Plastic Reduction and Circular Economy Act 2021 (NSW)

Plastic Reduction and Circular Economy Act 2021 No 31 An Act to prohibit certain items and establish a product stewardship framework for brand owners of certain products; and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Plastic Reduction and Circular Economy Act 2021. 2 Commencement (1) This Act commences on the date of assent to this Act, except as provided by subsections (2) and (3). (2) Schedule 1, section 2 commences on the first day of the first month occurring 6 whole months after the commencement of section 3. (3) Schedule 1, sections 3–5 commence on 1 November 2022. 3 Objects of Act (1) The objects of this Act are as follows— (a) to protect the environment and human health, (b) to promote and support the principles of a circular economy, (c) to support material circularity through design, production, use, re-use, collection, recycling, reprocessing and end-of-life management, (d) to ensure responsibility for products across their life cycle, (e) to reduce the impact, or potential impact, of items, waste from items and waste material on the environment and human health. (2) In this section— principles of a circular economy include the following principles— (a) valuing resources and minimising the use of virgin materials by ensuring materials continue to circulate in the economy in a way that— (i) minimises the risk of harm to human health and the environment, and (ii) considers the waste hierarchy, (b) keeping resources in use and designing out waste, pollution and resource inefficiency, including through innovative systems, technologies and business models, (c) ecologically sustainable and regenerative management of resources and systems. waste hierarchy is a reference to the hierarchy set out in the Waste Avoidance Resource and Recovery Act 2001, section 3(b). 4 Definitions (1) The Dictionary in Schedule 4 defines words and expressions used in this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A person supplies an item whether or not— (a) a fee is charged for the supply of the item, or (b) the supply of the item is incidental to, or forms part of, the supply of another thing. 5 Precautionary principle (1) In this Act, the precautionary principle is the principle that, if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (2) In applying the precautionary principle, decisions should be guided by— (a) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (b) an assessment of the risk-weighted consequences of various options. 6 Extraterritorial application of Act (1) If there is an extraterritorial impact, this Act and the regulations apply to— (a) a person, whether or not the person is outside the State, and (b) premises, whether or not the premises are outside the State, and (c) a supplier, whether or not— (i) the supplier is carrying on a business outside the State, or (ii) the supplier is a party to a contract made outside the State. (2) In this section— extraterritorial impact means a matter or thing, whether it occurs or is located outside the State, that— (a) affects, or is likely to affect, the environment of the State, or (b) relates to the supply, or the likely supply, into or within the State of a regulated item, or (c) relates to a non-compliance matter. non-compliance matter means a matter or thing that is, or is likely to be, an offence under this Act or the regulations. Part 2 Prohibited items 7 Prohibited plastic items (1) In this Act— prohibited plastic item means a plastic item that is— (a) specified in Schedule 1, Part 1, or (b) prescribed by the regulations. (2) The Minister must not recommend the making of a regulation to prescribe a prohibited plastic item unless the Minister forms an opinion that the item is— (a) unnecessary, or (b) for environmental, human health or economic reasons, including reasons relating to waste management or resource management—problematic. (3) Without limiting subsection (2), in forming an opinion that a plastic item is unnecessary or problematic, the Minister may consider the following— (a) the precautionary principle, (b) whether the plastic item— (i) can be eliminated or replaced by an item that is not a plastic item or by a reusable plastic item without causing harm or significant disruption to consumers, or (ii) is difficult to collect or recover through kerbside or similar publicly accessible collection and recovery systems and services, or (iii) is made from material that is difficult or costly to recycle through commercially available recycling technologies, or (iv) hinders, disrupts or obstructs opportunities for other materials or resources to be recovered, collected or recycled, or (v) contributes significantly to litter, or (vi) is made from material that may cause harm to human health or the environment, or (vii) contains additives that accelerate the breakdown of the item into particles. (4) The Minister must, as soon as practicable after forming an opinion, publish notice of the opinion in the NSW Government Gazette. (5) A failure to publish a notice does not affect the making or validity of a regulation that prescribes a prohibited plastic item. 8 Design standards (1) The regulations may prescribe design standards for an item for environmental, human health or economic reasons, including the following— (a) promoting waste avoidance and reducing the likely end-of-life impact of the item on the environment, (b) increasing the potential for, or reducing barriers to, the re-use, recovery, recycling, processing or reprocessing of an item, (c) increasing the use of recycled material in the manufacturing or production of an item, (d) reducing the impact of the production, use, processing or reprocessing of an item on the environment, (e) reducing the unnecessary or inefficient use of materials in an item, (f) increasing the energy or resource efficiency of an item, (g) prohibiting, preventing or reducing the use of an item that may result in a risk to human health or the environment, including by applying the precautionary principle, (h) waste management or resource management, (i) increasing post-consumer collection, (j) increasing consumer awareness of the matters referred to in paragraphs (a)–(h). (2) Without limiting subsection (1), a design standard may contain requirements for the following— (a) the composition of an item, including the type or amount of materials or substances that must or must not be included in the item, (b) the way in which an item must be packaged or labelled, (c) the way in which an item must be designed, constructed or manufactured, (d) independent testing and verification to determine compliance with a design standard, (e) independent testing to determine whether a representation made in relation to an item is accurate. (3) Schedule 1, Part 2 specifies a design standard. 9 Offence of supplying prohibited items (1) A person who, while carrying on a business, supplies a prohibited item to another person is guilty of an offence. Maximum penalty— (a) for a corporation—500 penalty units, or (b) for an individual—100 penalty units. (2) This section does not apply to the supply of a prohibited item to a location outside of the State. Part 3 Product stewardship requirements and targets Division 1 Preliminary 10 Definitions In this Part— financial year means the period of 12 months commencing on 1 July in a year. product stewardship target means a target— (a) specified in accordance with section 13, or (b) set by the Minister under section 14. 11 Meaning of "brand owner" (1) In this Act, the brand owner of a product— (a) is the owner of the product name under which the product is supplied in the State, and (b) includes a person prescribed by the regulations. (2) The regulations may prescribe the circumstances in which the following persons are taken to be brand owners in relation to the supply of a particular product— (a) a person who is a licensee of a product name under which the product is supplied in the State, (b) a person who is a franchisee under a business arrangement that allows the person to supply the product in the State, (c) a person who first supplies the product in Australia. (3) Unless otherwise specified by the regulations, the brand owner of a product is taken to be the brand owner of the packaging material of the product. (4) The regulations may make provision for or about the following— (a) whether the brand owner of a product is or is not the brand owner of the packaging material of the product, including in specified circumstances, (b) the circumstances in which a person is or is not taken to be the brand owner of a product, (c) the granting of exemptions from this Part— (i) with or without conditions, and (ii) generally, in specified circumstances or for a specified product. (5) In this section— product name includes a trade mark, brand name or trade name, whether or not registered in this or another jurisdiction. 12 Meaning of "supply" In this Part and section 6— supply also includes the following for a scheme or service— (a) make the scheme or service available or provide the scheme or service to a person, (b) an offer to provide the scheme or service, including advertising the scheme or service or making other representations with the intention of providing the scheme or service. Division 2 Product stewardship requirements and targets 13 Product stewardship requirements (1) The regulations may— (a) prescribe a requirement (a product stewardship requirement) for the stewardship of the life cycle of a regulated product, including the development, design, creation, production, assembly, supply, use or re-use, recovery, recycling or disposal of the regulated product, and (b) specify a target for or in relation to a product stewardship requirement, including a target expressed as a percentage. (2) Without limiting subsection (1), the regulations may prescribe a product stewardship requirement for or in relation to the following— (a) the use or re-use of recycled materials or other materials that will minimise the environmental or resource impact of a product's creation, (b) the traceability of materials, (c) the ability of a product to be recycled, composted, repaired, processed, re-processed or re-used, (d) the re-use, re-manufacture, recovery, recycling, take-back, use or disposal of a product or resources from a product, (e) the prevention, reduction or recovery of litter, (f) the prevention or reduction of unlawful waste disposal, (g) the reduction in material used in a product, (h) the design of a product, (i) the maintenance, sharing, repair, refurbishment or upgrade of a product, (j) the longevity of a product, (k) the reduction of the impact, including the potential impact, of a product or the life cycle of a product on resource management or waste management, including in relation to virgin materials, demand for landfill, the environment or human health. 14 Minister may set product stewardship targets (1) The Minister may, by order published in the Gazette, set a product stewardship target, including a target expressed as a percentage. (2) The order takes effect— (a) on the date on which the order is published, or (b) if a later date is specified in the order—the later date. (3) A target specified in the regulations prevails over a target set by order under this section. (4) The Minister may, by a further order made under this section, vary a target specified in the regulations if the regulations permit the variation of the target. 15 Offence—failure to comply with product stewardship requirement or target (1) The brand owner of a regulated product must comply with a product stewardship requirement for the regulated product. Maximum penalty— (a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or (b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues. (2) It is a defence in proceedings for an offence against subsection (1) if the defendant establishes that, at the time of the failure to comply, the defendant— (a) held an approved action plan for the product stewardship requirement, and (b) complied with the approved action plan and the conditions, if any, imposed by the regulator on the approved action plan. (3) To the extent that an approved action plan relates to a brand owner's compliance with a product stewardship requirement, a failure to comply with the plan is evidence of a failure to comply with subsection (1). (4) In this section— product stewardship requirement includes a product stewardship target. 16 Record keeping requirements (1) The brand owner of a regulated product must— (a) prepare records for each financial year in accordance with this section, and (b) keep the records for at least 6 years following the financial year to which the prescribed records relate, and (c) make the records available for inspection and copying by an authorised officer on request. Maximum penalty— (a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or (b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues. (2) Records prepared under this section must include the information prescribed by the regulations, if any. (3) The regulator may, by written notice to a brand owner, direct the brand owner to, within a specified period— (a) arrange an independent audit of the records to be carried out by an auditor specified by the regulator, and (b) provide the auditor's report to the regulator. (4) A brand owner must, within the specified period, comply with a direction given under this section. Maximum penalty— (a) for a corporation—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues, or (b) for an individual—200 penalty units and, for a continuing offence, a further 20 penalty units for each day the offence continues. (5) The regulations may specify information to be included in records by reference to the following— (a) a brand owner, (b) a regulated product, (c) an activity, (d) an industry. 17 Reporting requirements (1) A brand owner must provide a report to the regulator within 3 months of the end of the financial year. Maximum penalty— (a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or (b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues. (2) The report must— (a) be provided in the form and the way approved by the regulator, and (b) include the information prescribed by the regulations. (3) Information provided to the regulator under this section may be taken into consideration by the regulator and used for the purposes of this Act. (4) Without limiting subsection (3), the information is admissible in evidence in a prosecution of the brand owner for an offence against this Act or the regulations, whether or not the information may incriminate the brand owner. (5) The regulations may prescribe information to be included in a report by reference to the following— (a) a brand owner, (b) a regulated product, (c) an activity, (d) an industry. 18 Regulator may publish certain information The regulator may publish information, including the name of a brand owner and other names by which the brand owner trades, on the regulator's website if the information relates to— (a) information provided to the regulator by a brand owner under this Part, or (b) the brand owner's compliance or non-compliance with a provision of this Part or regulations made under this Part, or (c) the brand owner's performance, from time to time, against product stewardship requirements and product stewardship targets. Division 3 Action plans 19 Requirement to prepare action plan (1) If required by the regulations, the brand owner of a regulated product must— (a) prepare an action plan, and (b) submit the action plan to the regulator. Maximum penalty— (a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or (b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues. (2) The action plan— (a) must set out how the brand owner intends to comply with the provisions of this Part for which the action plan is required to be prepared, and (b) may include indirect actions intended to offset adverse environmental impacts generally or specifically in connection with the regulated product, and (c) must include the information prescribed by the regulations. (3) An action plan must be submitted in the form and the way approved by the regulator. (4) The regulator may require the brand owner to provide further information for the purpose of assessing the action plan. (5) The regulations may specify the following by reference to a brand owner, regulated product, activity or industry— (a) the period within which an action plan must be submitted to the regulator, (b) whether an action plan is required to be prepared for compliance with the following— (i) product stewardship requirements, (ii) product stewardship targets, (iii) record keeping requirements under section 16, (iv) reporting requirements under section 17, (c) the circumstances in which an action plan is required to be prepared, (d) the information that must be included in an action plan. 20 Regulator may approve, or direct brand owner to resubmit, action plans (1) After receiving an action plan, the regulator may, by written notice to the brand owner who submitted the action plan— (a) approve the action plan (the approved action plan) with effect from the date specified in the notice, or (b) direct the brand owner to— (i) amend the action plan, and (ii) resubmit the action plan within the period specified in the notice. (2) An approved action plan is subject to the conditions, if any, specified by the regulator in a notice under this section or section 22. (3) A brand owner who holds an approved action plan may submit a draft revised or amended action plan to the regulator for approval under this section. 21 Requirement to hold approved action plan before supply of regulated product (1) The brand owner of a regulated product must hold an approved action plan before the product is supplied, whether or not the product is supplied by the brand owner. Maximum penalty— (a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or (b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues. (2) This section does not apply to the supply of a regulated item to a location outside of the State. 22 Powers of regulator—action plans (1) The regulator may, by written notice to a brand owner— (a) vary or revoke conditions imposed on an approved action plan, including at the request of the brand owner, (b) impose further conditions on an approved action plan, (c) withdraw its approval of an approved action plan, (d) direct the brand owner to do 1 or more of the following within the period specified in the notice— (i) provide further information in relation to an approved action plan, (ii) review, update or amend an approved action plan and submit the revised or amended action plan, (iii) prepare and submit an action plan in accordance with section 19, whether or not the brand owner has an approved action plan, (iv) arrange an independent audit of an action plan or approved action plan to be carried out by an auditor, including an auditor specified or approved by the regulator, (v) provide the auditor's report to the regulator. (2) A brand owner must comply with a direction of the regulator given in accordance with this Part. Maximum penalty— (a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or (b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues. 23 Review of certain decisions by regulator (1) A brand owner may, within 14 days of receiving notice of a reviewable decision, apply to the regulator for an internal review of the decision. (2) An application for internal review must— (a) be made in writing and state the grounds of the application, and (b) comply with other requirements, if any, prescribed by the regulations. (3) An application for internal review does not operate to stay the reviewable decision unless the regulator directs otherwise. (4) The regulator is not required to conduct a review if a review of the decision has already been conducted under this section. (5) In determining the application, the regulator may— (a) confirm the decision, or (b) vary the decision, or (c) revoke the decision. (6) The regulator must give written notice to the applicant of the determination. (7) A determination to vary or revoke the reviewable decision takes effect on and from the day written notice of the determination is given to the applicant. (8) In this section— reviewable decision means a decision by the regulator— (a) to refuse to approve an action plan, or (b) to require an action plan to be amended and resubmitted under section 20(1)(b), or (c) to impose a certain condition on an action plan, or (d) to vary a condition imposed on an action plan, or (e) to withdraw its approval of an action plan, or (f) of a kind prescribed by the regulations. Part 4 Financial assurances 24 Purpose of Part (1) The purpose of this Part is to provide, by imposing conditions on approved action plans, financial assurances to secure or guarantee funding for or towards the carrying out of actions required to meet product stewardship requirements or targets. (2) A financial assurance must not operate as a penalty for a contravention of this Act, the regulations or the conditions of an approved action plan. 25 Requiring financial assurances (1) The regulator may, at any time, impose a condition on an approved action plan to require the brand owner subject to the approved action plan to provide a financial assurance. (2) The regulator may require a financial assurance to be provided before it approves an action plan. (3) A financial assurance may be in 1 or more of the following forms— (a) a bank guarantee, (b) a bond, (c) another form of security the regulator considers appropriate and specifies in the condition. (4) A condition of an action plan may provide for the procedures under which the financial assurance may be called on or used. 26 Restriction on requiring financial assurance The regulator must not impose a condition on an action plan requiring a financial assurance to be provided unless satisfied the condition is justified considering— (a) the degree of risk of environmental harm, harm to human health or waste management impacts associated with the brand owner's activities to which the product stewardship requirements and targets apply, or (b) the ongoing financial capacity of the brand owner to meet the relevant product stewardship requirements and targets, whether through its action plan or otherwise, or (c) the environmental record of the brand owner, including its past compliance with relevant product stewardship requirements and targets, or (d) other matters prescribed by the regulations. 27 Amount of financial assurances (1) The amount of a financial assurance may be determined by the regulator. (2) The regulator must not require financial assurances of an amount that is more than the total cost of carrying out the actions required to comply with the product stewardship requirements and targets. (3) The total cost is the amount that, in the regulator's opinion, represents a reasonable estimate of— (a) the total likely costs and expenses that may be incurred by the brand owner in carrying out the actions required, and (b) the total likely costs and expenses of the regulator in directing and supervising the carrying out of the actions. (4) The regulator may require a brand owner to provide an independent assessment of the cost of the relevant actions for which the assurance is required. 28 Guidelines about financial assurances The regulations may make provision for or about guidelines to be observed in relation to— (a) conditions imposed on action plans requiring financial assurances, and (b) the calculation of the amount of financial assurances. 29 Regulator may carry out certain actions if brand owner fails to carry out action (1) The regulator may, by the use of contractors, consultants or otherwise, cause an action covered by a financial assurance to be carried out if the brand owner fails, in the opinion of the regulator, to carry out the action. (2) The regulator may enter, or authorise another person to enter, premises to carry out the action. (3) Anything caused to be carried out under this section is taken to have been carried out by the brand owner. 30 Recovery or funding of reasonable costs from financial assurance (1) The regulator may recover or fund from the financial assurance the reasonable costs of causing action to be carried out under section 29. (2) Before recovering or funding reasonable costs from the financial assurance, the regulator must give to the brand owner a written notice under this section. (3) The notice must— (a) state details of the action to which the costs apply, and (b) state the amount to be recovered or funded, and (c) invite the brand owner to make written representations to the regulator to show why the amount should not be recovered or funded, and (d) state the period, being at least 30 days after the notice is given to the brand owner, within which representations may be made. (4) After the end of the period stated in the notice, the regulator must consider written representations made by the brand owner. (5) If the regulator decides to recover or fund the amount from the financial assurance, the regulator must, as soon as practicable, give written notice to the brand owner of its decision and the reasons for the decision. (6) The regulator must return excess amounts, if any, to the brand owner. (7) If the amount recovered or funded from the financial assurance is not sufficient to cover all reasonable costs and expenses, the regulator may recover the excess from the brand owner as a debt in a court of competent jurisdiction. 31 Lapsing of financial assurance The requirement to provide financial assurance lapses and no longer binds the brand owner if the regulator— (a) is satisfied the action for which the financial assurance was required has been satisfactorily carried out, and (b) has given the brand owner written notice of the lapsing of the financial assurance. 32 Liability of regulator, State and others The following persons are not liable for anything done or omitted to be done in good faith in carrying out a function or action under this Part— (a) the State, (b) the Minister, (c) the regulator, (d) the members of the Board of the EPA, (e) a member of staff of the regulator, (f) a person acting under the direction of, or with the authority of, the Minister or the regulator, (g) a person acting as a delegate of the Minister. 33 Financial assurance not to affect other action A financial assurance may be called on and used, despite and without affecting— (a) the liability of the brand owner to a penalty for an offence for a contravention to which the assurance relates, and (b) another action that may be, or is required to be, taken in relation to a contravention or other circumstances to which the assurance relates. 34 Disputes regarding call on or use of financial assurance The Court has jurisdiction to determine disputes about calling on or using a financial assurance. Part 5 Enforcement 35 Definitions In this Part— compliance cost notice means a notice given by the regulator under section 41. notice means— (a) a compliance cost notice, and (b) a compliance notice. stop notice—see section 36(3)(a). 36 Compliance notices (1) This section applies when the regulator reasonably suspects a person has supplied, is supplying or is likely to supply from premises or otherwise than from premises— (a) a prohibited plastic item, or (b) an item that does not comply with a design standard— (i) specified for the item in Schedule 1, Part 2, or (ii) prescribed by the regulations in relation to the item. (2) The regulator may, by written notice, direct either or both of the following to take an action specified in the notice within the period, if any, specified in the notice— (a) the occupier of the premises, (b) the supplier, whether or not at the premises. (3) Without limiting subsection (2), the action specified in the notice may include the following— (a) to stop or suspend the supply of the item (a stop notice), (b) to stop another specified action or activity, including providing information that is, or is l