The scheme provides for a harmonised assessment of industrial
chemicals in Australia based on the chemical's level of concern
to the environment: "high concern", "moderate
hazards" and "low hazard" chemicals. The chemicals
will then be further categorised into 1 of 8 schedules based on
publicly available criteria and given a number of outcome based
risk management measures proportionate to the level of risk. For
example, an outcome based measure may read "do not dispose of
the chemical to sewers in concentrations greater than [x
The Ministers of each State and Territory met and agreed to
progress reforms relating to the creation of a standard-setting
body to make nationally consistent environmental decisions in line
with recommendations in the 2008 Productivity Commission Research
Report on Chemicals and Plastics Regulation. A Decision Regulation
Impact Statement (RIS) was released in June 2015
which posed three options for the implementation of the National
Option 1: a non-statutory approach;
Option 2: a co-operative approach between State and
Option 3: a system fully implemented by the Commonwealth,
including new national legislation and a new regulator.
The Government has not officially settled on an option, however
the RIS recommended option 2 as the least costly option to achieve
the described objectives, and therefore the preferred option.
Under this option a National Standard would be established under
new Commonwealth legislation to assist in national consistency,
with States and Territories automatically adopting and implementing
decisions under their legislation for matters which they are
responsible. The Commonwealth legislation would likely outline the
roles and responsibilities of the decision-maker (proposed to be
the Commonwealth Minister for the Environment) and the composition
of the advisory body involved in making recommendations as part of
the assessment process (ie. industry representatives, experts
In line with the current responsibilities of States and
Territories for environmental risk management, each jurisdiction
would then adopt and enforce scheduling decisions in accordance
with their legislative frameworks.
State and Territory Governments may choose to implement the
National Standard in a number of ways, including the introduction
of new licensing regimes, or amending existing licensing conditions
to take the National Standard into account.
Once the scheme is in force you will be able to assess the
chemicals your business uses against a computerised database. If
your chemical is not listed, you can use the computerised database
to look up the risk management measures of chemicals with a similar
chemical structure, use the NICNAS decision making matrix to
identify the concern category applicable to your chemical, or
submit your chemical to NICNAS for assessment.
In late 2016 the National Standard will be reconsidered by the
Australian Government and State and Territory Environment Ministers
(pending election decisions and
whether the Government is in caretaker mode). The current
proposal is for Commonwealth legislation to be enacted in 2017
followed by State and Territory implementation. The National
Standard is intended to be in full operation in all jurisdictions
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
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The article is a review of recent developments in compliance, enforcement and prosecutions relating to environmental law.
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