally sound way.

Note:

For limitations on the power to make regulations under this Part, see

sections 39 (satisfying product stewardship criteria and furthering

objects) and 40 (constitutional connection).

Specific action covered by subsection (1)

(3) Without limiting subsection (1), regulations made for the purposes

of that subsection in relation to a class of products may do any or

all of the following:

(a) prohibit (either absolutely or subject to conditions), limit,

restrict or otherwise affect the manufacture, import, export,

distribution or use of a product in that class;

(b) prohibit (either absolutely or subject to conditions), limit or

restrict substances from being contained in a product in that

class;

accordance with the regulations;

Mandatory product stewardship Part 4

Mandatory product stewardship Division 2

Section 37

Product Stewardship Bill 2011 No. , 2011 43

(d) specify requirements in relation to packaging a product in

that class;

(e) specify requirements in relation to communicating

information, in accordance with the regulations, in

connection with distributing, reusing, recycling, recovering,

treating or disposing of a product in that class;

(f) require a person to make a product return payment in relation

to a product in that class (see subsection (5));

(g) specify other requirements in relation to reusing, recycling,

recovering, treating or disposing of a product in that class;

(h) require a person to keep records relating to a product in that

class in accordance with the regulations;

(i) require a person to give the Minister specified information

relating to a product in that class in accordance with the

regulations;

(j) provide for the Minister to exempt a specified person from a

requirement specified in regulations made for the purposes of

that subsection.

(4) The paragraphs of subsection (3) do not limit each other.

Meaning of product return payment

(5)

product return payment is a payment, of an amount specified in

the regulations in relation to a class of products, that a person is

required to make to another person if the other person returns a

product in that class for reuse, recycling, recovery, treatment or

disposal.

Note:

The Minister must be satisfied of certain matters before regulations

are made requiring a person to pay a product return payment in

relation to a product: see paragraph 39(c).

Product return payment not taxation

(6) Regulations made for the purposes of subsection (1) that require a

person to make a product return payment must not amount to

taxation.

Part 4 Mandatory product stewardship

Division 2 Mandatory product stewardship

Section 38

44 Product Stewardship Bill 2011 No. , 2011

38 Contravening mandatory product stewardship requirements

Offences and civil penalties in regulations

(1) The regulations may make provision in relation to:

(a) penalties not exceeding a fine of 50 penalty units for offences

against regulations made under subsection 37(1) (mandatory

product stewardship requirements); and

(b) pecuniary penalties not exceeding:

(i) in the case of a body corporate--1,000 penalty units; or

(ii) in any other case--200 penalty units;

for contravening civil penalty provisions in regulations made

under subsection 37(1).

Infringement notices in regulations

(2) The regulations may provide for a person who is alleged to have:

(a) committed an offence against regulations made under

subsection 37(1) (mandatory product stewardship

requirements) that is stated to be an offence of strict liability;

(b) contravened a civil penalty provision in those regulations;

to pay a penalty to the Commonwealth as an alternative to civil

proceedings or prosecution (as the case requires).

(3) The penalty must not exceed:

(a) for an offence--one-fifth of the maximum penalty for

committing the offence; or

(b) for a civil penalty provision--one-tenth of the maximum

pecuniary penalty for contravening the civil penalty

provision.

39 Mandatory product stewardship--satisfying product stewardship

criteria and furthering objects etc.

Before the Governor-General makes regulations for the purposes of

section 37 in relation to a class of products, the Minister must be

satisfied that:

Mandatory product stewardship Part 4

Mandatory product stewardship Division 2

Section 40

Product Stewardship Bill 2011 No. , 2011 45

(a) making the regulations in relation to the class of products

will further the objects of this Act (see section 4); and

(b) the product stewardship criteria are satisfied in relation to the

class of products (see section 5); and

return payment in relation to a product in that class:

(i) making the regulations will encourage reusing,

recycling, recovering, treating or disposing of products

in that class, or waste from such products, in a safe,

scientific and environmentally sound way; and

(ii) the persons required to make product return payments in

relation to products in that class are likely to be

appropriately compensated.

Example: For subparagraph (c)(ii), the persons would be appropriately

compensated if they:

(a) are able to pass the costs of the payments on to consumers; or

(b) will be reimbursed for the payments by other participants in the

supply chain for the product.

40 Mandatory product stewardship--constitutional connection

(1) One or more of the following must apply in relation to regulations

made under this Part in relation to a class of products:

(a) the regulations are expressed only to apply in relation to

action taken, or not taken, by a constitutional corporation;

(b) the regulations are expressed only to apply in relation to the

taking of action in the course of constitutional trade or

commerce;

Australia's obligations under an agreement with one or more

other countries.

(2) Regulations made under this Part in relation to a class of products

must:

(a) specify whether they are made in accordance with

paragraph (1)(a), (b) or (c); and

(b) if they are made in accordance with paragraph (1)(c)--

identify the agreement referred to in that paragraph.

Part 5 Enforcing this Act

Division 1 Guide to this Part

Section 41

46 Product Stewardship Bill 2011 No. , 2011

Part 5--Enforcing this Act

Division 1--Guide to this Part

41 Guide to this Part

This Part deals with enforcing this Act, including regulations and

legislative instruments made under it.

Division 2 allows courts to order persons to pay pecuniary

penalties for contravening provisions of this Act called civil

penalty provisions.

Division 3 allows contraventions of this Act and adverse decisions

(such as cancelling an arrangement's accreditation or approval) to

be publicised.

Division 4 deals with enforceable undertakings. If a person makes

an undertaking relating to complying with this Act, the undertaking

may be enforced by a court order.

Division 5 allows injunctions to be sought for contraventions, or

potential contraventions, of this Act.

Enforcing this Act Part 5

Civil penalty provisions Division 2

Section 42

Product Stewardship Bill 2011 No. , 2011 47

Division 2--Civil penalty provisions

Subdivision A--Obtaining a civil penalty order

42 Civil penalty orders

Application for order

(1) Within 6 years of a person contravening a civil penalty provision in

this Act, the Minister may apply to a relevant court for an order

that the person pay the Commonwealth a pecuniary penalty.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

(2) If the court is satisfied that the person has contravened the civil

penalty provision, the court may order the person to pay the

Commonwealth a pecuniary penalty.

(3) An order under subsection (2) is a civil penalty order.

(4) The pecuniary penalty payable under subsection (2) must not be

more than the amount worked out under section 43.

Relevant matters in determining pecuniary penalty

(5) In determining the pecuniary penalty, the court may have regard to

all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a

result of the contravention; and

(d) whether the person has previously been found by a court in

proceedings under this Act to have engaged in any similar

conduct; and

(e) the extent to which the person has cooperated with the

authorities; and

(f) if the person is a body corporate:

(i) the level of the employees, officers or agents of the

body corporate involved in the contravention; and

Part 5 Enforcing this Act

Division 2 Civil penalty provisions

Section 43

48 Product Stewardship Bill 2011 No. , 2011

(ii) whether the body corporate exercised due diligence to

avoid the contravention; and

(iii) whether the body corporate had a corporate culture

conducive to compliance.

43 Maximum amount of pecuniary penalty

General rule

(1) The pecuniary penalty payable by a person under a civil penalty

order must not be more than the following amount (unless

subsection (2), (3) or (4) applies):

(a) if the person is a body corporate--5 times the pecuniary

penalty specified for the civil penalty provision;

(b) otherwise--the pecuniary penalty specified for the civil

penalty provision.

Special rule--continuing contraventions

(2) The maximum amount payable under subsection (1) is increased in

accordance with subsection 59(3) (continuing contraventions), if

that subsection applies.

Special rule--not being member of approved co-regulatory

arrangement

(3) The pecuniary penalty payable by a person under a civil penalty

order for a contravention of subsection 18(1) (liable party to be

member of approved co-regulatory arrangement) must not be more

than the greater of the following amounts:

(a) the maximum amount that would, apart from this subsection,

have been payable by the person in accordance with

subsections (1) and (2) of this section;

(b) an amount equal to the total value of any benefits obtained by

the person that are reasonably attributable to the

contravention, if the court can determine that amount.

Enforcing this Act Part 5

Civil penalty provisions Division 2

Section 44

Product Stewardship Bill 2011 No. , 2011 49

Special rule--civil liability of executive officer of body corporate

(4) The pecuniary penalty payable by a person under a civil penalty

order for a contravention of subsection 51(1) (civil liability of

executive officer of body corporate) must not be more than the

amount worked out under subsection 51(3).

44 Involvement in contravening civil penalty provision

(1) A person must not:

(a) attempt to contravene a civil penalty provision; or

(b) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

a civil penalty provision; or

(d) be in any way directly or indirectly knowingly concerned in,

or party to, a contravention of a civil penalty provision; or

(e) conspire with others to contravene a civil penalty provision.

Civil penalty

(2) A person who contravenes subsection (1) in relation to a civil

penalty provision is taken to have contravened the civil penalty

provision.

45 Civil enforcement of penalty

(1) A pecuniary penalty payable by a person under a civil penalty

order is a debt payable to the Commonwealth.

(2) The Commonwealth may enforce the civil penalty order as if it

were an order made in civil proceedings against the person to

recover a debt due by the person. The debt arising from the order is

taken to be a judgment debt.

46 Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty

provisions, proceedings may be instituted under this Division

Part 5 Enforcing this Act

Division 2 Civil penalty provisions

Section 47

50 Product Stewardship Bill 2011 No. , 2011

against a person in relation to the contravention of any one or more

of those provisions.

(2) However, the person is not liable to more than one pecuniary

penalty under this Division in relation to the same conduct.

47 Multiple contraventions

(1) A relevant court may make a single civil penalty order against a

person for multiple contraventions of a civil penalty provision if

proceedings for the contraventions are founded on the same facts,

or if the contraventions form, or are part of, a series of

contraventions of the same or a similar character.

Note:

For continuing contraventions of civil penalty provisions, see

section 59.

(2) However, the penalty must not exceed the sum of the maximum

penalties that could be ordered if a separate penalty were ordered

for each of the contraventions.

48 Proceedings may be heard together

A relevant court may direct that 2 or more proceedings for civil

penalty orders are to be heard together.

49 Civil evidence and procedure rules for civil penalty orders

A relevant court must apply the rules of evidence and procedure

for civil matters when hearing proceedings for a civil penalty

order.

50 Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

Enforcing this Act Part 5

Civil penalty provisions Division 2

Section 51

Product Stewardship Bill 2011 No. , 2011 51

Subdivision B--Civil liability of executive officers of bodies

corporate

51 Civil liability of executive officer of body corporate

Civil penalty provision for executive officer--contravention of civil

penalty provision by body corporate

(1) An executive officer of a body corporate contravenes this

subsection if:

(a) the body corporate contravenes:

(i) subsection 18(1) (liable party to be member of approved

co-regulatory arrangement); or

(ii) a civil penalty provision in regulations made under

subsection 37(1) (mandatory product stewardship

requirements); and

(b) the officer knew that, or was reckless or negligent as to

whether, the contravention would occur; and

body corporate in relation to the contravention; and

(d) the officer failed to take all reasonable steps to prevent the

contravention.

(2) Subsection (1) is a civil penalty provision.

Amount of pecuniary penalty

(3) The maximum pecuniary penalty payable for a contravention of

subsection (1) is the maximum pecuniary penalty payable by an

individual for contravening the civil penalty provision contravened

by the body corporate.

Meaning of executive officer

(4)

executive officer of a body corporate is a person (by whatever

name called and whether or not a director of the body) who is

concerned in, or takes part in, the management of the body.

Part 5 Enforcing this Act

Division 2 Civil penalty provisions

Section 52

52 Product Stewardship Bill 2011 No. , 2011

Meaning of reckless

(5) For the purposes of subsection (1), the officer is reckless as to

whether the contravention would occur if:

(a) the officer is aware of a substantial risk that the contravention

would occur; and

(b) having regard to the circumstances known to the officer, it is

unjustifiable to take the risk.

Meaning of negligent

(6) For the purposes of subsection (1), the officer is negligent as to

whether the contravention would occur if the officer's conduct

involves:

(a) such a great falling short of the standard of care that a

reasonable person would exercise in the circumstances; and

(b) such a high risk that the contravention would occur;

that the conduct merits the imposition of a pecuniary penalty.

52 Reasonable steps to prevent contravention

(1) For the purposes of section 51, in determining whether an

executive officer of a body corporate failed to take all reasonable

steps to prevent a contravention of a civil penalty provision, a court

may have regard to all relevant matters, including:

(a) what action (if any) the officer took directed towards

ensuring the following (to the extent that the action is

relevant to the contravention):

(i) that the body corporate arranges regular professional

assessments of the body corporate's compliance with

civil penalty provisions;

(ii) that the body corporate implements any appropriate

recommendations arising from such an assessment;

(iii) that the body corporate's employees, agents and

contractors have a reasonable knowledge and

understanding of the requirements to comply with civil

penalty provisions (in so far as those requirements affect

the employees, agents or contractors concerned); and

Enforcing this Act Part 5

Civil penalty provisions Division 2

Section 53

Product Stewardship Bill 2011 No. , 2011 53

(b) what action (if any) the officer took when he or she became

aware of the contravention.

(2) This section does not limit section 51.

Subdivision C--Civil proceedings and criminal proceedings

53 Civil proceedings after criminal proceedings

A relevant court must not make a civil penalty order against a

person for a contravention of a civil penalty provision if the person

has been convicted of an offence constituted by conduct that is the

same, or substantially the same, as the conduct constituting the

contravention.

54 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision are stayed if:

(a) criminal proceedings are commenced or have already been

commenced against the person for an offence; and

(b) the offence is constituted by conduct that is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) The proceedings for the order may be resumed if the person is not

convicted of the offence. Otherwise, the proceedings for the order

are dismissed.

55 Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for

conduct that is the same, or substantially the same, as conduct

constituting a contravention of a civil penalty provision regardless

of whether a civil penalty order has been made against the person

in relation to the contravention.

Part 5 Enforcing this Act

Division 2 Civil penalty provisions

Section 56

54 Product Stewardship Bill 2011 No. , 2011

56 Evidence given in civil proceedings not admissible in criminal

proceedings

(1) Evidence of information given, or evidence of production of

documents, by an individual is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for a civil penalty order against the

individual for a contravention of a civil penalty provision

(whether or not the order was made); and

(b) the conduct alleged to constitute the offence is the same, or

substantially the same, as the conduct that was claimed to

constitute the contravention.

(2) However, subsection (1) does not apply to a criminal proceeding in

respect of the falsity of the evidence given by the individual in the

proceedings for the civil penalty order.

Subdivision D--Miscellaneous

57 Mistake of fact

(1) A person is not liable to have a civil penalty order made against the

person for a contravention of a civil penalty provision if:

(a) at or before the time of the conduct constituting the

contravention, the person:

(i) considered whether or not facts existed; and

(ii) was under a mistaken but reasonable belief about those

facts; and

(b) had those facts existed, the conduct would not have

constituted a contravention of the civil penalty provision.

(2) For the purposes of subsection (1), a person may be regarded as

having considered whether or not facts existed if:

(a) the person had considered, on a previous occasion, whether

those facts existed in the circumstances surrounding that

occasion; and

(b) the person honestly and reasonably believed that the

circumstances surrounding the present occasion were the

Enforcing this Act Part 5

Civil penalty provisions Division 2

Section 58

Product Stewardship Bill 2011 No. , 2011 55

same, or substantially the same, as those surrounding the

previous occasion.

(3) A person who wishes to rely on subsection (1) or (2) in

proceedings for a civil penalty order bears an evidential burden in

relation to that matter.

58 State of mind

(1) In the proceedings for a civil penalty order for a contravention of a

civil penalty provision in this Act, it is not necessary to prove:

(a) the person's intention; or

(b) the person's knowledge; or

(d) the person's negligence; or

(e) any other state of mind of the person.

(2) Subsection (1) does not affect the operation of:

(a) section 51 (civil liability of executive officer of body

corporate); or

(b) section 57 (mistake of fact).

59 Continuing contraventions

(1) This section applies if an act or thing is required, under a civil

penalty provision, to be done within a particular period, or before a

particular time.

Obligation to do act or thing continues

(2) The obligation to do that act or thing continues (even if the period

has expired or the time has passed) until the act or thing is done.

Maximum amount of pecuniary penalty increased

(3) The maximum amount of the pecuniary penalty payable under

subsection 43(1) by a person for contravening the civil penalty

provision is increased, by an amount equal to 10% of the pecuniary

penalty specified for the provision, for each day on which the

Enforcing this Act Part 5

Publicising offences, contraventions and decisions Division 3

Section 60

Product Stewardship Bill 2011 No. , 2011 57

Division 3--Publicising offences, contraventions and

decisions

60 Minister may publicise certain offences, contraventions and

decisions

(1) The Minister may publicise, in any way he or she thinks

appropriate, any or all of the following:

(a) an offence against this Act of which a person has been

convicted, and the person's name;

(b) a contravention of a civil penalty provision in relation to

which a civil penalty order has been made against a person,

and the person's name;

person, the terms of the undertaking, and the person's name;

(d) a breach of an undertaking given under section 61 in relation

to which an order has been made against a person under

subsection 62(2), the terms of the order and the person's

name;

(e) the granting or varying of an injunction under section 63

restraining a person from engaging in conduct, or requiring a

person to do an act or thing, the nature of the conduct, act or

thing, and the person's name;

(f) a decision to:

(i) give the administrator of an approved co-regulatory

arrangement an improvement notice under section 29;

(ii) give a notice under section 30 requiring the

administrator of an approved co-regulatory arrangement

to conduct an audit of the arrangement; or

(iii) cancel the accreditation of a voluntary arrangement or

the approval of a co-regulatory arrangement;

(g) the reasons for a decision referred to in paragraph (f);

(h) the name of the administrator of an arrangement referred to

in paragraph (f).

Note 1:

This subsection constitutes an authorisation for the purposes of other

laws, such as paragraph (1)(d) of Information Privacy Principle 11 in

section 14 of the Privacy Act 1988.

Enforcing this Act Part 5

Enforceable undertakings Division 4

Section 61

Product Stewardship Bill 2011 No. , 2011 59

Division 4--Enforceable undertakings

61 Acceptance of undertakings

(1) The Minister may accept any of the following written

undertakings:

(a) a written undertaking given by a person that the person will

take specified action in order to comply with a civil penalty

provision, or an offence provision, in this Act;

(b) a written undertaking given by a person that the person will

refrain from taking specified action in order to comply with a

civil penalty provision, or an offence provision, in this Act;

take specified action directed towards ensuring that the

person does not, or is unlikely to, contravene a civil penalty

provision, or an offence provision, in this Act, in the future.

Note 1:

The expression this Act has an extended meaning (see the Dictionary

in section 6).

Note 2:

The terms of the undertaking may be publicised under section 60.

Withdrawing and varying undertakings

(2) The person may withdraw or vary the undertaking at any time, but

only with the written consent of the Minister.

62 Enforcement of undertakings

(1) The Minister may apply to a relevant court for an order under

subsection (2) if the Minister considers that a person who gave an

undertaking under section 61 has breached any of its terms.

(2) The court may make one or more of the following orders if the

court is satisfied that the person has breached a term of the

undertaking:

(a) an order directing the person to comply with that term of the

undertaking within a specified period of time;

(b) an order directing the person to pay to the Commonwealth,

within a specified period of time, an amount up to the amount

Enforcing this Act Part 5

Injunctions Division 5

Section 63

Product Stewardship Bill 2011 No. , 2011 61

Division 5--Injunctions

63 Injunctions

Restraining injunctions

(1) If a person has engaged, is engaging or is proposing to engage, in

conduct in contravention of a civil penalty provision, or an offence

provision, in this Act, a relevant court may, on application by the

Minister, grant an injunction:

(a) restraining the person from engaging in the conduct; and

(b) if, in the court's opinion, it is desirable to do so--requiring

the person to do a thing.

Note 1:

The court may grant an injunction even if the person does not intend

to engage again, and has never previously engaged, in such conduct

(see section 66).

Note 2:

The expression this Act has an extended meaning (see the Dictionary

in section 6).

Performance injunctions

(2)

If:

(a) a person has refused or failed, or is refusing or failing, or is

proposing to refuse or fail, to do a thing; and

(b) the refusal or failure was, is or would be a contravention of a

civil penalty provision, or an offence provision, in this Act;

a relevant court may, on application by the Minister, grant an

injunction requiring the person to do that thing.

Note:

The court may grant an injunction even if the person does not intend

to refuse or fail again, and has never previously refused or failed, to do

that thing (see section 66).

64 Granting interim injunctions

(1) Before deciding an application for an injunction under section 63,

the relevant court may grant an interim injunction if it thinks it

desirable.

Part 5 Enforcing this Act

Division 5 Injunctions

Section 65

62 Product Stewardship Bill 2011 No. , 2011

No undertaking as to damages

(2) The court is not to require the Minister or anyone else to give an

undertaking as to damages as a condition of granting an interim

injunction.

65 Discharging or varying injunctions

A relevant court may discharge or vary an injunction it has granted

under this Division.

66 Certain limits on granting injunctions not to apply

Restraining injunction

(1) The power, under this Division, to grant or vary an injunction

restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to a relevant court that the person

intends to engage again, or to continue to engage, in such

conduct; and

(b) whether or not the person has previously engaged in such

conduct; and

damage to any person if the person engages in conduct of that

kind.

Performance injunction

(2) The power, under this Division, to grant or vary an injunction

requiring a person to do an act or thing may be exercised:

(a) whether or not it appears to a relevant court that the person

intends to refuse or fail again, or to continue to refuse or fail,

to do that act or thing; and

(b) whether or not the person has previously refused or failed to

do that act or thing; and

damage to any person if the person refuses or fails to do that

act or thing.

Compliance powers Part 6

Guide to this Part Division 1

Section 67

Product Stewardship Bill 2011 No. , 2011 63

Part 6--Compliance powers

Division 1--Guide to this Part

67 Guide to this Part

This Part is about ensuring compliance with this Act, including

regulations and instruments made under it.

Division 2 is about the powers of inspectors. These powers may be

used for the purposes of determining whether a person is

complying with this Act or for the purposes of investigating a

possible contravention of this Act.

Division 3 is about gathering information for the purposes of

investigating or preventing a contravention of a civil penalty

provision or an offence provision in this Act.

Part 6 Compliance powers

Division 2 Powers of inspectors

Section 68

64 Product Stewardship Bill 2011 No. , 2011

Division 2--Powers of inspectors

Subdivision A--Appointment of inspectors

68 Minister may appoint inspectors

(1) The Minister may, by writing, appoint an officer or employee of an

agency of the Commonwealth, a State or a Territory as an

inspector.

Prerequisites to appointment

(2) The Minister may appoint a person as an inspector only if the

Minister is satisfied that the person has suitable qualifications and

experience to exercise the powers and perform the functions of an

inspector.

(3) The Minister must not appoint an officer or employee of an agency

as an inspector without the agreement of:

(a) if the agency is an agency of the Commonwealth--the

agency; and

(b) if the agency is an agency of a State or Territory--the State

or Territory.

Inspector to comply with directions

(4) An inspector must comply with any direction of the Minister while

exercising powers or performing functions as an inspector.

Note:

Part 7.8 of the Criminal Code provides offences in relation to causing

harm to, and impersonation and obstruction of, Commonwealth public

officials.

(5) The Minister may revoke the appointment of a person as an

inspector if the person does not comply with a direction given to

the person under subsection (4).

(6) If a direction is given under subsection (4) in writing, the direction

is not a legislative instrument.

Compliance powers Part 6

Powers of inspectors Division 2

Section 69

Product Stewardship Bill 2011 No. , 2011 65

69 Identity cards

(1) The Minister must issue an identity card to an inspector appointed

under section 68.

(2) The identity card must:

(a) be in the form approved by the Minister; and

(b) contain a recent photograph of the inspector.

(3) An inspector must carry his or her identity card at all times when

exercising powers or performing functions as an inspector.

(4) An inspector is not entitled to exercise any powers under this

Division in relation to premises if:

(a) the occupier of the premises has required the inspector to

produce his or her identity card for inspection by the

occupier; and

(b) the inspector fails to comply with the requirement.

70 Offence for failing to return identity card

(1) A person commits an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be an inspector; and

soon as practicable.

Penalty: 1 penalty unit.

(2) Subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Defence--card lost or destroyed

(3) Subsection (1) does not apply if the identity card was lost or

destroyed.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

Part 6 Compliance powers

Division 2 Powers of inspectors

Section 71

66 Product Stewardship Bill 2011 No. , 2011

Subdivision B--Powers of inspectors

71 Purposes for which powers can be used

An inspector may exercise the powers set out in this Subdivision

for the following purposes:

(a) determining whether a person is complying with this Act;

(b)

investigating:

(i) a possible contravention of a civil penalty provision in

this Act; or

(ii) a possible offence against this Act, or against the

Crimes Act 1914 or the Criminal Code that relates to

this Act.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

72 Inspection powers--with consent

(1) An inspector may enter premises and exercise the powers set out in

subsection (3) if the occupier of the premises consents to the entry

and the exercise of those powers.

(2) Before obtaining consent, the inspector must inform the occupier

that he or she may refuse consent, or withdraw consent, at any

time.

(3) For the purposes set out in section 71, an inspector who enters

premises in accordance with subsection (1) may do one or more of

the following:

(a) search the premises and any thing (including a vehicle) on

the premises;

(b) inspect, examine, take measurements of or conduct tests on

any thing on the premises;

sketches of the premises or any thing on the premises;

(d) inspect any book, record or document on the premises;

(e) take extracts from or make copies of any such book, record

or document;

Compliance powers Part 6

Powers of inspectors Division 2

Section 73

Product Stewardship Bill 2011 No. , 2011 67

(f) take onto the premises such equipment and materials as the

inspector requires for the purposes of exercising powers in

relation to the premises;

(g) operate equipment on the premises for the purposes of

gaining access to a document or record.

Note:

Compensation might be payable under section 105 for equipment or

data that is damaged or destroyed as a result of operating the

equipment.

73 Refusing consent is not an offence

The occupier of premises does not commit an offence if:

(a) the occupier refuses to allow an inspector to enter, or remain

on, the premises; and

(b) the inspector does not have a warrant to enter the premises.

74 Inspection powers--with warrant

(1) An inspector may enter premises and exercise the powers set out in

subsection (2) if the inspector has a warrant for the entry.

Note:

Subdivision D deals with applications for warrants.

(2) For the purposes set out in section 71, an inspector who enters

premises under warrant may do one or more of the following:

(a) exercise one or more of the powers set out in subsection

72(3) (subject to subsection (3) of this section);

(b) require any person on the premises to:

(i) answer any questions put by the inspector; and

(ii) produce any book, record or document requested by the

inspector;

(3) An inspector may examine or test material under subsection 72(3)

only with the written approval of the Minister if the examination or

test might result in:

(a) damage or destruction of the material; or

(b) a reduction in the material's value.

(4) A person commits an offence if:

Part 6 Compliance powers

Division 2 Powers of inspectors

Section 75

68 Product Stewardship Bill 2011 No. , 2011

(a) the person is required to answer a question or produce a

book, record or document under paragraph (2)(b); and

(b) the person does not answer the question or produce the book,

record or document.

Penalty for contravention of this subsection: 30 penalty units.

75 Announcement before entry under warrant

(1) Before entering premises under a warrant, an inspector must:

(a) announce that he or she is authorised to enter the premises;

and

(b) give any person on the premises an opportunity to allow

entry to the premises.

(2) An inspector is not required to comply with subsection (1) if he or

she believes on reasonable grounds that immediate entry to the

premises is required to ensure that the effective execution of the

warrant is not frustrated.

(3)

If:

(a) the inspector does not comply with subsection (1) because of

subsection (2); and

(b) the occupier of the premises is present at the premises;

the inspector must, as soon as practicable after entering the

premises, show his or her identity card to the occupier.

76 Copy of warrant to be given to occupier

(1) If a warrant in relation to premises is being executed and the

occupier of the premises is present at the premises, the inspector

must:

(a) give a copy of the warrant to the occupier; and

(b) identify himself or herself to the occupier; and

occupier under sections 77 (observing execution of warrant)

and 78 (providing facilities and assistance).

(2) The copy of the warrant does not need to include the signature of

the magistrate who issued the warrant.

Compliance powers Part 6

Powers of inspectors Division 2

Section 77

Product Stewardship Bill 2011 No. , 2011 69

77 Occupier entitled to observe execution of warrant

(1)

If:

(a) a warrant is being executed; and

(b) the occupier of the premises is present at the premises;

the occupier is entitled to observe the execution of the warrant.

(2) The right to observe the execution of the warrant ceases if the

occupier impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or

more areas of the premises at the same time.

78 Occupier to provide inspector with facilities and assistance

(1) The occupier of premises to which a warrant relates must provide:

(a) an inspector executing the warrant; and

(b) any person assisting the inspector;

with all reasonable facilities and assistance for the effective

exercise of their powers.

(2) A person commits an offence if:

(a) the person is subject to subsection (1); and

(b) the person fails to comply with that subsection.

Penalty for contravention of this subsection: 30 penalty units.

Subdivision C--General provisions relating to seizure

79 Copies of seized things to be provided

(1) If a warrant is being executed and an inspector seizes:

(a) a document, film, computer file or other thing that can be

readily copied; or

(b) a storage device, the information in which can be readily

copied;

the inspector must, if requested to do so by the occupier of the

premises, give a copy of the thing or the information to the

occupier as soon as practicable after the seizure.

Part 6 Compliance powers

Division 2 Powers of inspectors

Section 80

70 Product Stewardship Bill 2011 No. , 2011

(2) However, subsection (1) does not apply if possession of the

document, film, computer file, thing or information by the occupier

or other person could constitute an offence against a law of the

Commonwealth.

80 Receipts for things seized

(1) If a thing is seized under this Division, an inspector must provide a

receipt for the thing.

(2) If 2 or more things are seized, they may be covered in the one

receipt.

81 Return of seized things

(1) Subject to any contrary order of a court, if an inspector seizes a

thing under this Division, the Minister must take reasonable steps

to return it if:

(a) the reason for its seizure no longer exists or it is decided that

it is not to be used in evidence; or

(b) the period of 60 days after its seizure ends;

whichever happens first, unless the thing is forfeited or forfeitable

to the Commonwealth or is the subject of a dispute as to

ownership.

(2) If, apart from this subsection, the Minister would be required to

take reasonable steps to return a thing under subsection (1) because

of paragraph (1)(b), the Minister is not required to do so if:

(a) proceedings in respect of which the thing may afford

evidence were instituted before the end of the 60 days and

have not been completed (including an appeal to a court in

relation to those proceedings); or

(b) the thing may continue to be retained because of an order

under section 82; or

authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the thing.

Compliance powers Part 6

Powers of inspectors Division 2

Section 82

Product Stewardship Bill 2011 No. , 2011 71

(3) A thing that is required to be returned under this section must be

returned to the person from whom it was seized (or to the owner if

that person is not entitled to possess it).

82 Magistrate may permit a thing to be retained

(1) The Minister may apply to a magistrate for an order permitting the

retention of the thing for a further period if:

(a) before the end of 60 days after the seizure; or

(b) before the end of a period previously specified in an order of

a magistrate under this section;

proceedings in respect of which the thing may afford evidence

have not commenced.

(2) If the magistrate is satisfied that it is necessary for the thing to

continue to be retained:

(a) for the purposes of an investigation in respect of:

(i) an offence against this Act or an offence against the

Crimes Act 1914 or the Criminal Code that relates to

this Act; or

(ii) a contravention of a civil penalty provision; or

(iii) both an offence mentioned in subparagraph (i) and a

civil penalty provision; or

(b) to enable evidence of an offence mentioned in paragraph (a)

or a civil penalty provision to be secured for the purposes of

a prosecution, civil penalty proceedings or both;

the magistrate may order that the thing may continue to be retained

for a period specified in the order (which must not exceed 3 years).

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

(3) Before making the application, the Minister must:

(a) take reasonable steps to discover who has an interest in the

retention of the thing; and

(b) if it is practicable to do so, notify each person whom the

Minister believes to have such an interest of the proposed

application.

Part 6 Compliance powers

Division 2 Powers of inspectors

Section 83

72 Product Stewardship Bill 2011 No. , 2011

83 Disposal if thing cannot be returned

If:

(a) a thing is seized under this Division; and

(b) apart from this section, the Minister would be required to

take reasonable steps to return the thing to a person; and

(c)

either:

(i) the Minister cannot, despite making reasonable efforts,

locate the person; or

(ii) the person has refused to take possession of the thing;

the Minister may dispose of the thing in such manner as he or she

considers appropriate.

Note:

If the operation of this section would result in an acquisition of

property otherwise than on just terms, see section 106.

Subdivision D--Applying for warrants to enter premises

84 Ordinary warrants

Application for warrant

(1) An inspector may apply to a magistrate for a warrant under this

section in relation to premises.

Issue of warrant

(2) The magistrate may issue the warrant if the magistrate is satisfied,

by information on oath or affirmation, that it is reasonably

necessary that one or more inspectors should have access to the

premises for either or both of the following purposes:

(a) determining whether a person is complying with this Act;

(b)

investigating:

(i) a possible contravention of a civil penalty provision in

this Act; or

(ii) a possible offence against this Act, or against the

Crimes Act 1914 or the Criminal Code that relates to

this Act.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

Compliance powers Part 6

Powers of inspectors Division 2

Section 85

Product Stewardship Bill 2011 No. , 2011 73

(3) However, the magistrate must not issue the warrant unless the

inspector or some other person has given to the magistrate, either

orally or by affidavit, such further information (if any) as the

magistrate requires concerning the grounds on which the issue of

the warrant is being sought.

Content of warrant

(4)

The

warrant

must:

(a) authorise the inspector to enter the premises using any

assistance and force to enter the premises that is necessary

and reasonable; and

(b) state whether the entry is authorised to be made at any time

of the day or night, or during specified hours of the day or

night; and

warrant) on which the warrant ceases to have effect; and

(d) state the purpose for which the warrant is issued.

85 Warrants by telephone, fax etc.

Application for warrant

(1) An inspector may apply to a magistrate by telephone, fax or other

electronic means for a warrant under section 84 if the inspector

considers it necessary to do so in an urgent case.

(2) The magistrate may:

(a) require communication by voice to the extent that it is

practicable in the circumstances; and

(b) make a recording of the whole or any part of any such

communication by voice.

(3) Before applying for the warrant, the inspector must prepare an

information of the kind mentioned in subsection 84(2) that sets out

the grounds on which the warrant is sought.

(4) The inspector may, if it is necessary to do so, apply for the warrant

before the information is sworn or affirmed.

Part 6 Compliance powers

Division 2 Powers of inspectors

Section 85

74 Product Stewardship Bill 2011 No. , 2011

Issue of warrant

(5) The magistrate may complete and sign the same warrant that the

magistrate would issue under section 84 if the magistrate is

satisfied that there are reasonable grounds for issuing the warrant,

after having:

(a) considered the terms of the information; and

(b) received such further information (if any) as the magistrate

requires concerning the grounds on which the issue of the

warrant is being sought.

Obligations of magistrate and inspector once warrant issued

(6) The magistrate must do the following if the magistrate completes

and signs the warrant:

(a) tell the inspector what the terms of the warrant are;

(b) tell the inspector the day on which and the time at which the

warrant was signed;

magistrate completes and signs the warrant) on which the

warrant ceases to have effect;

(d) record on the warrant the reasons for issuing the warrant.

(7) The inspector must do the following if the magistrate completes

and signs the warrant:

(a) complete a form of warrant in the same terms as the warrant

completed and signed by the magistrate;

(b) write on the form the name of the magistrate and the day on

which and the time at which the warrant was signed;

(i) the form of warrant completed by the inspector; and

(ii) the information referred to in subsection (3), which

must have been duly sworn or affirmed.

(8) The inspector must send the magistrate the form of warrant and

information under subsection (7) by the end of the day after the

earlier of:

(a) the day the warrant expires; or

(b) the day the warrant is executed.

Compliance powers Part 6

Powers of inspectors Division 2

Section 86

Product Stewardship Bill 2011 No. , 2011 75

(9) When the magistrate receives those documents, the magistrate

must:

(a) attach them to the warrant that the magistrate completed and

signed; and

(b) deal with them in the way in which the magistrate would

have dealt with the information if the application had been

made under section 84.

What a warrant authorises

(10) A form of warrant duly completed under subsection (7) is authority

for the same powers as are authorised by the warrant signed by the

magistrate.

86 Signed form of warrant not produced in evidence

A court must assume, unless the contrary is proved, that the

exercise of a power was not authorised by a warrant issued under

section 85 if:

(a) it is material, in any proceedings, for the court to be satisfied

that the exercise of that power was authorised by that section;

and

(b) the warrant signed by the magistrate authorising the exercise

of the power is not produced in evidence.

Subdivision E--Powers of magistrates

87 Federal Magistrates--consent to nomination

(1) A Federal Magistrate may, by writing, consent to be nominated by

the Minister under subsection (2).

(2) The Minister may, by writing, nominate a Federal Magistrate in

relation to whom a consent is in force under subsection (1) to be a

magistrate for the purposes of this Act.

Part 6 Compliance powers

Division 2 Powers of inspectors

Section 88

76 Product Stewardship Bill 2011 No. , 2011

88 Powers of magistrates

Powers conferred personally

(1) A power conferred on a magistrate by this Division is conferred on

the magistrate:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Powers need not be accepted

(2) The magistrate (other than a Federal Magistrate) need not accept

the power conferred.

Protection and immunity

(3) A magistrate exercising a power conferred by this Division has the

same protection and immunity as if he or she were exercising the

power:

(a) as the court of which the magistrate is a member; or

(b) as a member of the court of which the magistrate is a

member.

Compliance powers Part 6

Information gathering powers Division 3

Section 89

Product Stewardship Bill 2011 No. , 2011 77

Division 3--Information gathering powers

89 Meaning of person who has product stewardship information

A person is a person who has product stewardship information if

the Minister believes, on reasonable grounds, that the person is

capable of giving information, or producing books, records or

documents, relevant for the purposes of investigating or

preventing:

(a) a possible contravention of a civil penalty provision in this

Act; or

(b) a possible offence against this Act, or against the Crimes Act

1914 or the Criminal Code that relates to this Act.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

90 Minister may require a person to provide information

(1) The Minister may give a written notice to a person who has

product stewardship information requiring the person to give to an

inspector specified in the notice:

(a) any information that is specified in the notice; or

(b) any book, record or document that is specified in the notice.

(2) The notice must also specify:

(a) the day on which the notice is given; and

(b) the person to whom the notice is given; and

document is to be given; and

(d) the period within which, the information, book, record or

document is to be given.

The period must end at least 14 days after the notice is given.

(3) A notice under subsection (1) must set out the effect of

sections 137.1 and 137.2 of the Criminal Code (about giving false

or misleading information and producing false or misleading

documents).

Part 6 Compliance powers

Division 3 Information gathering powers

Section 91

78 Product Stewardship Bill 2011 No. , 2011

Offence for failing to comply with a notice

(4) A person commits an offence if:

(a) the person is required to give information, a book, record or

document to an inspector under subsection (1); and

(b) the person does not give the inspector the information, book,

record or document within the period specified in the notice.

Penalty: 6 months imprisonment.

91 Minister may require a person to appear before an inspector

(1) The Minister may given a written notice to a person who has

product stewardship information requiring the person to appear

before the inspector specified in the notice:

(a) to answer any questions put by the inspector; and

(b) to produce to the inspector any books, records or documents

that are referred to in the notice.

(2) The notice must also specify:

(a) the day on which the notice is given; and

(b) the person to whom the notice is given; and

The time must be at least 14 days after the notice is given.

(3) A notice under subsection (1) must set out the effect of

sections 137.1 and 137.2 of the Criminal Code (about giving false

or misleading information and producing false or misleading

documents).

Offence for failing to appear

(4) A person commits an offence if:

(a) the person is required to appear before an inspector under

subsection (1); and

(b) the person does not appear before the inspector.

Penalty: 6 months imprisonment.

Compliance powers Part 6

Information gathering powers Division 3

Section 91

Product Stewardship Bill 2011 No. , 2011 79

Offence for failing to answer questions or produce a book, record

or document

(5) A person commits an offence if:

(a) the person is required under subsection (1) to appear before

an inspector; and

(b) when appearing before the inspector, the person does not:

(i) answer a question put by the inspector; or

(ii) produce a book, record or document to the inspector as

required by notice given under that subsection.

Penalty: 6 months imprisonment.

Reviewing decisions Part 7

Reviewing decisions Division 2

Section 93

Product Stewardship Bill 2011 No. , 2011 81

Division 2--Reviewing decisions

93 Persons affected by reviewable decisions

Column 1 of the table sets out each person affected by a

reviewable decision. Column 2 of the table sets out the reviewable

decision that a particular person is affected by.

Persons affected by reviewable decisions

Item Person affected

Reviewable decision

The administrator of a voluntary

arrangement

A decision by an accrediting

authority under a determination

under section 13 to refuse to accredit

the voluntary arrangement in

relation to a class of products

The administrator of a voluntary

arrangement

A decision by an accrediting

authority under a determination

under section 13 to impose

conditions on the voluntary

arrangement's accreditation in

relation to a class of products

The following persons:

(a) the administrator of an accredited

voluntary arrangement;

(b) a person licensed, or authorised,

by an accredited voluntary

arrangement to exercise the

Commonwealth's intellectual

property rights in a product

stewardship logo

A decision by an accrediting

authority under a determination

under section 13 to cancel, or refuse

to cancel, the accreditation of the

voluntary arrangement in relation to

a class of products

A person who applies to the Minister

to vary or revoke a notice given

under subsection 18(2)

A decision by the Minister under

subsection 18(6) to vary the notice,

or to refuse to vary or revoke the

notice

The administrator of a co-regulatory

arrangement

A decision by the Minister under

section 26 to refuse to approve the

co-regulatory arrangement in

relation to a class of products

Part 7 Reviewing decisions

Division 2 Reviewing decisions

Section 94

82 Product Stewardship Bill 2011 No. , 2011

Persons affected by reviewable decisions

Item Person affected

Reviewable decision

The administrator of an approved

co-regulatory arrangement

A decision by the Minister under

section 28 to cancel or to refuse to

cancel the approval of the

co-regulatory arrangement in

relation to a class of products

A prospective liable party in relation

to whom the Minister has made a

determination under section 32

A decision by the Minister under

section 32 to make the determination

A person who applies for consent

under section 33 to the person's

appointment as a replacement

administrator of an approved

co-regulatory arrangement

A decision by the Minister under

section 33 to refuse to consent to the

appointment

94 Notification of decisions and review rights

(1) As soon as practicable after making a reviewable decision, the

person who made the decision must cause a written notice to be

given to each person affected by the decision, containing:

(a) the terms of the decision; and

(b) the reasons for the decision; and

rights.

(2) A failure to comply with the requirements of subsection (1) in

relation to a decision does not affect the validity of the decision.

95 Internal review

(1) A person affected by a reviewable decision (other than a decision

made by the Minister personally) may apply in writing to the

Minister for review (the internal review) of the decision.

(2) An application for internal review must be made within:

(a) 30 days after the day on which the decision first came to the

notice of the applicant; or

Reviewing decisions Part 7

Reviewing decisions Division 2

Section 96

Product Stewardship Bill 2011 No. , 2011 83

(b) such further period (if any) as the Minister allows (either

before or after the end of that period).

(3) On receiving an application, the Minister must review the

reviewable decision.

(4) The Minister may:

(a) make a decision affirming, varying or revoking the

reviewable decision; and

(b) if the Minister revokes the decision, make such other

decision as the Minister thinks appropriate.

96 Review of decisions by Administrative Appeals Tribunal

(1) Application may be made to the Administrative Appeals Tribunal

for review of the following decisions:

(a) a reviewable decision made by the Minister personally;

(b) an internal review decision made by the Minister under

subsection 95(4).

(2) An application under subsection (1) may be made only by, or on

behalf, of a person affected by the reviewable decision.

(3) Subsection (2) has effect despite subsection 27(1) of the

Administrative Appeals Tribunal Act 1975.

Part 8 Protecting information

Division 1 Guide to this Part

Section 97

84 Product Stewardship Bill 2011 No. , 2011

Part 8--Protecting information

Division 1--Guide to this Part

97 Guide to this Part

This Part is about protecting information (called protected

information) obtained by or disclosed to persons in connection

with this Act, including regulations and legislative instruments

made under it.

Disclosing protected information is an offence if it might

substantially prejudice the commercial interests of a person, and

the disclosure is not authorised by this Part.

There is also a limitation on the ability of courts and tribunals to

require the disclosure of protected information.

Protecting information Part 8

Protecting information Division 2

Section 98

Product Stewardship Bill 2011 No. , 2011 85

Division 2--Protecting information

98 Offence--Disclosing commercially sensitive information

Offence

(1) A person commits an offence if:

(a) the person discloses protected information to another person;

and

(b) there is a risk that the disclosure might substantially prejudice

the commercial interests of a third person.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exception--authorised disclosure

(2) Subsection (1) does not apply if the disclosure referred to in

paragraph (1)(a) is authorised by section 99 (authorised

disclosures).

Note:

A defendant bears an evidential burden in relation to a matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

Meaning of protected information

(3)

Protected information is information that has been disclosed to, or

obtained by, a person in the course of the person performing a

function or duty, or exercising a power, under or in relation to this

Act.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

99 Authorised disclosures

(1) A person may disclose protected information if:

(a) the disclosure is made for the purposes of:

(i) performing a duty or function, or exercising a power,

under or in relation to this Act; or

(ii) enabling another person to perform duties or functions,

or exercise powers, under or in relation to this Act; or

Part 8 Protecting information

Division 2 Protecting information

Section 99

86 Product Stewardship Bill 2011 No. , 2011

(iii) assisting in the administration or enforcement of another

law of the Commonwealth, a State or a Territory; or

(b) the disclosure is required or authorised by or under:

(i) a law of the Commonwealth (including this Act); or

(ii) a law, of a State or Territory, that is prescribed by the

regulations for the purposes of this subparagraph; or

third person referred to in paragraph 98(1)(b); or

(d) at the time of the disclosure, the protected information is

already publicly available; or

(e)

both:

(i) the disclosure is, or is a kind of disclosure that is,

certified in writing by the Minister to be in the public

interest; and

(ii) the disclosure is made in accordance with any

requirements specified in the regulations; or

(f)

both:

(i) the person believes on reasonable grounds that the

disclosure is necessary to prevent or lessen a serious and

imminent threat to the life or health of a person; and

(ii) the disclosure is for the purposes of preventing or

lessening that threat; or

(g)

both:

(i) the information disclosed is a summary of, or statistics

derived from, protected information; and

(ii) the information is not likely to enable the identification

of a person.

(2) An instrument made under subparagraph (1)(e)(i) certifying that a

particular disclosure is in the public interest is not a legislative

instrument.

(3) An instrument made under subparagraph (1)(e)(i) certifying that a

kind of disclosure is in the public interest is a legislative

instrument.

Protecting information Part 8

Protecting information Division 2

Section 100

Product Stewardship Bill 2011 No. , 2011 87

100 Disclosing commercially sensitive information to courts and

tribunals etc.

(1) This section applies if:

(a) information or a document is disclosed to, or obtained by, a

person (the public official) in the course of the person

performing a function or duty, or exercising a power, under

or in relation to this Act; and

(b) there is a risk that disclosure of the information or document

might substantially prejudice the commercial interests of a

person other than the public official.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

Information not to be disclosed to court or tribunal

(2) The public official must not, except for the purposes of this Act, be

required to disclose the information to, or produce the document in

or to, a court, tribunal, authority or other person having power to

require the production of documents or the answering of questions.

Part 9 Miscellaneous

Division 1 Guide to this Part

Section 101

88 Product Stewardship Bill 2011 No. , 2011

Part 9--Miscellaneous

Division 1--Guide to this Part

101 Guide to this Part

This Part deals miscellaneous matters, including the following:

(a)

making applications under this Act (including

regulations and instruments made under it) and

requesting additional information to determine

them;

(b)

protecting the privilege against self-incrimination;

(c)

compensation for damage to electronic equipment,

or acquisition of property;

(d)

annual reports and publishing material on the

Department's website;

(e)

reviewing the operation of this Act;

(f)

delegations;

(g)

the power to make regulations.

Miscellaneous Part 9

Miscellaneous Division 2

Section 102

Product Stewardship Bill 2011 No. , 2011 89

Division 2--Miscellaneous

102 General requirements for making applications

(1) An application under this Act must be:

(a) made in the manner and form approved in writing by the

Minister; and

(b)

accompanied

by:

(i) any documentation or other information specified in the

approved form; and

(ii) any fee specified in the regulations.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

(2) The approved form may require the documentation or information

accompanying an application, or any statement made in an

application, to be verified by statutory declaration.

(3) To avoid doubt, the Minister may approve different forms, and the

regulations may specify different fees, for different classes of

application (including applications that relate to different classes of

product).

(4) The Minister may waive the whole or a part of a fee that is payable

in relation to an application under this Act.

103 Applications--requesting additional information

(1) For the purposes of determining an application under this Act, the

Minister may give the applicant a written notice requesting the

applicant to give the Minister further specified documentation or

information before the day specified in the notice.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

(2) The Minister may require the documentation or information to be

verified by statutory declaration.

Part 9 Miscellaneous

Division 2 Miscellaneous

Section 104

90 Product Stewardship Bill 2011 No. , 2011

104 Privilege against self-incrimination not affected

Nothing in this Act affects the right of a person to refuse to answer

a question, give information, or produce a document, on the ground

that the answer to the question, the information, or the production

of the document, might tend to incriminate him or her or make him

or her liable to a penalty.

105 Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of electronic equipment being operated under

section 72 (inspection powers with consent) or 74 (inspection

powers with warrant):

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in a relevant

court for such reasonable amount of compensation as the court

determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier's

employees or agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

Miscellaneous Part 9

Miscellaneous Division 2

Section 106

Product Stewardship Bill 2011 No. , 2011 91

(5) In this Act, damage, in relation to data, includes damage by erasure

of data or addition of other data.

106 Compensation for acquisition of property

(1) If the operation of this Act would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in a

relevant court for the recovery from the Commonwealth of such

reasonable amount of compensation as the court determines.

(3) In this Act:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

107 Annual report

(1) The Minister must prepare a report on the operation of this Act

during each financial year.

(2) The Minister must do so as soon as practicable after the end of the

financial year.

(3) The Minister must cause a copy of the report to be tabled in each

House of the Parliament within 15 sitting days of the day on which

the report is completed.

(4) If sections 1 and 2 of this Act do not commence at the beginning of

a financial year, this section has effect in relation to the period

beginning at the commencement of those sections and ending on

the next 30 June as if:

(a) if the period is less than 6 months--the period were included

in the next financial year; or

(b) in any other case--the period were a financial year.

Part 9 Miscellaneous

Division 2 Miscellaneous

Section 108

92 Product Stewardship Bill 2011 No. , 2011

108 Publishing material on Department's website

(1) The Minister must publish on the Department's website, for each

accredited voluntary arrangement and each approved co-regulatory

arrangement:

(a) a summary of the arrangement; and

(b) the name of the arrangement's administrator; and

are specified in the regulations; and

(d) a copy of any report on the operation of the arrangement

given to the Minister:

(i) for an accredited voluntary arrangement--in accordance

with a condition of the arrangement's accreditation (see

paragraph 13(2)(f)); or

(ii) for an approved co-regulatory arrangement--as

mentioned in subsection 24(4) (requirements for

administrator of approved co-regulatory arrangement);

and

(e) for an approved co-regulatory arrangement--a copy of any

audit report in relation to the arrangement given to the

Minister in accordance with a notice under section 30

(directed audits).

(2) However, the Minister must not publish any information under

subsection (1) if the Minister is satisfied that:

(a) there is a risk that publishing the information might

substantially prejudice the commercial interests of a person;

and

(b) publishing the information is not in the public interest.

109 Review of operation of this Act

(1) The Minister must cause a review of the operation of this Act to be

undertaken as soon as possible after:

(a) the fifth anniversary of the commencement of this section;

and

(b) each fifth anniversary after the day mentioned in

paragraph (a).

Miscellaneous Part 9

Miscellaneous Division 2

Section 110

Product Stewardship Bill 2011 No. , 2011 93

(2) The persons who undertake the review must give the Minister a

written report of the review.

(3) The Minister must cause a copy of the report of the review to be

tabled in each House of the Parliament within 15 sitting days of the

day on which the report is given to the Minister.

110 Delegation

(1) The Minister may, by written instrument, delegate to:

(a) the Secretary of the Department; or

(b) an SES employee or acting SES employee;

all or any of the powers or functions conferred on the Minister

under this Act.

Note: The

expression

this Act has an extended meaning (see the Dictionary

in section 6).

(2) In exercising powers or functions under a delegation, the delegate

must comply with any directions of the Minister.

111 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Commonwealth of Australia Bills

PRODUCT STEWARDSHIP BILL 2011