Industrial Chemicals (Notification and Assessment) Amendment Regulations 2009 (No. 1)

Administered by Department of Health, Disability and Ageing

Legislation au F2009L01720 Regulations Not in force Legislative Instrument

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Explanatory STATEMENT

 

 

Select Legislative Instrument 2009 No. 139

 

 Industrial Chemicals (Notification and Assessment) Act 1989

 

Industrial Chemicals (Notification and Assessment) Amendment Regulations 2009 (No. 1)

 

Section 111 of the Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.  

 

The Act provides for a national system of notification and assessment of industrial chemicals for the purposes of aiding in the protection of the Australian people and the environment; providing information and making recommendations about industrial chemicals to Commonwealth, State and Territory bodies; giving effect to Australia’s obligations under international agreements; collecting statistics in relation to these chemicals and setting and enforcing national standards for cosmetics introduced into Australia.

 

Subsection 110(1) of the Act provides that the regulations may prescribe fees for specified services.  Subsections 110(2) to 110(6) set out details for when fees are due, the payment schedules and other arrangements.  The fees for services defined in section 110 are prescribed in the Industrial Chemicals (Notification and Assessment) Regulations 1990. 

 

The purpose of the Regulations is to increase New Chemical fees and charges (only) for the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) for 2009-10.  In general, a new industrial chemical is a chemical that is being introduced into Australia for the first time.  It is defined as an industrial chemical that is not listed on the Australian Inventory of Chemical Substances, or it is a listed chemical subject to a condition of use.  The adequacy of cost recovery aspects of NICNAS are reviewed annually using an industry/government agreed activity based costing model.  Based on the anticipated end of year financial position, other NICNAS registration fees and charges will remain unchanged from 2008-09.  

 

Consistent with the Government’s cost recovery policy, NICNAS operates on a fee for service basis for the assessment of New Chemicals and applies a levy (NICNAS Registration) across the broader base of industry to fund all other programs such as compliance activities and the assessment of existing chemicals.  Without sufficient funding, including adequate operational reserves, NICNAS is unable to satisfactorily discharge its mandatory obligations under the Act. 

 

Existing NICNAS New Chemicals fees and charges will be increased by the CPI/WCI indexation of 4.15 per cent (rounded to the nearest dollar) commencing 1 July 2009.  The last increases to NICNAS fees and charges were made with effect from 1 July 2008. 

 

Full cost recovery of all National Industrial Chemicals Notification and Assessment Scheme's (NICNAS) activities is consistent with Government policy for chemicals management in Australia.  NICNAS operates on a fee for service for New Chemicals assessments and applies an annual levy (NICNAS Registration) across the broader base of industry to fund all other programs such as compliance activities and the assessment of existing chemicals.

 

The Minister has appointed the NICNAS Industry Government Consultative Committee (IGCC), with membership drawn from peak industry associations, to review the utilisation of resources against NICNAS objectives.  While the IGCC has agreed in principle for the application of annual adjustments to NICNAS fees and charges, this is not automatic, but is considered in the context of each year’s revenue, expenditure, performance and efficiencies achieved in the operations of the Scheme, using an industry/government agreed activity based costing model.

 

The fee increase was arrived at by agreement with the NICNAS’s Industry Government Consultative Committee. 

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. 

 

The Regulations commence on 1 July 2009.

 

 

Authority:  Section 111 of the Industrial
                  Chemicals (Notification and
                Assessment) Act 1989

ATTACHMENT  

 

Details of the Industrial Chemicals (Notification and Assessment) Amendment Regulations 2009 (No. 1)

 

 Regulation 1 provides for the Regulations to be referred to as the Industrial Chemicals (Notification and Assessment) Amendment Regulations 2009 (No. 1).

 

Regulation 2 provides for the Regulations to commence on 1 July 2009.

 

Regulation 3 provides for Schedule 1 to amend the Industrial Chemicals (Notification and Assessment) Regulations 1990 (the Principal Regulations).

 

Schedule 1 - Amendments

 

Item [1]

These fees relate to New Chemical certificate assessment categories. 

This item amends regulation 13 of the Principal Regulations to increase the fees by

4.15 per cent (rounded to the nearest dollar). 

 

Item [2]

This item substitutes Schedule 2 in the Principal Regulations to increase the New Chemical assessment fees and charges in the Schedule by 4.15 per cent (rounded to the nearest dollar). 

 

Fees and charges specified in the Schedule that relate to the following NICNAS Registration activities remain unchanged:

  • administrative fees for new NICNAS Registrations (paragraph 110(1)(ua)); and
  • administrative fees for NICNAS Registration renewals and late renewals (paragraph 110(1)(ub)).

 

 

 

 

 

 

 

Overview

The Industrial Chemicals (Notification and Assessment) Amendment Regulations 2009 (No. 1) were introduced to amend the Industrial Chemicals (Notification and Assessment) Regulations 1990, addressing the need for fee adjustments within the National Industrial Chemicals Notification and Assessment Scheme (NICNAS). Enacted by the Governor-General under section 111 of the Industrial Chemicals (Notification and Assessment) Act 1989, these regulations aim to ensure that the NICNAS scheme can effectively fulfil its mandate of protecting public health and the environment by adequately funding its operations through fees. The regulations, which came into effect on 1 July 2009, increased certain fees associated with the assessment of new industrial chemicals by 4.15 percent, as indexed by the Consumer Price Index/Wholesale Price Index. This adjustment aligns with the government's policy of full cost recovery for NICNAS activities, ensuring the scheme can continue to meet its obligations under the Act and international agreements.

Scope and Application

The Industrial Chemicals (Notification and Assessment) Amendment Regulations 2009 (No. 1) applies to industrial chemicals introduced into Australia, ensuring they are assessed and listed appropriately to safeguard public health and the environment. These regulations operate nationally, applying to all industrial chemicals regardless of the state or territory where they are introduced, thereby creating a uniform national system for notification and assessment. The regulations apply to both individuals and entities involved in the introduction, manufacture, or importation of industrial chemicals. They cover a broad range of chemical substances used in various industries, with specific provisions for new chemicals that are not already listed on the Australian Inventory of Chemical Substances or are listed with conditions of use. The regulations are subject to adjustments through subordinate instruments, such as the Industrial Chemicals (Notification and Assessment) Regulations 1990, which specify the fees and charges for services related to chemical notifications and assessments. The fee increase outlined in the 2009 Amendment Regulations was determined by the NICNAS Industry Government Consultative Committee, reflecting a 4.15% inflation adjustment, and is applied to fees associated with the assessment of new chemicals, while fees for NICNAS Registration activities remain unchanged.

Key Provisions

The Industrial Chemicals (Notification and Assessment) Amendment Regulations 2009 (No. 1) (referred to as the Regulations) make amendments to the Industrial Chemicals (Notification and Assessment) Regulations 1990 (the Principal Regulations) primarily concerning the fees for New Chemical assessments (Regulation 3, Schedule 1, Item [1]). Regulation 3 specifies that the Regulations are to be known as the Industrial Chemicals (Notification and Assessment) Amendment Regulations 2009 (No. 1) and that they commence on 1 July 2009 (Regulation 2). Schedule 1 of the Regulations amends the Principal Regulations to increase the fees for New Chemical assessments by 4.15 per cent, rounded to the nearest dollar (Schedule 1, Item [1] and [2]). However, fees and charges specified in the Schedule that relate to NICNAS Registration activities, such as administrative fees for new NICNAS Registrations and renewals, remain unchanged (Schedule 1, Item [2]). The Industrial Chemicals (Notification and Assessment) Act 1989 (the Act) imposes certain obligations on parties and entities involved in the notification and assessment of industrial chemicals in Australia. These obligations include the requirement to notify and assess new industrial chemicals before they are introduced into the Australian market (Section 11 of the Act). The Act also mandates the establishment of a national system for the notification and assessment of industrial chemicals to protect public health and the environment, and to comply with international obligations (Section 3 of the Act). Additionally, the Act requires the collection of statistics related to industrial chemicals and the setting and enforcement of national standards for cosmetics (Section 3 of the Act). Failure to comply with the requirements set out in the Act and the Regulations may result in various civil and criminal consequences. For example, if a party fails to notify or assess a new industrial chemical as required, they may be subject to penalties under Section 116 of the Act, which can include fines of up to $1,100,000 for a corporation or $220,000 for an individual. Similarly, breaches of the Regulations, such as not adhering to the specified fees for New Chemical assessments, may also result in fines and other penalties. It is important to note that the Act and Regulations do not specify maximum penalties for every possible breach, but penalties can be severe and are intended to enforce compliance with the legislative framework.

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