A Bill for an Act to provide for product control and payment and refund of deposits in relation to certain drink containers in order to protect the environment, and for related purposes
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act may be cited as the Drink Container Recycling Act 2010.
2 Commencement
This Act commences on the day on which it receives the Royal Assent.
3 Objects
The objects of this Act are to:
(a) promote the development of product stewardship arrangements for used beverage containers to reduce, minimise and, where practicable, eliminate harm to the environment caused by discarded used beverage containers and failure to recycle them; and
(b) ensure the environmentally sustainable management and reuse of used beverage containers; and
(c) support economic recycling options for used beverage containers.
4 Application to external Territories
This Act extends to all the external Territories.
5 States and Territories are bound
This Act binds the Crown in right of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. However, it does not make the Crown liable to be prosecuted for an offence.
6 Relationship with State and Territory law
This Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory, except so far as the contrary intention appears.
7 Interpretation
In this Act:
approved plan means a beverage container stewardship plan approved under section 13.
beverage means:
(a) brandy, gin, rum, whisky, cordials containing spirits, wine, cider, perry, mead, ale, porter, spirit‑based or wine‑based drinks, beer or any other spiritous, malt, vinous or fermented liquors; or
(b) any carbonated soft drink or water; or
(c) any non‑carbonated drink, juice or water; or
(d) any milk, milk substitute, rice milk, soya milk or flavoured milk drink; or
(e) any other liquid, intended for human consumption by drinking, declared by the regulations to be a beverage for the purposes of this Act.
beverage container means a container of any kind made for the purpose of containing a beverage, being a container that when filled with the beverage is sealed by the producer or distributor of the beverage for the purposes of storage, transport and handling prior to its sale or delivery for the use or consumption of its contents, but does not include a refillable container having a capacity of more than 3 litres.
container redemption facility means an operation, facility or retail premises, or a group of operations, facilities or retail premises, identified in an approved plan for the collection and redemption of a producer’s, distributor’s or industry or other group’s used beverage containers.
deposit amount means an amount prescribed in the regulations in accordance with section 18 as the deposit amount for beverage containers, or for particular classes of beverage containers.
distributor means a person or enterprise engaged in the distribution within Australia or an external Territory of a beverage, whether produced within Australia or not, to a retailer of the beverage.
final purchaser means the purchaser making the final retail purchase of a beverage.
industry or other group means an industry group representing some or all producers or distributors, or some or all producers and distributors.
producer means a person or enterprise engaged in the manufacture of a beverage for use or consumption in Australia or an external Territory.
recovery rate, for a producer, distributor or industry or other group, means the number of used beverage containers collected that were generated by that producer, distributor or industry or other group, as the case may be, divided by the total number of beverage containers generated by that producer, distributor or industry or other group, as the case may be, expressed as a percentage.
refill means to reuse without manufacturing.
refund marking, in relation to a beverage container, means marking or labelling the container by any method (including embossment) with a statement of, and other marks or features as to, the deposit amount for the beverage container.
retailer means a person whose business is or includes the final sale of a beverage for the purpose of the use or consumption of that beverage and, in the case of such sale by means of a vending machine, includes the owner of that vending machine unless the owner has hired the machine to some other person, in which case that other person is also included.
stewardship plan means a beverage container stewardship plan developed in accordance with Part 2.
used beverage container means any beverage container the contents of which have been used or consumed and that, as a result of such use or consumption, the user or consumer of the product has no further use for the beverage container.
Part 2—Beverage container stewardship plans
8 Application
(1) This Part applies to any producer or distributor that sells, offers for sale or distributes a beverage in Australia.
(2) This Act does not prevent a group of producers or distributors, or an industry or other group, from developing a stewardship plan for that group or industry group and submitting it in accordance with this Part.
9 Duty of producer or distributor of a beverage, or of industry or other group
A producer or distributor of a beverage or an industry or other group must, within 18 months of the commencement of this Act, have an approved plan under this Part and comply with the approved plan in order to sell, offer for sale or distribute the beverage in Australia.
Civil penalty:
(a) for an individual—5,000 penalty units or such lower amount as is prescribed by the regulations;
(b) for a body corporate—50,000 penalty units or such lower amount as is prescribed by the regulations.
10 Submission of beverage container stewardship plan
(1) A producer or distributor of a beverage or an industry or other group must, within 12 months of the commencement of this Act, submit to the Minister for approval a beverage container stewardship plan, in the manner and format prescribed by the regulations and subject to sections 11 and 12.
Civil penalty:
(a) for an individual—5,000 penalty units or such lower amount as is prescribed by the regulations;
(b) for a body corporate—50,000 penalty units or such lower amount as is prescribed by the regulations.
(2) A stewardship plan submitted under subsection (1) must be accompanied by a written statement about public consultations under section 12, and how the producer, distributor or industry or other group, as the case may be, has given due consideration to any public comments received under subsection 12(1).
11 Content of beverage container stewardship plan
(1) A beverage container stewardship plan must include, but is not limited to, provisions for:
(a) a minimum recovery rate, for beverage containers utilised by the producer, distributor or industry or other group in the production or distribution, as the case may be, of its beverages, of 75% within 2 years of the commencement of the stewardship plan and 80% within 5 years of the commencement of the stewardship plan;
(b) public comment on and input into the implementation and operation of the stewardship plan;
(c) the producer, distributor or industry or other group, as the case may be, collecting and paying the costs of collecting and managing used beverage containers covered by the stewardship plan, whether the beverages for which the beverage containers were utilised are currently or were previously sold, offered for sale or distributed in Australia;
(d) reasonable and free consumer access to return unlimited used beverage containers to container redemption facilities during regular business hours 5 days per week, one day of which must be a Saturday or a Sunday;
(e) making consumers aware of:
(i) the stewardship plan; and
(ii) the locations and hours of operation of container redemption facilities;
(f) assessing:
(i) the performance of the stewardship plan, including setting performance requirements or targets; and
(ii) the management of costs incurred to implement the stewardship plan; and
(iii) the management of environmental impacts of the stewardship plan;
(g) a dispute resolution procedure for disputes that arise between the producer, distributor or industry or other group, as the case may be, and a person, enterprise or enterprises providing services related to the collection and management of the producer’s, distributor’s or industry or other group’s beverage containers, during the implementation and operation of the stewardship plan;
(h) eliminating or reducing the environmental impacts of the producer’s, distributor’s or industry or other group’s beverage containers throughout the life cycle of those beverage containers;
(i) the management of the producer’s, distributor’s or industry or other group’s beverage containers in adherence to the order of preference in the pollution hierarchy.
(2) For the purposes of paragraph (1)(i), the pollution prevention hierarchy is as follows in descending order of preference, such that pollution prevention is not undertaken at one level unless and until all feasible opportunities for pollution prevention at a higher level have been undertaken:
(a) reduce the environmental impact of producing beverage containers by eliminating toxic components and increasing energy and resource efficiency;
(b) redesign beverage containers to improve reusability or recyclability;
(c) reuse beverage containers;
(d) recycle beverage containers;
(e) recover material from beverage containers.
12 Public consultation on draft beverage container stewardship plan
(1) Before submitting a beverage container stewardship plan in accordance with section 10, a producer or distributor of a beverage or an industry or other group must:
(a) prepare a draft beverage container stewardship plan; and
(b) publish it on the Internet and invite public comment on it in its Internet publication of the draft; and
(c) publish in a newspaper circulating in each State and Territory in which the producer or distributor or a member of the industry or other group sells or distributes a beverage a notice:
(i) stating that the draft stewardship plan has been prepared and copies are available for public comment; and
(ii) specifying:
(A) the place or places at which copies will be available (including its availability on the Internet); and
(B) the times at which copies will be available; and
(C) the period during which copies will be available, which must not be less than 30 days after the publication of the notice; and
(iii) inviting interested persons and organisations to give written comments to the producer or distributor or industry or other group, as the case may be, within a period of not less than 30 days after the publication of the notice; and
(d) make copies of the draft stewardship plan available in accordance with the notice in paragraph (c).
(2) The producer, distributor or industry or other group, in preparing its final beverage container stewardship plan, must give due consideration to any public comments made in accordance with subsection (1) but does not have to revise the plan to take account of those comments unless it considers it necessary to do so.
13 Approval of beverage container stewardship plan
(1) On receipt of a beverage container stewardship plan submitted for approval under section 10, the Minister must, within 30 days of receiving the stewardship plan, give a written notice to the producer, distributor or industry or other group submitting the stewardship plan:
(a) approving it without amendment; or
(b) approving it subject to conditions; or
(c) returning it to the producer, distributor or industry or other group, as the case may be, with suggested alterations; or
(d) not approving it.
(2) A notice under paragraph (1)(b), (c) or (d) must include a statement of reasons by the Minister for his or her decision.
(3) If a stewardship plan is approved under paragraph (1)(a) or (b), it takes effect at the end of 30 days after the date of approval, and the producer, distributor or industry or other group that submitted the stewardship plan for approval must ensure that all necessary action to give effect to the stewardship plan is completed by the end of that period of 30 days.
(4) If a producer, distributor or industry or other group, as the case may be, fails to comply with any conditions imposed under paragraph (1)(b), the Minister may, by written notice, rescind the approval of the stewardship plan.
(5) If the Minister:
(a) returns a stewardship plan with suggested alterations in accordance with paragraph (1)(c); or
(b) does not approve a stewardship plan under paragraph (1)(d); or
(c) rescinds the approval of a stewardship plan under subsection (4);
the producer, distributor or industry or other group, as the case may be, must, within 2 months of the date of the relevant notice under paragraph (1)(c) or (d) or subsection (4), submit for approval a new stewardship plan.
(6) In deciding whether to approve a stewardship plan submitted under section 10 or subsection (5), the Minister must be satisfied that it complies with the requirements of sections 11 and 12.
(7)In deciding whether to approve a stewardship plan submitted under section 10 or subsection (5), the Minister may take into account, but is not limited to, the following matters:
(a) the population and geographical area of the markets in which the producer, distributor or industry or other group, as the case may be, sells, offers for sale or distributes the beverage or beverages;
(b) the manner in which the beverage is or the beverages are marketed and retailed by the producer, distributor or members of the industry or other group, as the case may be;
(c) the quantity of the beverage or beverages that the producer, distributor or industry or other group expects to sell or distribute each year;
(d) the quantity of its used beverage containers that the producer, distributor or industry or other group expects to collect each year;
(e) the size of the population intended to be served by each container redemption facility;
(f) the provision of convenient options for the collection of used beverage containers in urban centres and small, isolated communities, and for persons with disabilities or who have no access to transportation;
(g) the manner, kind and amount of advertising and consumer education planned by the producer, distributor or industry or other group, as the case may be, to inform consumers of the location and operation of container redemption facilities and the environmental and economic benefits of participating in the stewardship plan;
(h) the methods of collection, storage, transportation and management of used beverage containers;
(i) the beverage container stewardship plans of other producers, distributors and industry or other groups;
(j) the structure of financial and operational cooperation with other producers, distributors and industry or other groups.
(8) An approval by the Minister under paragraph (1)(a) or (b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(9) This section applies to the Minister’s consideration of proposed amendments to an approved plan, submitted for approval under paragraph 14(2)(a), in the same way that it applies to the Minister’s consideration of a stewardship plan submitted for approval under section 10 or subsection (5).
14 Review of approved plan
(1) A producer, distributor or industry or other group, as the case may be, must:
(a) no later than the fifth anniversary of the date of approval of the approved plan; and
(b) no later than the end of each succeeding period of 5 years after that anniversary;
complete a review of its approved plan.
(2) Within 30 days of completing a review under subsection (1), a producer, distributor or industry or other group, as the case may be, must:
(a) submit to the Minister for approval any proposed amendments to the approved plan that are necessary; or
(b) advise the Minister in writing that no amendments to the approved plan are necessary.
15 Annual reports by producers, distributors and industry or other groups
(1) On or before 30 September in each year, a producer, distributor or industry or other group, as the case may be, must provide to the Minister a report for the financial year that ended on 30 June in that year, in relation to the operation of its stewardship plan.
(2) The report prepared under subsection (1) must include but is not limited to the following:
(a) a description of educational materials and educational strategies the producer, distributor or industry or other group, as the case may be, uses for the purposes of this Act;
(b) the location of container redemption facilities, and any changes in the number and location of container redemption facilities from the previous report;
(c) efforts taken by or on behalf of the producer, distributor or industry or other group, as the case may be, to reduce environmental impacts throughout the beverage container life cycle and to increase reusability or recyclability at the end of the life cycle;
(d) a description of how recovered beverage containers were managed in accordance with the pollution prevention hierarchy;
(e) the quantity of beverage containers generated by the producer, distributor or industry or other group, as the case may be, the total number of used beverage containers collected that were generated by that producer, distributor or industry or other group and the recovery rate;
(f) independently audited financial statements detailing all deposits received and refunds paid by the producer, distributor or industry or other group covered by the approved plan;
(g) a comparison of the approved plan’s performance for the year with the performance requirements and targets in the approved plan;
(h) any other information specified by the Minister.
(3) A report prepared under subsection (1) and received by the Minister is not required to be tabled by the Minister.
Note: The Minister may include in his or her annual report on the operation of this Act information or data from a report prepared under this subsection: see section 21.
Part 3—Beverage container deposit
16 Exemption of certain containers
The Governor‑General may, by regulation, exempt containers of a specified class from the application of this Act, or specified provisions of this Act, either unconditionally or subject to conditions specified in the regulations.
17 Markings required before sale and supply of beverages in containers
(1) A producer or distributor must not:
(a) supply a beverage in a container to a retailer for sale by the retailer; or
(b) sell a beverage in a container for consumption;
unless the container bears a refund marking for the refund of the deposit for the container prescribed under section 18.
Penalty: 2,000 penalty units.
(2) A retailer must not sell a beverage in a container for use or consumption unless the container bears a refund marking for the refund of the deposit for the container prescribed under section 18.
Penalty: 100 penalty units.
18 Beverage container deposit
(1) A retailer must collect from the final purchaser, at the time of the sale of a beverage in a container, a deposit in the amount prescribed by the regulations for the purposes of this section.
(2) The deposit collected under subsection (1) must be shown on the final purchaser’s receipt if a receipt is given.
(3) The deposit collected under subsection (1) is an amount that includes goods and services tax.
(4) This section does not apply to a retailer if the retailer sells a beverage in a beverage container for consumption on the premises of the retailer and the beverage is consumed on those premises.
19 Beverage container deposit refund
(1) A container redemption facility must accept used beverage containers for return and pay the person returning the beverage container or containers, as the case may be, a cash refund per container in an amount not less than the deposit amount prescribed in the regulations for the purposes of section 18 and collected under that section.
(2) A container redemption facility is not required to accept a beverage container or pay a cash refund for a beverage container if the beverage container is:
(a) contaminated, rusty or unclean; or
(b) cannot be reasonably identified as a beverage container to which this Act applies.
Part 4—Miscellaneous
20 Offence
A person must not dispose of redeemed beverage containers in a landfill or incinerator.
Penalty: 500 penalty units.
21 Annual report by Minister
(1) As soon as practicable after each 30 June and after receiving the annual reports by producers, distributors and industry or other groups in accordance with section 15, the Minister must cause to be prepared a report on the operation of this Act for the 12 months ending on that 30 June.
(2) A report prepared under subsection (1) may include information and data from any report prepared under section 15 but must not include any information or data:
(a) that a producer, distributor or industry or other group has asked not be released; and
(b) that the Minister is satisfied is commercial in confidence.
(3) The Minister must cause a copy of a report prepared under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
22 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.