A Bill for an Act to amend the Industrial Chemicals (Notification and Assessment) Act 1989, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Ethical Cosmetics Act 2016.
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 |
| Provisions | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | |
| 2. Schedule 1 | The day after the end of the period of 3 years beginning on the day this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted.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.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Part 1—Main amendments
Industrial Chemicals (Notification and Assessment) Act 1989
1 At the end of Part 3B
Add:
Division 2—Testing cosmetics on live animals
81B Testing cosmetics on live animals
Importing or manufacturing cosmetics or cosmetic ingredients tested on live animals
(1) A person commits an offence if:
(a) the person:
(i) imports a cosmetic into Australia; or
(ii) manufactures a cosmetic in Australia; and
(b) testing has been conducted on a live animal (whether or not in Australia) that relates to the cosmetic; and
(c) the person engaged in the conduct mentioned in paragraph (a) in the course of carrying on a business.
Penalty: 300 penalty units.
(2) A person commits an offence if:
(a) the person:
(i) imports a substance into Australia; or
(ii) manufactures a substance in Australia; and
(b) the substance is imported or manufactured for use in a cosmetic; and
(c) testing has been conducted on a live animal (whether or not in Australia); and
(d) the dominant purpose of the testing relates to the substance’s use in a cosmetic; and
(e) the person engaged in the conduct mentioned in paragraph (a) in the course of carrying on a business.
Penalty: 300 penalty units.
(3) To avoid doubt:
(a) intention is the fault element for the physical elements in paragraphs (1)(a) and (2)(a); and
(b) recklessness is the fault element for the physical elements in paragraphs (1)(b) and (c) and (2)(b) to (e).
(4) A body corporate (the first body) is taken to be reckless as to the matters mentioned in paragraphs (1)(b) and (2)(c) and (d) if the testing was conducted by or for a related body corporate (within the meaning of the Corporations Act 2001) of the first body.
Testing cosmetics and cosmetic ingredients on live animals
(5) A person commits an offence if the person tests a cosmetic on a live animal in Australia.
Penalty: 300 penalty units.
(6) A person commits an offence if:
(a) the person tests a substance on a live animal in Australia; and
(b) the dominant purpose of the testing relates to the substance’s use in a cosmetic.
Penalty: 300 penalty units.
Exception
(7) Subsection (1), (2), (5) or (6) does not apply if the testing on a live animal was conducted before the commencement of this section.
Note: A defendant bears an evidential burden in relation to a matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
81C Dominant purpose of testing
(1) For the purposes of this Act, the dominant purpose of testing that is conducted on a live animal at a particular time is to be worked out in accordance with rules made under subsection (2) that are in force at that time.
(2) The Director must, by legislative instrument, make rules for the purposes of subsection (1).
81D Additional operation of Division
Without prejudice to its effect apart from this section (including its effect because of section 4), this Division also has, because of this section, the effect it would have if the references to the manufacture or testing of a cosmetic or other substance were, by express provision, confined to:
(a) the manufacture or testing of a cosmetic or other substance:
(i) by federally‑regulated entities; or
(ii) in constitutional trade or commerce, or for supply in the course of constitutional trade or commerce; or
(iii) for supply to, or to an authority or instrumentality of, the Commonwealth or a Territory; and
(b) the manufacture or testing of a cosmetic or other substance in a Territory.
81E International obligations
This Division has effect, in relation to importing a cosmetic or other substance into Australia, subject to Australia’s international obligations.
81F Miscellaneous
(1) This Division does not apply in relation to:
(a) a substance that is a therapeutic good within the meaning of the Therapeutic Goods Act 1989; or
(b) a substance or preparation prescribed by regulations made for the purposes of paragraph (d) of the definition of cosmetic in subsection 5(1) of this Act.
(2) This Division applies in relation to a preparation or mixture of substances in the same way as it applies in relation to a substance.
Part 2—Related amendments
Industrial Chemicals (Notification and Assessment) Act 1989
2 Title
Omit “to establish a national system of notification and assessment of industrial chemicals, to provide for registration of certain persons proposing to introduce industrial chemicals, to provide for national standards for cosmetics imported into, or manufactured in, Australia, and for related purposes”, substitute “about industrial chemicals and cosmetics”.
3 At the end of section 3
Add:
; and (c) a ban on the testing of cosmetics and cosmetic ingredients on live animals in Australia; and
(d) restrictions on the importation and manufacture of cosmetics and cosmetic ingredients that have been tested on live animals.
4 Subparagraph 4(a)(iii)
Omit “trade and commerce with other countries, among the States, within a Territory, between a State and Territory or between 2 Territories”, substitute “constitutional trade and commerce”.
5 Subsection 5(1)
Insert:
constitutional trade and commerce means trade and commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories.
dominant purpose of testing on a live animal: see section 81C.
federally regulated entity has the meaning given by the Australian Charities and Not‑for‑profits Commission Act 2013.
6 Paragraphs 21M(1)(c) and (2)(c)
Omit “trade and commerce with other countries, among the States, within a Territory, between a State and Territory or between 2 Territories”, substitute “constitutional trade and commerce”.
7 At the end of section 21
Add:
(7) None of the exceptions in subsections (1A), (2), (3), (4) and (6) apply in relation to a new industrial chemical that is introduced in a cosmetic, or for use in a cosmetic, if:
(a) testing has been conducted, on or after the commencement of this subsection, on a live animal (whether or not in Australia); and
(b) the dominant purpose of the testing relates to the new industrial chemical’s use in a cosmetic; and
(c) the new industrial chemical is introduced in the course of carrying on a business.
8 After subsection 23(1A)
Insert:
Applications cannot be made for certain cosmetic ingredients tested on live animals
(1B) Despite subsections (1) and (1A), an application cannot be made for an assessment certificate for a new industrial chemical if:
(a) the new industrial chemical is to be used in a cosmetic; and
(b) testing has been conducted, on or after the commencement of this subsection, on a live animal (whether or not in Australia); and
(c) the dominant purpose of the testing relates to the new industrial chemical’s use in a cosmetic.
9 Subsection 23(2)
Omit “The application”, substitute “An application”.
10 After subsection 23(9A)
Insert:
Notification statement for cosmetic ingredients tested on live animals
(9B) If a new industrial chemical that is to be used in a cosmetic has been tested on or after the commencement of this subsection on a live animal (whether or not in Australia), a notification statement about the chemical:
(a) must not contain information obtained from that testing; and
(b) must contain information about:
(i) when the testing occurred; and
(ii) the dominant purpose, and any other purposes, of the testing.
11 After subsection 23(12)
Insert:
(12A) An approval under subsection (12) must not have the effect of requiring testing on a live animal for the purpose of obtaining information about a new industrial chemical that is to be used in a cosmetic.
(12B) The Director must publish a list of the tests that:
(a) are approved under subsection (12) for the purpose of obtaining information about a new industrial chemical that is to be used in a cosmetic; and
(b) do not require testing on live animals;
on the website maintained for the National Industrial Chemicals Notification and Assessment Scheme by the Department.
12 At the end of section 23A
Add:
(4) An application cannot be made for a self‑assessed assessment certificate for a new industrial chemical if:
(a) the new industrial chemical is to be used in a cosmetic; and
(b) testing has been conducted, on or after the commencement of this subsection, on a live animal (whether or not in Australia); and
(c) the dominant purpose of the testing relates to the new industrial chemical’s use in a cosmetic.
(5) If a new industrial chemical that is to be used in a cosmetic has been tested, on or after the commencement of this subsection, on a live animal (whether or not in Australia):
(a) information given in an approved form under this section must not include information obtained from that testing; and
(b) the approved form must require the following information to be given:
(i) information about when the testing occurred;
(ii) information about the dominant purpose, and any other purposes, of the testing.
13 At the end of section 24
Add:
(5) A waiver under this section must not have the effect of overriding subsection 23(1B) or (9B) or subsection 23A(4) or (5).
Note: Those subsections apply if the new industrial chemical is to be used in a cosmetic and has been tested on a live animal.
14 Part 3B (heading)
Repeal the heading, substitute:
Part 3B—Cosmetics
Division 1—Standards for cosmetics imported into, or manufactured in, Australia
15 Paragraph (m) of Part C of the Schedule
Omit “after their continuous exposure for 4 days to a series of concentrations of the chemical in water assessed by the test known as the Fish Acute Toxicity Test”.
16 Paragraph (n) of Part C of the Schedule
Omit “shown by the effects of the chemical on daphnids exposed to a series of concentrations of the chemical in water assessed by the test known as Daphnia sp, Acute Immobilisation Test and Reproduction Test”.