89Co‑regulatory product stewardship—anti‑avoidance

#### 89 Co‑regulatory product stewardship—anti‑avoidance Minister may determine Act has effect as if person were a liable party (1) The Minister may, by writing, determine that this Act has effect, and is taken always to have had effect, as if a specified person (the prospective liable party) were a liable party in relation to a product in relation to which rules have been made for the purposes of subsection 77(1). > Note: A determination under this subsection is a reviewable decision (see section 151) and the Minister must give the person written notice of the decision (see section 152). Conditions for making determination—avoidance scheme etc. (2) However, the Minister may make the determination only if: (a) one or more persons (whether or not the prospective liable party) engaged in any or all of the following conduct: (i) entering into a scheme; (ii) beginning to carry out a scheme; (iii) carrying out a scheme; and (b) the Minister believes, on reasonable grounds, that any person who engaged in that conduct did so for the purpose (or for purposes that included the substantial purpose) of enabling the prospective liable party to avoid being a liable party in relation to a product; and (c) the prospective liable party is a constitutional corporation. Determination has effect (3) The determination has effect accordingly. Period during which determination has effect (4) The determination: (a) takes effect on the day specified in the determination, which must not be before the day the rules specifying the liable parties in relation to the product came into force; and (b) remains in effect: (i) if a day is specified in the determination—until that day; or (ii) otherwise—indefinitely. Determination not a legislative instrument (5) A determination made under subsection (1) is not a legislative instrument. Meaning of scheme (6) In this Act: > scheme means: (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or (b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.