Accord Australasia Limited and Director, National Industrial Chemicals Notification & Assessment Scheme
[2013] AATA 414
[2013] AATA 414
Division General Administrative Division File Numbers
2013/2109
Re
Accord Australasia Limited
APPLICANT
And
Director, National Industrial Chemicals Notification & Assessment Scheme
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 20 June 2013 Place Sydney The application for an extension of time under s 29(7) of the AAT Act is refused.
............................[SGD].............................
Deputy President RP Handley
CATCHWORDS
PRACTICE AND PROCEDURE - application for extension of time – Applicant failed to apply within prescribed time for review of a final decision to include chemicals in the Australian Inventory of Chemical Substances - whether extant decision for review – whether reasonable in the circumstances to grant an extension of time – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 29(2), (7)
Acts Interpretation Act 1901 s 33(3), (3AA)
Industrial Chemicals (Notification and Assessment) Act 1989 ss 3, 11, 20AA, 21, 15AA, 15AB, 102
CASES
Comcare v A’Hearn (1993) 45 FCR 441
Fazio and Comcare [1993] AATA 317
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344
REASONS FOR DECISION
Deputy President RP Handley
Date: 20 June 2013
BACKGROUND
This interlocutory decision is concerned with an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for an extension of time for the making of an application to the Tribunal for the review of a decision.
On 6 May 2013, Accord Australasia Limited (the Applicant) applied to the Tribunal for the review of decisions made by the Director, National Industrial Chemicals Notification & Assessment Scheme (the Respondent) on 2 April 2013 (1) to include on the public section of the Australian Inventory of Chemical Substances (the Inventory) one chemical - Morus Bombycis Root extract - for cosmetic use only, along with associated conditions of use, and (2) to not include on the public section of the Inventory two chemicals, namely Ajuga Turkestanica Extract and Coleus Barbatus Extract. The Applicant also applied for an extension of time for the making of an application for review of a decision since the application for a review was six days outside the prescribed time for making such an application.
THE RELEVANT LAW AND FACTS
Under s 29(2) of the AAT Act, the prescribed time for making applications for review is 28 days after notification of the decision. Section 29(7) permits the Tribunal to grant an extension of time:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
This is an unconfined discretion, but the Tribunal is guided in exercising its discretion by a number of considerations which are usefully summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344 at 348-349. These considerations include whether the Applicant has given a reasonable explanation for the delay, whether the Applicant made the Respondent aware that the finality of the relevant decision was being contested, prejudice caused to the Respondent by the delay, any adverse impact that might be caused to others, whether the substantive application has merit, considerations of fairness with regard to others, and the public interest. In Comcare v A’Hearn (1993) 45 FCR 441, at 444, the Full Federal Court emphasised that although it is to be expected that a reasonable explanation for the delay in making an application for review will normally be given and will be considered as a relevant matter, such an explanation is not an essential pre-condition.
The Tribunal has jurisdiction to review certain decisions under the Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act) including, pursuant to s 102(1)(e), “a final decision by the Director under subsection 15AA(7)”. The objects of the ICNA Act are set out in s 3:
The objects of this Act are to provide for:
(a) a national system of notification and assessment of industrial chemicals for the purposes of:
(i) aiding in the protection of the Australian people and the environment by finding out the risks to occupational health and safety, to public health and to the environment that could be associated with the importation, manufacture or use of the chemicals; and
(ii) providing information, and making recommendations, about the chemicals to Commonwealth, State and Territory bodies with responsibilities for the regulation of industrial chemicals; and
(iii) giving effect to Australia's obligations under international agreements relating to the regulation of chemicals; and
(iv) collecting statistics in relation to the chemicals;
being a system under which information about the properties and effects of the chemicals is obtained from importers and manufacturers of the chemicals; and
(b) national standards for cosmetics imported into, or manufactured in, Australia and the enforcement of those standards.
Part 2, Division 1 of the ICNA Act provides for the keeping of the Australian Inventory of Chemical Substances. Subsections 11(3) and (4) state:
(3) If a chemical is included in the Inventory, the chemical may be imported into Australia, or manufactured in Australia, without obtaining an assessment certificate or permit.
(4) However, if the importation or manufacture of the chemical is subject to a condition included in the Inventory under section 13 or subsection 15AB(1), the chemical may only be imported or manufactured without obtaining an assessment certificate or permit if the importation or manufacture is in accordance with the condition.
Division 1A of the Act provides for the inclusion of previously regulated chemicals in the Inventory. Section 15AA(1) permits the Director to make a proposal to include or not to include a new industrial chemical in the Inventory. Subsection (4) requires the Director to give notice of a proposal in the Chemical Gazette. Subsection (5) requires the notice to state certain things including:
(g) that a person may give a statement to the Director, within 28 days after the date of publication of the notice, giving reasons why the person objects to the Director's proposal.
By notices published in the Chemical Gazette dated 5 June 2012, the Director proposed to include one chemical for public use only, along with associated conditions of use, in the public section of the Inventory and not to include two other chemicals in the Inventory. (The use of such chemicals in cosmetic products was previously regulated under the terms of the Therapeutic Goods Act1989.) The Applicant responded to the notices by giving a statement to the Director in accordance with s 15AA(5)(g).
Subsections (7) and (8) state:
(7) Once the 28 days mentioned in paragraph (5)(g) have passed, the Director must, having regard to any statements received, make a final decision:
(a) to include or not to include the chemical in the Inventory; and
(b) if the Director decides to include the chemical in the Inventory--to include or not to include specified particulars in respect of the chemical.
(8) The Director must:
(a) publish a notice in the Chemical Gazette of the Director's final decision; and
(b) give a copy of the notice to any person who gave a statement.
On 2 April 2013, the Director, having made final decisions in accordance with s 15AA(7), published notices of these decisions in the Chemical Gazette pursuant to s 15AA(8), and gave a copy of the notices to the Applicant. Section 102(1)(e)of the ICNA Act provides jurisdiction for the Tribunal to review decisions made under s 15AA(7). The Applicant made an application to the Tribunal for review of these decisions on 6 May 2013, six days out of time.
Section 15AB(1) states:
(1) If:
(a) the Director makes a final decision under subsection 15AA(7) to include a new industrial chemical in the Inventory; and
(b) either:
(i) at least 28 days have passed since the Director published the notice mentioned in subsection 15AA(8) and an application to the Tribunal for review of the Director's decision has not been made; or
(ii) an application to the Tribunal for review of the Director's decision has been made and review of the decision has been finalised;
then the Director must include the chemical in the Inventory, along with any particulars in respect of the chemical that the Director has made a final decision to include in the Inventory.
The Director’s decision to include a chemical in the Inventory pursuant to s 15AB(1) is not a decision which is reviewable by the Tribunal.
On 7 May 2013, more than 28 days having passed since 2 April 2013, the Director published a notice in the Chemical Gazette stating that, in accordance with s 15AB(1) of the ICNA Act, he had included one chemical in the Inventory. (The Chemical Gazette is published on the first Tuesday of every month; 7 May 2013 was the first Tuesday after the 28 day period for making an application for review had expired.)
THE ISSUE
The issue for the Tribunal is whether to grant the Applicant an extension of time for the making of its application for review of the Director’s decision made on 2 April 2013. As stated above, the Applicant’s application for review was made on 6 May 2013, six days late.
THE APPLICANT’S SUBMISSIONS
Mr Preston, for the Applicant, said his client is the peak industry body representing the interests of members who are cosmetic product manufacturers and brand owners. It relies on membership fees for its financial support and acts at the behest of its members. When the Applicant received notice of the Director’s final decisions made on 2 April 2013, it notified its members and asked for their response. Notwithstanding that the decisions will have an effect on the members’ businesses, the members were tardy in responding to the Applicant and, as a result, it was not until Monday 6 May 2013 at 4.52 pm that the Applicant’s application was sent by email to the Tribunal and the Respondent’s solicitor. Mr Preston said the Applicant does not dispute that the application was out of time but noted that the Respondent was aware, or should have been aware, of the application for review before publishing the final decision notices in the Chemical Gazette on 7 May 2013. At the time of making its application, the Applicant was not aware of the impending publication of the notices on 7 May 2013.
Mr Preston also noted that the Director’s proposals in relation to the chemicals were notified in the Chemical Gazette of 5 June 2012. The Applicant responded to this proposal within 28 days. The Applicant heard nothing further from the Director until the notices were published in the Gazette on 2 April 2013.
Mr Preston said the Applicant had not ‘rested on its laurels’ and there was no prejudice to the general public by reason of the late application (Andrew Fazio and Comcare [1993] AATA 317, at [15]). In relation to fairness, Mr Preston contended that the relevant regulatory regime is a fairly technical one and the issue in dispute is also a technical one between the cosmetics industry and the regulator; non-one else would be adversely affected if an extension of time was granted. He further noted that, in relation to the substantive merits of the application, there is another application raising similar issues which has already been underway in the Tribunal for a significant period.
Mr Preston queried whether the notice given by the Director under s 15AB(1) was valid since, in relation to s 15AB(1)(b)(i), by the time the notices were published in the Chemical Gazette on 7 May 2013, an application for review had been received by the Director. Despite the publication of notices being mandated by s 15AB(1), the requirements of s 15AB(1)(b) must first be satisfied. However, he accepted that the Tribunal has no jurisdiction to review a s 15AB(1) decision. In any event, Mr Preston noted that even if the s 15AB(1) notice was valid, subsections 33(3) and (3AA) of the Acts Interpretation Act 1901 would enable them to be revoked.
THE RESPONDENT’S SUBMISSIONS
Mr Lenehan, for the Respondent, referred to the objects of the ICNA Act in s 3 (see above), providing for a national system of regulation. Section 15AA and s 15AB of the ICNA Act were introduced into the Act by a 2011 amending Act. Mr Lenehan noted that the keeping of the Inventory and the effect of the inclusion of a chemical in the Inventory, with or without conditions imposed, is an aid to the protection of the Australian people and the environment. He said that non-inclusion of chemicals in the Inventory does not mean that their use is totally prohibited: there are other means by which the chemicals can be used, albeit that this requires a chemical in respect of which an application is made to undergo an assessment process.
Mr Lenehan said that s 15AB(1) is a mandatory provision and, given there was provision of a consultative process pursuant to s 15AA(5) and provision for an application to the Tribunal for review of a decision under s 15AA(7), the s 15AB(1) decision should be considered final. He noted that, while s 20AA of the ICNA Act enables the Director to remove chemicals from the Inventory that he believes have been wrongly included, s 21 permits a person to apply for a permit for the introduction of an industrial chemical which has not been included in the Inventory.
The Respondent contended that publication of the notice pursuant to s 15AB(1) to include a chemical in the Inventory, had the effect that the final decision under s 15AA(7) was no longer reviewable. Once the 28 day period during which an application could be made for review of the s 15AA(7) decision was past, publication of a notice was mandated by s 15AB(1).
Mr Lenehan noted that s 15AB(1) is silent on decisions not to include a chemical in the Inventory because such a decision does not, in practice, require any further action. He contended that it would be perverse if a decision to include a chemical in the Inventory ceased to be reviewable by operation of s 15AB(1) but a decision not to include a chemical in the Inventory continued to be potentially reviewable. In this instance, both the decision to include and the decision not to include were notified in the Chemical Gazette on 7 May 2013. Both decisions were the subject of a prolonged consultation process and should be treated as final.
Mr Lenehan said that if the Tribunal takes a different view, then the Respondent submits that the Tribunal should not exercise its discretion to grant an extension of time. As stated, both decisions had been preceded by a lengthy consultation process and, given the Applicant had already made a submission to the Director, one would expect the Applicant, as the peak industry body in Australia representing cosmetic manufacturers, “to have its act together” in meeting the prescribed 28 day timeframe. The Applicant did nothing to indicate to the Director that it was considering making an application to the Tribunal for a review. Both decisions had been notified in the Gazette and the public, whose protection is, amongst other things, an object of the ICNA Act, may have acted on the notification and could be prejudiced.
With regard to the merits of the application, while accepting that the application for review was made in haste, Mr Lenehan noted that the application was unsupported by any data and submitted that the application’s prospects of success are not strong.
DISCUSSION
There is no dispute that the Tribunal does not have jurisdiction to review decisions made under s 15AB(1) of the ICNA Act. The issue for determination is whether to grant an extension of time for an application for the review of the Director’s decision made pursuant to s 15AA(7) on 2 April 2013.
I do not accept the Respondent’s contention that once the Director has given notice of the inclusion of a chemical in the Inventory, in accordance with the mandatory requirement in s 15AB(1), there is no extant reviewable decision. If this were the case, one would expect a clear statement to this effect in the legislation. As Mr Lenehan acknowledged, s 20AA of the ICNA Act enables the Director to remove chemicals from the Inventory that he believes have been wrongly included. However, the perceived finality of the publication of a decision in the Gazette and the prejudice that might follow from persons acting on such notification should necessarily be strong grounds for not exercising the discretion in s 29(7) of the AAT Act to extend the time for making an application.
The regulatory regime set out in the ICNA Act provides for submissions from interested parties within 28 days of the Director publishing a notice proposing to include or not include a new industrial chemical in the Inventory (see s 15AA(1) and 15AA(5)(g)). The Applicant made such a submission in this case, on 5 June 2012, within 28 days of publication of the notice. The Director did no more than act in accordance with the s 15AB(1) mandatory requirement when he published notice of the inclusion of a chemical in the Inventory on Tuesday 7 May 2013, being the first date on which the (monthly) Chemical Gazette was published following the expiry of the 28 period for applications for review to be lodged with the Tribunal. While I accept that the process of internal discussion/consultation between members of the Applicant may take time, I note that the Applicant’s submission in response to publication of the original notice of proposed action on 5 June 2012 was completed within the required 28 day period. Moreover, while I accept that the Applicant’s solicitor, Mr Preston, acted promptly on lodging an application once instructed by the Applicant, it would have been open for the Applicant to have alerted the Director to the possibility of an application for review being made even if not made within the prescribed time. It did not do so.
The general principle applied by the Tribunal pursuant to s 29(2) of the AAT Act is that applications for review will not generally be entertained outside the prescribed period, which in this instance is 28 days. However, as stated above, s 29(7) endows the Tribunal with a discretion to extend this period if satisfied that it is reasonable in all the circumstances to do so. The considerations to be taken into account by the Tribunal in exercising its discretion are those referred to in paragraph 4 above.
In my view, the explanation for the delay relied upon by the Applicant is not persuasive given its previous conduct. Given the regime set out in the ICNA Act, it was not unreasonable for the Director to act promptly once the 28 day period had expired in accordance with the mandatory requirement in s 15AB(1), given he had not been made aware that the finality of the decision to include a chemical in the Inventory was being contested. I agree that there is a possibility of prejudice to others who may have acted on the notice although I have not been provided with any evidence of this. On the other hand, I have not been provided with any substantial evidence as to the merits of the Applicant’s case, albeit that Mr Preston pointed out that proceedings dealing with similar issues are already the subject of other Tribunal proceedings. I accept that amongst the objects of the ICNA Act are the interests of the public and the environment. I note that the Act provides a process for the Director to amend the Inventory if he believes that a chemical has been wrongly included (s 20AA) and that the Act permits a person to apply for a permit for the introduction of an industrial chemical where not included in the Inventory (s 21). Thus, as Mr Lenehan put it, the refusal of an extension of time is ‘not the end of the road’ for the Applicant.
Having considered the above matters, I am not satisfied that I should exercise the discretion in s 29(7) to extend the time for the making of the Applicant’s application for review and I therefore refuse the application for an extension of time.
DECISION
The application for an extension of time under s 29(7) of the AAT Act is refused.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley ...........................[SGD]...................................
Associate
Dated 20 June 2013
Date(s) of hearing 14 June 2013 Date final submissions received 14 June 2013 Advocate for the Applicant C Preston, solicitor Solicitors for the Applicant Legal Finesse Counsel for the Respondent C Lenehan Solicitors for the Respondent Australian Government Solicitor
1