Explanatory Statement
Issued by the authority of the Acting Executive Officer of the National Environment Protection Council
National Environment Protection Council Act 1994
National Environment Protection (Used Packaging Materials) Measure 2011
Section 14 of the National Environment Protection Council Act 1994 (the NEPC Act) provides, in part, that the National Environment Protection Council (the Council) may, by instrument in writing, make a measure, to be known as a national environment protection measure that relates to the re-use and recycling of materials.
Background
The National Environment Protection (Used Packaging Materials) Measure (Used Packaging Materials NEPM) provides regulatory underpinning for the Australian Packaging Covenant (the Covenant). This co-regulatory arrangement has served as the primary mechanism in Australia to reduce the environmental impacts of packaging since 1999. The Covenant was formerly known as the National Packaging Covenant. The Australian Packaging Covenant is available at http://www.packagingcovenant.org.au/documents/File/Aust%20Packaging%20Covenant%20-%201%20Jul%2010.pdf.
Late in 2010, administrative issues were identified with the registration of the 2005 and 2010 Minor Variations to the Used Packaging Materials NEPM which could call into question the validity of the Used Packaging Materials NEPM. In order to put the question of the validity beyond doubt and provide certainty to the packaging industry, the Used Packaging Materials NEPM has been remade to ensure the Used Packaging Materials NEPM continues to provide the regulatory underpinning for the Covenant. The alignment of the terms of the Used Packaging Materials NEPM and the Covenant is key to providing national consistency in regulatory support.
Purpose
The goal of the Used Packaging Materials NEPM is to:
- reduce environmental degradation arising from the disposal of used packaging;
- conserve virgin materials through the encouragement of waste avoidance; and
- the re-use and recycling of used packaging materials;
by supporting and complementing the voluntary strategies in the Covenant and by assisting in the assessment of the performance of the Covenant.
Consultation
In accordance with the provisions of the NEPC Act, a notice of intention to prepare a draft Used Packaging Materials NEPM was published in the Commonwealth Government Notices Gazette (Gazette) on Wednesday 23 February 2011 and in The Australian on Wednesday 23 February 2011 and Friday 25 February 2011. Following the close of the notification period, the draft Used Packaging Materials NEPM and an Impact Statement were prepared and released for public consultation. The draft Impact Statement, including a Decision Regulatory Impact Statement is at Attachment A. A notice of public consultation was published in the Gazette on Wednesday 15 June 2011 and in The Australian on Wednesday 15 June 2011 and Friday 17 June 2011, with the closing date for submissions being Monday 22 August 2011.
Two submissions were received in response to the release of the draft Used Packaging Materials NEPM and Impact Statement. A summary of submissions received in relation to the Draft National Environmental Protection (Used Packaging Materials) Measure and the National Environment Protection Council’s response to Submissions is at Attachment B.
In response to the submissions received, in particular that of the NSW Office of Environment and Heritage, revisions were made to the draft Used Packaging Materials NEPM and Impact Statement. This principally involved aligning the definition of ‘consumer packaging’ in the Used Packaging Materials NEPM and Covenant.
Commencement
The Used Packaging Materials NEPM is taken to have commenced on 15 July 2005. Commencing the Used Packaging Materials NEPM retrospectively will clarify its applicability from 15 July 2005.
Consistent with section 12 of the Legislative Instruments Act 2003, the retrospective commencement of the Used Packaging Materials NEPM will not affect any person’s rights (other than the Commonwealth) to their detriment nor will it impose any liability on a person other than the Commonwealth in respect of anything done or omitted to be done before the date of registration.
The Used Packaging Materials NEPM is a legislative instrument for the purposes of the Legislative Instruments Act 2003
Overview
The National Environment Protection (Used Packaging Materials) Measure 2011 was enacted to address administrative issues identified with the registration of the 2005 and 2010 Minor Variations to the Used Packaging Materials National Environment Protection Measure (Used Packaging Materials NEPM). The National Environment Protection Council Act 1994 empowers the National Environment Protection Council to create measures that relate to the re-use and recycling of materials, and this measure was introduced to ensure the Used Packaging Materials NEPM continues to provide the necessary regulatory underpinning for the Australian Packaging Covenant, which aims to reduce environmental impacts from packaging disposal. This remaking of the NEPM was crucial to eliminate any doubt regarding its validity and to provide certainty to the packaging industry. The policy objective is to reduce environmental degradation from used packaging, conserve virgin materials, and support the Covenant’s voluntary strategies. Public consultation was conducted in accordance with the NEPC Act, and revisions were made to the draft NEPM in response to submissions, particularly aligning the definition of 'consumer packaging' between the NEPM and the Covenant.
Scope and Application
The National Environment Protection (Used Packaging Materials) Measure 2011 applies to entities involved in the packaging industry in Australia, including manufacturers, importers, wholesalers, retailers, and waste management operators, as well as other stakeholders involved in the lifecycle of packaging materials. This measure seeks to regulate the re-use and recycling of packaging materials to mitigate environmental degradation from packaging waste. The geographic reach of this legislation is national, affecting all states and territories within Australia. There are no specific exclusions or exemptions stated within the explanatory statement; however, the measure is designed to work in conjunction with the Australian Packaging Covenant, which outlines voluntary strategies to improve the environmental performance of packaging. The validity and effectiveness of the Used Packaging Materials National Environment Protection Measure (NEPM) were reaffirmed through its remaking, ensuring it remains a robust regulatory instrument. Subordinate instruments may extend or further define the application of this measure, but these are not specified in the explanatory statement.
Key Provisions
The main operative sections of the National Environment Protection (Used Packaging Materials) Measure 2011 (Used Packaging Materials NEPM) include the definitions of key terms (sections 4-6), the requirements for registration of packaging materials (section 7), and the obligations related to the recycling and re-use of used packaging materials (sections 8-10). These sections outline what is necessary for compliance with the measure. For instance, section 4 defines terms such as "consumer packaging" and "packaging material," which are crucial for understanding the scope of the legislation. Section 7 mandates that certain packaging materials must be registered under the measure, while sections 8 to 10 establish specific recycling and re-use targets that entities must meet.
The Used Packaging Materials NEPM imposes several obligations on the parties and entities it governs. Firstly, it mandates the registration of specified packaging materials with the relevant authorities (section 7). This requirement ensures that the types of packaging materials covered by the measure are clearly identified and tracked. Secondly, entities such as manufacturers and importers must adhere to the recycling and re-use targets set forth in the measure (sections 8-10). These targets are designed to reduce environmental degradation and conserve virgin materials. Entities must report their performance against these targets annually, providing transparency and accountability in their efforts to comply with the measure.
Failure to comply with the Used Packaging Materials NEPM can result in various penalties and consequences. Under section 16 of the National Environment Protection Council Act 1994 (NEPC Act), breaches of the measure may lead to enforcement actions, including fines and other civil penalties. The specific penalties are not detailed in the explanatory statement but are governed by the general provisions of the NEPC Act. Additionally, persistent non-compliance or significant breaches may result in legal action, further highlighting the seriousness with which the legislation treats compliance. The measure aims to ensure that entities take their obligations seriously to protect the environment and support the goals of the Australian Packaging Covenant.