House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Health, the Hon Dr David Gillespie MP)

Outline

The Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017 (the Bill) is part of a legislative package that establishes a new risk-based regulatory scheme for the Commonwealth to continue to regulate the introduction of industrial chemicals in Australia. The scheme will see regulatory effort more proportionate to the level of risk to human health and safety or the environment from the introduction and use of industrial chemicals, while maintaining Australia's robust health, safety and environmental standards.

The Australian Industrial Chemicals Introduction Scheme (AICIS) will replace the National Industrial Chemicals Notification and Assessment Scheme (NICNAS).

The other Bills in the reform package include the: Industrial Chemicals (Notification and Assessment) Amendment Bill 2017; Industrial Chemicals Bill 2017 (the Industrial Chemicals Bill); Industrial Chemicals Charges (General) Bill 2017; Industrial Chemicals Charges (Excise) Bill 2017; and Industrial Chemicals Charges (Customs) Bill 2017.

The main purpose of this Bill is to provide the legal framework to transition the old arrangements to the new and to deal with other transitional matters that arise from the enactment of the Industrial Chemicals Bill 2017 as it replaces the Industrial Chemicals (Notification and Assessment) 1989 (referred to throughout this explanatory memorandum as 'the old law').

In summary this Bill has 2 Schedules - Schedule 1 addresses Repeals and amendments of Acts and has 3 parts. Schedule 2 contains transitional provisions across 8 parts. The main features of this Bill are that it:

•

repeals the old law, as well as the Industrial Chemicals (Registration Charge - Customs) Act 1997, the Industrial Chemicals (Registration Charge -Excise) Act 1997 and the Industrial Chemicals (Registration Charge - General) Act 1997 (Part 1 of Schedule 1)

•

makes consequential amendments to Acts that reference the old law (Part 2 of Schedule 1), and

•

provides for certain matters under the old law to transition to being managed under the Industrial Chemicals Act 2017 ('the new law') (Schedule 2) by:

-

taking the Director and Authorised Inspectors under the old law to be similarly appointed under the new law (Part 3)

-

recognising people registered for the 2017 registration year to be considered registered under the new law (Part 4)

-

recognising existing approvals as approvals under the new arrangements (Part 5) and aligning permits issued under the old law with relevant approaches under the new law namely recognising:

o

commercial evaluation permits as commercial evaluation authorisations

o

low volume and controlled use permits as assessment certificates

o

low volume or low concentration exempt introductions as reported introductions

o

research, development or analysis as exempted introductions.

-

defining existing exempt information as confidential business information and identifying a process to manage applications for the protection of confidential business information for existing assessment certificates (Part 6)

-

recognising existing listings on the Australian Inventory of Chemical Substances as industrial chemicals listings on the Inventory established under the new law (Part 7)

-

establishing the power for the Minister to make transitional rules (Part 8).

Financial Impact Statement

The Bill has no financial impact on the Commonwealth, as it remains Government policy that the cost of the Commonwealth industrial chemicals scheme is fully recovered from the regulated industry.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

INDUSTRIAL CHEMICALS (CONSEQENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2017

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017 (the Bill) is a Bill addressing consequential and transitional matters arising out of the Industrial Chemicals Bill 2017 (the Industrial Chemicals Bill).

The purpose of the Bill is to:

•

repeal the Industrial Chemicals (Notification and Assessment) Act 1989

•

repeal the Industrial Chemicals Charges (Customs) Act 1997

•

repeal the Industrial Chemicals Charges (Excise) Act 1997

•

repeal the Industrial Chemicals Charges (General) Act 1997

•

make consequential amendments to Acts that reference the Industrial Chemicals (Notification and Assessment) Act 1989, and

•

provide for certain matters under the Industrial Chemicals (Notification and Assessment) Act 1989 to transition to being managed under the Industrial Chemicals Bill.

Human rights implications

The Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017 (the Bill) is a companion bill to the Industrial Chemicals Bill 2017. This Bill is necessary to give effect to the Government's reforms to the regulation of industrial chemicals.

This Bill engages the following rights:

•

Right to health - Article 12 of the International Covenant on Economic, Social and Cultural Rights ('the ICESCR')

•

Right to privacy and reputation under Article 17 of the International Covenant on Civil and Political Rights ('the ICCPR').

Right to health

Article 12(1) of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This includes the improvement of all aspects of environmental and industrial hygiene (Article 12(2)(b)). While the ICESR does not define health, the UN Committee on Economic Social and Cultural Rights (the Committee) interprets the right to health in article 12.1 as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.

While this Bill does not explicitly engage the right of a person to enjoy the highest attainable standard of physical and mental health, this Bill provides transitional arrangements for a new regulatory scheme that provides a system of checks and balances necessary to protect human health and the environment. The Industrial Chemicals Bill focuses on reducing unnecessary regulatory burdens and rebalancing regulatory effort towards higher risk chemicals and existing chemicals, and providing improved compliance powers.

This Bill assists in achieving this objective by transitioning assessment certificates and permits for industrial chemicals issued under the Industrial Chemicals (Notification and Assessment) Act 1989 and chemicals listed on the Inventory established under that Act to regulation under the Industrial Chemicals Bill, subjecting them to the reforms of that Bill that maintain protections for human health and the environment (including through improved compliance powers).

The measures in this Bill are therefore consistent with the right to health as they promote the improvement of all aspects of environmental and industrial hygiene by minimising, as far as is practicable, the causes of health hazards inherent in a working environment that involves industrial chemicals.

Right to privacy

Lawful interference with the right to privacy is permitted under Article 17 of the ICCPR, provided it is not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR, and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances.

The provisions of this Bill engage the right to privacy insofar as they provide transitional arrangements for the treatment of the confidential section of the Australian Inventory of Chemical Substances (the confidential AICS). The Industrial Chemicals Bill replaces the confidential AICS with a new scheme for the protection of confidential business information.

This Bill transitions chemicals from the confidential section of the AICS to the new Australian Inventory of Industrial Chemicals (the Inventory). However, in order to continue protections for confidential business information that were granted under the Industrial Chemicals (Notification and Assessment) Act 1989, the terms of the listing will not be disclosed publicly (instead the word confidential is published in relation to the terms of the listing). These protections are then subject to 5 yearly review, whereby the Executive Director considers whether the commercial prejudice reasonably likely to be suffered by the holder of the confidential business information (because of disclosure) is outweighed by the public interest in disclosure. If no application for continued protection is made, or an application is unsuccessful, then the Executive Director will publish all details of the listing.

These changes ensure that the need to protect confidential business information is maintained and appropriately balanced with the public interest in the publication of information about industrial chemicals to promote their safe introduction and use in Australia.

The interferences with privacy allowed for by this Bill (such as the disclosure of information in circumstances where the public interest outweighs the commercial prejudice likely to be suffered by the holder of the confidential business information as a result of disclosure) are lawful and reasonable, necessary and proportionate to the interests of the public in the publication of information about industrial chemicals to promote their safe introduction and use in Australia.

Conclusion

This Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate for the protection of human health and the environment.

Notes on Clauses

Clause 1 - Short title

This is a formal provision specifying that the short title of the Act is the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Act 2017.

Clause 2 - Commencement

The effect of this clause is that sections 1, 2 and 3 of the Act commence the day the Act receives the Royal Assent and Schedules 1 and 2 commence at the same time as section 3 of the Industrial Chemicals Act 2017. However, the provisions do not commence at all if that section does not commence.

Clause 3 - Schedules

Clause 3 provides that legislation that is specified in a Schedule to this Bill is amended or repealed as set out in the Schedule. Any other item in a Schedule has effect according to its terms.

Schedule 1 - Repeals and amendments of Acts

Overview

Part 1 of Schedule 1 repeals the existing laws relating to the regulation of industrial chemicals, to enable these to be replaced with the new laws that give effect to the reforms to the regulation of industrial chemicals.

The Industrial Chemicals (Registration Charge - Customs) Act 1997, the Industrial Chemicals (Registration Charge - Excise) Act 1997 and the Industrial Chemicals (Registration Charge - General) Act 1997 will be repealed and replaced by the Industrial Chemicals Charges (Customs) Act 2017, the Industrial Chemicals Charges (Excise) Act 2017 and the Industrial Chemicals Charges (General) Act 2017. These Acts continue to enable the Commonwealth to collect a registration charge from registered persons introducing chemicals under the new law.

Part 2 of Schedule 1 also makes consequential amendments to other Commonwealth laws that cross-reference the industrial chemicals legislation, specifically the:

•

Agricultural and Veterinary Chemicals Act 1994

•

Criminal Code Act 1995

•

Trans-Tasman Mutual Recognition Act 1997

Part 1 - Repeals of Acts

Item 1, 2, 3, 4

These items repeal the Industrial Chemicals (Notification and Assessment) Act 1989, the Industrial Chemicals (Registration Charge - Customs) Act 1997, the Industrial Chemicals (Registration Charge - Excise) Act 1997 and the Industrial Chemicals (Registration Charge - General) Act 1997.

These Acts contain provisions relating to the introduction of industrial chemicals and the imposition of a charge in relation to registration of introducers of industrial chemicals. These provisions will cease to have effect the same date that the Industrial Chemicals Act 2017 commences.

Part 2 - Consequential amendments

Item 5, 6, 7

These items amend references in various Acts to the old law and replace them with references to the new law. Specifically, references to the Industrial Chemicals (Notification and Assessment) Act 1989 have been replaced with references to the Industrial Chemicals Act 2017 in the Agricultural and Veterinary Chemicals Act 1994 (item 5), the Criminal Code (item 6) and the Trans-Tasman Mutual Recognition Act (item 7).

Schedule 2 - Application, savings and transitional provisions

Overview

Schedule 2 manages the transition from the old law to the new framework under the new law.

The primary focus of this Schedule is to ensure that the introduction of industrial chemicals is managed in a way that is not administratively or operationally burdensome. It seeks to ensure that decisions made and application processes followed under the old legislation continue to have effect under the new law. Most decisions or powers exercised under the old law will be transitioned as though they were made or exercised under specific provisions of the new law.

For example, introduction permits and exemption categories under the old law will be aligned with an appropriate introduction category under the new legislation. In these instances, the controls on introduction and use that existed under the old law (by way of conditions or specific information obligations) will continue under the new law. This is consistent with the policy objectives of the new scheme, which include minimising unnecessary regulatory burden for introducers while continuing to protect human health and the environment.

For industrial chemicals currently listed on the confidential section of the inventory under the old law, this schedule provides a pathway to their inclusion on the Inventory under the new law while providing equivalent protection for confidential business information (CBI). As with the current arrangements, an introducer wising to continue protection will need to reapply every 5 years and the decision will be subject to the same statutory public interest test that applied under the old law.

Part 1 - Preliminary

Item 1 - Interpretation

This item sets out how particular terms in the schedule are to be interpreted. For example, the schedule defines the old law to be the Industrial Chemicals (Notification and Assessment) Act 1989 (and any regulations made under that Act) as in force immediately before 1 July 2018). The new law is defined to mean the Industrial Chemicals Act 2017.

This item also provides that an expression used in Schedule 2 that is also used in the new law has the same meaning as in that Act.

Part 2 - Application and savings provisions

This part provides for some provisions under the old law to continue to apply following the commencement of the new law. This is to ensure continuity for introducers of industrial chemicals.

Item 2 - Registration charge

This item provides that the four Acts repealed by Part 1 of the Schedule (as in force immediately before 1 July 2018) continue to apply on or after that day in relation to registration charge imposed before that day. This ensures that there is no disruption to the cost recovery regime such that, if an introducer has paid a registration charge under the old law (or has failed to pay such a charge under the old law), this is recognised despite the change in law.

Item 3 - Registration for registration year beginning on 1 September 2017 and earlier years

This item provides that registrations in previous years and those for the registration year commencing on 1 September 2017 will continue to be subject to the systems and process that are in place for registration under the old law.

Item 4 - Early introduction permits

This item provides for section 30A of the old law (which relates to early introduction permits) to continue to apply where an application has been made for an assessment certificate under the old law. If an early introduction permit has been issued by the Director under the old law then the permit will continue to authorise the introduction of the chemical under the new law.

Item 5 - Review of decisions made before 1 July 2018

This item provides that the processes for an application for review by the Administrative Appeals Tribunal under section 102 of the old law will continue to apply for decisions made before the commencement of the new law.

Part 3 - Persons appointed under old law

This part deals with the transition of appointments of the Director and authorised inspectors.

Item 6 - Director under old law

This item provides that the person who was the NICNAS Director under the old law is taken to have been appointed as Executive Director of AICIS under the new law.

The Executive Director holds office on the same terms and conditions as applicable under the old law. The item further provides that the remuneration of the Director, set out in a determination under the Remuneration Tribunal Act 1973, will continue until it is amended under that Act.

Item 7 - Inspectors under old law

This item provides that a person who was appointed as an inspector under the old law is taken to be an authorised inspector under the new law.

Part 4 - Registration

This part describes how applications for registration made under the old law (for registration in both the 2017-18 and 2018-2019 registration years) will be transitioned.

Registration is a requirement for all introducers and this part ensures that a person only has to register once, either prior to, or on and after the commencement day for the relevant registration year.

Item 8 - Register of Industrial Chemical Introducers

This item provides that the Register of Industrial Chemical Introducers kept under the old law continues in existence after 1 July 2018, for the registration year beginning on 1 September 2017. This ensures that there is no disruption in registration for introducers registered for the 2017-2018 registration year.

Item 9 - Persons registered under old law

This item provides that a person registered for the 2018-19 registration year under the old law will be taken to be on the register for the 2018-19 registration year under the new law. This is designed to ensure that people who sought early registration for the 2018-19 year (i.e. those who applied for such registration before 1 July 2018) do not need to re-apply under the new law.

Item 10 - Pending applications for registration or renewal of registration

This item provides that, where no decision has been made by 1 July 2018 on an application for a registration, or renewal of registration, made under the old law for the 2018-19 registration year (which commences on 1 September 2018), the application has effect as if it were an application for registration under the new law.

This means that applications for the 2018-2019 registration year (1 September 2018 to 31 August 2019) will be considered under the new law and that an application made under the old law remains valid.

Part 5 - Assessment certificates etc.

This part provides for the circumstances where assessment certificates and permits issued under the old law will be taken to be issued under the new law.

The following table summarises how each of the assessment certificates and existing permits will be aligned under the new law.

Low volume and controlled use permits do not provide a pathway to listing an industrial chemical on the Inventory under the old law and this part provides clarity to introducers that permits, or applications for permits, that are transitioned to assessment certificates under the new law will not result in listing on the Inventory under the new law. Introducers would be able to apply through the assessed category under the new law if they wanted listing of a chemical on the Inventory.

This part also ensures that certain low volume or concentration introductions which did not require assessment or a permit under the old law can continue to be introduced for a one year transition period under the new law. During this time, introducers would be expected to re-categorise these chemicals under the new law and ensure that they met the requirements of the new categories by 1 July 2019.

Applications pending on 1 July 2018

A person may apply for a new assessment certificate and permit prior to 1 July 2018 and while the timing of the movement from the old law to the new law would be known, it is highly probable that a number of applications will be pending on this date. This part, in items 13, 18, 21 and 28, sets out the arrangements for assessment certificates or permits which are pending on 1 July 2018.

This ensures that introducers who have made an application under the old law (which has not yet been decided under the old law as at 1 July 2018) are not required to make another application under the new law. Their application will simply be dealt with under the relevant provision of the new law (noting that the new law may be applied slightly differently (in accordance with the transitional rules) so as to align as closely as possible with the application and assessment process under the old law).

Limitation on conditions

Under the new law, there will be limited circumstances in which conditions may be imposed on an assessment certificate and the conditions may only relate to volume, location or duration. For assessment certificates transitioned from the old law, or assessment certificates arising from permits that are transitioned from the old law, there may have been conditions imposed that were broader than those able to be imposed under the new law. The part ensures that for applications under the old law (or pending as at 1 July 2018), the broader range of conditions can continue to apply. This provides clarity for introducers that transitioning to the new law will not result in changes to existing controls on industrial chemicals that are on the market.

Consultation with prescribed bodies

To ensure consistency with the treatment of applications for assessment certificates and permits under the old law, this part, through items 14 and 29, removes the mandatory obligation for the Executive Director to consult on conditions with prescribed bodies under the new law. Removing the obligations to consult with prescribed bodies will ensure certainty for introducers on the timing of a decision while not reducing the protection to public health or the environment.

Publishing assessment statements

Information about assessment certificates and permits issued under the old law was published at the time of the approval. This part, through items 12, 20 and 27, removes the Executive Director's obligation to publish an assessment statement under the new law (in respect of chemicals that were assessed under the old law and transitioned).

Items 24 and 31 also remove the requirement for the publishing of an assessment statement for those applications for low volume or controlled use permits pending at the commencement of the new law, which will transition to the new law. It is proposed that transitional rules will set out any public notice requirements for these applications. This ensures consistency with the publication obligations that would have been made for these permits under old law.

Access to the Inventory for industrial chemicals introduced under permits

This part, through items 25 and 32, provides that industrial chemicals introduced under a low volume or controlled use permit will not be listed on the Inventory. The only pathway to Inventory listing under the new law is as a result of an application for an assessment certificate under section 31 of the new law.

Division 1 - Assessment certificates

Item 11 - Assessment certificates issued under old law

In summary, this item transitions existing assessment certificates to the new law. It provides that for the new law:

•

an assessment certificate issued under the old law is taken to be an assessment certificate issued under the new law

•

the person who was the holder of the assessment certificate is the holder under the new law. If there was more than one holder under the old law, they will all become holders under the new law

•

if the assessment certificate was extended to cover a person under the old law, that person is take to be covered by the assessment certificate under the new law

•

the terms of the assessment certificate issued under the old law are taken to be the terms under the new law, and

•

notification obligations under subsections 64(1) and 64(2) (other than paragraph 64(2)(e) of the old law are taken to be specific requirements to provide information to the Executive Director under paragraph 8(1)(d) of the new law. The reason the obligation under paragraph 64(2)(e) does not carry across to the new certificate is because this obligation (to report information about hazards) has become a statutory obligation under the new law via section 100, so there is no need to duplicate the requirement as a specific information obligation on the assessment certificate.

Item 12 - Publication requirements for assessment statements

This item removes the obligation to publish an assessment statement on the AICIS website if varying or cancelling an assessment certificate that has been transitioned from the old law as a result of item 11.

Item 13 - Pending applications for assessment certificates

This item provides that where no decision has been made on a pending application for an assessment certificate made under the old law, the application has effect as if it were an application for an assessment certificate under the new law.

Item 14 - Consultation required with prescribed bodies

This item provides that when considering an application for an assessment certificate made under the old law, the Executive Director is not required to consult with prescribed bodies. The Executive Director may, however, choose to consult. This is consistent with the requirements under the old law and ensures that people who made applications under the old law (that were not decided as at 1 July 2018) are subject to a similar process under the new law.

Item 15 - Conditions on assessment certificate

This item provides that the conditions that may be included on an assessment certificate that has been transitioned from the old law (or for which an application was made under the old law but decided after 1 July 2018) are not limited to volume, location or duration of introduction.

Item 16 - Publication requirements for assessment statements

This item provides that, when an assessment certificate is issued for an application that was submitted under the old law, there will not be an obligation to publish an assessment statement on the AICIS website. The transitional rules will set out the nature of public notices and assessment report for these assessment certificates, which would align with the scope of information released under the old law. This ensures consistency with the publication obligations that would have been made for these certificates under the old law.

Division 2 - Commercial evaluation permits

Item 17 - Commercial evaluation permits issued under old law

In summary, this item transitions commercial evaluation permits issued under the old law to the new law. Specifically, it provides that:

•

a commercial evaluation permit issued under the old law is taken to be a commercial evaluation authorisation issued under the new law

•

the person who was the holder of the commercial evaluation permit is the holder of the commercial evaluation authorisation under the new law. If there was more than one holder under the old law, they will all become holders under the new law

•

the terms of the commercial evaluation permit (e.g. the proper name of the chemical, the introduction volume, the date of issue etc.) are taken to be the terms of the commercial evaluation authorisation under the new law, and

•

the conditions under subsection 21L(1) of the old law are taken to be the conditions under the new law.

Item 18 - Pending applications for commercial evaluation permits

This item provides that, where no decision has been made on an application for a commercial evaluation permit, or for renewal of a commercial evaluation permit, under the old law, the application will be treated as if it were an application for a commercial evaluation authorisation under the new law (subject to certain modifications of the new law).

Division 3 - Low volume permits

Item 19 - Low volume permits issued under old law

In summary, this item transitions low volume permits issued under the old law to the new law. It provides that:

•

a low volume permit issued under the old law is taken to be an assessment certificate issued under the new law

•

the person who was the holder of the low volume permit is the holder of the assessment certificate under the new law. If there was more than one holder under the old law, they will all become holders under the new law

•

the terms of the low volume permit (e.g. the proper name of the chemical, the date of issue etc.) are taken to be the terms of the assessment certificate under the new law

•

any conditions under subsection 21W(3) of the old law are taken to be conditions under new law

•

the conditions under subsection 21W(1) of the old law are taken to be specific requirements to provide information to the Executive Director under paragraph 38(1)(e) of the new law, and

•

the duration of the assessment certificate is taken to be the remaining period for which the permit would have been in force under section 21V of the old law.

Item 20 - Publication requirements for assessment statements

This item removes the obligation to publish an assessment statement on the AICIS website if varying or cancelling an assessment certificate, arising from a low volume permit that has been transitioned from the old law as a result of item 19.

Item 21 - Pending applications for low volume permits

This item provides that where no decision has been made on an application for a low volume permit, or for renewal of a low volume permit, under the old law, the application has effect as if it were an application for an assessment certificate under the new law (subject to certain modifications).

This item further provides that the duration of an assessment certificate issued as a result of such an application will be limited to 3 years.

Item 22 - Consultation required with prescribed bodies

This item provides that, when considering an application for a low volume permit (that is taken to be an application for an assessment certificate under the new law) the Executive Director is not required to consult with prescribed bodies. The Executive Director may, however, choose to consult. This is consistent with the requirements under the old law and ensures that people who made applications under the old law (that were not decided as at 1 July 2018) are subject to a similar process under the new law.

Item 23 - Conditions on assessment certificate

This item provides that the conditions that may apply to a low volume permit transitioned from the old law (or for which an application was made under the old law but decided after 1 July 2018) are not limited to volume, location or duration of introduction.

Item 24 - Publication requirements for assessment statements

This item provides that there will not be an obligation to publish an assessment statement on the AICIS website for low volume permits transitioned from the old law under item 19 (consistent with the old law).

Item 25 - Listing on Inventory for low volume permits

This item provides that industrial chemicals introduced under a low volume permit issued under the old law and transitioned to an assessment certificate under the new law (or for which an application was made under the old law but decided after 1 July 2018) will not be listed on the Inventory (consistent with the old law).

Division 4 - Controlled use permits

Item 26 - Controlled use permits issued under old law

In summary, this item transitions controlled use permits issued under the old law to the new law. Specifically, it provides that for the new law:

•

a controlled use permit issued under the old law is taken to be an assessment certificate issued under the new law

•

the person who was the holder of the controlled use permit is the holder of the assessment certificate under the new law. If there was more than one holder under the old law, they will all become holders under the new law

•

the terms of the controlled use permit (e.g. the proper name of the chemical, the introduction volume, the date of issue etc.) are taken to be the terms of the assessment certificate under the new law

•

the conditions under subsection 22H(1) of the old law are taken to be specific conditions of the assessment certificate under the new law;

•

the conditions under subsection 22H(2) of the old law are taken to be specific requirements to provide information to the Executive Director the new law; and

•

section 39 of the new law applies in relation to the assessment certificate as if that section expressly limited the duration of the assessment certificate to the remaining period for which the permit would have been in force under the old law.

Item 27 - Publication requirements for assessment statements

This item removes the obligation to publish an assessment statement on the AICIS website if varying or cancelling an assessment certificate arising from a controlled use permit that has been transitioned from the old law as a result of item 27.

Item 28 - Pending applications for controlled use permits

This item provides that where no decision has been made on an application for a controlled use permit (or an application for renewal of a controlled use permit under the old law), the application has effect as if it were an application for an assessment certificate under the new law. This item further provides that an assessment certificate issued as a result of such an application will be limited to 3 years.

Item 29 - Consultation required with prescribed bodies

This item provides that when considering an application for an assessment certificate for a controlled use permit made under the old law, the Executive Director is not required to consult with prescribed bodies (for the same reasons described in relation to other types of permits transitioned under the new law).

Item 30 - Conditions on assessment certificate

This item provides that the conditions that may apply to controlled use permits transitioned from the old law (or for which an application was made under the old law but decided after 1 July 2018) are not limited to volume, location or duration of introduction (for the same reasons described in relation to other types of permits transitioned under the new law).

Item 31 - Publication requirements for assessment statements

This item provides that there will not be an obligation to publish an assessment statement on the AICIS website for controlled use permits transitioned from the old law under item 26 (for the same reasons described in relation to other types of permits transitioned under the new law).

Item 32 - Listing on Inventory for controlled use permits

This item provides that industrial chemicals introduced under a controlled use permit issued under the old law and transitioned to an assessment certificate under the new law (or for which an application was made under the old law but decided after 1 July 2018) will not be listed on the Inventory.

Division 5 - Introductions under section 21 of old law

Item 33 - Introductions under section 21 of old law

This item provides for the transition of industrial chemicals that were being introduced under paragraph 21(3)(b), subsection 21(4) or paragraph 21(6)(c) of the old law.

In summary, this item provides that, prior to 1 July 2019, these introductions will be taken to be reported introductions under the new law provided that they continue to comply with the requirements for introductions that existed for paragraph 21(3)(b), subsection 21(4) or paragraph 21(6)(c) of the old law immediately prior to 1 July 2018.

During this one year transition period, introducers will be expected to re-categorise these chemicals and introduce these chemicals in line with the new categories of introduction from 1 July 2019.

Item 34 - Introductions under paragraph 21(6)(a) of the old law

This item provides for the transition of industrial chemical that were being introduced for research, development or analysis under paragraph 21(6)(a) of the old law.

For one year (until 1 July 2019), these introductions will continue to be authorised provided that the introducer complies with the requirements of the old law (as set out in paragraph 21(6)(a) of the old law immediately prior to 1 July 2018).

During this one year transition period, introducers will be expected to re-categorise these chemicals and introduce these chemicals in line with the new categories of introduction from 1 July 2019.

Part 6 - Protection of confidential information

This part provides that holders of a confidence under the old law will be taken to be confidence holders under the new law.

Further, this part provides that exempt information under the old law (that is, information for which protection from disclosure has been granted under the old law) will continue to be protected under the new law. As under the old law, the Executive Director will be able to disclose the information only in certain limited circumstances - for example, to a court of law.

Item 35 - Holders of a confidence under old law

This item provides that a person who was the holder of confidence under the old law will be considered to be a confidence holder under the new law.

Item 36 - Applying to be a confidence holder in relation to confidential listings

This item provides for person to apply to be a confidence holder in relation to an industrial chemical that was included in the confidential section of the old Inventory or an industrial chemical that was added to the new Inventory as confidential. This preserves rights available under the old law.

Item 37 - Pending application for information to be treated as exempt information

In summary, this item provides that pending requests for information to be treated as exempt information under the old law are taken to be requests for information to be treated as confidential business information under the new law.

Item 38 - Exempt information

This item provides that information that was exempt information under the old law (or information for which an application was submitted under the old law for the information to be treated as exempt but the application was decided under the new law) is taken to be protected information under the new law. This information cannot be disclosed except in very limited circumstances.

Part 7 - Inventory

Overview

This part provides for the transition of arrangements for the Inventory.

Industrial chemicals on the Australian Inventory of Chemical Substances (AICS) under the old law will be taken to be listed on the Australian Inventory of Industrial Chemicals (the new Inventory) under the new law. Industrial chemicals listed on the confidential section of the AICS immediately prior to the commencement of the new law will be taken to be listed on the new inventory on 1 July 2018, but their terms of listing (e.g. CAS name and number) will be represented as 'confidential'. Individuals seeking to introduce an industrial chemical that has transitioned from the confidential section of the AICS, but is still listed as confidential, will continue to be able to confirm with AICIS whether the industrial chemical is listed as confidential on the new Inventory and, if so listed, may then introduce in accordance with the terms of the listing.

This part also provides that holders of an assessment certificate issued under the old law will be able to apply for confidential treatment for the listing of the industrial chemical on the new Inventory. As with the old law, a decision to grant confidential treatment of the listing will take into consideration the substantial prejudice to the commercial interests of the applicant and whether such prejudice is outweighed by the public interest in disclosure.

Division 1 - Industrial chemicals included in old Inventory

Item 39 - Industrial chemicals included in old Inventory

This item provides that an industrial chemical on the non-confidential part of the Inventory under the old law will be considered to be listed on the Inventory under the new law. In this case, the particulars of the listing that exist for industrial chemicals under the old law would be continued as terms of the listing under the new law.

Item 40 - Industrial chemicals included in the confidential section of old Inventory

This item provides that an industrial chemical in the confidential section of the Inventory under the old law will be considered to be listed on the Inventory under the new law. For these industrial chemicals, the CAS name and CAS number (and other terms of the listing) will be masked with the word 'confidential'.

Division 2 - Pending applications

This division transitions applications for listing on the Inventory under the old law (either on the confidential or non-confidential section) to applications under the new law.

Item 41 - Pending applications for early listing in non-confidential section of old Inventory

This item provides that an application for early listing on the old Inventory, which was pending on 1 July 2018 is taken to be an application for early listing under the new law (subject to any modifications prescribed by the transitional rules).

Item 42 - Pending applications for listing in confidential section of old Inventory

This item provides that an application for listing on the confidential section of the old Inventory that was pending on 1 July 2018 is to be considered as an application for each of the terms of the listing to be masked with the word 'confidential'. This outcome is achieved by modifying the application of sections 82 and 108 of the new law.

Division 3 - Confidential listings

Item 43 - Application for confidential listing

This item provides that an application can be made for each of the terms of the listing to be masked with the word 'confidential' on the new Inventory if the chemical was subject to an assessment certificate issued under the old law. This preserves the rights a person would have had under the old law to list on the confidential section of the old Inventory. This arrangement will not apply to people who apply for (and are granted) an assessment certificate from 1 July 2018. Instead, these applicants may apply for the proper name and end use of the chemical to be masked with an AACN or generalised end use in accordance with the new law.

This item outlines that an application can be made by the holder of an assessment certificate issued under the old law and that this will be treated as an application for confidential business information under the new law.

Item 44 - Variation of confidential listing

When considering a variation to a confidential listing under the new law, the Executive Director will be obliged to only give notice to the holders of confidence and any bona fide inquirers under the old or new law.

Item 45 - Removing industrial chemicals from inventory on Executive Director's initiative

Under section 95 of the new law, before removing a listed chemical, the Executive Director must publish a notice stating the reason the chemical is to be removed and the proposed date for the removal. This must be done at least 20 working days before the proposed date of removal. This item provides that for confidential listings, the Executive Director would instead provide a notice to any holder of confidence and any bona fide inquirers.

Item 46 - Review of protection

This item ensures that Inventory listings that are masked with the word 'confidential' are subject to 5 yearly review of the protection of confidential business information. The timeframe for the review will be based on the date the industrial chemical was listed on the confidential section of the Inventory, or last reviewed under the old or new law.

Part 8 - Miscellaneous

Overview

This part set outs various miscellaneous transitional arrangements. This part provides that previous decisions or actions taken by the Director under the old law will be taken to be decisions or actions of the Executive Director under the new law.

This part also provides for rules to be made for the purpose of transitioning from the old law to the arrangements under the new law.

Item 47 - Reconsideration and review of decisions

This item provides that a decision not to approve an application by a person to be a confidence holder (as possible under item 36) will be subject to the reconsideration and review arrangements of the new law (section 166).

Item 48 - Things done by, or in relation to, the Director, before 1 July 2018

This item provides that anything done by the Director under the old law is taken to have been done by the Executive Director under the new law. The Minister may make an exception to this.

Item 49 - Compensation for acquisition of property

This item provides that the Commonwealth will be liable to pay a reasonable amount of compensation if the operation of the Schedule results in the acquisition of the property from a person. This item further provides that the person can institute proceedings if the Commonwealth and the person do not agree on the amount of the compensation.

Item 50 - Transitional rules

The Minister may make rules prescribing matters of a transitional nature relating to the enactment of this Bill or the new law. This will allow for more detailed and specific aspects of the Bill relating to the transitional arrangements to be included in rules.

This item also provides that rules made for the purposes of this item may modify provisions of the new law or this Schedule for the purpose of transitioning between the old law and the new law. Modifications may be necessary to deal with unforeseen transitional issues which may arise given the complexity of the old law.

There is a need for broad rule-making powers (and to enable the new law to be modified through transitional provisions in rules) in order to minimise disruption to the very large number of introducers (in excess of 3,000) and noting the large number of chemical introductions regulated under the law (with in excess of 45,000 industrial chemicals authorised for introduction).

In these circumstances there are significant consequences for not having the right transitional arrangements in place. For example, if the transitional arrangements are inadequate or incorrect this can impact on the local manufacture of industrial chemicals and the import of such chemicals. Additionally, risks from industrial chemicals may go unmanaged or responses to increased risk be delayed.

The item provides that the rules must only be transitional in nature creating a direct link with the transition from the old law to the new law. To ensure that there is Parliamentary oversight, the rules will be subject to disallowance.