(Notification and Assessment) Amendment
(Rotterdam Convention) Bill
11 February 2004
House: House of Representatives
Portfolio: Health and Ageing
The operational provisions
of the Act (Schedule 1) commence immediately once both the
Act has received Royal Assent and the Rotterdam Convention comes
into force in Australia.
To amend the Industrial Chemicals
(Notification and Assessment) Act 1989 (the Act) as part of
the legislative changes required to allow ratification of the
Rotterdam Convention on the Prior Informed Consent Procedure for
Certain Hazardous Chemicals and Pesticides in International Trade
This is a companion Bill to the Agricultural
and Veterinary Chemicals (Administration) Amendment Bill 2004.
In July 1999, Australia signed the Rotterdam
Convention. As its name implies, the emphasis of the Rotterdam
Convention is the exchange of information between countries so that
importing countries are fully aware of the potential hazards of
importing relevant chemicals and pesticides. The Convention does
not actually ban any chemicals or pesticides. The main purpose of
the Bill is to implement Australia s information obligations under
the Convention, especially in relation to Articles 5(1) and
The Act which the Bill amends provides the
legislative framework for the National Industrial Chemicals
Notification and Assessment Scheme (NICNAS). NICNAS assesses industrial chemicals(1)
that are proposed to be imported into, or manufactured in,
Australia for the first time. The assessment is intended to
identify potential risks to occupational health, public health and
the environment that may be associated with the chemicals use.
Existing chemicals are also assessed where there are environmental
or health concerns about these.
Item 1 inserts a new
Part 5A (new sections 100D-K) into the Act.
Article 5(1) of the Convention requires that
where a Party to the Convention has adopted a final regulatory
action , it must notify the Convention Secretariat of this fact.
Final regulatory action in this context means the completion of a
process to ban or severely restrict the use of a chemical covered
by the Convention. New section 100E requires the
NICNAS Director (the Director) to notify the Australian designated
national authority (the Authority)(2) if he or she is
satisfied that the Commonwealth has one or more laws banning or
severely restricting the use of an industrial chemical in Australia
. The Director has similar obligations regarding notification
regarding any State or Territory laws that have them same effect
within the relevant jurisdiction, so long as these also have the
effect of banning or severely restricting the use of the industrial
chemical in Australia . For the purposes of the Director s decision
on this last point, the Explanatory Memorandum
a regulatory action in one or more States or
Territories would not necessarily constitute a final regulatory
action unless the law has the effect of severely restricting or
banning the use of the chemical in Australia. For example, if only
Victoria and NSW manufacture and use an industrial chemical (and no
other States or Territories manufacture and use that chemical) and
both States enact a law banning the use of that industrial
chemical, the ban would have the effect of banning the use of the
industrial chemical in Australia.
Once the Authority has been notified by the
Director it must pass the information on to the Convention
Secretariat within 90 days of the last of the laws contained in the
Director s notice coming into force. As soon as practical after
notifying the Authority, the Director must also publish the
relevant parts of the notice in the Chemical
Article 14(1)(a) of the Convention obliges
Parties to facilitate the exchange of scientific, technical,
economic and legal information concerning the chemicals within the
scope of the Convention . New section 100F
requires the Director to provide, on a yearly basis, the Authority
with the relevant Article 14(1)(a) information relating to
industrial chemicals. The Authority must then forward the
information to the Convention Secretariat as soon as practicable
after receiving it. The Authority may also give any Party to the
Convention all or some of the information that it receives from the
Director under this section.
New sections 100G-K deal with
information gathering by the Director.
Under new subsection 100G(1),
where the Director believes on reasonable grounds both that a
person has particular information or a particular document
(hereafter information ) and it is necessary to obtain the
information to allow Australia to comply with the obligations under
the Convention, the Director may require that the information be
supplied to him or her. In the written notice regarding the
required information, the Director must make it clear that it is an
offence not to comply with the request: new subsection
100G(2). At least 14 days must be allowed for the
production of the information. The fact that the information might
incriminate the person from whom it is requested cannot be used as
a reason for not providing it: new section 100H.
However, the usual limitations on its use in criminal proceedings
apply it can only be used against the individual supplying it in
prosecutions for providing false or misleading information or a
failure to provide the information. There is no protection against
incrimination for companies, or persons other than to which the
notice for information is directed.
New sections 100J and
K are standard provisions regarding the copying
and retention of documents produced under new section
Due to the fact this Bill is due to debated in
the House of Representatives very shortly after its introduction
into Parliament, it has not been possible to research stakeholder
views on the specific provisions of the Bill. However, formal
consultations with stakeholders were conducted during mid-2002
regarding the proposed ratification of the Rotterdam Convention.
These consultations and the views of stakeholders are summarised in
the respective National
Interest Analysis accompanying the tabling of the Conventions
before Parliament on 9 September 2003. If the summaries are
accurate regarding stakeholder views, there would appear to be wide
support for ratification. During September and October 2003, the
Joint Standing Committee on Treaties held a very brief inquiry into
the Convention. The resultant
report recommended that the Convention be ratified.
The term industrial chemical is defined in section 7 of the Act.
The definition is complicated, but essentially it is a chemical
that has a use other than in the agricultural, veterinary,
therapeutic or food sectors.
The Authority is the Department, agency or person who has been
designated by Australia to carry out the administrative functions
required under the Convention in relation to industrial chemicals:
see new section 100D and Article 4 of the
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paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
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official parliamentary or Australian government document.
Published by the Parliamentary Library, 2004.