Plastic Reduction and Circular Economy Act 2021 bans specified single‑use plastic items and sets design and product‑stewardship rules. It makes brand owners responsible for targets, action plans, records and annual reporting, and gives the regulator powers to approve plans, require financial assurances, issue compliance/stop notices, recover costs and publish compliance information.
The measure affects manufacturers, brand owners, suppliers, retailers and occupiers; it creates ongoing compliance, audit and disclosure costs and exposes parties to civil penalties while leaving broad regulatory discretion over which items and standards apply (see ss 7–8, 13–31, 36–45).
This Act creates a statutory framework to restrict specified plastic items, impose product-design standards, and require product stewardship arrangements and financial assurances to support life‑cycle management of regulated products. It does so by: (a) listing prohibited plastic items and setting a regime for design standards and further prohibitions in Schedule 1 and via regulations (see s 7 and s 8, and Schedule 1); (b) making it an offence to supply prohibited items while carrying on a business (s 9); (c) enabling the regulations and the Minister to impose product stewardship requirements and targets and to require brand owners to prepare and hold approved action plans before supply (ss 13-15, 19-21); (d) imposing record‑keeping and reporting obligations on brand owners, backed by inspection, audit and publication powers (ss 16-18); (e) permitting the regulator to require financial assurances (eg bank guarantees or bonds) tied to approved action plans, to call on assurances and to use those funds to pay for remedial actions (Part 4, ss 24-31); and (f) providing enforcement tools including compliance and stop notices, powers of entry, recovery of compliance costs, and criminal and civil penalties (Part 5, ss 36-46; Part 6, ss 47-51). The Act also provides consultation requirements before regulations impose prohibited items, design standards or designate regulated products (s 66), and gives the Minister a five‑year review obligation (s 69).
The Act applies extraterritorially where there is an “extraterritorial impact”, thereby capturing persons, premises or suppliers outside the State if their activities affect the State’s environment or relate to supply into the State or to an anticipated non‑compliance (s 6). The Act identifies the precautionary principle as a guiding decision rule for environmental uncertainty (s 5). Mechanically, the Act shifts compliance duties onto brand owners (defined at s 11) and permits the regulator to impose conditional approvals and financial securities that must be held before supply (ss 20, 21, 25-27). The Act also authorises publication of brand owners’ compliance information (s 18) and requires a public register to record notices, exemptions and enforcement outcomes (s 65). The regulations (s 68) fill out many operational details: definitions, exemptions, accreditation, standards incorporation, fees and offences.
Current sections
Direct links to the current provisions in Plastic Reduction and Circular Economy Act 2021.
(1) This Act commences on the date of assent to this Act, except as provided by subsections (2) and (3).
(2) Schedule 1, section 2 commences on the first day of the first month occurring 6 whole months after the commencement of section 3.
(3) Schedule 1, sections 3–5 commence on 1 November 2022.
3
Objects of Act
3 Objects of Act
3 Objects of Act
(1) The objects of this Act are as follows—
(a) to protect the environment and human health,
(b) to promote and support the principles of a circular economy,
(c) to support material circularity through design, production, use, re-use, collection, recycling, reprocessing and end-of-life management,
(d) to ensure responsibility for products across their life cycle,
(e) to reduce the impact, or potential impact, of items, waste from items and waste material on the environment and human health.
(2) In this section—
principles of a circular economy include the following principles—
(a) valuing resources and minimising the use of virgin materials by ensuring materials continue to circulate in the economy in a way that—
(i) minimises the risk of harm to human health and the environment, and
(ii) considers the waste hierarchy,
(b) keeping resources in use and designing out waste, pollution and resource inefficiency, including through innovative systems, technologies and business models,
(c) ecologically sustainable and regenerative management of resources and systems.
waste hierarchy is a reference to the hierarchy set out in the Waste Avoidance Resource and Recovery Act 2001, section 3(b).
4
Definitions
4 Definitions
4 Definitions
(1) The Dictionary in Schedule 4 defines words and expressions used in this Act.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) A person supplies an item whether or not—
(a) a fee is charged for the supply of the item, or
(b) the supply of the item is incidental to, or forms part of, the supply of another thing.
5
Precautionary principle
5 Precautionary principle
5 Precautionary principle
(1) In this Act, the precautionary principle is the principle that, if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(2) In applying the precautionary principle, decisions should be guided by—
(a) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(b) an assessment of the risk-weighted consequences of various options.
6
Extraterritorial application of Act
6 Extraterritorial application of Act
6 Extraterritorial application of Act
(1) If there is an extraterritorial impact, this Act and the regulations apply to—
(a) a person, whether or not the person is outside the State, and
(b) premises, whether or not the premises are outside the State, and
(c) a supplier, whether or not—
(i) the supplier is carrying on a business outside the State, or
(ii) the supplier is a party to a contract made outside the State.
(2) In this section—
extraterritorial impact means a matter or thing, whether it occurs or is located outside the State, that—
(a) affects, or is likely to affect, the environment of the State, or
(b) relates to the supply, or the likely supply, into or within the State of a regulated item, or
(c) relates to a non-compliance matter.
non-compliance matter means a matter or thing that is, or is likely to be, an offence under this Act or the regulations.
Part 2
Prohibited items
Part 2 Prohibited items
Part 2 Prohibited items
7
Prohibited plastic items
7 Prohibited plastic items
7 Prohibited plastic items
(1) In this Act—
prohibited plastic item means a plastic item that is—
(a) specified in Schedule 1, Part 1, or
(b) prescribed by the regulations.
(2) The Minister must not recommend the making of a regulation to prescribe a prohibited plastic item unless the Minister forms an opinion that the item is—
(a) unnecessary, or
(b) for environmental, human health or economic reasons, including reasons relating to waste management or resource management—problematic.
(3) Without limiting subsection (2), in forming an opinion that a plastic item is unnecessary or problematic, the Minister may consider the following—
(a) the precautionary principle,
(b) whether the plastic item—
(i) can be eliminated or replaced by an item that is not a plastic item or by a reusable plastic item without causing harm or significant disruption to consumers, or
(ii) is difficult to collect or recover through kerbside or similar publicly accessible collection and recovery systems and services, or
(iii) is made from material that is difficult or costly to recycle through commercially available recycling technologies, or
(iv) hinders, disrupts or obstructs opportunities for other materials or resources to be recovered, collected or recycled, or
(v) contributes significantly to litter, or
(vi) is made from material that may cause harm to human health or the environment, or
(vii) contains additives that accelerate the breakdown of the item into particles.
(4) The Minister must, as soon as practicable after forming an opinion, publish notice of the opinion in the NSW Government Gazette.
(5) A failure to publish a notice does not affect the making or validity of a regulation that prescribes a prohibited plastic item.
s 7: Am 2023 No 7, Sch 1.17[1] [2].
8
Design standards
8 Design standards
8 Design standards
(1) The regulations may prescribe design standards for an item for environmental, human health or economic reasons, including the following—
(a) promoting waste avoidance and reducing the likely end-of-life impact of the item on the environment,
(b) increasing the potential for, or reducing barriers to, the re-use, recovery, recycling, processing or reprocessing of an item,
(c) increasing the use of recycled material in the manufacturing or production of an item,
(d) reducing the impact of the production, use, processing or reprocessing of an item on the environment,
(e) reducing the unnecessary or inefficient use of materials in an item,
(f) increasing the energy or resource efficiency of an item,
(g) prohibiting, preventing or reducing the use of an item that may result in a risk to human health or the environment, including by applying the precautionary principle,
(h) waste management or resource management,
(i) increasing post-consumer collection,
(j) increasing consumer awareness of the matters referred to in paragraphs (a)–(h).
(2) Without limiting subsection (1), a design standard may contain requirements for the following—
(a) the composition of an item, including the type or amount of materials or substances that must or must not be included in the item,
(b) the way in which an item must be packaged or labelled,
(c) the way in which an item must be designed, constructed or manufactured,
(d) independent testing and verification to determine compliance with a design standard,
(e) independent testing to determine whether a representation made in relation to an item is accurate.
(3) Schedule 1, Part 2 specifies a design standard.
9
Offence of supplying prohibited items
9 Offence of supplying prohibited items
9 Offence of supplying prohibited items
(1) A person who, while carrying on a business, supplies a prohibited item to another person is guilty of an offence.
Maximum penalty—
(a) for a corporation—500 penalty units, or
(b) for an individual—100 penalty units.
(2) This section does not apply to the supply of a prohibited item to a location outside of the State.
Part 3
Product stewardship requirements and targets
Part 3 Product stewardship requirements and targets
Part 3 Product stewardship requirements and targets
Division 1
Preliminary
Division 1 Preliminary
Division 1 Preliminary
10
Definitions
10 Definitions
10 Definitions
In this Part—
financial year means the period of 12 months commencing on 1 July in a year.
product stewardship target means a target—
(a) specified in accordance with section 13, or
(b) set by the Minister under section 14.
11
Meaning of “brand owner”
11 Meaning of “brand owner”
11 Meaning of “brand owner”
(1) In this Act, the brand owner of a product—
(a) is the owner of the product name under which the product is supplied in the State, and
(b) includes a person prescribed by the regulations.
(2) The regulations may prescribe the circumstances in which the following persons are taken to be brand owners in relation to the supply of a particular product—
(a) a person who is a licensee of a product name under which the product is supplied in the State,
(b) a person who is a franchisee under a business arrangement that allows the person to supply the product in the State,
(c) a person who first supplies the product in Australia.
(3) Unless otherwise specified by the regulations, the brand owner of a product is taken to be the brand owner of the packaging material of the product.
(4) The regulations may make provision for or about the following—
(a) whether the brand owner of a product is or is not the brand owner of the packaging material of the product, including in specified circumstances,
(b) the circumstances in which a person is or is not taken to be the brand owner of a product,
(c) the granting of exemptions from this Part—
(i) with or without conditions, and
(ii) generally, in specified circumstances or for a specified product.
(5) In this section—
product name includes a trade mark, brand name or trade name, whether or not registered in this or another jurisdiction.
12
Meaning of “supply”
12 Meaning of “supply”
12 Meaning of “supply”
In this Part and section 6—
supply also includes the following for a scheme or service—
(a) make the scheme or service available or provide the scheme or service to a person,
(b) an offer to provide the scheme or service, including advertising the scheme or service or making other representations with the intention of providing the scheme or service.
Division 2
Product stewardship requirements and targets
Division 2 Product stewardship requirements and targets
Division 2 Product stewardship requirements and targets
13
Product stewardship requirements
13 Product stewardship requirements
13 Product stewardship requirements
(1) The regulations may—
(a) prescribe a requirement (a product stewardship requirement) for the stewardship of the life cycle of a regulated product, including the development, design, creation, production, assembly, supply, use or re-use, recovery, recycling or disposal of the regulated product, and
(b) specify a target for or in relation to a product stewardship requirement, including a target expressed as a percentage.
(2) Without limiting subsection (1), the regulations may prescribe a product stewardship requirement for or in relation to the following—
(a) the use or re-use of recycled materials or other materials that will minimise the environmental or resource impact of a product’s creation,
(b) the traceability of materials,
(c) the ability of a product to be recycled, composted, repaired, processed, re-processed or re-used,
(d) the re-use, re-manufacture, recovery, recycling, take-back, use or disposal of a product or resources from a product,
(e) the prevention, reduction or recovery of litter,
(f) the prevention or reduction of unlawful waste disposal,
(g) the reduction in material used in a product,
(h) the design of a product,
(i) the maintenance, sharing, repair, refurbishment or upgrade of a product,
(j) the longevity of a product,
(k) the reduction of the impact, including the potential impact, of a product or the life cycle of a product on resource management or waste management, including in relation to virgin materials, demand for landfill, the environment or human health.
14
Minister may set product stewardship targets
14 Minister may set product stewardship targets
14 Minister may set product stewardship targets
(1) The Minister may, by order published in the Gazette, set a product stewardship target, including a target expressed as a percentage.
(2) The order takes effect—
(a) on the date on which the order is published, or
(b) if a later date is specified in the order—the later date.
(3) A target specified in the regulations prevails over a target set by order under this section.
(4) The Minister may, by a further order made under this section, vary a target specified in the regulations if the regulations permit the variation of the target.
15
Offence—failure to comply with product stewardship requirement or target
15 Offence—failure to comply with product stewardship requirement or target
15 Offence—failure to comply with product stewardship requirement or target
(1) The brand owner of a regulated product must comply with a product stewardship requirement for the regulated product.
Maximum penalty—
(a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or
(b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues.
(2) It is a defence in proceedings for an offence against subsection (1) if the defendant establishes that, at the time of the failure to comply, the defendant—
(a) held an approved action plan for the product stewardship requirement, and
(b) complied with the approved action plan and the conditions, if any, imposed by the regulator on the approved action plan.
(3) To the extent that an approved action plan relates to a brand owner’s compliance with a product stewardship requirement, a failure to comply with the plan is evidence of a failure to comply with subsection (1).
(4) In this section—
product stewardship requirement includes a product stewardship target.
16
Record keeping requirements
16 Record keeping requirements
16 Record keeping requirements
(1) The brand owner of a regulated product must—
(a) prepare records for each financial year in accordance with this section, and
(b) keep the records for at least 6 years following the financial year to which the prescribed records relate, and
(c) make the records available for inspection and copying by an authorised officer on request.
Maximum penalty—
(a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or
(b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues.
(2) Records prepared under this section must include the information prescribed by the regulations, if any.
(3) The regulator may, by written notice to a brand owner, direct the brand owner to, within a specified period—
(a) arrange an independent audit of the records to be carried out by an auditor specified by the regulator, and
(b) provide the auditor’s report to the regulator.
(4) A brand owner must, within the specified period, comply with a direction given under this section.
Maximum penalty—
(a) for a corporation—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues, or
(b) for an individual—200 penalty units and, for a continuing offence, a further 20 penalty units for each day the offence continues.
(5) The regulations may specify information to be included in records by reference to the following—
(a) a brand owner,
(b) a regulated product,
(c) an activity,
(d) an industry.
17
Reporting requirements
17 Reporting requirements
17 Reporting requirements
(1) A brand owner must provide a report to the regulator within 3 months of the end of the financial year.
Maximum penalty—
(a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or
(b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues.
(2) The report must—
(a) be provided in the form and the way approved by the regulator, and
(b) include the information prescribed by the regulations.
(3) Information provided to the regulator under this section may be taken into consideration by the regulator and used for the purposes of this Act.
(4) Without limiting subsection (3), the information is admissible in evidence in a prosecution of the brand owner for an offence against this Act or the regulations, whether or not the information may incriminate the brand owner.
(5) The regulations may prescribe information to be included in a report by reference to the following—
(a) a brand owner,
(b) a regulated product,
(c) an activity,
(d) an industry.
18
Regulator may publish certain information
18 Regulator may publish certain information
18 Regulator may publish certain information
The regulator may publish information, including the name of a brand owner and other names by which the brand owner trades, on the regulator’s website if the information relates to—
(a) information provided to the regulator by a brand owner under this Part, or
(b) the brand owner’s compliance or non-compliance with a provision of this Part or regulations made under this Part, or
(c) the brand owner’s performance, from time to time, against product stewardship requirements and product stewardship targets.
Division 3
Action plans
Division 3 Action plans
Division 3 Action plans
19
Requirement to prepare action plan
19 Requirement to prepare action plan
19 Requirement to prepare action plan
(1) If required by the regulations, the brand owner of a regulated product must—
(a) prepare an action plan, and
(b) submit the action plan to the regulator.
Maximum penalty—
(a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or
(b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues.
(2) The action plan—
(a) must set out how the brand owner intends to comply with the provisions of this Part for which the action plan is required to be prepared, and
(b) may include indirect actions intended to offset adverse environmental impacts generally or specifically in connection with the regulated product, and
(c) must include the information prescribed by the regulations.
(3) An action plan must be submitted in the form and the way approved by the regulator.
(4) The regulator may require the brand owner to provide further information for the purpose of assessing the action plan.
(5) The regulations may specify the following by reference to a brand owner, regulated product, activity or industry—
(a) the period within which an action plan must be submitted to the regulator,
(b) whether an action plan is required to be prepared for compliance with the following—
(i) product stewardship requirements,
(ii) product stewardship targets,
(iii) record keeping requirements under section 16,
(iv) reporting requirements under section 17,
(c) the circumstances in which an action plan is required to be prepared,
(d) the information that must be included in an action plan.
20
Regulator may approve, or direct brand owner to resubmit, action plans
20 Regulator may approve, or direct brand owner to resubmit, action plans
20 Regulator may approve, or direct brand owner to resubmit, action plans
(1) After receiving an action plan, the regulator may, by written notice to the brand owner who submitted the action plan—
(a) approve the action plan (the approved action plan) with effect from the date specified in the notice, or
(b) direct the brand owner to—
(i) amend the action plan, and
(ii) resubmit the action plan within the period specified in the notice.
(2) An approved action plan is subject to the conditions, if any, specified by the regulator in a notice under this section or section 22.
(3) A brand owner who holds an approved action plan may submit a draft revised or amended action plan to the regulator for approval under this section.
21
Requirement to hold approved action plan before supply of regulated product
21 Requirement to hold approved action plan before supply of regulated product
21 Requirement to hold approved action plan before supply of regulated product
(1) The brand owner of a regulated product must hold an approved action plan before the product is supplied, whether or not the product is supplied by the brand owner.
Maximum penalty—
(a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or
(b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues.
(2) This section does not apply to the supply of a regulated item to a location outside of the State.
22
Powers of regulator—action plans
22 Powers of regulator—action plans
22 Powers of regulator—action plans
(1) The regulator may, by written notice to a brand owner—
(a) vary or revoke conditions imposed on an approved action plan, including at the request of the brand owner,
(b) impose further conditions on an approved action plan,
(c) withdraw its approval of an approved action plan,
(d) direct the brand owner to do 1 or more of the following within the period specified in the notice—
(i) provide further information in relation to an approved action plan,
(ii) review, update or amend an approved action plan and submit the revised or amended action plan,
(iii) prepare and submit an action plan in accordance with section 19, whether or not the brand owner has an approved action plan,
(iv) arrange an independent audit of an action plan or approved action plan to be carried out by an auditor, including an auditor specified or approved by the regulator,
(v) provide the auditor’s report to the regulator.
(2) A brand owner must comply with a direction of the regulator given in accordance with this Part.
Maximum penalty—
(a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or
(b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues.
23
Review of certain decisions by regulator
23 Review of certain decisions by regulator
23 Review of certain decisions by regulator
(1) A brand owner may, within 14 days of receiving notice of a reviewable decision, apply to the regulator for an internal review of the decision.
(2) An application for internal review must—
(a) be made in writing and state the grounds of the application, and
(b) comply with other requirements, if any, prescribed by the regulations.
(3) An application for internal review does not operate to stay the reviewable decision unless the regulator directs otherwise.
(4) The regulator is not required to conduct a review if a review of the decision has already been conducted under this section.
(5) In determining the application, the regulator may—
(a) confirm the decision, or
(b) vary the decision, or
(c) revoke the decision.
(6) The regulator must give written notice to the applicant of the determination.
(7) A determination to vary or revoke the reviewable decision takes effect on and from the day written notice of the determination is given to the applicant.
(8) In this section—
reviewable decision means a decision by the regulator—
(a) to refuse to approve an action plan, or
(b) to require an action plan to be amended and resubmitted under section 20(1)(b), or
(c) to impose a certain condition on an action plan, or
(d) to vary a condition imposed on an action plan, or
(e) to withdraw its approval of an action plan, or
(f) of a kind prescribed by the regulations.
Part 4
Financial assurances
Part 4 Financial assurances
Part 4 Financial assurances
24
Purpose of Part
24 Purpose of Part
24 Purpose of Part
(1) The purpose of this Part is to provide, by imposing conditions on approved action plans, financial assurances to secure or guarantee funding for or towards the carrying out of actions required to meet product stewardship requirements or targets.
(2) A financial assurance must not operate as a penalty for a contravention of this Act, the regulations or the conditions of an approved action plan.
25
Requiring financial assurances
25 Requiring financial assurances
25 Requiring financial assurances
(1) The regulator may, at any time, impose a condition on an approved action plan to require the brand owner subject to the approved action plan to provide a financial assurance.
(2) The regulator may require a financial assurance to be provided before it approves an action plan.
(3) A financial assurance may be in 1 or more of the following forms—
(a) a bank guarantee,
(b) a bond,
(c) another form of security the regulator considers appropriate and specifies in the condition.
(4) A condition of an action plan may provide for the procedures under which the financial assurance may be called on or used.
26
Restriction on requiring financial assurance
26 Restriction on requiring financial assurance
26 Restriction on requiring financial assurance
The regulator must not impose a condition on an action plan requiring a financial assurance to be provided unless satisfied the condition is justified considering—
(a) the degree of risk of environmental harm, harm to human health or waste management impacts associated with the brand owner’s activities to which the product stewardship requirements and targets apply, or
(b) the ongoing financial capacity of the brand owner to meet the relevant product stewardship requirements and targets, whether through its action plan or otherwise, or
(c) the environmental record of the brand owner, including its past compliance with relevant product stewardship requirements and targets, or
(d) other matters prescribed by the regulations.
27
Amount of financial assurances
27 Amount of financial assurances
27 Amount of financial assurances
(1) The amount of a financial assurance may be determined by the regulator.
(2) The regulator must not require financial assurances of an amount that is more than the total cost of carrying out the actions required to comply with the product stewardship requirements and targets.
(3) The total cost is the amount that, in the regulator’s opinion, represents a reasonable estimate of—
(a) the total likely costs and expenses that may be incurred by the brand owner in carrying out the actions required, and
(b) the total likely costs and expenses of the regulator in directing and supervising the carrying out of the actions.
(4) The regulator may require a brand owner to provide an independent assessment of the cost of the relevant actions for which the assurance is required.
28
Guidelines about financial assurances
28 Guidelines about financial assurances
28 Guidelines about financial assurances
The regulations may make provision for or about guidelines to be observed in relation to—
(a) conditions imposed on action plans requiring financial assurances, and
(b) the calculation of the amount of financial assurances.
29
Regulator may carry out certain actions if brand owner fails to carry out action
29 Regulator may carry out certain actions if brand owner fails to carry out action
29 Regulator may carry out certain actions if brand owner fails to carry out action
(1) The regulator may, by the use of contractors, consultants or otherwise, cause an action covered by a financial assurance to be carried out if the brand owner fails, in the opinion of the regulator, to carry out the action.
(2) The regulator may enter, or authorise another person to enter, premises to carry out the action.
(3) Anything caused to be carried out under this section is taken to have been carried out by the brand owner.
30
Recovery or funding of reasonable costs from financial assurance
30 Recovery or funding of reasonable costs from financial assurance
30 Recovery or funding of reasonable costs from financial assurance
(1) The regulator may recover or fund from the financial assurance the reasonable costs of causing action to be carried out under section 29.
(2) Before recovering or funding reasonable costs from the financial assurance, the regulator must give to the brand owner a written notice under this section.
(3) The notice must—
(a) state details of the action to which the costs apply, and
(b) state the amount to be recovered or funded, and
(c) invite the brand owner to make written representations to the regulator to show why the amount should not be recovered or funded, and
(d) state the period, being at least 30 days after the notice is given to the brand owner, within which representations may be made.
(4) After the end of the period stated in the notice, the regulator must consider written representations made by the brand owner.
(5) If the regulator decides to recover or fund the amount from the financial assurance, the regulator must, as soon as practicable, give written notice to the brand owner of its decision and the reasons for the decision.
(6) The regulator must return excess amounts, if any, to the brand owner.
(7) If the amount recovered or funded from the financial assurance is not sufficient to cover all reasonable costs and expenses, the regulator may recover the excess from the brand owner as a debt in a court of competent jurisdiction.
31
Lapsing of financial assurance
31 Lapsing of financial assurance
31 Lapsing of financial assurance
The requirement to provide financial assurance lapses and no longer binds the brand owner if the regulator—
(a) is satisfied the action for which the financial assurance was required has been satisfactorily carried out, and
(b) has given the brand owner written notice of the lapsing of the financial assurance.
32
Liability of regulator, State and others
32 Liability of regulator, State and others
32 Liability of regulator, State and others
The following persons are not liable for anything done or omitted to be done in good faith in carrying out a function or action under this Part—
(a) the State,
(b) the Minister,
(c) the regulator,
(d) the members of the Board of the EPA,
(e) a member of staff of the regulator,
(f) a person acting under the direction of, or with the authority of, the Minister or the regulator,
(g) a person acting as a delegate of the Minister.
33
Financial assurance not to affect other action
33 Financial assurance not to affect other action
33 Financial assurance not to affect other action
A financial assurance may be called on and used, despite and without affecting—
(a) the liability of the brand owner to a penalty for an offence for a contravention to which the assurance relates, and
(b) another action that may be, or is required to be, taken in relation to a contravention or other circumstances to which the assurance relates.
34
Disputes regarding call on or use of financial assurance
34 Disputes regarding call on or use of financial assurance
34 Disputes regarding call on or use of financial assurance
The Court has jurisdiction to determine disputes about calling on or using a financial assurance.
Part 5
Enforcement
Part 5 Enforcement
Part 5 Enforcement
35
Definitions
35 Definitions
35 Definitions
In this Part—
compliance cost notice means a notice given by the regulator under section 41.
notice means—
(a) a compliance cost notice, and
(b) a compliance notice.
stop notice—see section 36(3)(a).
36
Compliance notices
36 Compliance notices
36 Compliance notices
(1) This section applies when the regulator reasonably suspects a person has supplied, is supplying or is likely to supply from premises or otherwise than from premises—
(a) a prohibited plastic item, or
(b) an item that does not comply with a design standard—
(i) specified for the item in Schedule 1, Part 2, or
(ii) prescribed by the regulations in relation to the item.
(2) The regulator may, by written notice, direct either or both of the following to take an action specified in the notice within the period, if any, specified in the notice—
(a) the occupier of the premises,
(b) the supplier, whether or not at the premises.
(3) Without limiting subsection (2), the action specified in the notice may include the following—
(a) to stop or suspend the supply of the item (a stop notice),
(b) to stop another specified action or activity, including providing information that is, or is likely to be, false or misleading in relation to the item,
(c) to dispose of the item,
(d) to engage an independent and appropriately qualified person to carry out specified tests on the item,
(e) to provide a statement of compliance to a person who receives or will receive supply of the item,
(f) other actions prescribed by the regulations, including actions that must not be taken.
(4) An occupier who did not supply an item referred to in a notice given to the occupier may, if the occupier complies with the notice, recover, as a debt in a court of competent jurisdiction, the cost of complying with the notice from the person who supplied the item.
(5) Subsection (4) only applies if the occupier has taken all reasonable steps to prevent the supply of the item.
(6) In this section—
occupier of premises means the person who has the management or control of the premises.
37
Offence—non-compliance with stop notice
37 Offence—non-compliance with stop notice
37 Offence—non-compliance with stop notice
A person who does not comply with a stop notice given to the person is guilty of an offence.
Maximum penalty—
(a) for a corporation—2,500 penalty units and, for a continuing offence, a further 250 penalty units for each day the offence continues, or
(b) for an individual—500 penalty units and, for a continuing offence, a further 50 penalty units for each day the offence continues.
38
Offence—non-compliance with compliance notices other than stop notices
38 Offence—non-compliance with compliance notices other than stop notices
38 Offence—non-compliance with compliance notices other than stop notices
A person who does not comply with a compliance notice, other than a stop notice, given to the person is guilty of an offence.
Maximum penalty—
(a) for a corporation—500 penalty units and, for a continuing offence, a further 50 penalty units for each day the offence continues, or
(b) for an individual—100 penalty units and, for a continuing offence, a further 10 penalty units for each day the offence continues.
39
Commencement
39 Commencement
39 Commencement
(1) A notice, or a variation of a notice, operates from the day the notice or notice of the variation is given or from a later day specified in the notice.
(2) If an appeal is made against a compliance notice or the variation of a compliance notice and the Court directs that the notice is stayed, the notice or variation does not operate until—
(a) the stay ceases to have effect, or
(b) the Court confirms the notice, or
(c) the appeal is withdrawn.
40
Fee to recover administrative costs of regulator
40 Fee to recover administrative costs of regulator
40 Fee to recover administrative costs of regulator
(1) The purpose of this section is to enable the regulator to recover the administrative costs of preparing and giving notices.
(2) A person who is given a notice by the regulator must within 30 days pay the fee specified in the notice to the regulator.
(3) The regulator may publish, on its website, the fees for the administrative costs of preparing and giving notices.
(4) The regulator may—
(a) extend the time for payment of the fee, on the application of the person, or
(b) waive payment of the whole or a part of the fee, on the regulator’s own initiative or on the application of the person.
(5) The fee is not payable during the currency of an appeal against the notice.
(6) If the decision of the Court on an appeal does not invalidate the notice, the fee is payable within 30 days of the decision.
(7) A person who does not pay the fee within the time provided under this section is guilty of an offence.
Maximum penalty—200 penalty units.
41
Compliance cost notices
41 Compliance cost notices
41 Compliance cost notices
(1) The regulator may, by written notice, require a person to whom a compliance notice is given to pay reasonable costs and expenses incurred by the regulator in connection with—
(a) monitoring action under the notice, and
(b) ensuring the notice is complied with, and
(c) a matter associated with or incidental to a matter referred to in paragraph (a) or (b).
(1A) Without limiting subsection (1)(c), the costs incurred by the EPA in connection with a matter associated with or incidental to a matter referred to in subsection (1)(a) or (b) include costs and expenses incurred in connection with the compliance notice before the notice was given.
(2) The regulator may, by written notice, require a person to whom a compliance notice is given to pay reasonable costs and expenses incurred by the regulator in taking an action under section 45 because a compliance notice is not complied with.
s 41: Am 2025 No 58, Sch 5[1] [2].
42
Recovery of unpaid amounts
42 Recovery of unpaid amounts
42 Recovery of unpaid amounts
The regulator may recover unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.
43
Multiple notices
43 Multiple notices
43 Multiple notices
More than 1 notice under this Part may be given to the same person.
44
Revocation or variation of notices
44 Revocation or variation of notices
44 Revocation or variation of notices
(1) A notice may be revoked or varied by a subsequent notice or notices given by the regulator.
(2) A notice may be varied by modification of, or addition to, its terms and specifications.
(3) A notice may be varied by extending the time for complying with the notice.
45
Action in event of failure to comply, including power to enter land
45 Action in event of failure to comply, including power to enter land
45 Action in event of failure to comply, including power to enter land
(1) If a person does not comply with a compliance notice given to the person, the regulator may take action to cause the compliance notice to be complied with by—
(a) the regulator, or
(b) an employee of the regulator, or
(c) an agent or contractor acting under the direction of the regulator.
(2) Without limiting subsection (1), the regulator may, by its employees, agents or contractors, enter premises at a reasonable time if the regulator reasonably suspects a person has not complied with a compliance notice given to the person.
(3) For the purposes of entering or leaving premises, subsection (2)—
(a) extends to entering other premises, and
(b) authorises entry by foot, by a motor vehicle or other vehicle or in another way.
(4) Entry may be effected by the regulator with—
(a) the number of authorised officers or police officers as the regulator considers necessary, and
(b) the use of reasonable force by police officers.
46
Obstruction of persons
46 Obstruction of persons
46 Obstruction of persons
A person who wilfully delays or obstructs the regulator, or another person authorised by the regulator to take the action, from taking action under section 45 is guilty of an offence.
Maximum penalty—
(a) for a corporation—500 penalty units and, for a continuing offence, a further 50 penalty units for each day the offence continues, or
(b) for an individual—100 penalty units and, for a continuing offence, a further 10 penalty units for each day the offence continues.
Part 6
General offences
Part 6 General offences
Part 6 General offences
47
Increase in penalties for certain offences
47 Increase in penalties for certain offences
47 Increase in penalties for certain offences
(1) The maximum penalty for an offence against section 9(1), 37, 38 or 50(1) is increased as provided by this section if the prosecution proves the person who committed the offence was, at the time the offence was committed, a relevant person.
(2) The maximum penalty for the offence is double the penalty specified for the offence in the relevant section.
(3) The Court must not impose a penalty for an offence on the basis of this section unless the process by which the proceedings are commenced specifies that the factor mentioned in subsection (1) applies to the commission of the offence.
(4) In this section—
relevant person means a person who—
(a) is a manufacturer or producer of the item, or
(b) supplies the item while carrying on a business as a wholesaler or distributor.
48
Ancillary offences
48 Ancillary offences
48 Ancillary offences
A person is guilty of an offence under another provision of this Act or the regulations and is liable, on conviction, to the same penalty applicable to the offence if the person—
(a) aids, abets, counsels or procures another person to commit the offence, or
(b) attempts or conspires to commit the offence.
49
Evidence as to state of mind of corporation
49 Evidence as to state of mind of corporation
49 Evidence as to state of mind of corporation
(1) Evidence that a person, while acting in the person’s capacity as an officer, employee or agent of a corporation, had, at a particular time, a particular state of mind, is evidence that the corporation had that state of mind.
(2) In this section—
state of mind of a person includes—
(a) the knowledge, intention, opinion, belief or purpose of the person, and
(b) the person’s reasons for the intention, opinion, belief or purpose.
50
Offence—false or misleading information in connection with supply
50 Offence—false or misleading information in connection with supply
50 Offence—false or misleading information in connection with supply
(1) A person must not, while carrying on a business, provide, whether by act or omission, information in connection with the supply of the following that is false or misleading in a material particular—
(a) a prohibited plastic item,
(b) an item for which a design standard is—
(i) specified in Schedule 1, Part 2, or
(ii) prescribed by the regulations.
Maximum penalty—
(a) for a corporation—500 penalty units, or
(b) for an individual—100 penalty units.
(2) It is a defence to a prosecution under this section if the person charged with the offence proves—
(a) the person exercised due diligence to prevent the commission of the offence, or
(b) the circumstances of a defence prescribed by the regulations existed.
(3) In this section—
provide includes the following—
(a) print or include in or on a label or packaging material,
(b) fail to correct,
(c) publish on a publicly available website.
51
Offence—false or misleading information provided by brand owner
51 Offence—false or misleading information provided by brand owner
51 Offence—false or misleading information provided by brand owner
(1) A brand owner must not provide, whether by act or omission, information in connection with a matter under Part 3 or 4 that is false or misleading in a material particular.
Maximum penalty—
(a) for a corporation—4,000 penalty units, or
(b) for an individual—1,000 penalty units.
(2) In this section—
provide includes the following—
(a) print or include in or on a label or packaging material,
(b) fail to correct,
(c) publish on a publicly available website.
Part 7
Criminal and other proceedings
Part 7 Criminal and other proceedings
Part 7 Criminal and other proceedings
52
Time within which summary proceedings may be commenced
52 Time within which summary proceedings may be commenced
52 Time within which summary proceedings may be commenced
(1) Proceedings for an offence under this Act or the regulations may be commenced—
(a) for a prescribed offence—within but not later than 3 years after the date on which the offence is alleged to have been committed, or
(b) otherwise—within but not later than 2 years after the date on which the offence is alleged to have been committed.
(2) Proceedings for an offence under this Act or the regulations may also be commenced—
(a) for a prescribed offence—within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer, or
(b) otherwise—within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer.
(3) If subsection (2) is relied on, the court attendance notice or summons—
(a) must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer, and
(b) is not required to contain particulars of the date on which the offence was committed.
(4) The date on which evidence first came to the attention of an authorised officer is the date specified in the court attendance notice or summons unless another date is established.
(5) This section applies only to proceedings to be dealt with summarily.
authorised officer means a person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officer in connection with the relevant offence.
evidence of an offence means evidence of an act or omission constituting the offence.
prescribed offence means an offence arising under Part 3.
53
Regulator may institute proceedings
53 Regulator may institute proceedings
53 Regulator may institute proceedings
(1) Proceedings for an offence against this Act or the regulations may be instituted by the regulator.
(2) Proceedings may also be instituted by a member, an officer or employee of the regulator with the written consent of—
(a) the regulator, or
(b) a member, an officer or employee of the regulator authorised by the regulator for the purposes of this section.
54
Proof of certain appointments not required
54 Proof of certain appointments not required
54 Proof of certain appointments not required
In proceedings under this Act, no proof is required of the appointment of a member of staff of the regulator unless evidence is given to prove otherwise.
55
Certificate evidence of certain matters
55 Certificate evidence of certain matters
55 Certificate evidence of certain matters
(1) A document signed by a certifier that certifies 1 or more of the following matters is admissible in proceedings under this Act and is prima facie evidence of the matter certified—
(a) that a relevant instrument, a copy of which is set out in or annexed to a document, was issued, made or given on a specified day,
(b) that a person was or was not, at a specified time or during a specified period, an authorised officer, enforcement officer or a member of staff of the regulator,
(c) that a person was or was not, at a specified time or during a specified period, an enforcement officer,
(d) that an exemption was or was not given under this Act in relation to a specified matter,
(e) that an exemption was or was not, at a specified time or during a specified period, in force or subject to specified conditions,
(f) that a consent necessary for bringing proceedings for an offence arising under this Act or the regulations has been duly given,
(g) that a person was or was not appointed by the regulator as an analyst under the Protection of the Environment Operations Act 1997, section 262 for the purposes of this Act during a specified period,
(h) that information required to be provided to the regulator or an authorised officer, who is a member of staff of the regulator, under this Act, the regulations or the Protection of the Environment Operations Act 1997, Chapter 7 in connection with this Act or the regulations, was or was not received,
(i) that an amount is payable under this Act or the regulations by a specified person and has not been paid,
(j) that a person was served with a notice under this Act or the regulations,
(k) that a specified function of the Minister was delegated to a specified person during a specified period,
(l) that a person did or did not, at a specified time or during a specified period, hold an approved action plan.
(2) In this section—
certifier means—
(a) the regulator, or
(b) an officer designated in writing by the regulator for the purposes of this section.
relevant instrument means an instrument purported—
(b) to have been signed by the person authorised to issue, make or give the instrument, or by another person acting as delegate or on behalf of the person.
Part 8
Appeals
Part 8 Appeals
Part 8 Appeals
56
Appeals against compliance notices
56 Appeals against compliance notices
56 Appeals against compliance notices
(1) A person served with a compliance notice may appeal to the Court against the notice.
(2) The person must lodge an appeal within 21 days, or another period prescribed by the regulations, after being served with the notice.
(3) The lodging of an appeal does not, except to the extent the Court otherwise directs in relation to the appeal, operate to stay the notice appealed against.
(4) There is no appeal against a decision of the regulator to extend the time for complying with a compliance notice.
57
Appeals against financial assurance conditions
57 Appeals against financial assurance conditions
57 Appeals against financial assurance conditions
(1) If a financial assurance condition is imposed on an approved action plan, the brand owner subject to the plan may appeal to the Court against the condition.
(2) The brand owner must lodge an appeal within 21 days, or another period prescribed by the regulations, after being notified of the condition.
(3) The lodging of an appeal does not, except to the extent the Court otherwise directs in relation to the appeal, operate to stay the condition appealed against.
(4) In this section—
financial assurance condition means a condition imposed on an approved action plan under section 25.
58
Determination of appeals
58 Determination of appeals
58 Determination of appeals
(1) The Court may hear and determine an appeal made under this Act.
(2) The Court’s decision on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal.
Part 9
Miscellaneous
Part 9 Miscellaneous
Part 9 Miscellaneous
59
Service of documents
59 Service of documents
59 Service of documents
(1) A document authorised or required by this Act or the regulations to be served on a person may be served in any of the following ways—
(a) for service on an individual—
(i) by personal delivery to the individual, or
(ii) by post to—
(A) the address specified by the individual for service of documents generally or documents of that kind, or
(B) if the individual has not specified an address for service—the residential or business address of the individual last known to the person serving the document, or
(iii) if the individual’s address for service includes a document exchange address in New South Wales—by leaving a copy of the document, addressed to the individual, at the document exchange in accordance with the usual arrangements for the exchange, or
(iv) by leaving a copy of the document, addressed to the individual—
(A) at the address specified by the individual for service of documents generally or documents of that kind, or
(B) if the individual has not specified an address for service—at the residential or business address of the individual last known to the person serving the document, or
(v) if the individual has consented, whether explicitly or impliedly, to service of documents generally or documents of that kind by means of electronic communication—by means of electronic communication, or
Examples of impliedly consenting to service of documents by means of electronic communication—
previously using email to correspond with the EPA or including the individual’s email address on applications made, or other documents given, to the EPA
(vi) in another way authorised by the regulations for the service of documents generally or documents of that kind,
(b) for service on another person—
(i) by post to—
(A) the address specified by the person for service of documents generally or documents of that kind, or
(B) if the person has not specified an address for service—the business address of the person last known to the person serving the document, or
(ii) by leaving a copy of the document, addressed to the person—
(A) at the address specified by the person for service of documents generally or documents of that kind, or
(B) if the person has not specified an address for service—at the business address of the person last known to the person serving the document, or
(iii) if the person’s address for service includes a document exchange address in New South Wales—by leaving a copy of the document, addressed to the person, at the document exchange in accordance with the usual arrangements for the exchange, or
(iv) if the person has consented, whether explicitly or impliedly, to service of documents generally or documents of that kind by means of electronic communication—by means of electronic communication, or
Examples of impliedly consenting to service of documents by means of electronic communication—
previously using email to correspond with the EPA or including the person’s email address on applications made, or other documents given, to the EPA
(v) in another way authorised by the regulations for the service of documents generally or documents of that kind.
(2) Nothing in this section affects the operation of another law, including the rules of a court, authorising a document to be served on a person in another way.
(1) A notice given under this Act or the regulations that specifies a time by which, or period within which, the notice must be complied with continues to have effect until the notice is complied with even though the time has passed or the period has expired.
(2) A notice that does not specify a time by which, or period within which, the notice must be complied with continues to have effect until the notice is complied with.
(3) This section does not apply to the extent a requirement under a notice is revoked.
(4) Nothing in this section affects the powers of the regulator in relation to the enforcement of a notice.
61
Regulator may grant exemptions
61 Regulator may grant exemptions
61 Regulator may grant exemptions
(1) The regulator may grant an exemption under this section from specified provisions of this Act or the regulations, whether generally or in specified circumstances.
(2) The regulator may grant an exemption for—
(a) the supply of single-use plastic drinking straws for use by a person with a disability or other medical requirement, and
(b) a person by reference to the following—
(i) premises,
(ii) a product,
(iii) an item,
(iv) another matter or thing.
(3) The regulator may grant an exemption—
(a) on its own initiative, or
(b) on the application of a person to whom the exemption applies.
(4) An application under this section must—
(a) be in the approved form, and
(b) be accompanied by the fee, if any, determined by the regulator, and
(c) be accompanied by information, documents or evidence the regulator requires for the purpose of determining whether the exemption should be granted.
(5) An exemption granted under this section is effected as follows—
(a) for an exemption granted to specified persons only—by notice published in the Gazette or by written notice given to the persons,
(b) otherwise—by notice published in the Gazette.
(6) An exemption granted under this section takes effect—
(a) on the date on which the notice is published or given in accordance with this section, or
(b) if a later date is specified in the notice—the later date.
(7) An exemption granted under this section may be unconditional or may be subject to conditions specified in the notice.
(8) The regulator may vary or revoke an exemption granted under this section by a further notice published or given in accordance with this section.
62
Delegation
62 Delegation
62 Delegation
The Minister may delegate the exercise of a function of the Minister under this Act or the regulations, other than this power of delegation, to—
(a) a person employed in the Department of Climate Change, Energy, the Environment and Water, or
(b) a member of staff of the regulator, or
(c) a person authorised for the purposes of this section by the regulations.
s 62: Am 2024 No 20, Sch 5[2].
63
Personal liability
63 Personal liability
63 Personal liability
(1) A protected person is not personally subject to liability for anything done—
(a) in good faith, and
(b) for the purpose of exercising a function under this Act.
(2) The liability instead attaches to the Crown.
(3) In this section—
done includes omitted to be done.
liability means civil liability and includes action, claim or demand.
protected person means—
(a) the Minister, or
(b) a member of staff of the regulator, or
(c) an authorised officer, or
(d) an enforcement officer, or
(e) a person acting under the direction of, or with the authority of, the Minister or the regulator.
64
Fees
64 Fees
64 Fees
(1) A fee or other charge payable to the regulator under this Act or the regulations may be recovered by the regulator as a debt due to the Crown in a court of competent jurisdiction.
(2) The regulator may refund or waive the whole or a part of a fee or other charge payable to the regulator under this Act or the regulations.
65
Public register
65 Public register
65 Public register
(1) The regulator must keep a public register in accordance with this section.
(2) The regulator must record the following information in the register—
(a) details of compliance notices issued or revoked under this Act or the regulations,
(b) details of exemptions granted by the regulator under this Act,
(c) details of convictions for prosecutions initiated by the regulator under this Act,
(d) details of penalty notices issued under this Act or the regulations,
(e) the outcome of civil proceedings initiated by the regulator under this Act,
(f) other details or information prescribed by the regulations.
(3) The regulator may record the name of an individual or business in the register, including a name under which an individual or business trades.
(4) The regulator may remove exemptions that are no longer in force from the register.
(5) The register may be kept only in electronic form.
(6) An extract of the register may be made available on request by a person.
(7) The regulations may specify the following—
(a) the means by which the register may be inspected,
(b) when copies may be obtained,
(c) fees for the inspection of the register,
(d) fees for copies of parts of the register,
(e) that the register, or a part of the register, may be made publicly available.
(8) In this section—
details of a matter means—
(a) particulars of the matter, or
(b) a copy of the matter, or
(c) an electronic or other reproduction of the matter.
66
Consultation requirements
66 Consultation requirements
66 Consultation requirements
(1) This section applies to the making of a regulation that contains a provision prescribing 1 or more of the following (a relevant provision)—
(a) a prohibited plastic item,
(b) a design standard in accordance with section 8,
(c) a regulated product.
(2) This section does not apply to—
(a) the remake of a regulation, or
(b) the making of a regulation that repeals or amends a relevant provision.
(3) Before recommending the making of the regulation by the Governor, the Minister must take reasonable steps—
(a) to publicise, for at least 8 weeks, an explanation of the intended effect of the relevant provision, and
(b) to seek and consider submissions from the public on the matter.
(4) A provision of the regulation that prescribes a prohibited plastic item or a design standard must not commence earlier than 6 months after the regulation is published.
(5) A provision of the regulation that prescribes a regulated product must not commence earlier than 12 months after the regulation is published.
(6) The Minister may dispense with a requirement in subsection (3), (4) or (5) if satisfied that—
(a) dispensing with the requirement is in the public interest, or
(b) the making of the regulation is urgent.
(7) In this section—
published means published on the NSW legislation website.
67
Act to bind Crown
67 Act to bind Crown
67 Act to bind Crown
This Act binds the Crown in right of New South Wales and, to the extent the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
68
Regulations
68 Regulations
68 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to a matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision about the following—
(a) imposing requirements on suppliers to provide information, certification or statements about an item,
(b) imposing requirements on suppliers to carry out independent testing of an item,
(c) imposing requirements relating to records or reports on a person in relation to an item,
(d) an accreditation scheme or other scheme for the purpose of approving auditors,
(e) requiring or allowing information and records required to be provided or kept under this Act to be provided or kept in electronic form,
(f) fees and charges in connection with the administration of this Act or the regulations, including the following—
(i) the amount, or the determination of the amount by the regulator, of the fees and charges,
(ii) the time within which the fees and charges must be paid,
(iii) the payment and recovery of the fees and charges.
(3) Without limiting subsection (1), the regulations may make provision about the granting of exemptions, with or without conditions, from specified provisions of this Act or the regulations, whether generally or in specified circumstances for—
(a) the supply of single-use plastic drinking straws for use by a person with a disability or other medical requirement, and
(b) a person by reference to the following—
(i) premises,
(ii) a product,
(iii) an item,
(iv) another matter or thing.
(4) The regulations may create offences punishable by a penalty no more than—
(a) 200 penalty units for an individual, or
(b) 400 penalty units for a corporation.
(5) The regulations may incorporate by reference, wholly or in part and with or without modification, standards, rules, codes, specifications, methods or another document, as in force at a particular time or from time to time, prescribed or published by an authority or body, whether or not it is a New South Wales authority or body.
69
Review of Act
69 Review of Act
69 Review of Act
(1) The Minister must review this Act to determine whether—
(a) the policy objectives of the Act remain valid, and
(b) the terms of the Act remain appropriate for securing the objectives.
(2) The review must be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review must be tabled in each House of Parliament within 12 months after the review is completed.
Schedule 1
Prohibited items and design standards
Schedule 1 Prohibited items and design standards
Schedule 1 Prohibited items and design standards
sections 7(1) and 8(3)
sch 1: Am 2023 No 7, Sch 1.17[3].
Schedule 2
Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
sch 2: Am 2025 No 58, Sch 5[7].
Schedule 3
Schedule 3
Schedule 3 (Repealed)
sch 3: Rep 1987 No 15, sec 30C.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Plastic Reduction and Circular Economy Act 2021.
2 Commencement
2 Commencement
2 Commencement
(1) This Act commences on the date of assent to this Act, except as provided by subsections (2) and (3).
(2) Schedule 1, section 2 commences on the first day of the first month occurring 6 whole months after the commencement of section 3.
(3) Schedule 1, sections 3–5 commence on 1 November 2022.
3 Objects of Act
3 Objects of Act
3 Objects of Act
(1) The objects of this Act are as follows—
(a) to protect the environment and human health,
(b) to promote and support the principles of a circular economy,
(c) to support material circularity through design, production, use, re-use, collection, recycling, reprocessing and end-of-life management,
(d) to ensure responsibility for products across their life cycle,
(e) to reduce the impact, or potential impact, of items, waste from items and waste material on the environment and human health.
(2) In this section—
principles of a circular economy include the following principles—
(a) valuing resources and minimising the use of virgin materials by ensuring materials continue to circulate in the economy in a way that—
(i) minimises the risk of harm to human health and the environment, and
(ii) considers the waste hierarchy,
(b) keeping resources in use and designing out waste, pollution and resource inefficiency, including through innovative systems, technologies and business models,
(c) ecologically sustainable and regenerative management of resources and systems.
The Act therefore changes the legal and commercial environment for manufacturers, brand owners, wholesalers, distributors, importers and retailers by (i) forbidding specified plastic items, (ii) creating upstream accountability (brand owner duties), (iii) introducing mandatory action plans and financial security mechanisms to underwrite stewardship outcomes, and (iv) setting significant enforcement and reputational levers.
Main concepts
The Act’s organising concepts are: prohibited plastic item, design standard, regulated product, brand owner, product stewardship requirement/target, approved action plan, financial assurance, and regulator enforcement instruments. These are defined or given operational effect across the Act.
Prohibited plastic item (s 7 and Schedule 1 Part 1). Schedule 1 lists items (for example, lightweight plastic bags at s 2 of Sch 1, plastic single‑use straws, cutlery, stirrers, cotton buds, bowls and plates at s 3 of Sch 1, and expanded polystyrene food service items at s 4 of Sch 1). The Act also allows regulations to prescribe additional prohibited plastic items but conditions the Minister’s recommendation on forming an opinion that the item is unnecessary or problematic (s 7(2)-(3)). The Minister must publish that opinion in the Gazette as soon as practicable (s 7(4)); failure to publish does not invalidate the regulation (s 7(5)).
Design standards (s 8 and Schedule 1 Part 2). The regulations may set design standards for environmental, human health or economic reasons (s 8(1)), and may prescribe composition, labelling, testing and verification requirements (s 8(2)). Schedule 1 Part 2 contains a specified design standard (microbeads prohibition in rinse‑off personal care products at Sch 1 Part 2, s 5).
Brand owner (s 11). The statutory brand owner is the owner of the product name under which the product is supplied in the State. Regulations may broaden that to licence holders, franchisees, or first suppliers. The brand owner is taken to be the brand owner of packaging unless the regulations provide otherwise (s 11(3)-(4)). This concept pushes compliance responsibilities upstream to the brand/mark holder rather than only to the physical supplier.
Product stewardship requirement/target (ss 10, 13-15). Regulations can prescriptively require life‑cycle stewardship measures (s 13) , for example minimum recycled content, traceability, recyclability, take‑back schemes , and can specify targets expressed as percentages. The Minister can set targets by order (s 14). Brand owners must comply with requirements/targets (s 15), subject to the defence of holding and complying with an approved action plan (s 15(2)).
Approved action plan and approval process (ss 19-23). If required by the regulations, brand owners must prepare and submit action plans (s 19), which the regulator may approve, impose conditions on, or direct to be amended and resubmitted (s 20). A brand owner must hold an approved action plan before supply of a regulated product (s 21).
Financial assurances (Part 4, ss 24-34). The regulator may require financial assurances (bank guarantee, bond or other security) as a condition on an approved action plan (s 25). The regulator must justify requiring assurance, considering environmental risk, the brand owner’s ongoing financial capacity, and environmental record (s 26). Amounts must not exceed the total cost of carrying out actions required to meet requirements/targets (s 27). The regulator can call on assurances to pay for remedial actions and recover further shortfalls as a debt (ss 29-30). Disputes about calls can be litigated in the Court (s 34).
Enforcement apparatus (Part 5 and Part 6). The regulator may issue compliance notices, including stop notices and directions to test, dispose of, or stop supply (s 36). Non‑compliance carries substantial penalties (s 37-38). The Act authorises entry to premises to enforce compliance, recovery of costs and publication of compliance details (ss 45, 40, 18, 65). The Act also creates general offences for false or misleading claims in connection with supply (ss 50-51) and increases maximum penalties for certain suppliers (s 47).
Consultation and commencement constraints. The Act requires at least 8 weeks’ public consultation for regulations prescribing prohibited items, design standards or regulated products (s 66(3)), and sets minimum delayed commencement periods (no earlier than six months for prohibited items/design standards and 12 months for regulated products, s 66(4)-(5)), subject to dispensation for urgency or public interest (s 66(6)).
Extraterritorial reach (s 6). The Act and regulations apply to persons and premises outside the State where there is an “extraterritorial impact” affecting the State’s environment or supply into the State, or relating to non‑compliance.
These concepts structure who must act, when they must act, the standards they must meet, what securities may be required to underwrite those actions, and what enforcement measures the regulator can deploy.
Who it affects
The Act allocates duties and exposure across a network of actors in the supply chain:
Brand owners (ss 11, 15-17, 19-22). The principal compliance obligations fall on the brand owner as defined at s 11: duties to comply with product stewardship requirements and targets (s 15), prepare and keep records (s 16), report annually (s 17), prepare and hold approved action plans when required (s 19-21), and supply accurate information (s 51). The regulations can broaden who counts as a brand owner (s 11(2)), and generally the packaging is treated as the brand owner’s responsibility unless the regulations say otherwise (s 11(3)-(4)). This targets upstream entities with control over product names and design choices.
Suppliers, occupiers, wholesalers, distributors, retailers and manufacturers. The Act criminalises supply of prohibited items by a person “while carrying on a business” (s 9). Section 47 doubles maximum penalties for certain offences when committed by “relevant persons”, defined to include manufacturers or producers and wholesalers or distributors (s 47(4)). Occupiers of premises can be directed to comply with notices and may recover costs from suppliers in limited circumstances (s 36(4)-(5)). The Act thus affects every point along the distribution chain, with escalating liability depending on role.
Importers and out‑of‑State suppliers. The Act’s extraterritorial reach captures persons and premises outside the State where there is an “extraterritorial impact” relating to supply into the State (s 6). Section 9(2) creates a narrow exemption for supply to a location outside the State, but otherwise the regulator may assert jurisdiction over overseas suppliers where supply affects the State.
Small businesses and consumers. The direct criminal and civil obligations target businesses, especially brand owners and suppliers; however, indirect effects will fall on businesses that make design, sourcing and labelling choices, and on consumers through changes in available products. The Act allows the regulator to issue exemptions for single‑use plastic straws where required for disability or medical reasons (s 61(2)(a)), indicating an accommodation for individual needs.
Financial intermediaries and insurers. Financial assurance requirements (Part 4, ss 25-27) create demand for bank guarantees, bonds and other security products. Entities offering such instruments will face new market opportunities and counterparty risk (eg regulator calls on a guarantee).
The regulator and authorised officers. The Act empowers the regulator to approve action plans, impose conditions, require financial assurances, issue notices, enter premises and recover costs (eg ss 20, 25, 36, 45). Schedule 2 transitional provisions treat staff of the EPA as authorised officers and enforcement officers for continuity (Sch 2, Part 2, ss 3-4), thus linking the EPA into the enforcement architecture.
The public and NGOs. Publication powers (s 18) and the statutory public register (s 65) enable the regulator to disclose brand owners’ compliance status, enforcement notices and convictions. Public and civil society actors can use this information for reputational or market pressure.
Who pays: brand owners and supply chain actors will bear direct compliance costs , action plans, record keeping, testing and audits, financial assurances, fees set by the regulator (ss 16-17, 25, 40, 68(2)(f)). The regulator or State may bear enforcement and supervision costs, though the Act authorises recovery from regulated persons via compliance cost notices (s 41) and fees (s 40). Who decides: the regulator has broad discretions (approval, conditions, imposition of financial assurance and calling on them), and the Minister sets targets and may recommend regulations (ss 14, 7). Behaviour changes expected: removal or substitution of listed single‑use plastics, redesign to meet design standards, increased recycled content, traceability systems, take‑back or recycling schemes, and pre‑supply approvals for regulated products.
Key duties and rights
Duties
Duty not to supply prohibited items while carrying on a business (s 9). The maximum penalties are specified: 500 penalty units for a corporation and 100 penalty units for an individual, and the section does not apply to supply to places outside the State (s 9(2)).
Duty for brand owners to comply with product stewardship requirements and targets (s 15). Penalties are substantial: corporations face up to 4,000 penalty units (and continuing penalties per day) and individuals up to 1,000 penalty units (s 15(1)). The Act treats product stewardship “requirements” and “targets” as within the same compliance ambit (s 15(4)).
Duty to prepare and hold approved action plans where regulations require them (ss 19-21). Action plans must set out how brand owners intend to comply, and the regulator can impose conditions, require amendments and withdraw approvals (ss 19-22). A brand owner must hold an approved action plan before supply of a regulated product (s 21(1)); failure to do so attracts penalties (s 21(1)-(3)).
Record keeping and access for inspections (s 16). Brand owners must prepare records for each financial year, retain them for at least six years, and make them available to authorised officers; failure attracts penalties (s 16(1)). The regulator can direct an independent audit and require the report to be provided (s 16(3)-(4)).
Reporting obligations (s 17). Brand owners must report to the regulator within three months of the financial year end in the approved form and containing prescribed information; failure to report attracts the same maximum penalties as record keeping (s 17(1)-(2)). Information supplied can be used in prosecutions and is admissible even if potentially incriminating (s 17(3)-(4)).
Compliance with notices and stop notices (ss 36-38). The regulator may issue compliance notices and stop notices directing occupiers or suppliers to stop supply, dispose of items, undertake testing, provide statements of compliance and other actions (s 36). Non‑compliance with a stop notice carries up to 2,500 penalty units for a corporation and 500 for an individual, with daily continuing penalties (s 37). Non‑compliance with other compliance notices carries lower maxima (s 38).
Financial assurance provision where required (ss 25-27). Brand owners may be required to provide bank guarantees, bonds or other specified security, with amounts capped at the regulator’s estimate of total cost of required actions (s 27). The regulator must be satisfied the requirement is justified considering risk and the brand owner’s capacity (s 26).
Rights and procedural protections
Defences and mitigation. For product stewardship offences, it is a defence if the brand owner held an approved action plan and complied with it and its conditions (s 15(2)). For false or misleading information offences in connection with supply, a defendant may rely on due diligence or other prescribed circumstances (s 50(2)). The Act also defines that failure to comply with an approved action plan evidences failure to comply with s 15(3), reversing some onus to the brand owner to demonstrate compliance with the plan.
Internal review and appeal rights. A brand owner may seek internal review of “reviewable decisions” of the regulator within 14 days (s 23). For compliance notices, a person may appeal to the Court within 21 days (s 56); for financial assurance conditions, the brand owner may appeal within 21 days (s 57). Lodging an appeal does not automatically stay the instrument except where the Court orders otherwise (ss 23(3), 56(3), 57(3)).
Publication and register. The regulator may publish names of brand owners and compliance information (s 18) and must keep a public register recording compliance notices, exemptions, convictions and other enforcement outcomes (s 65). The regulator may remove expired exemptions (s 65(4)) and maintain the register in electronic form (s 65(5)).
Procedural safeguards on notices and cost recovery. The regulator must give written notice before recovering costs from a financial assurance and allow at least 30 days for representations (s 30). For compliance cost notices, the regulator may require a person to pay reasonable monitoring or enforcement costs (s 41), and unpaid amounts are recoverable as a debt (s 42). Administrative fees for preparing and giving notices are payable within 30 days but are not payable during the currency of an appeal against the notice (s 40(2), (5)).
Consultation and delayed commencement for regulatory provisions. Regulations prescribing prohibited items, design standards or regulated products are subject to consultation requirements (s 66). Such provisions cannot commence earlier than specified minimum delays (s 66(4)-(5)), offering time for compliance and market adjustment.
These duties and rights allocate compliance burdens principally to brand owners and suppliers, while providing procedural avenues for administrative review, appeals and a narrowly framed defence available where approved action plans are held and followed.
Penalties and enforcement
Penalties are specified by offence and by category (corporation v individual), and include daily continuing penalties in many contexts:
Supply of prohibited items while carrying on a business (s 9): maximum 500 penalty units for a corporation; 100 penalty units for an individual. Section 9(2) excludes supply to locations outside the State.
Failure to comply with product stewardship requirements or targets (s 15): corporations up to 4,000 penalty units and an additional 400 penalty units for each day of a continuing offence; individuals up to 1,000 penalty units and an additional 100 penalty units per day.
Record keeping offences (s 16): maximum 4,000 penalty units for a corporation and 1,000 for an individual, with continuing penalties for daily non‑compliance. Failure to comply with a regulator direction to commission an audit attracts lower maxima (s 16(4)).
Reporting obligations (s 17): the same maxima as record keeping (4,000 and 1,000 penalty units), with continuing penalties.
Non‑compliance with stop notice (s 37): corporations up to 2,500 penalty units and continuing penalties of 250 per day; individuals up to 500 and 50 per day.
Non‑compliance with other compliance notices (s 38): corporations up to 500 penalty units and 50 per day; individuals up to 100 and 10 per day.
False or misleading information in connection with supply of prohibited items or items under design standards (s 50): corporations up to 500 penalty units; individuals up to 100.
False or misleading information provided by brand owners in connection with Part 3 or 4 matters (s 51): corporations up to 4,000 penalty units; individuals up to 1,000.
Obstuction of enforcement (s 46): corporations 500 penalty units (plus continuing penalties of 50 per day); individuals 100 plus 10 per day.
Fee non‑payment for administrative costs of notices (s 40(7)): 200 penalty units.
Increased penalties for supply‑chain actors: where a “relevant person” (manufacturer, producer, wholesaler or distributor) commits certain offences (s 9(1), s 37, s 38 or s 50(1)), the maximum penalty for that offence is doubled under s 47. The prosecution must specify the relevant person factor in the charging process (s 47(3)).
Enforcement powers
Notices and directions (s 36). The regulator may issue written compliance notices directing occupiers or suppliers to stop supply, dispose of items, arrange independent tests, provide statements of compliance, or take other prescribed actions. Stop notices are a sub‑category and carry higher penalties for breach (s 37).
Entry and remedial action (s 45). If a person fails to comply, the regulator may cause the action to be carried out, by employees, agents or contractors, and may enter premises at a reasonable time where it reasonably suspects non‑compliance. Entry may extend to other premises and can be effected using police and reasonable force if necessary (s 45(2)-(4)). Anything carried out under s 45 is taken to have been carried out by the brand owner (s 29(3)) if covered by a financial assurance.
Financial assurances and calls (Part 4). The regulator may require financial assurances (ss 25-27) and, where a brand owner fails to carry out required action, cause the action to be carried out and recover reasonable costs from the financial assurance (ss 29-30). The regulator must give written notice and at least 30 days for representations before recovering costs (s 30(2)-(4)). If funds are insufficient, the regulator may recover the excess as a debt in court (s 30(7)). Disputes about calls or use of assurances are within the Court’s jurisdiction (s 34).
Cost recovery and fees (ss 40-42). The regulator may charge a fee for administrative costs of preparing and giving notices (s 40). The regulator may also issue compliance cost notices to require payment of reasonable costs incurred in monitoring, ensuring compliance, or taking action because a compliance notice was not complied with (s 41). Unpaid amounts are recoverable as a debt (s 42).
Publication and register (ss 18, 65). The regulator may publish brand owners’ information and performance against stewardship requirements (s 18), and must maintain a public register of compliance notices, exemptions, convictions and penalty notices (s 65). Publication creates reputational enforcement levers.
Procedural protections
Internal review (s 23) and court appeals (ss 56-58). The Act provides for internal review of specified decisions within 14 days and for appeal to the Court within 21 days for compliance notices and financial assurance conditions. Lodging does not automatically stay the notice or condition unless the Court directs otherwise (s 23(3), ss 56(3), 57(3)).
Evidentiary mechanisms (s 55). Certificates signed by a certifier (the regulator or a designated officer) are prima facie evidence of various administrative facts, streamlining prosecutions and administrative processes (s 55).
Taken together, the penalties and enforcement suite combine criminal sanctions, administrative directions, cost recovery and publication, creating multiple levers to induce compliance. The Act places significant weight on preventive administrative controls (approved action plans, financial assurances) and post‑issue enforcement (stop notices, remedial action by regulator), with substantive penalties amplified for certain supply‑chain roles.
How it interacts with other laws
The Act is drafted to operate alongside and interact with other environmental and regulatory statutes and administrative systems:
Interpretation Act and cross‑references. The Dictionary in Schedule 4 and cross‑reference to the Interpretation Act 1987 are explicitly acknowledged (s 4(1) note). The Act borrows concepts such as “authorised officer” from other statutes and integrates them by transitional deeming (Schedule 2, Part 2).
Protection of the Environment Operations Act 1997 (POEO). Several provisions tie into the POEO. For example, s 55(1)(g) refers to a person appointed as an analyst under POEO s 262(1) being an analyst for purposes of this Act. Schedule 2 transitional provisions treat EPA authorised officers and enforcement officers appointed under POEO as authorised/enforcement officers for this Act (Sch 2, Part 2, ss 3-4). Part 4 immunity provisions (s 32) list the Board of the EPA and members of staff of the regulator, indicating operational overlap.
Incorporation of external standards. The regulations may incorporate by reference standards, codes, methods or other documents published by authorities or bodies, whether or not NSW authorities (s 68(5)). This allows cross‑regulatory harmonisation or reliance on national/international standards.
Evidence, procedure and criminal law. The Act sets specific time limits for summary proceedings that operate despite other Acts (s 52(6)). It also adopts evidentiary conveniences (s 55 certificates), and attributes corporate state of mind through agency evidence (s 49), aligning with common corporate criminal law principles.
Administrative law and judicial review. Internal review mechanisms (s 23) and appeal rights to the Court (ss 56-58) sit within general administrative law. The Act does not oust judicial review by superior courts for legal error; however, the Court’s determinations on appeals under the Act are declared final and binding (s 58(2)) with respect to the Act’s appeal provisions.
Statutory consultation and commencement constraints. The consultation requirements for regulations (s 66) impose a procedural overlay on the regulation‑making power (s 68), requiring publication and submissions and minimum commencement delays for relevant regulatory provisions. The Minister may dispense with these requirements on public interest or urgency grounds (s 66(6)).
Fees and recovery. The Act authorises fees and cost recovery mechanisms (ss 40, 41, 68(2)(f)) and states that fees payable to the regulator are recoverable as debts to the Crown (s 64(1)), interacting with revenue recovery frameworks.
Crown binding and delegation. The Act binds the Crown (s 67) and allows delegations by the Minister to departmental staff or the regulator (s 62), positioning the Act within existing executive administrative arrangements.
Transitional interaction. Schedule 2 provides transitional savings giving continuity to EPA appointments and analysts previously made under the POEO (Sch 2, Part 2). Amendments made by later Acts are incorporated by Schedule 2 Part 3 references (eg Environmental Legislation Amendment Act 2025), showing the Act is intended to slot into a broader legislative scheme.
Practical effect of interaction: the Act is designed to sit alongside existing environmental enforcement regimes and uses the infrastructure of the EPA/regulator, evidence and administrative processes from related legislation, and regulatory standards commonly used in industry. Because the regulations may incorporate external standards, compliance may require alignment with third‑party technical specifications. Parties should therefore consider compliance not only with this Act’s text but with relevant regulations, POEO provisions, and any standards incorporated into the regulations.
Amendment history
The provided text includes several amendment notations and transitional provisions indicating subsequent changes:
Schedule 1 amendments: s 7 indicates an amendment , “s 7: Am 2023 No 7, Sch 1.17[1] [2]” , showing Schedule 1 and s 7 were amended in 2023 by No 7, Schedule 1. The Schedule itself is marked “sch 1: Am 2023 No 7, Sch 1.17[3]”.
Substitution and ministerial powers: s 59 (service of documents) is marked “Subst 2024 No 20, Sch 5[1]”, indicating that s 59 was substituted in 2024 by Act No 20, Schedule 5.
Delegation: s 62 is marked “Am 2024 No 20, Sch 5[2]”, signifying an amendment to the delegation power in 2024.
Compliance costs: s 41 is marked “s 41: Am 2025 No 58, Sch 5[1] [2]”, meaning s 41 was amended in 2025 by Act No 58, Schedule 5.
Schedule 2 also records an amendment notation “sch 2: Am 2025 No 58, Sch 5[7]” tying to the Environmental Legislation Amendment Act 2025 and noting that those amendments extend to costs incurred before commencement (Schedule 2 Part 3, s 5).
Schedule 3 has been repealed, and Schedule 1 contains a time‑limited provision: Sch 1 Part 1, s 1(3) states that the integrated packaging provision is repealed on 1 January 2025.
The Act also contains commencement detail at s 2: the Act commences on assent except that particular Schedule 1 sections commence with delayed dates (s 2(2)-(3)). The review requirement (s 69) mandates a statutory review within five years of assent.
These notations in the provided text identify specific amendment instruments and dates; they signal that the Act has been subject to iterative changes since initial enactment and that transitional provisions (Schedule 2) manage continuity with the EPA’s prior appointments and authorities. Practitioners should check the current consolidated Act and the NSW legislation website for subsequent amendments beyond those reflected in the source text.
Litigation history
The provided text contains no recorded judicial decisions or litigation history. There are no cases named or discussed in the Act text supplied. The Act does, however, create a statutory appeals framework and court jurisdiction on certain disputes:
Appeals from compliance notices and financial assurance conditions are to be brought to the Court within statutory time frames (ss 56-58). Section 34 grants the Court jurisdiction to determine disputes about calling on or use of financial assurances.
Section 55 gives certificate evidence admissibility to the regulator or its designated officers, which will shape evidentiary strategies in any prosecutions brought under the Act.
Section 47 requires that aggravating factors (such as the offender being a “relevant person”) be specified in the prosecution process before the Court may impose doubled penalties.
Because the Act is recent and the provided material does not include judicial determinations, there is presently no legislatively‑cited case law. Parties should anticipate litigation dynamics in three areas likely to arise (although not evidenced in the source): (1) challenges to regulator decisions on approval, conditions and financial assurance (internal review and court appeals); (2) disputes over calls on financial assurances and return of excess funds (s 34); and (3) prosecutions for supply of prohibited items, false statements and non‑compliance with notices, where the evidentiary conveniences in s 55 will feature. For firm legal precedents, search for decisions under the Act after its enactment in public law databases.
Gotchas
The Act contains numerous operational features that create traps for the unwary:
Upstream liability via “brand owner” concept. The Act designates the brand owner as the primary duty holder (s 11) and treats packaging as the brand owner’s responsibility unless otherwise specified (s 11(3)). Regulations may expand who counts as a brand owner to include licensees, franchisees or first suppliers (s 11(2)). Commercial arrangements that split brand control from manufacturing might not shield parties from obligations.
Pre‑supply approval requirement. If regulations designate a product as “regulated” and require an action plan, the brand owner must hold an approved action plan before supply (s 21(1)). Failure to secure approval before supply is an offence with substantial penalties. Commercial launches must therefore factor approval lead times.
Reporting usable in prosecution. Information provided under reporting obligations is admissible in evidence in prosecutions even if self‑incriminating (s 17(4)). There is no statutory privilege for such disclosures under the Act. This raises risk for brand owners preparing mandatory reports.
Financial assurance calls and recovery. The regulator may call on financial assurances and recover reasonable costs after allowing at least 30 days for written representations (s 30). If the assurance is insufficient, the regulator can pursue the brand owner for the balance as a debt (s 30(7)). Brand owners should therefore treat assurances as potentially real and immediate liquidity exposures.
Continuation of notices and lack of automatic expiry. Notices continue in effect until complied with even if the specified period has expired (s 60). Appeals do not automatically stay notices unless the Court orders otherwise (s 23(3), s 56(3), s 57(3)). Commercial operations may be interrupted for extended periods unless proactive relief is sought.
Publication and reputation risk. The regulator may publish a brand owner’s compliance or non‑compliance and other names by which the brand owner trades (s 18). The public register records compliance notices, exemptions and convictions (s 65). Publication is discretionary and can impose reputational costs even absent conviction.
Exemptions and disability carve‑out. The regulator can grant exemptions and explicitly may exempt single‑use plastic straws for disability or medical need (s 61(2)(a)). Brand owners that rely on a general prohibition must plan for specific, regulated exemptions and implement processes to identify eligible consumers.
Consultations and delayed commencement can be dispensed with. Although s 66 requires eight weeks’ publicity and sets minimum commencement delays (six months for prohibited items/design standards, 12 months for regulated products), the Minister may dispense with these requirements if satisfied it is in the public interest or urgent (s 66(6)). Market actors should track Gazette notices and Ministerial determinations.
Extraterritorial reach. The Act applies to persons and premises outside the State where there is an extraterritorial impact affecting the State’s environment or supply into the State (s 6). International suppliers and contracts may therefore be captured, and section 9(2)’s exemption for supply to outside the State is narrow.
Increased penalties must be charged with notice. Section 47 doubles penalties for relevant persons, but the prosecution must specify that this factor applies. Practitioners must monitor charging instruments for proper specification; failure to do so could affect sentencing exposure at trial or plea.
Incorporation of external standards. The regulations can incorporate standards, codes and methods by reference (s 68(5)). Compliance may therefore require observance of external, possibly foreign, technical standards not printed in the regulations themselves.
Certifier certificates carry prima facie weight. Certificates issued by the regulator or a designated officer are prima facie evidence of various facts (s 55). Defendants may need to rebut certified statements rather than rely on absence of records.
Transitional quirks. Schedule 1 contains a temporary rule on integrated packaging that is repealed on 1 January 2025 (Sch 1 s 1(3)). Parties dealing with integrated packaging need to track the sunset mechanism and any regulatory changes.
These “gotchas” indicate that compliance is a mixture of substantive design work, administrative documentation, and careful attention to regulator processes, timelines and publication risks.
How to comply
A practical compliance checklist for brand owners, suppliers and in‑house counsel, grounded in the Act’s provisions:
Determine status of products and packaging
Check Schedule 1 Part 1 for currently prohibited plastic items (eg lightweight bags s 2, single‑use straws/cutlery s 3, expanded polystyrene food service items s 4) and Schedule 1 Part 2 for design standards (eg microbeads prohibition in rinse‑off personal care products at Sch 1 Part 2, s 5).
Review regulations (when made) for any prescribed prohibited items or regulated products (s 7(1), s 13(1), s 68).
Identify the brand owner legally
Map product names, trademarks and supply chain to the statutory “brand owner” (s 11). If the entity supplying the product is not the name owner, consider contractual allocation of compliance responsibilities; however, statutory duties remain with the brand owner as defined and regulations may extend who is treated as brand owner (s 11(2)).
Assess requirement for an action plan
Determine whether regulations require an action plan for your product or industry (s 19(1)). If required, prepare an action plan that sets out how to comply with the product stewardship requirements and targets, includes prescribed information, and is in the approved form (s 19(2)-(3)).
Allow time for regulator review, amendment requests and approval (s 20). Do not supply the product until an approved action plan is held where required (s 21(1)).
Build compliance documentation systems
Establish financial‑year based record keeping to satisfy s 16: prepare records each financial year, retain them for at least six years, and be ready to make them available to authorised officers. Track prescribed data elements and ensure electronic systems can produce required reports.
Prepare to commission independent audits if directed by the regulator (s 16(3)) and ensure auditors meet accreditation requirements once regulations specify them (s 68(2)(d)).
Reporting regime
Design reporting processes to deliver the annual report within three months of the end of the financial year in the approved format and containing prescribed information (s 17). Treat reports as potential evidential material in prosecutions (s 17(4)).
Manage product design and labelling
Where design standards are or may be imposed (s 8), incorporate compliance steps into product development: composition controls, material selection, labelling requirements and independent test verification as required (s 8(2)). Avoid use of plastic microbeads in rinse‑off personal care products (Sch 1 Part 2, s 5).
Financial assurance readiness
Assess potential exposure to financial assurances: the regulator can require bank guarantees, bonds or other securities (s 25). Ensure capacity to source guarantees and prepare cost estimates and independent cost assessments if requested (s 27(4)). Model scenarios where financial assurance is called and ensure liquidity planning.
Communications and disclosure controls
Implement processes to avoid false or misleading information in supply, packaging or websites (ss 50-51). Maintain records of due diligence and compliance steps to rely on the s 50 due diligence defence where appropriate (s 50(2)(a)).
Engage in consultation and regulatory monitoring
Participate in the Minister’s consultation processes for new regulations (s 66). Use public submissions during the eight‑week consultation window to influence scope and commencement timelines; monitor Gazette publications and the NSW legislation website for proposed and final instruments.
Prepare for enforcement actions
Maintain procedures to respond to compliance notices and stop notices: immediate legal review, operational containment, and evidence preservation. If a notice is issued, note internal review timelines (14 days for reviewable decisions, s 23) and appeal windows (21 days for compliance notices or financial assurance conditions, ss 56-57). Be ready to make written representations where the regulator proposes to call financial assurance funds (s 30).
Contractual allocation of risk
In contracts with manufacturers, suppliers, franchisees and licensees, clarify who provides required information, who holds approvals, who bears costs of compliance and financial assurances, and who is named as brand owner. But note contracts do not change statutory obligations under s 11.
Insurance and legal risk management
Review insurance coverage for regulatory fines, remediation costs and defence costs; note that some penalties may be excluded by insurers or policies. Consider captive bonding or ring‑fenced funds to meet possible calls on assurances.
Use exemptions where appropriate
Where necessary, apply for an exemption under s 61 following the approved form and fee process, and ensure the regulator’s conditions are met. Track Gazette notices of exemptions and conditions (s 61(5)-(6)).
Records and retention
Maintain records for 6 years per s 16(1)(b) and keep document exchange and service contact details current to ensure lawful service under s 59.
Litigation and dispute preparedness
Build evidence trails that prove compliance with approved action plans, due diligence steps, testing and third‑party audits to defend against prosecutions or to challenge regulator decisions through internal review and judicial appeal procedures (ss 23, 56-58).
This compliance roadmap translates statutory duties into operational steps. Given the regulator’s discretion and the role of subordinate regulations, entities should treat the Act as a framework statute requiring ongoing monitoring of regulations, Gazette notices and guidance published by the regulator.
waste hierarchy is a reference to the hierarchy set out in the Waste Avoidance Resource and Recovery Act 2001, section 3(b).
4 Definitions
4 Definitions
4 Definitions
(1) The Dictionary in Schedule 4 defines words and expressions used in this Act.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) A person supplies an item whether or not—
(a) a fee is charged for the supply of the item, or
(b) the supply of the item is incidental to, or forms part of, the supply of another thing.
5 Precautionary principle
5 Precautionary principle
5 Precautionary principle
(1) In this Act, the precautionary principle is the principle that, if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(2) In applying the precautionary principle, decisions should be guided by—
(a) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(b) an assessment of the risk-weighted consequences of various options.
6 Extraterritorial application of Act
6 Extraterritorial application of Act
6 Extraterritorial application of Act
(1) If there is an extraterritorial impact, this Act and the regulations apply to—
(a) a person, whether or not the person is outside the State, and
(b) premises, whether or not the premises are outside the State, and
(c) a supplier, whether or not—
(i) the supplier is carrying on a business outside the State, or
(ii) the supplier is a party to a contract made outside the State.
(2) In this section—
extraterritorial impact means a matter or thing, whether it occurs or is located outside the State, that—
(a) affects, or is likely to affect, the environment of the State, or
(b) relates to the supply, or the likely supply, into or within the State of a regulated item, or
(c) relates to a non-compliance matter.
non-compliance matter means a matter or thing that is, or is likely to be, an offence under this Act or the regulations.
Part 2 Prohibited items
Part 2 Prohibited items
Part 2 Prohibited items
7 Prohibited plastic items
7 Prohibited plastic items
7 Prohibited plastic items
(1) In this Act—
prohibited plastic item means a plastic item that is—
(a) specified in Schedule 1, Part 1, or
(b) prescribed by the regulations.
(2) The Minister must not recommend the making of a regulation to prescribe a prohibited plastic item unless the Minister forms an opinion that the item is—
(a) unnecessary, or
(b) for environmental, human health or economic reasons, including reasons relating to waste management or resource management—problematic.
(3) Without limiting subsection (2), in forming an opinion that a plastic item is unnecessary or problematic, the Minister may consider the following—
(a) the precautionary principle,
(b) whether the plastic item—
(i) can be eliminated or replaced by an item that is not a plastic item or by a reusable plastic item without causing harm or significant disruption to consumers, or
(ii) is difficult to collect or recover through kerbside or similar publicly accessible collection and recovery systems and services, or
(iii) is made from material that is difficult or costly to recycle through commercially available recycling technologies, or
(iv) hinders, disrupts or obstructs opportunities for other materials or resources to be recovered, collected or recycled, or
(v) contributes significantly to litter, or
(vi) is made from material that may cause harm to human health or the environment, or
(vii) contains additives that accelerate the breakdown of the item into particles.
(4) The Minister must, as soon as practicable after forming an opinion, publish notice of the opinion in the NSW Government Gazette.
(5) A failure to publish a notice does not affect the making or validity of a regulation that prescribes a prohibited plastic item.
s 7: Am 2023 No 7, Sch 1.17[1] [2].
8 Design standards
8 Design standards
8 Design standards
(1) The regulations may prescribe design standards for an item for environmental, human health or economic reasons, including the following—
(a) promoting waste avoidance and reducing the likely end-of-life impact of the item on the environment,
(b) increasing the potential for, or reducing barriers to, the re-use, recovery, recycling, processing or reprocessing of an item,
(c) increasing the use of recycled material in the manufacturing or production of an item,
(d) reducing the impact of the production, use, processing or reprocessing of an item on the environment,
(e) reducing the unnecessary or inefficient use of materials in an item,
(f) increasing the energy or resource efficiency of an item,
(g) prohibiting, preventing or reducing the use of an item that may result in a risk to human health or the environment, including by applying the precautionary principle,
(h) waste management or resource management,
(i) increasing post-consumer collection,
(j) increasing consumer awareness of the matters referred to in paragraphs (a)–(h).
(2) Without limiting subsection (1), a design standard may contain requirements for the following—
(a) the composition of an item, including the type or amount of materials or substances that must or must not be included in the item,
(b) the way in which an item must be packaged or labelled,
(c) the way in which an item must be designed, constructed or manufactured,
(d) independent testing and verification to determine compliance with a design standard,
(e) independent testing to determine whether a representation made in relation to an item is accurate.
(3) Schedule 1, Part 2 specifies a design standard.
9 Offence of supplying prohibited items
9 Offence of supplying prohibited items
9 Offence of supplying prohibited items
(1) A person who, while carrying on a business, supplies a prohibited item to another person is guilty of an offence.
Maximum penalty—
(a) for a corporation—500 penalty units, or
(b) for an individual—100 penalty units.
(2) This section does not apply to the supply of a prohibited item to a location outside of the State.
Part 3 Product stewardship requirements and targets
Part 3 Product stewardship requirements and targets
Part 3 Product stewardship requirements and targets
Division 1 Preliminary
Division 1 Preliminary
Division 1 Preliminary
10 Definitions
10 Definitions
10 Definitions
In this Part—
financial year means the period of 12 months commencing on 1 July in a year.
product stewardship target means a target—
(a) specified in accordance with section 13, or
(b) set by the Minister under section 14.
11 Meaning of “brand owner”
11 Meaning of “brand owner”
11 Meaning of “brand owner”
(1) In this Act, the brand owner of a product—
(a) is the owner of the product name under which the product is supplied in the State, and
(b) includes a person prescribed by the regulations.
(2) The regulations may prescribe the circumstances in which the following persons are taken to be brand owners in relation to the supply of a particular product—
(a) a person who is a licensee of a product name under which the product is supplied in the State,
(b) a person who is a franchisee under a business arrangement that allows the person to supply the product in the State,
(c) a person who first supplies the product in Australia.
(3) Unless otherwise specified by the regulations, the brand owner of a product is taken to be the brand owner of the packaging material of the product.
(4) The regulations may make provision for or about the following—
(a) whether the brand owner of a product is or is not the brand owner of the packaging material of the product, including in specified circumstances,
(b) the circumstances in which a person is or is not taken to be the brand owner of a product,
(c) the granting of exemptions from this Part—
(i) with or without conditions, and
(ii) generally, in specified circumstances or for a specified product.
(5) In this section—
product name includes a trade mark, brand name or trade name, whether or not registered in this or another jurisdiction.
12 Meaning of “supply”
12 Meaning of “supply”
12 Meaning of “supply”
In this Part and section 6—
supply also includes the following for a scheme or service—
(a) make the scheme or service available or provide the scheme or service to a person,
(b) an offer to provide the scheme or service, including advertising the scheme or service or making other representations with the intention of providing the scheme or service.
Division 2 Product stewardship requirements and targets
Division 2 Product stewardship requirements and targets
Division 2 Product stewardship requirements and targets
13 Product stewardship requirements
13 Product stewardship requirements
13 Product stewardship requirements
(1) The regulations may—
(a) prescribe a requirement (a product stewardship requirement) for the stewardship of the life cycle of a regulated product, including the development, design, creation, production, assembly, supply, use or re-use, recovery, recycling or disposal of the regulated product, and
(b) specify a target for or in relation to a product stewardship requirement, including a target expressed as a percentage.
(2) Without limiting subsection (1), the regulations may prescribe a product stewardship requirement for or in relation to the following—
(a) the use or re-use of recycled materials or other materials that will minimise the environmental or resource impact of a product’s creation,
(b) the traceability of materials,
(c) the ability of a product to be recycled, composted, repaired, processed, re-processed or re-used,
(d) the re-use, re-manufacture, recovery, recycling, take-back, use or disposal of a product or resources from a product,
(e) the prevention, reduction or recovery of litter,
(f) the prevention or reduction of unlawful waste disposal,
(g) the reduction in material used in a product,
(h) the design of a product,
(i) the maintenance, sharing, repair, refurbishment or upgrade of a product,
(j) the longevity of a product,
(k) the reduction of the impact, including the potential impact, of a product or the life cycle of a product on resource management or waste management, including in relation to virgin materials, demand for landfill, the environment or human health.
14 Minister may set product stewardship targets
14 Minister may set product stewardship targets
14 Minister may set product stewardship targets
(1) The Minister may, by order published in the Gazette, set a product stewardship target, including a target expressed as a percentage.
(2) The order takes effect—
(a) on the date on which the order is published, or
(b) if a later date is specified in the order—the later date.
(3) A target specified in the regulations prevails over a target set by order under this section.
(4) The Minister may, by a further order made under this section, vary a target specified in the regulations if the regulations permit the variation of the target.
15 Offence—failure to comply with product stewardship requirement or target
15 Offence—failure to comply with product stewardship requirement or target
15 Offence—failure to comply with product stewardship requirement or target
(1) The brand owner of a regulated product must comply with a product stewardship requirement for the regulated product.
Maximum penalty—
(a) for a corporation—4,000 penalty units and, for a continuing offence, a further 400 penalty units for each day the offence continues, or
(b) for an individual—1,000 penalty units and, for a continuing offence, a further 100 penalty units for each day the offence continues.
(2) It is a defence in proceedings for an offence against subsection (1) if the defendant establishes that, at the time of the failure to comply, the defendant—
(a) held an approved action plan for the product stewardship requirement, and
(b) complied with the approved action plan and the conditions, if any, imposed by the regulator on the approved action plan.
(3) To the extent that an approved action plan relates to a brand owner’s compliance with a product stewardship requirement, a failure to comply with the plan is evidence of a failure to comply with subsection (1).
(4) In this section—
product stewardship requirement includes a product stewardship target.
16 Record keeping requirements
16 Record keeping requirements
16 Record keeping requirements
(1) The brand owner of a regulated product must—
(a) prepare records for each financial year in accordance with this section, and
(b) keep the records for at least 6 years following the financial year to which the prescribed records r
This is an opening excerpt, not the complete document.