ENVIRONMENT PROTECTION (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

Received from the Legislative Council and read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (17:58): I move:

That this bill be now read a second time.

I seek leave to insert the second reading explanation in Hansard without my reading it.

Leave granted.

The Bill will strengthen the container deposit legislation (CDL) in the Environment Protection Act 1993 to further improve on this successful environmental tool that provides an important driver for recycling, reduces litter and decreases the number of beverage containers that go to landfill.

The Bill will address a number of systemic issues within the current beverage container refund system to improve its functioning.

CDL was introduced by former Premier, the Hon Don Dunstan, in the Beverage Container Act 1975 to control litter. The system has worked well, changing community behaviour, promoting recycling, recovering valuable recyclables, as well as supporting resource recovery infrastructure. South Australia has the highest container return rate of all Australian states, with industry sources reporting that as many as 85% of certain types of containers in the CDL scheme are returned for recycling. Beverage container litter in South Australia is by far the lowest in Australia.

In 2006 the scheme was added to the list of Bank SA Heritage Icons.

The main purpose of the Bill is to improve this successful system by promoting the equitable regulation of all relevant stakeholders and to address concerns that refunds are being sought on a large scale for containers that have not been sold in South Australia.

A series of minor administrative amendments to the operation of the Environment Protection Act are also proposed to streamline the governance and operational workings of the Authority.

Equitable regulation of relevant stakeholders

The industry has a series of ‘super collectors’ not regulated by the CDL system. ‘Super collector’ is a term applied to the industry sector that was established primarily to act as agents for beverage manufacturers and product distributors. Super collectors coordinate the collection and aggregation of containers from depots, reimburse depots for refunds paid to consumers, pay handling fees to depots and coordinate end recycling markets for collected containers.

The Government is proposing to regulate these super collectors to remove any inequity with the collection depots, which are already required to be regulated.

Thus the Bill proposes that a person must hold an approval to operate as a super collector, as is currently the practice for collection depots.

The regulation of both collection depots and super collectors will help establish effective processes for resolving disputes between the parties.

Interstate refunds

Another objective of the Bill is to stop the movement of empty refund-labelled containers from other States into South Australia, thereby limiting the potential liability for collection depots, super collectors and manufacturers to pay refunds on products not sold in this State, and on which no deposit has been paid.

I have been told by the Environment Protection Authority, which administers the scheme, that containers are being brought into SA from interstate for refunds at our collection depots.

The Bill provides our collection depots with the authority to refuse to accept containers for refund if they believe that the containers have been purchased interstate. Depots will be able to request that a person verify that their containers were purchased in this State or a corresponding jurisdiction and must request a person to complete this declaration if the person presents 3 000 or more containers for a refund within a 48 hour period.

Additionally, there is an offence for a person to present for refund a container not purchased in this State or a corresponding jurisdiction. The maximum penalty proposed for this offence is $30 000.

In summary, the other main features of the Bill are:

Inserts an outline of the Beverage Container Division of the Environment Protection Act 1993 which recognises that although the beverage container refund system was originally introduced to manage beverage container litter, the system has demonstrated dual benefits for both litter and recycling, and has evolved in the context of increasing awareness of environmental sustainability.

Amends definitions used in the Beverage Containers Division of the Environment Protection Act 1993 to clarify existing terms and provide for new terms to support amendments.

Removes references to ‘collection areas’, as collection areas for individual depots have not been used and the term is now redundant.

Improves the approval system for ‘classes of containers’ so that multiple containers can be approved by linking the approval to the manufacturer or distributor and not require a case by case assessment where each container forms its own class.

Strengthens the system of collection depot approvals by providing greater power to the Environment Protection Authority and increased protection for approval holders, similar to the approval of an environmental authorisation.

Proposes amendments to various penalties in the beverage container provisions of the Environment Protection Act 1993 to create consistency of penalties for similar contraventions.

Replaces the requirement that the Board meet at least 12 times per year with a provision that the Board meet at least 11 times per year.

Introduces a new provision to allow for the approval of onsite works or process changes that occur during the term of an environmental authorisation. This will clarify some legislative ambiguity by providing an explicit headpower for the existing regulation under the Environment Protection (Fees and Levy) Regulations.

Provides the Board with the ability to sub-delegate its powers and functions.

Allows administering agencies to have the power to register a clean-up order on land, take action on non-compliance with a clean-up order or recover reasonable costs of doing so.

Removes the Ozone provisions under Part 8 of the Act, as they have been overridden by Commonwealth legislation and are now obsolete.

I commend the Bill to Honourable Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Environment Protection Act 1993

4—Amendment of section 16—Proceedings of Board

This clause reduces the requirement for the Board to meet from at least 12 to at least 11 times each calendar year.

5—Insertion of section 50B

This clause inserts new section 50B.

50B—Special conditions not exhaustive

Proposed new section 50B clarifies that the special conditions of environmental authorisations that may be imposed under Part 6 Division 5 do not constitute an exhaustive list.

6—Insertion of section 54C

This clause inserts new section 54C.

54C—Conditions requiring approval of certain works and processes

Proposed new section 54C clarifies the Authority's power to require holders of environmental authorisations to seek the Authority's prior approval in relation to certain building work or certain processes relating to an activity undertaken under an existing environmental authorisation.

7—Insertion of section 64E

This clause inserts new section 64E.

64E—Outline of Division

Proposed new section 64E gives an outline of Part 8 Division 2 as an aid to understanding the provisions making up the legislative scheme for the management of used beverage containers. The section is self-explanatory and for the large part summarises the legislative scheme that has been in place for several years, however a significant change made by this Bill and reflected in the outline is that the operators of collection depots and persons carrying on business as super collectors will now need to be approved.

8—Amendment of section 65—Interpretation

This clause adds and amends definitions of terms to be used in Part 8 Division 2.

9—Amendment of section 66—Division not to apply to certain containers

This amendment, and the proposed new definitions of "wine" and "spiritous liquor" effected by clause 8, are proposed in order to simplify section 66.

10—Substitution of sections 68 and 69

This clause substitutes sections 68 and 69 and with clauses 68, 69, 69A, 69B, 69C and 69D.

68—Approval of classes of containers as category A or category B containers

This section recasts the former approval system for classes of containers as category A or category B containers. It is envisaged that persons seeking approval under this section will be manufacturers or distributors of beverage containers.

If an approval is granted, it must be granted subject to the conditions that—

containers of that class bear an approved refund marking; and

the approval holder have in place an effective and appropriate waste management arrangement (this term is defined in section 65); and

if the approval relates to category B containers—the waste management arrangement require the approval holder to provide the super collector with a declaration of sale of approved containers after each sale.

This last condition is intended to allow super collectors to keep a track of sales of the approved containers under the waste management arrangement with the approval holder, in order to avoid interstate rorting that sees super collectors collecting apparently approved containers from interstate that have nothing to do with the approval holder and for which the super collector is not reimbursed.

Subclause (4) sets out some of the grounds on which the Authority may refuse an application for approval, namely—

if the container material is unsuitable for recycling, reuse or other disposal considered appropriate by the Authority; or

if the manner of application of the labelling or refund marking proposed for the containers is inappropriate for recycling, reuse or other disposal; or

if there is no ongoing, effective and appropriate waste management arrangement in place in relation to the class of containers.

Further provisions in this section include standard natural justice provisions protecting a person should the Authority seek to refuse an application for approval, vary an approval or vary or revoke a condition or impose a further condition.

Subclause (9) requires a notice of approval under the section to specify the class of containers to which it relates by reference to the manufacturer or distributor and the product name, container contents when full, container capacity, container material or any other factor considered relevant by the Authority. This should address any doubt about the meaning of "class of containers".

69—Approval of collection depots and super collectors

Section 69 prohibits a person from operating a collection depot or carrying on a business as a super collector without the approval of the Authority. The Authority may, in determining beverage container approvals, consider factors including whether the applicant has in place suitable collection and recycling arrangements, and whether the parties to those arrangements have in place effective dispute resolution processes.

Further provisions in this section include standard natural justice provisions protecting a person should the Authority seek to refuse an application for approval, vary an approval or vary or revoke a condition or impose a further condition.

69A—Annual fees and returns for collection depots and super collectors

Section 69A sets out the requirements for lodgement of annual returns and payment of annual fees by holders of approvals to operate collection depots or to carry on business as super collectors.

69B—Sale and supply of beverages in containers

Under section 69B it will be unlawful—

for a retailer to sell a beverage in a container unless it is an approved category A or B container bearing the approved refund marking;

for any person—

to supply a beverage in a container to a retailer; or

to sell a beverage in a container for consumption,

unless it is an approved category A or B container bearing the approved refund marking;

for any person—

to supply a beverage in a container bearing a refund marking to a distributor or retailer; or

to sell a beverage for consumption in a container bearing a refund marking,

knowing that there is no waste management arrangement in place in relation to the container.

69C—Offence to claim refund on beverage containers purchased outside State or corresponding jurisdiction

Section 69C(1) makes it an offence for a person who presents for refund, containers that the person knows or has reason to believe were not purchased in this State or another State or Territory having in force a corresponding law.

Section 69C(2) enables persons to whom containers are presented for refund to request any person presenting such containers to complete a declaration stating that he or she has no reason to believe that the containers were not purchased in this State or another State or Territory having in force a corresponding law.

However, if 3 000 or more containers are presented for refund by the same person, the person to whom the containers are presented must request such a declaration.

Subsection (4) requires persons who have requested declarations to keep all such declarations for a period of 3 years and to have them readily available for inspection during that time by an authorised officer.

69D—Offence to contravene condition of beverage container approval

This section makes it an offence to contravene a condition of a beverage container approval (that is, any approval under Part 8 Division 2 of the Act).

11—Amendment of section 70—Retailers to pay refund amounts for empty category A containers

This clause amends section 70(1) by making a consequential drafting change to section 70(1)(a) and increasing the penalty and expiation fee for contravention of section 70(1).

Section 70(2) is expanded from its current form to enable a person to refuse to accept for refund, a container if—

it is unclean; or

the person reasonably believes the container was not purchased in this State or in a State or Territory having a corresponding law in force; or

the person's request for a declaration under section 69C(2) or (3) has been refused.

12—Substitution of section 71

This clause deletes current section 71 and substitutes the following sections:

71—Collection depots to pay refund amounts for certain empty category B containers

This section expands the scope of current section 71 in a similar way as the amendments to section 70(2), albeit with application to operators of approved collection depots.

71A—Manner of payment of refund amounts

This new section requires persons to pay refund amounts, in the case of a reverse vending machine—in cash, by credit note redeemable for cash or in a manner prescribed by regulation, or, in any other case—in cash.

13—Amendment of section 72—Certain containers prohibited

This clause amends section 72 by increasing the maximum penalties for contravention of subsections (3) and (4).

14—Repeal of Part 8, Division 3

This clause repeals Division 3 of Part 8 of the principal Act (Division 3 deals with Ozone Protection and is now considered to be sufficiently covered by Commonwealth legislation).

15—Amendment of section 94—Registration of environment protection orders in relation to land

Section 94 of the principal Act already extends the power to register environment protection orders to administering agencies. This amendment requires an administering agency that has registered an environment protection order to notify owners and occupiers of the land of the registration and of their obligations under section 94(4).

16—Amendment of section 101—Registration of clean-up orders or clean-up authorisations in relation to land

This clause amends section 101 to include references to administering agencies. The amendment enables administering agencies to register clean-up orders.

17—Amendment of section 102—Action on non-compliance with clean-up order

Section 102 is amended to include references to administering agencies. This amendment gives administering agencies the power to take action for non-compliance with a clean-up order.

18—Amendment of section 103—Recovery of costs and expenses

Section 103 is amended to include references to administering agencies and to make provision for the recovery of costs and expenses by administering agencies in respect of registration or cancellation of registration of a clean-up order or authorisation.

19—Amendment of section 106—Appeals to Court

This clause amends section 106 by including a right of appeal—

for an applicant for a beverage container against a decision by the Authority to refuse the application or to impose a condition of approval; and

for the holder of a beverage container approval against a decision by the Authority varying the approval or varying or imposing a condition of the approval or revoking the approval.

20—Substitution of section 115

This clause deletes and substitutes section 115.

115—Delegations

Proposed section 115 expands the delegation power by enabling a power or function delegated by the Authority to be further delegated.

21—Amendment of section 118—Service

This consequential amendment broadens the scope of section 118 to cover service of notices under Part 8 Division 2.

22—Amendment of Schedule 1—Prescribed activities of environmental significance

This clause amends Schedule 1 of the Act to exempt from the requirement to have a licence under the Act the holder of an approval to operate a collection depot and the holder of an approval to carry on business as a super collector.

Schedule 1—Transitional provisions

1—Interpretation

This clause provides that the definition of principal Act, for Schedule 1 transitional provisions, is the Environment Protection Act 1993.

2—Classes of containers approved under repealed provisions

This clause continues approvals of category A and category B containers in force under the current system as approvals under the proposed system subject to the provisions of the Bill.

3—Refund markings approved under repealed provisions

This clause continues an approval of a refund marking in force under the current system as if it were a marking specified by the Authority as a condition of approval under proposed section 68 subject to the provisions of the Bill.

4—Continuation of collection depot approvals

This clause continues approvals of collection depots in force under the current system as approvals under the proposed system subject to the provisions of the Bill.

5—Super collectors

This clause entitles persons who were, immediately before the commencement of the provisions in this Bill, carrying on business as a super collector, on application and payment to the Authority of the prescribed fee, to the grant of approval under section 69 of the principal Act as amended by this Bill to carry on business as a super collector subject to conditions determined by the Authority.

Debate adjourned on motion of Mr Pengilly.