New Plastic Reduction Laws Commence in NSW


This article applies to organisations that supply plastic products and organisations that are brand owners under the Act.

Plastic Reduction and Circular Economy Act 2021 No. 31 (NSW)

Relevant provisions of the Plastic Reduction and Circular Economy Act 2021 No. 31 (NSW) (the Act) commenced on 29 November 2021.  The Act prohibits certain plastic items and establishes a product stewardship framework for brand owners of certain plastic products.

At this stage, the provisions of the Act that have commenced primarily set up the framework for plastic reduction within New South Wales, with the remaining provisions and regulations specifying details to follow.  We will notify subscribers when these provisions commence and when the regulations are introduced.

Offence of supplying prohibited items

Under section 9 of the Act, a person, while carrying on a business (i.e. an activity for commercial, charitable, sporting, educational or community purposes) must not supply a prohibited item to another person in NSW.

Prohibited item means:

  • a prohibited plastic item; or
  • an item that does not comply with a design standard specified for the item in Schedule 1, Part 2 of the Act; or
  • prescribed by the regulations in relation to the item.

Prohibited plastic item means a plastic item:

  • that is:
    • unnecessary; or
    • for environmental, human health or economic reasons, including reasons relating to waste management or resource management— problematic; and
  • prescribed by the regulations or specified in Schedule 1, Part 1 of the Act.

The offence under section 9 of the Act carries a maximum penalty of 500 penalty units for a corporation (currently $55,000); or 100 penalty units for an individual (currently $11,000).

Product stewardship requirements and targets

Under section 15 of the Act, the brand owner of a regulated product must comply with product stewardship requirement for that product.

At this stage, no product stewardship requirements have been set out, however, subscribers should note that section 13 of the Act provides the regulation making power to prescribe the product stewardship requirements and to specify targets for the stewardship of the life cycle of a product, relating to the development, design, creation, production, assembly, supply, use or re-use, recovery, recycling or disposal of a regulated product.

Failure to comply with any product stewardship requirements or targets set out by the regulations in relation to a regulated product carries a maximum penalty of 4,000 penalty units for a corporation (currently $440,000) or 1,000 penalty units for an individual (currently $110,000).

The brand owner of a product:

  • is the owner of the product name under which the product is supplied in NSW; and
  • includes a person prescribed by the regulations.

Record keeping and reporting requirements

Under sections 16 and 17, the Act requires brand owners to comply with record keeping and annual reporting requirements in accordance with the regulations.  Notably, brand owners must retain the records for at least 6 years and the report must be provided within 3 months of the end of the financial year.  Failure to comply with these requirements carries a maximum penalty of 4,000 penalty units for a corporation (currently $440,000) or 1,000 penalty units for an individual (currently $110,000).

Action plans

Under section 19 of the Act, the regulations will require certain brand owners of a regulated product to prepare and submit an action plan to the EPA.  The action plan:

  • must set out how the brand owner intends to comply with the provisions of this Part of the Act for which the action plan is required to be prepared; and
  • may include indirect actions intended to offset adverse environmental impacts generally or specifically in connection with the regulated product; and
  • must include the information prescribed by the regulations.

Under section 21 of the Act, the brand owner must hold an approved action plan before the product is supplied, whether or not the product is supplied by the brand owner.

Finally, brand owners should note that the EPA, by written notice, may cause an action plan to be reviewed or vary an approved action plan.  Brand owners must comply with these directions.

Failure to comply with these requirements carries a maximum penalty of 4,000 penalty units for a corporation (currently $440,000) or 1,000 penalty units for an individual (currently $110,000).

Conclusion

Organisations that supply plastic products and/or are brand owners of regulated products in New South Wales should update their policies and procedures to ensure that they comply with the new requirements under the Act and in preparation for the introduction of detailed regulations.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au