NSW Bill to Promote Plastics Reduction Introduced
Thursday 25 November 2021 @ 12.38 p.m. | Legal Research
On 19 October 2021, the Plastic Reduction and Circular Economy Bill 2021 (NSW) (‘the Bill’) was introduced to the Legislative Assembly.
The Bill was passed by the Legislative Assembly then subsequently passed by the Legislative Council with amendments. On 16 November 2021, the Legislative Assembly agreed with the Council amendments and the Bill is currently awaiting assent.
The Bill is intended to implement key reforms outlined in the NSW Waste and Sustainable Materials Strategy 2041 and the NSW Plastics Action Plan. According to the Bill's Explanatory Note, its key objectives are:
- "to prohibit the supply into and within the State of certain plastic items,
- to specify design standards for certain items,
- to establish a product stewardship framework for brand owners of certain products,
- to create various offences relating to the above matters."
Prohibited Supply of Certain Plastic Items
The Bill proposes to establish a prohibition against the supply of certain plastic items into and within the State. The Bill proposes a definition of a “prohibited plastic item”, in clause 7, as a plastic item prescribed by the regulations that is:
"(i) unnecessary, or
(ii) for environmental, human health or economic reasons, including reasons relating to waste management or resource management— problematic."
According to Felicity Wilson ('Ms Wilson'), who gave the second reading speech on behalf of Matt Kean, the Minister for Energy and the Environment, the list of prohibited items are consistent with a list agreed upon my the Commonwealth, State and Territory Ministers. The list includes:
“lightweight plastic bags, single-use plastic straws, single-use plastic stirrers, single-use plastic cutlery, single-use plastic cotton buds and expanded polystyrene food service items.”
Clause 9 of the Bill seeks to create the supply of prohibited items an offence. The maximum penalty is 500 penalty units and 100 penalty units for corporations and individuals respectively.
Importantly, the Bill also seeks to recognise that some individuals will still need access to certain prohibited items. The Bill allows for a broad exemption network in order to account for this.
In particular, the second reading speech states that an exemption will be made for the supply of single-use plastic drinking straws for people with disabilities or other medical requirements:
“During stakeholder consultation the Government heard how important these items are for many people to safely consume food and beverages. Stakeholders noted there are no current alternatives that are fit for purpose and meet the needs of people who rely on single-use plastic straws. To maintain reasonable access, the Government will continue to work with key stakeholders on an exemption framework that will exempt supply at certain businesses such as pharmacies and in other situations.”
Design Standards
The Bill also proposes for future regulations to prescribe design standards for environmental, human health or economic reasons. The second reading speech gives the following example of a potential design standard:
“[A] design standard may require that products are made with a minimum amount of recycled content, can be easily recycled or are designed to encourage appropriate disposal. That will help to reduce the use of virgin materials and the generation of waste and it will also support re‑use and recycling in a circular economy.”
The first design standard to be implemented following the Bill’s assent is the prohibition against the use of microbeads in certain personal care items. For future design standards, the Bill prescribes a minimum eight-week consultation period and six-month transition period, except in limited circumstances and the design standard proposal will be subject to the requirements of the Subordinate Legislation Act 1989 (NSW).
Product Stewardship Requirements and Targets
The Bill also seeks to establish a state regulatory framework to establish product stewardship requirements for brand owners of certain products that aligns with the 2025 National Targeting Packaging Targets.
Brand owners who use packaging for their products and have an annual turnover of $5 million are subject to the National Environment Protection (Used Packaging Materials) Measure (‘NEPM’). The NEPM provides two options for brand owners:
-
become a member of the Australian Packaging Covenant Organisation (‘APCO’); or
-
have their products regulated under state law.
However, the Ms Wilson indicated in her second reading speech that regulation under state law:
“does not have the power to set upstream targets for packaging, such as recyclability or recycled content and is out of step with the agreed voluntary 2025 National Packaging Targets, which include recyclability and recycled content targets. As a result, the mandatory State-based requirements are less onerous and out of step with the agreed voluntary 2025 National Packaging Targets. That acts as a disincentive for packaging brand owners to become a member of APCO, with 91 businesses opting out of APCO and choosing to be regulated under State law since 2017”.
The Bill will therefore require brand owners of products prescribed as “regulated products” to meet mandatory product stewardship targets or requirements such as recycled content or recovery of products at the end of their productive life.
Ms Wilson explains in the second reading speech:
“[this] will help to shift the responsibility for products back onto the businesses who profit from their sale and drive the transition to a more circular economy. By making brand owners responsible for managing the whole life cycle of their products, we will ensure they improve the environmental and economic outcomes of their products, while supporting innovation. That will ensure brand owners assess the impacts of their products and consider how their products are made and disposed of and the impact on the environment.”
If passed, failure to comply with a product stewardship requirement or target attracts a penalty of 4000 penalty units for a corporation with an additional 400 penalty units for every day the offence continues and 1000 penalty units a day for individuals with an additional 100 penalty units for every day the offence continues.
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Sources:
Plastic Reduction and Circular Economy Bill 2021 (NSW) and explanatory materials available from TimeBase's LawOne website
