Australia’s EPR legislation

By Mike Ritchie, MRA Consulting Group

Product Stewardship (PS) schemes are one of several ways to drive waste out of landfill and back into the productive economy. They “encourage” industry to fund the collection and recycling of their goods once they reach the end of their productive life. Products which lend themselves to PS systems are a) easily identifiable, b) have known distribution networks and c) involve an experienced industry body.

circular

The Commonwealth Product Stewardship Act 2011 (“the Act”) sets up the legal framework for product stewardship. It establishes three levels of engagement: Mandatory, Co-regulatory (joint industry and government delivery) and Voluntary.

To date there are no mandatory schemes under the Act (the only mandatory product stewardship scheme in Australia is for used oil which is covered by its own legislation), one co-regulatory scheme (TVs and computers) and two accredited voluntary arrangements (MobileMuster and FluoroCycle). Several other voluntary schemes exist, but have not been accredited (including schemes for tyres, agricultural chemical containers, paint, PVC and newspapers).

One of the mechanisms provided under the Act is the annual “Product List”. This List details the “classes of products” the Federal Environment Minister is proposing to consider over the next year under the Act. Significantly, this List does not carry with it any promise of action by the Government. Just that the products will be considered.

So how effective is Product Stewardship in Australia? Is the “List” driving change? The best way to consider this is to look at all classes of products that have been included on the “List” since the it commenced (2013/14), and see what has happened with each product.

Product Year registered on the list Outcome
  2013/14 2014/15 2015/16 2016/17  
Waste architectural and decorative paint x x x Paintback launched on 2 May 2016 – a voluntary industry scheme funded by a 15 cent per litre levy on paint.
Batteries x x x x The size of batteries considered has grown from 2 kg in 2013/14 to 5 kg in 2014/16 to unlimited in 2016/17. Only 5% of batteries are recycled. Industry and government were “working on a scheme” for hazardous single use batteries. This has now morphed into a rechargeable handheld batteries scheme.
Packaging x x No action. Packaging is simply not included on the 2015/16 product list. No explanation provided. A Regulatory Impact Statement released on 19 December 2014, recommended an enhanced National Packaging Covenant.
Refrigerators and air-conditioners x x The Department assessed a cost benefit analysis for a product stewardship approach, and concluded there was no net social benefit. The final report was released in September 2014. These product classes were dropped from subsequent lists.
Plastic microbeads and products containing them x Discussion but no PS action
Photovoltaic systems x Discussion but no PS action
Electrical and electronic products x Discussion but no PS action
Plastic oil containers x Discussion but no PS action

In summary, eight product classes have been considered over the life of the product list, with four new products listed this year. They are all worthwhile products, each presenting a challenge that can be resolved by a good PS scheme. That said, there is little evidence of action on any of the newly listed products.

Of the four that have been considered over previous years, one led to a voluntary scheme (paint), one was dropped with reasons (refrigerators and air-conditioners), another was dropped without reasons (packaging) and one has been a perennial over the life of the list (batteries).

Whilst there is a requirement in section 108A to explain why an item is on the list, there is no requirement to explain why items are removed from the list. The list is, in effect, formed new each year.

Nor is there any legislative requirement to explain the progress of items on the list. There is no sense of what is required for products to progress to co-regulatory or mandatory scheme, just the observation that products seem to stay on the list until either a voluntary scheme emerges or they are removed.

In spite of industry frustration at the slow rate of change, mandatory schemes do not seem to be much in favour at the Commonwealth level. And whilst the product list for each year is tabled in both houses of Parliament, there is almost no debate on the contents of the list. The question is will the Commonwealth use the legislation as it was intended, to progress the establishment of schemes and mandate them when there is a lack of movement.

An effective product stewardship system helps create the circular economy. When the flow of complex materials back to reprocessors and recyclers is guaranteed, innovation blossoms. While those materials flow to landfill there is no scope for innovation or for the creation of circular economy jobs.

The Department of the Environment and Energy indicates that it has scheduled a review of the Act in 2016/17, however documentation has not yet been released. This is the opportunity for the industry to comment.

Product stewardship needs the Commonwealth Government to act, and to act deliberatively. It cannot be delivered on a State by State basis. We have a good National Waste Policy. We have a Department of Environment and Energy that wants to deliver more. We have the legislative underpinnings of a good system. And we’ve seen it in play for five years. We know that it can do better. We need to nudge the Commonwealth Parliament to drive it harder and to be accountable for the outcomes.

As always, I welcome your feedback on this, or any other topic on ‘The Tipping Point’.