Industrial Chemicals (Notification and

Assessment) Amendment Act (No. 2) 1992

No. 214 of 1992

TABLE OF PROVISIONS

TABLE OF PROVISIONS—continued

Industrial Chemicals (Notification and Assessment) Amendment Act (No. 2) 1992

No. 214 of 1992

An Act to amend the Industrial Chemicals (Notification and Assessment) Act 1989, and for related purposes

[Assented to 24 December 1992]

The Parliament of Australia enacts:

Short title etc.

1.(1) This Act may be cited as the Industrial Chemicals (Notification and Assessment) Amendment Act (No. 2) 1992.

(2) In this Act, “Principal Act” means the Industrial Chemicals (Notification and Assessment) Act 1989¹.

Commencement

2.(1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(3) If a provision referred to in subsection (2) does not commence under that subsection within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

Interpretation

3. Section 5 of the Principal Act is amended:

(a)  by omitting “but does not include an industrial chemical a submission for whose inclusion in the Inventory is being dealt with under section 13” from the definition of “new industrial chemical” and substituting:

“but does not include:

(c)     a reaction intermediate; and

(d)     an incidentally-produced chemical;”;

(b)     by omitting the definition of “Institute”;

(c)     by inserting the following definitions:

“ ‘eligible chemical’ means an industrial chemical that was eligible to be submitted for inclusion in the Inventory at a time during the period that began on 1 December 1977 and ended on 16 July 1990;

‘export’, in relation to an industrial chemical, means do an act that constitutes exportation of the chemical for the purposes of the Customs Act 1901, or would constitute such exportation if that Act extended to the external Territories;

‘holder’, in relation to a low volume permit, means the person or each of the persons to whom the permit was issued;

‘low volume chemical’ means an industrial chemical in respect of which a low volume permit is in force;

‘low volume permit’ means a permit under subsection 21U(2);

‘synthetic polymer of low concern’ means a synthetic polymer that:

(a)     has a number average molecular weight, as defined by the regulations, that is greater than 1,000; and

(b)     has a low charge density as so defined; and

(c)     has a low residual monomer content, as so defined; and

(d)     does not dissociate readily, as so defined; and

(e)     has low water solubility, as so defined; and

(f)   has, in solid form, a particle size, as so defined; and

(g)   under the conditions in which it is used is stable, as so defined; and

(h)  has such other characteristics as are prescribed by the regulations;”.

Inventory

4. Section 11 of the Principal Act is amended by omitting from subsection (1) “that was kept by the Environment Department immediately before the commencement of this section”.

Content of Inventory

5.(1) Section 12 of the Principal Act is amended:

(a)    by omitting subsection (1);

(b)    by omitting paragraphs 3(a), (b) and (c);

(c)     by omitting paragraphs 4(a) and (b).

(2) Despite the amendments made by subsection (1), any chemical that was included in the Inventory immediately before the commencement of this section continues to be included in the Inventory and, subject to section 19, to be so included in the section of the Inventory in which it was included immediately before that commencement.

Inclusion of chemicals the subject of submissions not finalised

6.    Section 13 of the Principal Act is repealed.

7.    Section 20 of the Principal Act is repealed and the following section is substituted:

Amendment of Inventory

“20. The Director may amend the Inventory for the purpose of:

(a)  adding additional information concerning chemicals that were included:

(i)   before the commencement of Part 2; or

(ii)  after that commencement under section 13 of the Industrial Chemicals (Notification and Assessment) Act 1989 as in force at any time before the commencement of the Industrial Chemicals (Notification and Assessment) Amendment Act (No. 2) 1992; or

(b)  correcting an error (other than an error of the kind described in section 52);

and must give notice in the Chemical Gazette of any such amendment.”.

8.  After section 20 of the Principal Act the following Division is inserted in Part 2:

“Division 4—Amnesty in respect of Eligible Chemicals

Object of amnesty

“20A. The object of this Division is to provide an amnesty for persons who:

(a) apart from this Division would be taken to have contravened

or to contravene this Act by the introduction of an eligible chemical; and

(b)  during the amnesty period apply under this Division for the chemical to be included in the Inventory.

Amnesty period

“20B. For the purposes of this Division, the amnesty period is the period of 2 years from the commencement of this Division.

Who may apply

“20C.(1) A manufacturer or importer of a new industrial chemical:

(a)     that is an eligible chemical; and

(b)     for which an assessment certificate had not been applied for before the commencement of this Division;

may, before the end of the amnesty period, apply under this section for the chemical to be included in the Inventory.

“(2) 2 or more persons, each of whom is a manufacturer or importer of a chemical referred to in subsection (1) may make a joint application under that subsection.

“(3) An application under subsection (1) may request that the chemical be included in the confidential section of the Inventory.

How application is to be made

“20D.(1) The application must be in writing in the approved form and must be given to the Director.

“(2) The application is taken not to be duly made unless the applicant has:

(a)     provided in respect of the application a written notification statement about the chemical that sets out the matters referred to in paragraphs 1, 3, 6, 7, 8, 11 and 12 of Part B of the Schedule; and

(b)     paid the prescribed fee.

Determination of application

“20E.(1) If an application is duly made under section 20D, the Director must determine the application as soon as practicable.

“(2) If the Director is satisfied that:

(a)     the chemical is an eligible chemical; and

(b)    having regard to the inherent nature of the chemical and any other matters that he or she considers relevant, the use of the chemical does not constitute an unreasonable risk to health or to the environment;

the Director must grant the application and include the chemical:

(c)     if the application requested the inclusion of the chemical in the confidential section of the Inventory and the Director is satisfied that the publication of some or all of the chemical’s particulars could reasonably be expected to prejudice substantially the commercial interests of the applicant—in that section; or

(d)    otherwise—in the non-confidential section of the Inventory.

“(3) If the Director is not so satisfied, the Director must refuse the application.

Effect of inclusion of chemical in Inventory

“20F. If the Director includes a chemical in the Inventory under section 20E, the chemical is taken for the purposes of this Act to have been included in the Inventory at all times since the commencement of section 11.

Effect of refusal of application

“20G. If an application duly made by a person under section 20D is refused, a prosecution may not be instituted against the person in respect of a contravention of section 21 in respect of the chemical that occurred at any time (including a time before the commencement of this section) that occurred or occurs before the application was determined.”.

Introduction of new industrial chemicals

9.  Section 21 of the Principal Act is amended:

(a)  by omitting paragraph (2)(a) and substituting:

“(a) a low volume permit;”;

(b)  by omitting paragraphs (3)(b) and (c).

10.  After Division 1A of Part 3 the following Division is inserted:

“Division 1B—Low Volume Chemicals Permit System

Object of permit system for low volume chemicals

“21Q. The object of the permit system for low volume chemicals is to:

(a)     provide a simple means of by-passing the assessment certificate system in respect of a new industrial chemical if the total of the quantities of the chemical that are to be introduced by any person or persons in any calendar year will not exceed 100 kilograms; and

(b)    ensure that the means of by-passing the assessment certificate system is subject to adequate safeguards.

Who may apply for permit

“21R.(1) A manufacturer or importer of a new industrial chemical may apply for a low volume permit in respect of the chemical.

“(2) 2 or more persons, each of whom is a manufacturer or importer of a new industrial chemical, may make a joint application under subsection (1).

“(3) If a joint application is made, then, unless the contrary intention appears, a reference in this Division to the applicant is a reference to the joint applicants.

How application is to be made

“21S.(1) The application must be in writing in the approved form and must be given to the Director.

“(2) The application is taken not to be duly made unless the applicant:

(a)  has provided a written statement about the chemical that:

(i)  states the purpose for which the chemical is to be introduced; and

(ii)  contains a summary of the chemical’s health effects and environmental effects; and

(iii)   sets out the matters referred to in paragraphs 1, 3, 6, 7, 8, 11 and 12 of Part B of the Schedule; and

(iv)  states the quantity of the chemical proposed to be introduced by the applicant in:

(A)    the period beginning on the date on which the application is made and ending at the end of the calendar year in which that date occurs; and

(B)     each of the next 3 calendar years; and

(b)  has paid the prescribed fee.

Applicant may withdraw or amend application

“21T. An applicant may, at any time before the application has been determined, by written notice to the Director, withdraw the application or amend the application or any document that accompanied the application.

Determination of application

“21U.(1) The Director must determine the application within 20 days after it is made.

“(2) If the Director is satisfied that:

(a)     section 21S has been complied with in respect of the application; and

(b)    having regard to the inherent nature of the chemical, any

guidelines prescribed for the purposes of this section and any other matters that he or she considers relevant, the intended use of the chemical does not constitute an unreasonable risk to health or to the environment; and

(c) the total of:

(i)   the quantity of the chemical that is proposed to be introduced by the applicant during any calendar year; and

(ii)  the quantity of the chemical that is proposed to be introduced by any other person under a low volume permit during the same calendar year;

does not exceed 100 kilograms;

the Director must grant the application and issue to the applicant a low volume permit in respect of the chemical.

“(3) If the Director is not so satisfied, the Director must refuse the application.

Duration of permit

“21V. A low volume permit comes into force at the beginning of such period of not more than 36 months as is stated in the permit and remains in force until the end of that period.

Permit may be subject to conditions

“21W.(1) A low volume permit is granted subject to a condition that, if the holder of the permit becomes aware of any of the following circumstances, namely, that since the permit was issued:

(a)     the function or use of the chemical has changed, or is likely to change, significantly;

(b)    the amount of the chemical being introduced under the permit in the period referred to in sub-subparagraph 21S(2)(a)(iv)(A) or in a calendar year referred to in sub-subparagraph 21S(2)(a)(iv)(B) has exceeded, or is likely to exceed, the quantity stated in the written statement provided under subsection 21S(2);

(c)     in the case of a chemical not manufactured, or proposed to be manufactured, in Australia when the permit was issued—it has begun to be manufactured in Australia;

(d)    the method of manufacture of the chemical in Australia has changed, or is likely to change, in a way that may result in an increased risk of adverse health effects or adverse environmental effects;

(e)     additional information has become available to the holder as to the adverse health effects or adverse environmental effects of the chemical;

(f) a prescribed event has happened;

the holder will, within 28 days of becoming aware, give written notice to the Director of the circumstances of which the holder has become aware.

“(2) For the purposes of subsection (1), the holder of a permit is taken to have become aware of circumstances if, having regard to:

(a)     the holder’s abilities, experience, qualifications and other attributes; and

(b)     the nature of the circumstances;

the holder ought reasonably to have become aware of the circumstances.

“(3) A low volume permit may be expressed to be granted subject to such other conditions as the Director considers necessary or desirable to ensure that use of the low volume chemical will not constitute an unreasonable risk to health or to the environment.

“(4) The Director may, by written notice given to the holder of a low volume permit:

(a)     impose one or more further conditions to which the permit is to be subject; or

(b)     revoke or vary a condition:

(i) imposed under paragraph (a); or

(ii) stated in the permit.

“(5) A person who is or was the holder, or any of the holders, of a low volume permit must not, without reasonable excuse, contravene a condition to which the permit is subject. Penalty: $30,000.

“(6) The Director may, by written notice given to the holder of a low volume permit, cancel the permit if:

(a)     a condition to which the permit is subject has been contravened; or

(b)     a written statement provided or any information given:

(i) in or in connection with the application for the permit; or

(ii) in accordance with a condition to which the permit was subject;

was false or misleading in a material particular.

Form of permit

“21X. A low volume permit must be in an approved form.

Notice of permit to be published in Chemical Gazette

“21Y. As soon as practicable after a low volume permit is issued, the Director must cause to be published in the Chemical Gazette a notice stating that the permit has been issued and setting out:

(a)     the name of the holder of the permit; and

(b)    the trade name of the low volume chemical; and

(c)     the period of the permit.

Notice of refusal of application

“21Z.(1) If the Director decides to refuse an application, he or she must, as soon as practicable, give to the applicant a written notice of the decision that sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision.

“(2) If the Director does not, within 20 days after receiving an application, issue to the applicant a low volume permit or a notice under subsection (1), the Director is taken to have refused the application.

List of low. volume chemicals

“21ZA.(1) The Director must maintain a list of low volume chemicals.

“(2) At least once a year, the Director must publish the list in the Chemical Gazette.

Exempt information

“21ZB.(1) An application for a low volume permit may include an application that certain information given in accordance with section 21S be treated as exempt information under section 75.

“(2) The giving of information about a chemical in accordance with a condition of a kind mentioned in subsection 21W(1) may be accompanied by an application in the approved form that some or all of the information be treated as exempt information under section 75.”.

Arranged introductions of new chemical may continue

11.  Section 22 of the Principal Act is repealed.

Application for assessment certificate

12.    Section 23 of the Principal Act is amended by omitting from subsection (3) “The application” and substituting “Subject to section 24A, the application”.

13.    After section 24 of the Principal Act the following section is inserted:

Variation of requirement for notification statement in case of synthetic polymers of low concern

“24A. Despite section 23, the only document that needs to accompany an application under that section for an assessment certificate for a synthetic polymer of low concern is a copy of the prescribed form that contains a statement, signed by the applicant or each applicant, that the information provided in the form is correct.”.

Assessment of chemical

14.  Section 31 of the Principal Act is amended by inserting in subsection (2) “, except in the case of a full public report of an assessment of a synthetic polymer of low concern,” after “the full public report and”.

Contents of assessment report

15.  Section 33 of the Principal Act is amended by inserting “a Material Safety Data Sheet,” after “include”.

Full public report

16.  Section 34 of the Principal Act is amended by adding the following subsection:

“(2) In the case of a chemical that is a synthetic polymer of low concern, the Director must cause a copy of the full public report to be published in the Chemical Gazette.”.

Summary report

17.  Section 35 of the Principal Act is amended by inserting in subsection (1) “other than a synthetic polymer of low concern” after “chemical”.

Notice to applicant on completion of report

18.  Section 36 of the Principal Act is amended by inserting “(if any)” after “the summary report”.

Application for variation of assessment report

19.  Section 37 of the Principal Act is amended by inserting in subparagraph (2)(a)(ii) “(if any)” after “the summary report”.

Publication of report

20.  Section 38 of the Principal Act is amended:

(a)     by omitting subparagraphs (5)(a)(ii) and (iii);

(b)     by omitting from subparagraph (5)(a)(iv) “an appropriate authority for each State and Territory” and substituting “such authorities of the Commonwealth, of the States and of the Territories as are prescribed”;

(c)     by inserting in paragraph (5)(c) and subsection (7) “(if any)” after “the summary report”;

(d)    by omitting from subsection (6) “a State or Territory” and substituting “the Commonwealth, a State or a Territory”;

(e)     by omitting from paragraph (6)(a) “the State or Territory” and substituting “the Commonwealth, the State or the Territory”.

Giving of assessment certificates

21.  Section 39 of the Principal Act is amended by omitting paragraphs (1)(a) to (e) and substituting “containing such information as is prescribed by the regulations.”.

Application for variation of full public report

22.  Section 40 of the Principal Act is amended:

(a)    by inserting in subsection (1) “a full report about a synthetic polymer of low concern has been published under subsection 34(2) or” after “Where”;

(b)    by inserting in subsection (8) “(if any)” after “summary report”.

Heading

23.  The heading to Division 5 of Part 3 of the Principal Act is repealed and the following heading is substituted:

“Division 5—Priority Existing Chemicals”.

Application of Division

24.  Section 47 of the Principal Act is amended by omitting “(c)”.

Exempt information

25.  Section 75 of the Principal Act is amended by inserting “21ZB,” after “21P,” in subsection (1).

Application for review

26.  Section 102 of the Principal Act is amended:

(a)    by omitting from paragraph (1)(b) “13(2),”;

(b)    by omitting from paragraph (1)(b) “or 21H(1) or (2) or section 21L or 22, subsection” and substituting “, 20E(3) or 21H(1) or (2), section 21L or subsection 21U(3), 21W(3), (4) or (6),”.

27.  Section 106 of the Principal Act is repealed and the following section is substituted:

International obligations on movements of industrial chemicals into or out of Australia

“106.(1) If an industrial chemical is the subject of a prescribed international agreement, the regulations may prohibit the introduction or export of the chemical, either absolutely or subject to such conditions or restrictions as are prescribed.

“(2) A regulation for the purposes of subsection (1) must not be made unless:

(a)  the Director has published in the Chemical Gazette a notice:

(i)  identifying the agreement; and

(ii)   listing the name or names by which the chemical is known to the public; and

(iii)   requiring all persons who introduce the chemical into, or export the chemical from, Australia to give to the Director information in the approved form about movements of the chemical into or out of Australia; and

(b)  a period of 30 days has elapsed since the notice was published.

“(3) The Minister may inform a country, the appropriate authority of a country or a relevant international organisation regarding movements into or out of Australia of a chemical specified in regulations made for the purposes of subsection (1).

“(4) The Minister may give information under subsection (3) in such terms and on such conditions as the Minister thinks fit, having regard to:

(a)     the requirements of the relevant international agreement; and

(b)     the interest of any person in maintaining confidentiality in relation to movements of the chemical.

“(5) A person who, without reasonable excuse, introduces or exports an industrial chemical in contravention of a regulation made for the purposes of subsection (1) or of a condition or restriction prescribed by such a regulation, is guilty of an offence punishable on conviction by a fine not exceeding $30,000.”.

Fees

28. Section 110 of the Principal Act is amended:

(a)  by inserting after paragraph (1)(c) the following paragraph:

“(caa) an application under section 20C;”;

(b)     by omitting paragraph (1)(d);

(c)     by adding at the end of subsection (1) the following paragraph:

“(v) an application under section 21R.”.

NOTE

1. No. 8, 1990, as amended. For further amendments, see Nos. 62 and 122, 1991; and Nos. 7 and 102, 1992.

[Minister’s second reading speech made in—

Senate on 15 October 1992

House of Representatives on 16 December 1992]