Variation to the National Environment Protection (Used Packaging Materials) Measure 2010 (No. 1)

Administered by Department of the Environment and Energy

Legislation au F2010L02237 Not in force Legislative Instrument

Legislation content

 

Variation to the National Environment Protection
(Used Packaging Materials) Measure 2010 (No. 1)

 

Explanatory Statement

Issued by the National Environment Protection Council

National Environment Protection Council Act 1994

March 2010

 

Subsection 22A of the National Environment Protection Council Act 1994 (NEPC Act) prescribes that the National Environment Protection Council (NEPC) may make minor variations to National Environment Protection Measures (NEPMs).

 

About NEPMs

NEPMs are broad framework-setting statutory instruments which, through an extensive process of inter-government and community/industry consultation, reflect agreed national objectives for protecting particular aspects of the environment. NEPMs may consist of any combination of goals, standards, protocols, and guidelines.

 

Once a draft NEPM has been finalised, it is then formally ‘made’ by NEPC.  A decision to make (or to vary) a NEPM requires the support of a two-thirds majority of members of NEPC.  NEPMs are implemented by jurisdictions which participate in NEPC within their own jurisdictional legal frameworks.

 

NATIONAL PACKAGING COVENANT & USED PACKAGING MATERIALS NEPM

Over the last decade, the National Packaging Covenant (‘the Covenant’) has been the primary instrument in Australia to reduce the environmental impacts of consumer packaging.  More than 750 signatories, including companies across the supply chain, governments and the community have committed to actions that support the Covenant’s objectives including the efficient recovery and recycling of used packaging.  The current Covenant expires on 30 June 2010 and is expected to be replaced by a revised Australian Packaging Covenant (APC).

 

The Used Packaging Materials (UPM) NEPM is a regulatory safety net designed to prevent industries in the packaging chain that choose not to participate in the Covenant from gaining a competitive advantage.  The NEPM ensures industry non-signatories meet environmental objectives, and contribute to the cost of recovery and recycling systems developed under the auspices of the Covenant.

 

NEPC made a minor variation to the NEPM in 2004 to extend its term for twelve months to allow time for the development of the current Covenant.  The NEPM was then varied again in 2005 to ensure consistency between it and the current Covenant.   

 

reason for proposed variation to NEPM

The current Covenant and UPM NEPM both expire on 30 June 2010.  It is intended that the Covenant/NEPM arrangement continue in the future.  A revised Australian Packaging Covenant (APC) is being developed.

 

In November 2009, NEPC agreed to initiate a minor variation process for the UPM NEPM to either (a) extend the duration of the current NEPM for twelve months until 30 June 2011 to allow time for finalisation of the APC or (b) align the NEPM with the Australian Packaging Covenant should the APC be ready for endorsement by 1 July 2010.

 

A NEPM variation is a ‘minor variation’ under the NEPC Acts provided it is supported by a unanimous resolution of NEPC and the resolution states that the variation does not involve a significant change in the effect of the NEPM.

 

In making this decision NEPC considered the following factors:

  • no changes will be made to the core obligations contained in the NEPM
  • the proposed amendments will simply align the life of the NEPM to that of either (a) the existing Covenant or (b) the proposed Australian Packaging Covenant
  • with respect to (b) above, the proposed amendments are administrative only to ensure consistency between the NEPM and the revised Covenant in referencing the ‘Australian Packaging Covenant’ and the new ‘Sustainable Packaging Guidelines’.

 

DESCRIPTION OF proposed VARIATION to NEPM

(a)    Extension of Duration of Current UPM NEPM

 

Cl 1 ‘Name of Measure’ to be amended to reflect the date of this variation.

 

Cl 2 ‘Commencement and Duration’ to be amended so that the NEPM terminates on 30 June 2011.

 

No other amendments to the NEPM are proposed for the purposes of this option.

 

(b)   Alignment of NEPM with Australian Packaging Covenant

 

Cl 1 ‘Name of Measure’ to be amended to reflect the date of this variation.

 

Cl 2 ‘Commencement and Duration’ to be amended so that the NEPM continues subject to periodic review.

 

Cl 3 ‘Definitions’ to be amended so that ‘Australian Packaging Covenant’ replaces ‘National Packaging Covenant’ (with consequential amendments to cl 13 and cl 19).

 

Cl 3 ‘Definitions’ to be amended to refer to brand owners rather than companies in the definition of free rider.

 

Cl 5 (1) ‘Background’ to be amended to remove the reference to consumer paper.

 

Cl 5 (3) ‘Background’ to be amended so that ‘Sustainable Packaging Guidelines’ replaces ‘Environmental Code of Practice for Packaging’.

 

Cl 9 ‘Statutory Obligations and Rights’ to be amended to reflect the performance targets specified in the APC.

 

Cl 11 ‘Exemptions/Deemed Compliance’ to be amended to delete reference to the now defunct Australian Retailers Association Code of Practice for the Management of Plastic Bags (with the consequential omission of definitions relating to plastic bags).

 

Cl 18 ‘Supporting Data’ to be amended to provide flexibility in relation to the conduct of annual surveys (with a consequential amendment to cl 20 (5)).

 

Cl 22 ‘Review of This Measure’ to be inserted to formalise the accepted practice of reviewing the UPM NEPM as part of any comprehensive evaluation of the Covenant.

 

nature and effect of proposed variation to NEPM

The amendments to the UPM NEPM contemplated in this variation process (viz amended duration, revised definitions, updated background information, flexibility in surveying, and inclusion of a review provision) do not involve a significant change in the effect of the NEPM.

 

Overview

The National Environment Protection (Used Packaging Materials) Measure 2010 (No. 1) Variation, as outlined in the Explanatory Statement issued by the National Environment Protection Council (NEPC) in March 2010, seeks to extend or align the Used Packaging Materials (UPM) National Environment Protection Measure (NEPM) to ensure the continuity of environmental protection objectives related to used packaging materials. Enacted under the National Environment Protection Council Act 1994, the NEPC was empowered to make minor variations to the NEPM to address the imminent expiry of both the current National Packaging Covenant and the existing UPM NEPM on 30 June 2010. The primary policy objective of this variation was to either extend the current NEPM for twelve months to allow time for the finalisation of a new Australian Packaging Covenant (APC) or to align the NEPM with the APC if it was ready for endorsement by 1 July 2010. This measure ensures that industries not participating in the Covenant continue to meet environmental objectives and contribute to recovery and recycling systems.

Scope and Application

The Variation to the National Environment Protection (Used Packaging Materials) Measure 2010 (No. 1) is an administrative adjustment to an existing National Environment Protection Measure (NEPM) that governs the management of used packaging materials across Australia. This minor variation, authorised under the National Environment Protection Council Act 1994, is specifically aimed at either extending the duration of the current Used Packaging Materials NEPM until 30 June 2011 or aligning it with the forthcoming Australian Packaging Covenant, should it be finalised before 1 July 2010. This adjustment is confined to extending the NEPM's term or aligning it with the new covenant to ensure a smooth transition and continuity of environmental objectives without altering the core obligations or significantly affecting the NEPM's impact. The variation applies to all entities involved in the packaging chain within jurisdictions participating in the National Environment Protection Council, ensuring a consistent approach to packaging recovery and recycling across Australia. The measure does not introduce new substantive requirements or obligations but rather makes technical amendments to reflect the new covenant and guidelines, thereby maintaining the existing regulatory framework's intent and effectiveness.

Key Provisions

The main operative sections of the variation to the Used Packaging Materials National Environment Protection Measure (UPM NEPM) involve amendments to the name, commencement, duration, definitions, background information, statutory obligations, exemptions, and the inclusion of a review provision. Specifically, Clause 1 will be amended to reflect the date of the variation, Clause 2 will be altered to extend the NEPM’s duration to 30 June 2011, or to make it subject to periodic review pending the readiness of the Australian Packaging Covenant (APC). Clause 3 will see the term 'Australian Packaging Covenant' replace 'National Packaging Covenant' and 'brand owners' replace 'companies' in the definition of 'free rider'. Clause 5 will have its background information updated to remove references to consumer paper and to replace 'Environmental Code of Practice for Packaging' with 'Sustainable Packaging Guidelines'. Clause 9 will reflect the performance targets specified in the APC, and Clause 11 will remove references to the Australian Retailers Association Code of Practice for the Management of Plastic Bags, including related definitions. Clause 18 will provide flexibility in conducting annual surveys, with consequential amendments to Clause 20(5). Lastly, Clause 22 will be inserted to formalise the review of the UPM NEPM as part of any comprehensive evaluation of the Covenant. The obligations and requirements imposed by the Act on the parties and entities it governs include ensuring that industries within the packaging chain, whether signatories to the Covenant or not, meet the environmental objectives set out in the UPM NEPM. This encompasses the efficient recovery and recycling of used packaging, and the contribution to the cost of recovery and recycling systems. The Act mandates that any variation to the NEPM must be supported by a unanimous resolution of the National Environment Protection Council (NEPC) and must not involve a significant change in the effect of the NEPM. Additionally, the Act requires that the UPM NEPM be aligned with the Australian Packaging Covenant once the latter is ready for endorsement, ensuring consistency and continuity in environmental protection measures. In terms of breaches, the Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for non-compliance. However, the NEPM is designed to prevent industries from gaining a competitive advantage by not participating in the Covenant. Non-compliance with the statutory obligations and rights outlined in the UPM NEPM could potentially lead to enforcement actions by the relevant authorities, depending on the jurisdiction implementing the NEPM. The Act focuses on the procedural aspects of making minor variations to the NEPM, ensuring that any amendments are minor and do not significantly alter the original intent and effect of the measure.

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