10 Dec 2020

Recycling and Waste Reduction Bill 2020 (Cth): What's in store?

By Kathryn Pacey and Jessica Howe

The introduction of the RWR Bill is one of a suite of initiatives introduced by the Federal Government to promote a circular economy, improve Australia's waste management systems, and boost its domestic recycling.

The Recycling and Waste Reduction Bill 2020 (Cth) (RWR Bill) is one of a suite of recycling and waste reduction bills passed by both houses of Federal Parliament on 8 December 2020. Ahead of the commencement of this landmark legislation, we take a closer look at what the RWR Bill aims to achieve.

The primary purpose of the RWR Bill is to establish a legislative framework to enable Australia to more effectively manage the environmental and human health and safety impacts of products and waste material, as well as the impacts of the disposal of our waste.

In August 2019 the Council of Australian Governments established a timetable to ban the export of unprocessed waste plastic, paper, glass and tyres, while building Australia’s capacity to generate high value recycled commodities. In late 2019, the Commonwealth, State and Territory Environment Ministers agreed that waste plastic, paper, glass and tyres that have not been processed into value-added materials should be banned from export from Australia.

The final response strategy to the export of Australian waste was agreed between the Commonwealth, State and Territory governments, and the Australian Local Government Association in March 2020, and led to the introduction of the RWR Bill.


The introduction of the waste export ban

The RWR Bill is one part of a suite of bills relating to the implementation of the main RWR Bill, including the Recycling and Waste Reduction (Consequential and Transitional Provisions) Bill 2020, Recycling and Waste Reduction Charges (Customs) Bill 2020, Recycling and Waste Reduction Charges (Excise) Bill 2020, and Recycling and Waste Reduction Charges (General) Bill 2020. The bills are expected to be implemented using a coordinated approach, with a specific focus on achieving alignment of infrastructure, investment and data.

A key feature of the RWR Bill is the implementation of the legislative framework for the ban of the export of waste plastic, paper, glass and tyres agreed by Commonwealth, state and territory governments in March this year. The ban will only apply to unprocessed waste, and is designed to encourage the processing of waste materials within Australia, prior to the new processed materials being exported for use in overseas manufacturing. Details for the implementation of the waste export bans for particular materials are expected to be phased in through rules, with ongoing consultation with stakeholders.

The implementation of the ban will phase in the end of the 645,000 tonnes of unprocessed plastic, paper, glass and tyres that Australia ships overseas each year, with the following unprocessed waste materials to be banned from export on the following timeline:

  • 1 January 2021: glass in a whole or broken state;
  • 1 July 2021: mixed plastics that are not of a single resin or polymer type or where further sorting, cleaning and/or processing is required before re-use;
  • 1 December 2021: whole used tyres, including baled tyres. However this does not include bus, truck and aviation tyres exported for re-treading to a verified facility;
  • 1 July 2022: single resin or polymer plastics; and
  • 1 July 2024: mixed and unsorted paper and cardboard.

Under the RWR Bill, the export of ‘regulated waste material’ will be prohibited unless the prescribed export conditions set out in the rules are met. ‘Regulated waste material’ is waste material that is prescribed as regulated for export by the rules, which are anticipated to be made by the Minister in relation to, for example, the export of waste glass. The rules will be able to prescribe conditions that must be complied with depending on the waste material being exported. For example, the rules may require that:

  • a person must hold an export licence; and
  • for each consignment of regulated waste material, an export declaration has been given.

The Minister may, on application, grant an exemption to people who wish to export regulated waste material without complying with certain requirements imposed by the RWR Bill. An exemption remains in force for up to 12 months, and may be granted subject to conditions.

The Senate Scrutiny Committee expressed concerns about several elements of the RWR Bill, including that the kind of waste material that will be "regulated waste material" for the purposes of the new regime has been left to be determined by the rules, with the Scrutiny Committee stating that the RWR Bill is a "framework bill", containing only the broad principles of a legislative scheme and relying heavily on the rules to determine the scope and operation of the scheme.

Other stakeholders raised concerns with the Bill including in relation to:

  • the implementation of the waste export ban and growth of the recycling industry, including that much of the sector's ability to respond to the target timeframes will depend on the implementation details which are still to be set out in the rules;
  • the intervention of Government in the waste supply chain, which could lead to an increase in volumes of waste sent to landfill or stockpiled, and may also lead to the illegal dumping of some waste materials;
  • the failure of the RWR Bill to adequately address the waste management challenge of single-use plastics, or the environmental damage caused by plastic pollution (although single use plastics are being dealt with through the various jurisdictions); and
  • potential costs of the waste export ban, which are not specified in the RWR Bill's provisions.

To ensure a smooth transition into the new legislative framework, the Senate Environment and Communications Legislation Committee recommended that the Government conduct a cost-benefit analysis of large infrastructure projects including mandatory targets for the use of a percentage of recycled materials. The Committee also recommended ongoing consultation with stakeholders, particularly in relation to the future drafting and implementation of the rules.


The replacement of the Product Stewardship Act 2011 (Cth)

The RWR Bill also reforms the regulation of product stewardship, replacing the existing Product Stewardship Act 2011 (Cth), which was recently reviewed. The Bill sets out obligations for manufacturers, importers, distributors and designers of certain products identified in rules made under the co-regulatory or mandatory provisions of the Bill, and will also provide for the accreditation of voluntary product stewardship arrangements.

The review of the Product Stewardship Act 2011 (Cth) found that while the Act provides an appropriate framework for enabling product stewardship outcomes, there is further scope to broaden its reach and impact. The recommendations of the review included:

  • promoting product design and reparability within the objects of the Act, expanding product stewardship regimes to a broader range of products (including materials);
  • addressing issues with free-riding in voluntary product stewardship schemes;
  • increasing transparency with the Minister’s product list; and
  • improving the administration of coregulatory schemes.

Several key drivers for a national approach to product stewardship are cited in the explanatory notes to the RWR Bill, including a need to have the regulatory tools to respond to the growing, complex and potentially hazardous streams of waste from rapidly changing or evolving products. There is also a lack of information that prevents consumers and producers from understanding the impacts of certain products, and related issues around their reparability and reusability.

The Commonwealth believes that accreditation of voluntary product stewardship schemes can help Australian consumers make better choices when purchasing and disposing of products, and to have confidence that the products they are choosing meet government accreditation requirements.

The Government has promised that the framework introduced under the RWR Bill will be flexible, allowing regulators to be responsive to change and issues as they arise.


Enforcement and compliance mechanisms

The RWR Bill will provide for a range of compliance, enforcement and audit mechanisms that can be exercised by the Minister, Secretary or authorised officers, including the making of rules and decisions. Other powers will include actions such as revocation and suspension of an export licence and cancellation of an approval of a coregulatory arrangement, as well as administrative remedies such as injunctions, enforceable undertakings, and infringement notices. For more serious compliance issues, the Bill provides for a number of civil penalty provisions, as well as criminal offences. Merits reviews will be available under the RWR Bill in relation to decisions by the Minister that affect individuals. Decisions will also be able to be reviewed externally by the Administrative Appeals Tribunal. Any fees and charges under the RWR Bill will be imposed on a cost-recovery basis.

The Environment and Communications Legislation Committee has recommended that the Department of Agriculture, Water and the Environment continue its engagement with State, Territory and local governments, as well as with industry, business and environmental stakeholders in the implementation of the RWR Bill, particularly in relation to costs, penalties and "naming and shaming" criteria, which allow the Minister to publicise certain offences, contraventions and decisions.


Other recent Commonwealth initiatives

The introduction of the RWR Bill is one of a suite of initiatives introduced by the Federal Government to promote a circular economy, improve Australia's waste management systems, and boost its domestic recycling, with other initiatives including:

  • the establishment of a Recycling Modernisation Fund, which aims to generate $600 million in private investment in the recycling industry;
  • the implementation of the National Waste Policy Action Plan commitments; and
  • a $24.6 million fund to improve data on national waste, to track recycling outcomes and national waste targets.

The Government has also recently released the terms of reference for the Productivity Commission Inquiry into Right to Repair, which aims to investigate the challenges that consumers and third parties can face when repairing products that develop faults or require maintenance, due to a lack of access to necessary tools, parts or diagnostic software. Initial submissions are due by Monday 1 February 2021 in response to the issues paper released on 7 December 2020.

With the introduction of the RWR Bill we also expect to see a push for more sustainable government procurement, with the Senate Environment and Communications Legislation Committee reporting that a consistent theme of evidence was that Australian governments, of all levels, should adopt more sustainable procurement models, particularly regarding the use of recycled materials. The Committee noted that this would not only have a range of material benefits, but also provide leadership to other levels of government, and industry and business more generally.

The implementation of this legislation is being recognised as a significant step forward for Australia's approach to recycling and waste management, with the suite of bills expected to have positive effects on the sustainability of our national product stewardship arrangements.

The reforms aim to increase recycling and remanufacturing of waste materials, which will transform the waste industry and boost jobs.

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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 communication. Persons listed may not be admitted in all States and Territories.