I, Tanya Plibersek, Minister for the Environment and Water, make the following principles.
Dated 7 November 2022
Tanya Plibersek
Minister for the Environment and Water
Contents
Part 1—Preliminary
1 Name
2 Commencement
3 Authority
4 Definitions
5 Purpose of this instrument
Part 2—Risk characteristics of a relevant industrial chemical
6 Minister must consider risk characteristics of a relevant industrial chemical
7 When a relevant industrial chemical has Schedule 7 risk characteristics
8 When a relevant industrial chemical has Schedule 6 risk characteristics
9 When a relevant industrial chemical has Schedule 5 risk characteristics
10 When a relevant industrial chemical has Schedule 4 risk characteristics
11 When a relevant industrial chemical has Schedule 3 risk characteristics
12 When a relevant industrial chemical has Schedule 2 risk characteristics
13 When a relevant industrial chemical has Schedule 1 risk characteristics
Part 3—Specification of certain matters in relation to a relevant industrial chemical
14 Specification of certain matters in relation to a relevant industrial chemical to be listed in Schedule 7 of the Register etc.
15 Specification of certain matters in relation to a relevant industrial chemical to be listed in Schedule 6 of the Register etc.
16 Specification of certain matters in relation to a relevant industrial chemical to be listed in Schedule 5, 4, 3 or 2 of the Register etc.
17 Specification of certain matters in relation to a relevant industrial chemical to be listed in Schedule 1 of the Register etc.
Part 1—Preliminary
1 Name
This instrument is the Industrial Chemicals Environmental Management (Register) Principles 2022.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
The whole of this instrument The day after this instrument is registered. 9 November 2022
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under subsection 23(1) of the Industrial Chemicals Environmental Management (Register) Act 2021.
4 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) end use;
(b) environment;
(c) Register;
(d) relevant industrial chemical;
(e) scheduling decision.
In this instrument:
Act means the Industrial Chemicals Environmental Management (Register) Act 2021.
adverse effect means a change in the morphology, physiology, growth, development, reproduction or life span of an organism, system or subpopulation that results in:
(a) an impairment of the functional capacity of the organism, system or subpopulation; or
(b) an impairment of the capacity of the organism, system or subpopulation to compensate for additional stress; or
(c) an increase in the susceptibility of the organism, system or subpopulation to other influences.
assessed use for a relevant industrial chemical means an end use for the chemical considered in either of the following:
(a) a Commonwealth risk assessment in relation to the chemical;
(b) a risk assessment (however described) in relation to the chemical undertaken by any of the following:
(i) a State government body;
(ii) a foreign government body;
(iii) a public international organisation.
Australia, when used in a geographical sense, includes the external Territories.
Australian PBT Criteria means the document titled Australian Environmental Criteria for Persistent, Bioaccumulative and/or Toxic Chemicals published by the Department and as existing on the commencement of this instrument.
bioaccumulative has the same meaning as in the Australian PBT Criteria.
bioavailable means bioavailable in accordance with the GHS.
chemical‑related substance of a relevant industrial chemical means:
(a) a substance that is reasonably expected to form during the use or storage of the chemical or after its disposal; or
(b) a substance that is reasonably expected to form as a by‑product of the use, storage or disposal of the chemical.
endocrine disruptor means an exogenous substance or mixture that:
(a) alters the function or functions of the endocrine system; and
(b) causes adverse effects in an intact organism or its progeny or populations.
GHS means the document titled Globally Harmonized System of Classification and Labelling of Chemicals published by the United Nations and as existing from time to time.
harmful, when used in the expression harmful, means harmful in accordance with the GHS.
harmful to aquatic life with acute effects means harmful to aquatic life in accordance with the GHS.
harmful to aquatic life with long lasting effects means harmful to aquatic life with long lasting effects in accordance with the GHS.
listing decision for a relevant industrial chemical means a scheduling decision for the chemical that is, or includes, a decision to list the chemical in a Schedule of the Register.
per‑ and polyfluoroalkyl substance has the same meaning as in the document titled Reconciling Terminology of the Universe of Per‑ and Polyfluoroalkyl Substances: Recommendations and Practical Guidance published by the Organisation for Economic Co‑operation and Development and as existing on the commencement of this instrument.
persistent has the same meaning as in the Australian PBT criteria.
Schedule 1 risk characteristics: see section 13.
Schedule 2 risk characteristics: see section 12.
Schedule 3 risk characteristics: see section 11.
Schedule 4 risk characteristics: see section 10.
Schedule 5 risk characteristics: see section 9.
Schedule 6 risk characteristics: see section 8.
Schedule 7 risk characteristics: see section 7.
toxic:
(a) when used in the expression toxic—means toxic in accordance with the GHS; or
(b) when used in the expression bioaccumulative and toxic, persistent, bioaccumulative and toxic or persistent and toxic—has the same meaning as in the Australian PBT Criteria.
toxic to aquatic life with acute effects means toxic to aquatic life in accordance with the GHS.
toxic to aquatic life with long lasting effects means toxic to aquatic life with long lasting effects in accordance with the GHS.
very toxic, when used in the expression very toxic, means very toxic in accordance with the GHS.
very toxic to aquatic life with acute effects means very toxic to aquatic life in accordance with the GHS.
very toxic to aquatic life with long lasting effects means very toxic to aquatic life with long lasting effects in accordance with the GHS.
5 Purpose of this instrument
The purpose of this instrument is to determine principles that the Minister must comply with in making, varying or revoking scheduling decisions for relevant industrial chemicals.
Part 2—Risk characteristics of a relevant industrial chemical
6 Minister must consider risk characteristics of a relevant industrial chemical
(1) In making, varying or revoking a listing decision for a relevant industrial chemical, the Minister must consider whether the chemical has:
(a) Schedule 7 risk characteristics; or
(b) Schedule 6 risk characteristics; or
(c) Schedule 5 risk characteristics; or
(d) Schedule 4 risk characteristics; or
(e) Schedule 3 risk characteristics; or
(f) Schedule 2 risk characteristics; or
(g) Schedule 1 risk characteristics.
(2) If the Minister is satisfied that the relevant industrial chemical has risk characteristics of a kind specified in an item of column 1 of the following table, the Minister must decide to list the chemical in the Schedule of the Register specified in column 2 of the item.
Risk characteristics and Schedules of the Register
Item Column 1Risk characteristics Column 2Schedules of the Register
1 Schedule 7 risk characteristics Schedule 7
2 Schedule 6 risk characteristics Schedule 6
3 Schedule 5 risk characteristics Schedule 5
4 Schedule 4 risk characteristics Schedule 4
5 Schedule 3 risk characteristics Schedule 3
6 Schedule 2 risk characteristics Schedule 2
7 Schedule 1 risk characteristics Schedule 1
Note: A relevant industrial chemical may be listed in more than one Schedule of the Register (see subsections 11(3) and (5) of the Act).
7 When a relevant industrial chemical has Schedule 7 risk characteristics
(1) A relevant industrial chemical has Schedule 7 risk characteristics if the Minister is satisfied that:
(a) any of the following apply:
(i) the chemical is likely to cause serious or irreversible harm to the environment if used, stored or disposed of in Australia;
(ii) the chemical is persistent, bioaccumulative and toxic;
(iii) a chemical‑related substance of the chemical is persistent, bioaccumulative and toxic; and
(b) the chemical does not have an essential use in Australia; and
(c) it is appropriate to list the chemical in Schedule 7 of the Register.
(2) In deciding whether the Minister is satisfied that a relevant industrial chemical does not have an essential use in Australia, the Minister must consider the following matters:
(a) whether it is likely that the chemical is currently used in Australia for an end use for the chemical;
(b) whether an end use for the chemical is necessary for a medical, veterinary, defence, national security, public safety, industrial safety, economic or environmental purpose;
(c) whether there are any viable alternatives to the chemical for an end use for the chemical that is necessary for a purpose mentioned in paragraph (b);
(d) Australia’s international obligations (if any) in respect of the chemical;
(e) any other matters that the Minister considers relevant.
8 When a relevant industrial chemical has Schedule 6 risk characteristics
(1) A relevant industrial chemical has Schedule 6 risk characteristics if the Minister is satisfied that:
(a) any of the following apply:
(i) the chemical is likely to cause serious or irreversible harm to the environment if used, stored or disposed of in Australia;
(ii) the chemical is persistent, bioaccumulative and toxic;
(iii) a chemical‑related substance of the chemical is persistent, bioaccumulative and toxic; and
(b) the chemical has one or more essential uses in Australia; and
(c) it is appropriate to list the chemical in Schedule 6 of the Register.
(2) In deciding whether the Minister is satisfied that a relevant industrial chemical has one or more essential uses in Australia, the Minister must consider the following matters:
(a) whether it is likely that the chemical is currently used in Australia for an end use for the chemical;
(b) whether an end use for the chemical is necessary for a medical, veterinary, defence, national security, public safety, industrial safety, economic or environmental purpose;
(c) whether there are any viable alternatives to the chemical for an end use for the chemical that is necessary for a purpose mentioned in paragraph (b);
(d) Australia’s international obligations (if any) in respect of the chemical;
(e) any other matters that the Minister considers relevant.
9 When a relevant industrial chemical has Schedule 5 risk characteristics
(1) A relevant industrial chemical has Schedule 5 risk characteristics if the Minister is satisfied that:
(a) the chemical does not have Schedule 7 risk characteristics or Schedule 6 risk characteristics; and
(b) the chemical, if used in Australia in accordance with a particular assessed use for the chemical, is likely to cause harm to the environment; and
(c) the chemical satisfies subsection (2), (3), (4), (5) or (6).
(2) A relevant industrial chemical satisfies this subsection if:
(a) the chemical is bioaccumulative and is either:
(i) persistent; or
(ii) an endocrine disruptor; or
(b) the chemical is persistent and toxic; or
(c) the chemical is bioaccumulative and toxic.
(3) A relevant industrial chemical satisfies this subsection if:
(a) the chemical is a per‑ and polyfluoroalkyl substance; and
(b) the chemical is an endocrine disruptor.
(4) A relevant industrial chemical satisfies this subsection if:
(a) the chemical:
(i) is harmful, toxic or very toxic to aquatic life; or
(ii) is likely to have an adverse effect on non‑aquatic organisms; and
(b) any of the following apply:
(i) the measured or predicted environmental concentration of the chemical exceeds, or would exceed, the acceptable level of the chemical for the environment if the chemical is used in Australia in accordance with the particular assessed use for the chemical;
(ii) the chemical is bioaccumulative or persistent and it is either very toxic to aquatic life with acute effects or very toxic to aquatic life with long lasting effects;
(iii) the chemical is likely to be very toxic to aquatic life with long lasting effects and, if the chemical is used in Australia in accordance with the particular assessed use for the chemical, the chemical would be released into the environment.
(5) A relevant industrial chemical satisfies this subsection if:
(a) the chemical contains an inorganic component; and
(b) the inorganic component is in a form that is, or could become, bioavailable if the chemical is used in Australia in accordance with the particular assessed use for the chemical; and
(c) the chemical is likely to be or do any of the following:
(i) toxic to aquatic life with acute effects;
(ii) toxic to aquatic life with long lasting effects;
(iii) very toxic to aquatic life with acute effects;
(iv) very toxic to aquatic life with long lasting effects;
(v) accumulate causing adverse effects to the environment.
(6) A relevant industrial chemical satisfies this subsection if the Minister:
(a) believes, on reasonable grounds, that the chemical, if used in Australia in accordance with the particular assessed use for the chemical, will have a comparable effect on the environment as other chemicals listed, or likely to be listed, in Schedule 5 of the Register; and
(b) is satisfied it is appropriate to list the chemical in Schedule 5 of the Register.
10 When a relevant industrial chemical has Schedule 4 risk characteristics
(1) A relevant industrial chemical has Schedule 4 risk characteristics if the Minister is satisfied that:
(a) the chemical does not have Schedule 7 risk characteristics or Schedule 6 risk characteristics; and
(b) the chemical, if used in Australia in accordance with a particular assessed use for the chemical, does not have Schedule 5 risk characteristics; and
(c) the chemical, if used in Australia in accordance with the particular assessed use for the chemical, may cause harm to the environment; and
(d) the chemical satisfies subsection (2), (3), (4) or (5).
(2) A relevant industrial chemical satisfies this subsection if:
(a) the chemical is bioaccumulative; or
(b) the chemical is a per‑ and polyfluoroalkyl substance; or
(c) the chemical is an endocrine disruptor.
(3) A relevant industrial chemical satisfies this subsection if:
(a) the chemical:
(i) is harmful, toxic or very toxic to aquatic life; or
(ii) is likely to have an adverse effect on non‑aquatic organisms; and
(b) either of the following apply:
(i) the measured or predicted environmental concentration of the chemical exceeds, or would exceed, the amount equal to 10% of the acceptable level of the chemical for the environment if the chemical is used in Australia in accordance with the particular assessed use for the chemical;
(ii) the chemical is likely to be toxic to aquatic life with long lasting effects and, if the chemical is used in Australia in accordance with the particular assessed use for the chemical, the chemical would be released into the environment.
(4) A relevant industrial chemical satisfies this subsection if:
(a) the chemical contains an inorganic component; and
(b) the inorganic component is in a form that is, or could become, bioavailable if the chemical is used in Australia in accordance with the particular assessed use for the chemical; and
(c) the chemical is likely to be harmful to aquatic life with acute effects or harmful to aquatic life with long lasting effects.
(5) A relevant industrial chemical satisfies this subsection if the Minister:
(a) believes, on reasonable grounds, that the chemical, if used in Australia in accordance with the particular assessed use for the chemical, will have a comparable effect on the environment as other chemicals listed, or likely to be listed, in Schedule 4 of the Register; and
(b) is satisfied it is appropriate to list the chemical in Schedule 4 of the Register.
11 When a relevant industrial chemical has Schedule 3 risk characteristics
(1) A relevant industrial chemical has Schedule 3 risk characteristics if the Minister is satisfied that:
(a) the chemical does not have Schedule 7 risk characteristics or Schedule 6 risk characteristics; and
(b) the chemical, if used in Australia in accordance with a particular assessed use for the chemical, does not have Schedule 5 risk characteristics or Schedule 4 risk characteristics; and
(c) the chemical, if used in Australia in accordance with the particular assessed use for the chemical, has the potential to cause harm to the environment; and
(d) the chemical satisfies subsection (2), (3), (4) or (5).
(2) A relevant industrial chemical satisfies this subsection if:
(a) the chemical:
(i) is harmful, toxic or very toxic to aquatic life; or
(ii) is likely to have an adverse effect on non‑aquatic organisms; and
(b) either of the following apply:
(i) the measured or predicted environmental concentration of the chemical exceeds, or would exceed, the amount equal to 1% of the acceptable level of the chemical for the environment if the chemical is used in Australia in accordance with the particular assessed use for the chemical;
(ii) the chemical is likely to be harmful to aquatic life with long lasting effects.
(3) A relevant industrial chemical satisfies this subsection if:
(a) the chemical contains an inorganic component; and
(b) the inorganic component is not in a form that is, or could become, bioavailable if the chemical is used in Australia in accordance with the particular assessed use for the chemical.
(4) A relevant industrial chemical satisfies this subsection if the chemical has other characteristics that mean the chemical, if used in Australia in accordance with the particular assessed use for the chemical, has the potential to cause:
(a) acute adverse effects to the environment; or
(b) long lasting adverse effects to the environment.
(5) A relevant industrial chemical satisfies this subsection if the Minister:
(a) believes, on reasonable grounds, that the chemical, if used in Australia in accordance with the particular assessed use for the chemical, will have a comparable effect on the environment as other chemicals listed, or likely to be listed, in Schedule 3 of the Register; and
(b) is satisfied it is appropriate to list the chemical in Schedule 3 of the Register.
12 When a relevant industrial chemical has Schedule 2 risk characteristics
A relevant industrial chemical has Schedule 2 risk characteristics if the Minister is satisfied that:
(a) the chemical does not have Schedule 7 risk characteristics or Schedule 6 risk characteristics; and
(b) the chemical, if used in Australia in accordance with a particular assessed use for the chemical, does not have any of the following risk characteristics:
(i) Schedule 5 risk characteristics;
(ii) Schedule 4 risk characteristics;
(iii) Schedule 3 risk characteristics; and
(c) the chemical, if used in Australia in accordance with the particular assessed use for the chemical, is unlikely to cause harm to the environment; and
(d) it is appropriate to list the chemical in Schedule 2 of the Register.
13 When a relevant industrial chemical has Schedule 1 risk characteristics
A relevant industrial chemical has Schedule 1 risk characteristics if the Minister is satisfied that, if the chemical is used in Australia for any end use for the chemical, the risk to the environment posed by the chemical would be such that it is not appropriate to list the chemical in Schedule 7, 6, 5, 4, 3 or 2 of the Register.
Part 3—Specification of certain matters in relation to a relevant industrial chemical
14 Specification of certain matters in relation to a relevant industrial chemical to be listed in Schedule 7 of the Register etc.
(1) This section applies in relation to the making or varying of a scheduling decision for a relevant industrial chemical if:
(a) the chemical is to be listed in Schedule 7 of the Register; or
(b) the chemical is already listed in Schedule 7 of the Register.
Relevant industrial chemical
(2) The Minister must, unless satisfied that it would be inappropriate to do so, ensure that the following matters are specified in relation to the relevant industrial chemical as so listed:
(a) that the exportation, importation or manufacture of the chemical is prohibited unless it is for one of the following purposes:
(i) research or laboratory purposes;
(ii) the purposes of disposing of the chemical in an environmentally sound way;
(b) that all end uses for the chemical are prohibited other than an end use that is for one of the following purposes:
(i) research or laboratory purposes;
(ii) the purposes of disposing of the chemical in an environmentally sound way;
(c) such risk management measures for the chemical as the Minister considers appropriate to manage the risks posed to the environment by the chemical.
(3) Despite subsection (2), a matter mentioned in that subsection must not be specified in relation to the relevant industrial chemical if the matter would be inconsistent with Australia’s international obligations in respect of the chemical.
Product or article containing relevant industrial chemical
(4) If the Minister is satisfied that it is appropriate to do so, the Minister must ensure that the following matters are specified in relation to the chemical as so listed:
(a) that the exportation, importation, manufacture or use of a product or article containing the chemical is prohibited, or restricted, in all circumstances or in specified circumstances;
(b) such risk management measures for a product or article containing the chemical as the Minister considers appropriate to manage the risks posed to the environment by the product or article.
(5) Despite subsection (4), a matter mentioned in that subsection must not be specified in relation to the relevant industrial chemical if the matter would be inconsistent with Australia’s international obligations in respect of the chemical.
15 Specification of certain matters in relation to a relevant industrial chemical to be listed in Schedule 6 of the Register etc.
(1) This section applies in relation to the making or varying of a scheduling decision for a relevant industrial chemical if:
(a) the chemical is to be listed in Schedule 6 of the Register; or
(b) the chemical is already listed in Schedule 6 of the Register.
Relevant industrial chemical
(2) The Minister must, unless satisfied that it would be inappropriate to do so, ensure that the following matters are specified in relation to the relevant industrial chemical as so listed:
(a) that the exportation, importation or manufacture of the chemical is prohibited unless it is for one of the following purposes:
(i) research or laboratory purposes;
(ii) the purposes of disposing of the chemical in an environmentally sound way;
(iii) the purposes of a specified essential use of the chemical in Australia;
(b) that all end uses for the chemical are prohibited other than an end use that is for one of the following purposes:
(i) research or laboratory purposes;
(ii) the purposes of disposing of the chemical in an environmentally sound way;
(iii) the purposes of a specified essential use of the chemical in Australia;
(c) such risk management measures for the chemical as the Minister considers appropriate to manage the risks posed to the environment by the chemical.
(3) Despite subsection (2), a matter mentioned in that subsection must not be specified in relation to the relevant industrial chemical if the matter would be inconsistent with Australia’s international obligations in respect of the chemical.
Product or article containing relevant industrial chemical
(4) If the Minister is satisfied that it is appropriate to do so, the Minister must ensure that the following matters are specified in relation to the chemical as so listed:
(a) that the exportation, importation, manufacture or use of a product or article containing the chemical is prohibited, or restricted, in all circumstances or in specified circumstances;
(b) such risk management measures for a product or article containing the chemical as the Minister considers appropriate to manage the risks posed to the environment by the product or article.
(5) Despite subsection (4), a matter mentioned in that subsection must not be specified in relation to the relevant industrial chemical if the matter would be inconsistent with Australia’s international obligations in respect of the chemical.
16 Specification of certain matters in relation to a relevant industrial chemical to be listed in Schedule 5, 4, 3 or 2 of the Register etc.
(1) This section applies in relation to the making or varying of a scheduling decision for a relevant industrial chemical if:
(a) the chemical is to be listed in Schedule 5, 4, 3 or 2 of the Register; or
(b) the chemical is already listed in Schedule 5, 4, 3 or 2 of the Register.
(2) The Minister must ensure that the following matters are specified in relation to the relevant industrial chemical as so listed:
(a) one or more end uses for the chemical;
(b) such risk management measures for the chemical, or for each specified end use for the chemical, as the Minister considers appropriate to manage the risks posed to the environment by the chemical.
(3) Despite subsection (2), a matter mentioned in that subsection must not be specified in relation to the relevant industrial chemical if the matter would be inconsistent with Australia’s international obligations in respect of the chemical.
(4) The Minister must ensure that the following matters are not specified in relation to the relevant industrial chemical as so listed in Schedule 4, 3 or 2:
(a) that the exportation, importation or manufacture of the chemical is prohibited, or restricted, in all circumstances or in specified circumstances;
(b) that all or any end uses for the chemical are prohibited, or restricted, in all circumstances or in specified circumstances;
(c) that the exportation, importation, manufacture or use of a product or article containing the chemical is prohibited, or restricted, in all circumstances or in specified circumstances.
(5) Despite subsection (4), a matter mentioned in that subsection may be specified in relation to the relevant industrial chemical as so listed in Schedule 4, 3 or 2 if the Minister is satisfied that:
(a) it would be consistent with Australia’s international obligations in respect of the chemical for such a matter to be specified in relation to the chemical; or
(b) there are exceptional circumstances that apply in relation to the chemical which make it appropriate to specify such a matter in relation to the chemical.
17 Specification of certain matters in relation to a relevant industrial chemical to be listed in Schedule 1 of the Register etc.
(1) This section applies in relation to the making or varying of a scheduling decision for a relevant industrial chemical if:
(a) the chemical is to be listed in Schedule 1 of the Register; or
(b) the chemical is already listed in Schedule 1 of the Register.
(2) The Minister must ensure that the following matters are not specified in relation to the relevant industrial chemical as so listed:
(a) that the exportation, importation or manufacture of the chemical is prohibited, or restricted, in all circumstances or in specified circumstances;
(b) that all or any end uses for the chemical are prohibited, or restricted, in all circumstances or in specified circumstances;
(c) any end use for the chemical;
(d) that the exportation, importation, manufacture or use of a product or article containing the chemical is prohibited, or restricted, in all circumstances or in specified circumstances.
(3) Despite paragraph (2)(c), the matter mentioned in that paragraph may be specified in relation to the relevant industrial chemical as so listed if the Minister is satisfied that there are exceptional circumstances that apply in relation to the chemical which make it appropriate to specify such a matter in relation to the chemical.