Circular Economy Regulation 2023

The central concept of the Regulation is the “prohibited plastic product.” This term is defined in the Act by reference to the Regulation, so the Regulation effectively determines what is banned. The two subcategories of prohibited plastic product addressed are single-use plastic products (section 4) and non-compostable degradable plastic products (section 5). For single-use plastic products, the Regulation prescribes eleven specific items: expanded polystyrene containers for serving food or beverages; expanded polystyrene trays used for packaging perishable food for retail sale; expanded polystyrene loose-fill packaging; plastic plates; plastic bowls unless designed or intended to have a spill-proof lid; plastic beverage stirrers; plastic cutlery (defined broadly to include sporks, splades, and chopsticks); plastic shopping bags; plastic drinking straws; cotton buds with a plastic stick or stem; and plastic microbeads in rinse-off products. Each of these items is defined in detail. For example, “single-use plastic shopping bag” has a two-part definition: it includes bags made wholly or partly of polyethylene with a thickness of less than 35 microns, and any plastic retail carry bag (a bag with handles made wholly or partly of plastic used for carrying goods from a retailer). However, it expressly excludes barrier bags (for unpackaged perishable food), compostable plastic bags, unsealed bags that are the packaging in which perishable food is offered for sale, and carry bags made of nylon, polyester, woven polypropylene, or non-woven polypropylene with sewn seams and a minimum fabric weight of 90 g/m² measured as a single layer. The phrase “plastic microbead” is defined as a plastic particle less than 5 mm wide, confined to rinse-off products (liquid products used for cleaning or personal care that are designed to be rinsed off immediately or shortly after use). The examples listed , shampoo, conditioner, face wash, exfoliants, hair dye, toothpaste, body wash , give practical guidance but are not exhaustive. For non-compostable degradable plastic products, the key concept is “oxo-degradable plastic”, defined as plastic that contains one or more additives to accelerate fragmentation. The term “non-compostable” takes its meaning from the Act, which states that a plastic product is non-compostable if it does not meet the Australian standard for compostability or an equivalent standard. The Regulation therefore focuses on a specific degradation technology, rather than on biodegradability claims. The concept of “integrated packaging item” is also important, although it is mentioned only in a note to section 4. The note says that the prohibitions in subsection (1) do not apply to a single-use plastic product that is an integrated packaging item (for example, a straw attached to a juice box). This carve out is drawn from the Act’s definition of prohibited plastic product. It means that if a plastic item is physically attached to a package as a functional part of the package (not as a separate item), it may be exempt. Finally, the Regulation distinguishes between single-use and reusable items implicitly through the definitions. For example, a plastic bowl designed or intended to have a spill-proof lid is not prohibited, presumably because it is intended for multiple uses (e.g., a takeaway container with a lid). Similarly, fabric carry bags that meet certain specifications are not considered single-use plastic shopping bags. These distinctions create compliance nuances: a product’s design and labelling determine whether it falls within the ban.

The Regulation affects any person or business that supplies, sells, distributes, or manufactures the prescribed plastic products in the ACT. Because the Regulation operates as a specification of the Act’s wider prohibition, anyone who “supplies” a prohibited plastic product in the ACT is potentially liable. “Supply” under the Act includes sale, exchange, gift, lease, hire, and hire-purchase, as well as offering to supply and having possession for the purpose of supply. The primary commercial groups affected are retailers (supermarkets, convenience stores, takeaway food outlets, restaurants, cafes, and fast-food chains), food and beverage packaging manufacturers and wholesalers, plastic bag manufacturers and importers, cosmetic and personal care product manufacturers (especially for microbeads in rinse-off products such as exfoliants and toothpaste), and distributors of cotton buds and plastic drinking straws. Businesses based outside the ACT that sell or deliver goods into the Territory are also caught, because the Act applies to supply that occurs in the ACT. This includes online retailers who ship products to ACT addresses. Wholesalers who supply plastic products to ACT businesses must ensure that the products they supply are not prohibited, otherwise they may be liable. The Regulation also indirectly affects consumers, because it reduces the range of products available. For example, a consumer will no longer be able to buy a pack of plastic drinking straws from a shop in Canberra, and a takeaway meal served in expanded polystyrene will not be available. However, the Regulation does not impose duties directly on consumers; it is aimed at those in the supply chain. The Regulation may also affect the recycling and waste management sector by changing the composition of plastic waste entering the Territory’s waste stream. By banning certain products, the Regulation reduces the volume of problematic plastics, potentially lowering sorting and processing costs for recycling facilities. Conversely, it may increase demand for alternative materials (paper, compostable plastics, metal, glass), affecting suppliers of those materials. Small businesses such as independent cafes and market stalls bear a disproportionate compliance burden relative to large chains, because they may lack the purchasing power to secure cost-competitive alternatives quickly. The definitions also affect specific niche industries: for example, the plastic microbead ban (only in rinse-off products) means that leave-on products containing plastic microbeads (such as leave-on exfoliating lotions) are not covered, so those products remain legal. This creates a competitive advantage for manufacturers who can reformulate or who already avoid microbeads. The oxo-degradable plastic ban affects producers of plastic films, agricultural mulch, and other products that use such additives, potentially forcing a switch to conventional or compostable plastics.

The Regulation itself does not create independent duties; its function is to define the products that trigger duties under the Act. The key duty is the prohibition on supplying prohibited plastic products. Under section 13(1) of the Act, a person commits an offence if they supply a prohibited plastic product in the ACT. The Regulation specifies which products are prohibited. Therefore, the core duty for any person in the supply chain is to ensure that the plastic products they supply are not among those listed in section 4 or 5, unless an exception applies. The duty applies to all forms of supply, including sale, hire, and distribution. There are also duties related to record keeping and reporting under the Act (though those are outside the Regulation), and the Act empowers authorised officers to issue infringement notices, directions, and compliance orders. The rights created by the Regulation are largely in the form of exclusions and exceptions. For example, the definition of “single-use plastic shopping bag” excludes barrier bags, compostable plastic bags, unsealed bags that are packaging for perishable food, and certain fabric bags. This means that suppliers of those items have a right to continue supplying them without breaching the prohibition. Similarly, the note in section 4(1) confirms that integrated packaging items (like straws attached to juice boxes) are not prohibited. The definition of “single-use plastic bowl” excludes bowls designed or intended to have a spill-proof lid, so suppliers of such bowls (for example, reusable takeaway containers with lids) are not caught. The definition of “plastic retail carry bag” includes bags made partly of plastic, such as plastic-laminated paper. This means that even a bag that looks like paper but has a plastic coating or lamination is caught if it has handles and is used for carrying goods from a retailer. However, that definition is only part of the larger definition of “single-use plastic shopping bag”, which excludes fabric bags meeting the specifications. So a business has a right to supply paper bags with handles that are not plastic-laminated (or not made partly of plastic) because they fall outside the definition of “plastic retail carry bag” entirely. Another right arises from the oxo-degradable plastic provision: the ban applies only to products made of oxo-degradable plastic. Products that are biodegradable or compostable in a different way (e.g., certified compostable plastic) are not covered, provided they are not also oxo-degradable. The regulation does not impose any positive duties to take back or recycle prohibited products, nor does it create a right for consumers to return such products. The rights are essentially negative: the right to supply products that are not prohibited, or that fall within the defined exceptions.

The Regulation does not set its own penalties. Penalties for breaching the prohibition on supplying prohibited plastic products are found in the Circular Economy Act 2023. However, the value of a penalty unit is relevant: at the republication date, a penalty unit is $160 for an individual and $810 for a corporation (per the Legislation Act 2001, section 133). Offences under the Act attract a maximum penalty of a specified number of penalty units. For example, supplying a prohibited plastic product is an offence under the Act, and the maximum penalty is likely to be significant (the Act itself, not the Regulation, sets the maximum). The Regulation also makes no provision for infringement notices, but the Act likely allows for them. Enforcement rests with authorised officers appointed under the Act, who may issue compliance notices, seize goods, and seek court orders. From a practical standpoint, enforcement of the Regulation will focus on the supply chain. Inspectors may enter premises, inspect products, and request documentation to verify compliance. The Regulation’s detailed definitions - e.g., the precise thickness of polyethylene bags (less than 35 microns) and the fabric weight for non-woven polypropylene bags (minimum 90 g/m²) - mean that enforcement will require technical verification. A bag that is 34 microns thick is prohibited; a bag that is 35 microns thick is not (unless it is a plastic retail carry bag with handles). This creates enforcement challenges: inspectors may need micrometers and scales. The oxo-degradable plastic ban also requires testing or verification of additive content. The practicality of enforcement will likely rely on supplier declarations and certification, rather than forensic testing of every product. Because the Regulation is relatively new (effective January 2024), early enforcement may focus on education and warning letters, but the penalty regime is real. Corporate penalties at $810 per unit can accumulate quickly if a business supplies thousands of prohibited items. There is also potential for civil penalties and orders for remediation under the Act. The Regulation itself does not create a defence of reasonable mistake or due diligence, but such defences may exist under the Act or general criminal law. A key enforcement issue is the supply of prohibited products from outside the ACT via online sales. The Act applies to supply that occurs in the ACT, so an online retailer based in Sydney who ships a prohibited straw to an ACT address is committing an offence. However, enforcement across jurisdictional lines may be difficult, relying on cooperation with other states or Commonwealth agencies.

The Regulation is made under the Circular Economy Act 2023 and therefore exists entirely within that statutory framework. It is a subordinate law, meaning its validity depends on consistency with the Act. If the Act were amended to change the meaning of “prohibited plastic product” or to remove the power to prescribe products, the Regulation would cease to have effect. The Act itself interacts with other ACT laws, such as the Environment Protection Act 1997 (waste management) and the Dangerous Substances Act 2004 (if applicable). The Regulation also interacts with the Commonwealth’s National Environment Protection Measures, particularly the National Plastics Plan 2021, though that plan is not legally binding. The Commonwealth’s Recycling and Waste Reduction Act 2020 (which bans certain plastic waste exports) does not directly overlap, but the combined effect is to restrict plastics at both production and disposal ends. The Regulation may also intersect with the Australian Consumer Law (ACL), which is a schedule to the Competition and Consumer Act 2010 (Cth). For example, if a business markets a plastic product as “compostable” but it is actually oxo-degradable, it could face action under the ACL for misleading conduct, in addition to the Regulation’s prohibition. Similarly, if a retailer sells a prohibited product inadvertently, they may face state enforcement and potential ACL liability for supplying goods that do not comply with a prescribed safety standard (though the Regulation is not a safety standard per se). Inter-jurisdictional interaction is significant. Other Australian states and territories have their own single-use plastic bans, but they differ in scope. New South Wales, Victoria, Queensland, South Australia, and Western Australia have bans on various items, but the lists are not uniform. For example, some states ban all plastic straws, but the ACT allows straws that are integrated packaging. Some states ban plastic cups and lids, but the ACT does not (except EPS containers). This patchwork creates compliance costs for businesses operating across multiple jurisdictions, as they must tailor product lines for each market. The Regulation also interacts with ACT food safety laws (Food Act 2001) which prescribe packaging requirements. A food business might need to switch from a prohibited plastic container to a paper or compostable alternative that still meets food safety standards (e.g., grease resistance, temperature tolerance). If the alternative is not functionally equivalent, the business may face a conflict between the plastic ban and food safety obligations. The Regulation’s exclusion for barrier bags and unsealed packaging for perishable food shows that the drafter was mindful of food safety, but this is only a partial solution.

The Circular Economy Regulation 2023 (SL2023-27) was notified on the ACT Legislation Register on 9 November 2023. Section 1 (name) and section 2 (commencement) commenced on that date. The remainder of the regulation, including Part 2 (Prohibited products) and the original Part 3 and Schedule 1, commenced on 10 November 2023, except for Part 3 and Schedule 1 which commenced on 1 January 2024. The Republication No. 2 (R2) effective 1 January 2024 reflects the commenced provisions and includes amendments made by SL2023-27 itself (that is, the regulation as originally made included amendments to other legislation in a schedule, and those amendments were applied, but then the schedule and Part 3 were omitted in this republication). According to the amendment history in the endnotes, section 4 was amended by SL2023-27 amdt 1.1 and amdt 1.2. The precise content of these amendments is not set out in the source text, but they likely involved additions or refinements to the list of prescribed single-use plastic products or to the definitions in section 4. The endnotes also show that Part 3 heading and Schedule 1 were omitted in R2 under the Legislation Act 2001, section 89(3) (which deals with republications and allows omission of spent or redundant provisions). Thus, the current regulation consists only of Part 1 (Preliminary) and Part 2 (Prohibited products) with sections 4 and 5. The original Part 3 and Schedule 1 (which presumably amended other ACT laws to support the transition to a circular economy) have been removed from the republished version, likely because those amendments have been incorporated into the principal laws. No further amendments have been made since the regulation’s commencement. The regulation is very recent (2023) and has not undergone extensive amendment. The amendment history also notes that section 2 (commencement) was omitted in R2, as is usual for republications. The only operative amendment recorded is to section 4. This suggests that the list of prohibited products may have been adjusted shortly after the regulation was made, possibly to add clarity or extend the ban to additional items. Practitioners should check the original SL2023-27 to see the full text of the amendments, but the current republication (R2) is the authoritative version as in force on 1 January 2024.

The source text does not mention any litigation history. No cases are cited in the regulation itself, and there is no judicial consideration recorded in the endnotes. Given that the regulation came into force only on 10 November 2023 (prohibited products provisions) and 1 January 2024 (the now-omitted Part 3 and Schedule), it is unlikely that any court has yet interpreted or applied the regulation. The Circular Economy Act 2023, under which the regulation is made, is also recent, so there is a dearth of case law on the Act itself. However, it is possible that prosecutions or civil proceedings have been initiated but not yet reported. The lack of litigation does not mean the regulation is uncontroversial; it may simply reflect the early stage of enforcement. Future litigation could arise on several grounds. One likely area is the interpretation of definitions, particularly the borderline between a prohibited “single-use plastic bowl” and an allowed bowl with a spill-proof lid. Another is whether a particular product is an “integrated packaging item” (exempt) or a separate prohibited product. The oxo-degradable plastic definition may also be challenged, especially regarding what constitutes an “additive to accelerate fragmentation” , some plastics may fragment naturally without additives. There may also be challenges based on the constitutional validity of the regulation if applied to interstate or international trade. The Australian Constitution’s section 92 (freedom of interstate trade) might be invoked by suppliers arguing that the ban on selling plastic shopping bags in the ACT is a discriminatory burden on interstate commerce. However, such challenges have been largely unsuccessful against state bans on single-use plastics (e.g., in South Australia and the Northern Territory), but the issue is not settled. The regulation’s interaction with the Commonwealth’s powers over imported goods under the trade and commerce power could also surface. The source does not record any litigation, so we must note that the absence of cases is to be expected for such a new instrument. Practitioners should monitor the ACT Magistrates Court, Supreme Court, and the ACT Civil and Administrative Tribunal for any matters involving the Regulation.

Several aspects of the Regulation are easy to overlook, and they can trap the unwary. First, the definition of “plastic retail carry bag” includes bags made partly of plastic, including plastic-laminated paper or cardboard. A brown paper bag with a thin plastic coating or lamination is caught if it has handles and is used for carrying goods from a retailer. Many businesses switched to paper bags after previous plastic bag bans, but if those bags have a plastic coating (common for moisture resistance), they may now be prohibited. The exception for certain fabric bags does not apply. Second, the exception for non-woven polypropylene bags is conditional: the bag must have sewn seams (not heat-welded) and the fabric must have a minimum weight of 90 g/m² measured as a single layer. Many cheap reusable bags are heat-welded, so they fall outside the exception and are prohibited if they are single-use. Businesses that give away such bags at the checkout are supplying prohibited plastic products. Third, the microbead ban is limited to “rinse-off products”. Leave-on products (e.g., leave-on exfoliating lotions, sunscreen, lip gloss) that contain plastic microbeads are not covered. Therefore, a manufacturer cannot assume that all plastic microbead products are banned; only rinse-off products are caught. Fourth, the prohibition on expanded polystyrene (EPS) trays applies only to those used for packaging “perishable food for retail sale”. If an EPS tray is used for packaging non-perishable items (e.g., electronics), it may not be prohibited. However, EPS containers for serving food or beverages are banned without qualification. Fifth, the definition of “single-use plastic shopping bag” does not include unsealed bags that are packaging in which perishable food is offered for sale. This means that a bread bag or a bag of potatoes that is unsealed plastic is allowed, but if it is sealed, it may be considered packaging for sale, not a shopping bag. The line is thin. Sixth, integrated packaging items are exempt only if the plastic product is part of the packaging. A straw attached to a juice box is exempt; a separate straw sold alongside a juice box is not. Similarly, a plastic spoon attached to a yoghurt pot lid may be exempt, but a separate spoon is not. Seventh, the definition of “cutlery” includes chopsticks, sporks, and splades. It does not include plastic knives, forks, or spoons that are not used for consuming food (e.g., plastic stirring rods for drinks that are not “beverage stirrers” may not be cutlery, but a stirrer is separately prohibited). The regulation is specific. Eighth, the oxo-degradable plastic ban applies to all products, not just single-use. A long-life product made of oxo-degradable plastic (e.g., agricultural mulch film) is banned, even if it is not single-use. This catches agricultural and industrial products that are not typically considered single-use. Ninth, penalties attach to each instance of supply. A cafe that gives away 100 plastic straws a day commits 100 offences. With a penalty unit of $160 for individuals, this adds up rapidly. Tenth, the regulation does not contain a transitional period or savings provision (the source shows none). Therefore, businesses had to comply from 10 November 2023 for the banned products, with no grace period other than the one month between notification and commencement. The omission of Part 3 and Schedule 1 in the republication means that some supporting amendments to other laws may not be immediately obvious, but they are already in force.

Compliance with the Regulation requires a systematic audit of all plastic products supplied into or within the ACT. The first step is to identify whether any of the products listed in section 4 are supplied. This includes checking product specifications, supplier labels, and packaging. For polyethylene bags, measure thickness; if less than 35 microns, they are prohibited unless they are a barrier bag, compostable bag, unsealed packaging for perishable food, or a bag made of specified fabrics with sewn seams and weight minimum. For plastic carry bags with handles, check whether they are made wholly or partly of plastic; if so, they are prohibited unless they fall within the fabric bag exception. If a bag is made of non-woven polypropylene, verify that the seams are sewn (not heat-welded) and that the fabric weight is at least 90 g/m². Obtain certificates from suppliers confirming compliance. For expanded polystyrene, stop using EPS containers, trays, and loose-fill packaging. Switch to alternatives such as paperboard, moulded fibre, or compostable plastic. For plastic cutlery, stirrers, plates, and bowls (except bowls with spill-proof lids), switch to compostable, wood, or metal alternatives. For drinking straws, switch to paper, bamboo, or metal straws, but note that straws that are integrated packaging are exempt, so a juice box with an attached straw is fine. For cotton buds, switch to paper stick or bamboo alternatives. For microbeads, reformulate rinse-off products to remove plastic particles; if your product is leave-on, no change needed but be careful not to market it as “microbead free” incorrectly. For oxo-degradable plastic, eliminate the use of additives that accelerate fragmentation; replace with conventional plastic or certified compostable plastic (which is not oxo-degradable). Obtain a declaration from plastic raw material suppliers that their resin does not contain such additives. Maintain records of product specifications, supplier declarations, and compliance testing. Even though the Regulation does not explicitly require record keeping, the Act or enforcement authorities may request evidence. When sourcing alternative products, ensure they do not themselves become prohibited under other state laws if you supply nationally. Consider contractual provisions with suppliers that hold them liable if supplied products turn out to be prohibited. For online retailers, implement geolocation blocking or clear warnings that prohibited products cannot be shipped to ACT addresses. If you are a retailer in the ACT, remove all prohibited items from shelves and inventory. If you hold stock after the ban, you may be deemed to intend to supply it; consider returning it to suppliers or destroying it. Engage with industry associations and the ACT Environment Protection Authority for guidance on specific borderline cases. Finally, monitor the ACT legislation register for future amendments: the Regulation may be updated to add more products (e.g., plastic cups, lids, fruit stickers). Compliance is not a one-off task but an ongoing process of verification and adaptation.