The assistance of Cate Sendall, Solicitor and Alec Bombell, Clerk, of Addisons in the preparation of this article is noted and greatly appreciated
On 23 March 2011, the Federal Government introduced the Product Stewardship Bill (the Bill) which will establish a national framework to manage the environmental, health and safety impacts of products (such as televisions and computers).
The Bill provides the framework by which obligations over time will be imposed on manufacturers, importers, distributors and others relating to the avoidance, reduction and management of waste derived from products, with a particular emphasis on the disposal of products.
The Bill establishes three categories of "stewardship arrangements" to regulate the environmental, safety and health impacts of specific products across their lifecycle. These are:
- voluntary product stewardship (Pt 2);
- co-regulatory product stewardship arrangements (Pt 3); and
- mandatory product stewardship arrangements (Pt 4).
The type of arrangement that will apply to individual manufacturers, importers, distributors or other businesses will be determined by regulations once the Bill is passed. The extent to which an arrangement will apply depends on the type of product and the nature of the industry. Initially, the arrangements will apply to televisions and computer equipment.
However, obligations will only apply to classes of products identified in the regulations under the mandatory and co-regulatory arrangements.
Voluntary product stewardship arrangements are intended to encourage product stewardship without regulation and provide community certainty through an accreditation system. If the Minister for Agriculture, Fisheries and Forestry is satisfied that an arrangement furthers the object of the Act, the Minister may accredit the arrangement. The Minister indicated, in his second reading speech of the Bill, that accreditation logos will be used to help members of the public determine whether accredited arrangements are actually achieving their objectives.
Co-regulatory product stewardship arrangements are more formal, but retain industry control and involve minimal government intervention. The Government will set minimum outcomes and operational requirements, and the industry has flexibility as to how those outcomes and requirements are achieved. A company will not be able to benefit by refusing to participate in a particular industry's co-regulatory arrangement. However, thresholds may be applied to avoid impacts on small businesses.
The mandatory product stewardship arrangements will likely be established by regulations, which will set out prescriptive product stewardship requirements, and impose criminal and/or civil penalties if those requirements are not met. Clause 37 of the Bill provides that a wide range of mandatory requirements may be specified in the regulations, including:
- restrictions or prohibitions on the manufacture, import, export, distribution or use of a product;
- prohibitions or limitations on substances that may be contained in a product;
- specific labelling or packaging requirements for certain products;
- requirements that producers take products back at the end of the product's life for recycling; and
- special communication requirements regarding the distribution, reuse, recycling, recovery, treatment or disposal of a product.
Before mandatory regulations are made in respect of a particular product, an extensive and transparent assessment and consultation process is required.
A taste of things to come
The first product stewardship scheme under the new legislation will relate to televisions and computers. The proposed National Television and Computer Product Stewardship Scheme (NTCPSS) is designed to increase the recycling rate of TVs and computers to 80 % by 2021.
A consultation paper on the NTCPSS, published for public comment in March 2011, outlines key aspects of the proposed regulations, which will place the obligation to comply with the scheme on importers and domestic manufacturers (if any) of televisions, computers and computer peripherals.1 (Computer peripherals include items such as keyboards and mice, as well as internal components such as motherboards, graphics or network cards and DVD drives. 2)
There will be a threshold for compliance. Only those importers and manufacturers who import or manufacture a specific number of units per annum will be liable. Whilst not yet determined, the consultation paper suggests there will be different thresholds for televisions, computers and computer peripherals to reflect market differences for these products. 3 The thresholds set could range between 200 and 5000 units per annum, depending on the product. 4
In addition, the Environment Protection and Heritage Council is currently working with the Government, industry and stakeholders to develop an industry-led product stewardship scheme for end of life tyres.5
The Bill reflects a growing domestic and international concern to share responsibility among manufacturers, importers, governments and consumers in managing the environmental impact of products throughout their full life-cycle. In Australia, product stewardship arrangements have been in place for some years in various industries, such as the lubricating oils industry (Product Stewardship (Oil) Act 2000 (Cth)) and in respect of ozone depleting substances and synthetic greenhouse gases (Ozone and Synthetic Greenhouse Gas Management Act 1989 (Cth)). Also, South Australia has implemented successfully a mandatory deposit-refund scheme on drink containers since 1977, and used packaging stewardship has operated in every jurisdiction since 1998 under a National Environment Protection Measure.
Furthermore, since 2002, the creation of a nationwide Container Deposit Scheme, similar to that already in place in South Australia has been discussed. At present, the Environment Protection and Heritage Council is forming a Regulatory Impact Statement in respect of such a scheme. 6 In addition, the Greens have introduced the Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2010 into the Senate. This legislation would provide for a nationwide container deposit scheme, broader than that currently operating in South Australia. 7
Internationally, the European Union is implementing currently an Integrated Product Policy to minimise environmental impact at all phases of a product's life-cycle. 8 Furthermore, a product stewardship scheme similar to the proposed NTCPSS has operated in various provinces in Canada since 2007. For example, under British Columbia's Recycling Regulations, producers (including manufacturers and sellers) of designated electronics must participate in an approved product stewardship plan.
If enacted, the Bill has the potential to increase dramatically the categories of products and industries required to engage in product stewardship arrangements. However, the Bill establishes a framework for regulation; accordingly only a limited assessment of the impact of the Bill can be made at this time. It is only when regulations are made under the new legislation which specifies the products and industries to which product stewardship obligations will apply that the full impact of the product stewardship regime will be known. We can predict that the product stewardship scheme will increase significantly compliance obligations and costs for many manufacturers, importers and/or distributors.
We will monitor the progress of the legislation, and provide further details of specific industry and product regulations as and when they become available.
1. Department of Sustainability, Environment, Water, Population and Communities, Consultation Paper on Proposed Regulations (Consultation Paper), at 13. Available at: http://www.environment.gov.au/settlements/waste/ewaste/consultation/index.html#consultation. Accessed on 11/05/2011.
2. Consultation Paper at 12.
3. Consultation Paper at 15.
4. Consultation Paper at 16.
5. 'Product Stewardship for End of Life Tyres', Environment Protection and Heritage Council, http://www.ephc.gov.au/taxonomy/term/49, updated 1st April 2011, accessed on 18 May 2011 at 12:41pm.
6. Commonwealth of Australia, Parliamentary Debates, Senate, March 1, 2011, column 865 (Senator Hon. Conroy, Minister for Broadband, Communications and the Digital Economy).
7. Commonwealth of Australia, Parliamentary Debates, Senate, March 3, 2011, column 1064 (Senator Moore)
8. "What is Integrated Product Policy?", European Commission - Environment, http://ec.europa.eu/environment/ipp/integratedpp.htm, last updated 11/05/2011, accessed on 11/05/2011.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.