Recycling and Waste Reduction (Fees) Rules 2020

Accredited voluntary arrangement. This is a concept defined in the Act, not in the Rules, but it is the central object to which the fees attach. A voluntary arrangement is a product stewardship scheme that an industry body or other administrator seeks to have formally recognised and accredited by the Minister under Part 3 of the Act. The Rules distinguish between a voluntary arrangement that is not yet accredited (item 1(a)) and one that is already accredited (item 1(b)). The fee differential ($5,900 versus $3,900) likely reflects the lower regulatory effort involved when the arrangement is already known to the regulator, though the instrument itself provides no justification.

Fee for consideration of an application. This is the charge for the Minister or the Department performing the function of evaluating whether the voluntary arrangement meets the accreditation criteria under the Act. The fee is payable by the administrator of the arrangement. The two fixed fees cover the cost of processing the application, but the instrument does not disclose how those amounts were determined. The time‑based fee for variation applications ($26.60 per quarter hour) suggests the regulator recognises that variations are more variable in complexity and should be charged on an actual‑cost basis, though the rate itself is set arbitrarily by the instrument.

Late payment penalty. If a fee under section 5 is not paid by its due date (immediately upon application for the fixed fees, or on demand for the variation fee), the administrator becomes liable for a penalty calculated using a simple formula: 0.2 × original fee × days overdue ÷ 365. This is a simple‑interest formula, not a compounding one. The rate of 20 per cent per annum is high compared with current commercial borrowing rates and is intended to act as a strong disincentive against late payment. The penalty only applies to the original fee; it does not itself attract further penalties. The instrument does not specify a maximum period for which the penalty can accrue, meaning it continues to run until the original fee is paid.

Remission and refund. Section 8 empowers the Minister to remit (i.e., cancel the obligation to pay) or refund money already paid. This is a discretionary power; the Minister may act on the Minister’s own initiative or on application. The instrument does not set out any criteria or guidelines for when remission or refund is appropriate. This creates significant uncertainty for administrators, as the outcome depends entirely on the Minister’s view of what is “appropriate”. The absence of criteria also exposes the Minister to criticism of arbitrary or inconsistent decision‑making, though it may also allow flexibility in cases of genuine hardship or administrative error.

Reviewable decision. Section 9 of the Rules designates the Minister’s refusal to remit or refund the whole or part of a fee or penalty as a reviewable decision. This means the affected person can seek internal review or review by the Administrative Appeals Tribunal under the Act. The instrument does not create any other reviewable decisions; for example, the calculation of a penalty or the amount of a time‑based fee is not itself reviewable under these Rules. Only a refusal to remit or refund can be challenged. This is a narrow gateway for legal challenge.

The primary persons affected are the administrators of voluntary arrangements who apply for accreditation or variation of accreditation under the Act. The instrument defines “administrator” by reference to the Act (section 4, incorporating the Act’s definitions). Typically this will be an industry body, a company, a cooperative, or a non‑profit organisation that operates a product stewardship scheme. These administrators bear the direct financial costs: the fixed application fee, the time‑based variation fee, and potentially the late‑payment penalty if they do not pay on time. The costs are not negligible and must be factored into the decision to seek accreditation. For a small industry scheme with limited revenue, $5,900 may be a meaningful barrier. The time‑based variation fee, while appearing modest per quarter hour, is unpredictable; an administrator could face a large bill if the Department takes many hours to process a complex variation.

The Minister (or the Minister’s delegate) is the decision‑maker for accreditations, variations, remission, and refund. The Rules do not impose any duties on the Minister other than to perform the functions for which the fees are charged. The remission power is discretionary, so the Minister has no duty to remit even in compelling circumstances.

The Department (the Department administering the Act) is the entity that actually performs the assessment work and collects the fees. The time‑based fee is intended to compensate the Department for its staff time, and the fixed fees are presumably calculated on a cost‑recovery basis, though the instrument does not disclose that basis.

Applicants for remission or refund are a subset of administrators. They are affected because they must submit a written application and then await the Minister’s decision. If the Minister refuses, they have a right to seek review, which imposes further time and potential legal costs.

The public and the broader recycling industry are indirectly affected. The fee structure influences the number and type of voluntary arrangements that seek accreditation. High fixed fees may deter some arrangements from participating, reducing the overall coverage of product stewardship schemes. Conversely, low or non‑existent fees might encourage participation but shift costs to the taxpayer. The instrument itself does not address this trade‑off.

The instrument does not affect individual consumers directly, as the fees are not levied on them.

Duty to pay the fee upon application. Under section 6, the fee prescribed by item 1 of the table in subsection 5(2) (the fixed fees of $5,900 or $3,900) must accompany the application for accreditation. This is a strict requirement: the fee must be paid at the time the application is made. The note to section 6 observes that the Act (paragraph 172(1)(e)) does not require the fee to accompany the application if the fee is waived, but the instrument does not otherwise allow the fee to be paid later. Administrators cannot “pay on invoice” or after the application is considered. This creates a duty to have the funds available upfront.

Duty to pay the variation fee upon demand. For variation applications, the fee is payable when a demand for payment is made (item 2 of the table). The variation fee is not required to accompany the application; instead, the Department performs the work and then bills the administrator. The duty to pay arises only after the demand, but the amount is determined by the Department’s own time records. The administrator cannot cap the fee in advance.

Duty to pay a late‑payment penalty. Under section 7, if a fee under section 5 is not paid by its due date, the administrator is liable to a penalty automatically. This is a statutory debt; the Department does not need to issue a penalty notice. The duty is self‑executing: the formula applies from the day after the due date until the day the original fee is paid.

Right to apply for remission or refund. Section 8 confers on any person liable to pay a fee or penalty (i.e., the administrator) the right to apply in writing for the Minister to remit or refund the whole or part of the amount. The Minister may also act on the Minister’s own initiative, but that is not a right held by the administrator. The right to apply does not guarantee a favourable outcome; the Minister retains absolute discretion.

Right to seek merits review of a refusal to remit or refund. Under section 9, a person who applies for remission or refund and is refused by the Minister has the right to have that decision reviewed under the Act’s review provisions. The reviewable decision is specifically described: the Minister’s refusal to remit or refund. No other decisions (e.g., calculation of the time‑based fee, imposition of the late‑payment penalty itself) are reviewable under this instrument. The right to review is triggered only after an unsuccessful application for remission or refund. This is a narrow right, not a general right to challenge any fee or penalty.

The only penalty prescribed by this instrument is the late‑payment penalty under section 7. It is a financial penalty only, not a criminal or civil penalty. The formula is the original fee multiplied by 0.2, multiplied by the number of days overdue, divided by 365. The penalty cannot exceed the original fee in theory, though the instrument does not cap the number of days. In practice, the Department would likely enforce the debt before it grows indefinitely. The rate of 20 per cent per annum is high relative to typical judgment interest rates, which suggests the penalty is intended as a deterrent rather than a commercial compensation.

The instrument does not provide for any other penalties or enforcement mechanisms for non‑payment beyond this penalty. For example, it does not say that failure to pay the fee means the application will be rejected. However, the Act (not the Rules) likely deals with that: the requirement in section 6 that the fee must accompany the application effectively means that if the fee is not paid, the application is incomplete and may not be considered. The Rules impose the late‑payment penalty only on a fee that is already due and payable; if the fee is never paid, the penalty continues to accrue, but the underlying obligation to pay the fee remains. The Department may seek to recover both the fee and penalty as a debt due to the Commonwealth, potentially through court proceedings.

The Minister’s power to remit or refund under section 8 means that even after a penalty has accrued, the Minister can waive it. This acts as a safety valve, but it is entirely discretionary. There is no entitlement to remission, and the instrument provides no criteria for how the discretion should be exercised. This creates legal uncertainty for administrators: they cannot predict whether a late payment will be penalised in full or partially remitted.

The instrument also interacts with the Act’s enforcement provisions. Under the Act, a person who fails to comply with a condition of accreditation may face suspension or revocation. While the Rules do not make late payment of fees a condition of accreditation, non‑payment could potentially be considered as part of the administrator’s overall compliance. The Rules are silent on this point.

The Recycling and Waste Reduction (Fees) Rules 2020 is a legislative instrument made under the Recycling and Waste Reduction Act 2020. Its legal force derives entirely from that Act. The Rules give effect to certain provisions of the Act that require fees to be prescribed: paragraph 155(2)(a), (d), (e), (f), and (g), as well as paragraph 172(1)(e) and subsection 151(2). These provisions are the hooks for the Rules.

Interaction with the Act’s accreditation framework. The Act establishes the criteria and process for accrediting voluntary product stewardship arrangements. The Rules do not replicate or supplement those criteria; they only set the fees. However, the fee requirement is a procedural hurdle. Under section 6, the fee must accompany the application, so an application submitted without the fee is not validly made (unless waived). This means the Act’s timeframes for processing applications may not start until the fee is paid. Administrators must budget for the fee and plan accordingly.

Interaction with the Act’s review provisions. Section 9 of the Rules designates the Minister’s refusal to remit or refund as a reviewable decision for the purposes of subsection 151(2) of the Act. That subsection enables the Minister to determine, by legislative instrument, which decisions are reviewable. The Act itself provides for review of certain decisions (e.g., decisions to refuse accreditation). The Rules add one additional reviewable decision not otherwise listed in the Act. The effect is that a person aggrieved by a refusal to remit or refund can seek internal review and then review by the Administrative Appeals Tribunal. The Rules do not specify the review body or procedure; those are set by the Act and general administrative law (the Administrative Appeals Tribunal Act 1975).

Interaction with the Public Governance, Performance and Accountability Act 2013 (PGPA Act). Fees collected under these Rules are public money. The PGPA Act governs the collection, receipt, and refund of such money. The Rules do not override the PGPA Act; they operate alongside it. The Department must comply with PGPA requirements when handling fee payments and refunds.

Interaction with the Fees and Charges (Exemption) Regulation or similar. The instrument does not contain any exemption from fees for particular entities (e.g., charities, government bodies). The only potential exemption is through the Minister’s discretionary waiver under section 8, but that is not a prescribed exemption. Administrators that might qualify for a fee waiver under other Commonwealth policies cannot rely on this instrument for a waiver; they must apply to the Minister individually.

No interaction with state laws. The Rules are a Commonwealth instrument and deal only with the Commonwealth accreditation scheme. State waste and recycling laws may impose their own fees or obligations, but the Rules are independent of those.

The instrument as provided is titled the Recycling and Waste Reduction (Fees) Rules 2020. The date of effect is not stated in the text. On its face, the instrument appears to be the original version, with no amendments listed. The user has supplied the full text, and there are no footnotes, endnotes, or amendment histories appended. However, it is possible that the instrument has been amended since its commencement (for example, adjustments to the fee amounts or the penalty rate). Without access to the Federal Register of Legislation or the official compilation, we cannot confirm the current status. What can be said is that the text as provided contains no provision for indexation, automatic review, or sunsetting of the fees. The fee amounts are fixed at $5,900 and $3,900 and the quarter‑hour rate at $26.60. These figures may have been updated by later amending instruments, but the source text does not disclose any.

Practitioners should verify the current version before relying on the figures. The Act (section 155) allows the Rules to prescribe different fees for different circumstances, and the table could be amended by a later instrument. The instrument’s structure is simple, so any amendment would likely be minor - adjusting dollar amounts, adding new fee schedules, or clarifying definitions. The absence of a revision date in the provided text is a practical risk: a reader cannot be certain this is the latest version.

The text of the instrument does not refer to any court or tribunal decisions. Given its nature as a subsidiary legislative instrument that prescribes fees, direct litigation is unlikely to be frequent. Disputes would most likely arise in the context of challenges to ministerial decisions under the Act, where the quantum of fees might be a side issue. The reviewable decision mechanism (section 9) opens the door to tribunal review of refusals to remit or refund, but such reviews would be applications to the Administrative Appeals Tribunal, not court proceedings. Those tribunal decisions may be appealed to the Federal Court on questions of law, but the instrument itself does not record any such cases.

Potential grounds for challenge include: whether the fee was properly demanded (e.g., whether the administrator was correctly identified), whether the penalty was correctly calculated, or whether the Minister exercised the remission power in accordance with law (e.g., by taking irrelevant considerations into account). However, the instrument gives no indication of any actual litigation. The low profile of this instrument suggests it has not generated significant controversy, though the absence of litigation history does not mean the fees are uncontroversial.

Until a case arises, the interpretation of the penalty formula and the extent of ministerial discretion remain untested. For example, could an administrator argue that a delay caused by the Department (e.g., a late invoice) should not attract the penalty? The instrument is silent. Similarly, the meaning of “appropriate” in section 8 is broad and could be challenged on grounds of legal unreasonableness (the high threshold under the Minister for Immigration and Citizenship v Li line of authority), but no such challenge is recorded.

Fee payable at time of application, not upon approval. The $5,900 or $3,900 fee must accompany the application under section 6. This means the administrator bears the cost even if the application is subsequently refused or abandoned. There is no provision for refund in case of refusal, unless the Minister exercises the discretion to refund under section 8. Administrators should not assume they will get the money back if accreditation is denied. The instrument does not say the fee is refundable if the application is withdrawn before processing, leaving it to the Minister’s discretion.

Time‑based variation fee is open‑ended. For variations, the fee is $26.60 per quarter hour, per person. There is no cap or estimate requirement. The administrator will not know the total cost until the Department issues a demand. This creates budgeting uncertainty. Administrators should consider requesting an estimate before proceeding, though the instrument does not require the Department to provide one. If the Department takes many hours, the fee could exceed the fixed fees for a new application.

The late‑payment penalty accrues automatically and continues until payment. The formula in section 7 starts running from the day after the due date and does not cease until the original fee is paid. If an administrator disputes the fee or penalty, the clock keeps ticking. There is no suspension pending dispute resolution. The penalty at 20 per cent per annum is not compounded, but it can still accumulate significantly over months.

No statutory cap on the penalty. The formula does not impose a maximum penalty amount. In theory, if a fee of $5,900 remained unpaid for several years, the penalty could approach or exceed the principal. The Minister’s remission power (section 8) is the only relief, and it is discretionary. This creates a risk of disproportionate penalty for relatively small delays.

Ministerial discretion for remission/refund is unfettered. Section 8 says the Minister may remit or refund if the Minister considers it appropriate to do so. There are no criteria, guidelines, or time limits in the instrument. The decision is not reviewable on its merits except through the designated reviewable decision (refusal). Even then, the review body will likely give the Minister considerable deference. Administrators cannot rely on precedent.

No review right for the penalty itself. The reviewable decisions listed in section 9 are only refusals to remit or refund. The decision to impose the penalty, or the calculation of the penalty, is not reviewable under this instrument. If the Department miscalculates the days overdue, the administrator’s only remedy is to apply for remission or refund - and if the Minister refuses, then challenge that refusal. This is a roundabout path.

The definition of “administrator” is in the Act, not here. The Rules assume that the “administrator of the voluntary arrangement” is the person liable for the fee. If the arrangement has multiple co‑administrators or a complex governance structure, there may be confusion over who must pay. The instrument does not provide for joint liability.

Step 1: Determine the correct fee category. Before making an application, the administrator must identify whether the voluntary arrangement is already accredited or not. If it is a new arrangement not previously accredited, the fee is $5,900. If the arrangement is already accredited and the application is for a variation of that accreditation, the initial fee for variation is time‑based, but note: the application for variation itself does not attract a fixed fee at the time of application; instead, the fee is charged after the work is done. However, there is still an upfront requirement? The table item 2 says the fee is due and payable when a demand for payment is made. So the variation application can be lodged without payment upfront. But the administrator must be prepared to receive a demand later. For an application relating to an existing accredited arrangement that is not a variation (e.g., renewal or transfer?), the fixed fee of $3,900 applies (item 1(b)). This interpretation is crucial: item 1(b) says “if the application is in relation to an accredited voluntary arrangement”. That covers applications other than variations (e.g., a new application by a different administrator for the same arrangement?). The instrument is unclear, so the administrator should seek guidance from the Department.

Step 2: Prepare the fee with the application. For applications attracting a fixed fee under item 1, the fee must accompany the application. The administrator should arrange payment (e.g., cheque, electronic transfer) at the same time as submitting the application documents. The instrument does not specify the method of payment; the Department’s administrative arrangements will prescribe that. Evidence of payment should be retained. If the fee cannot be paid at that time, the administrator may apply for a waiver under section 8 before or at the time of application, but the instrument does not guarantee the waiver will be granted.

Step 3: For variation applications, await the demand. For variations, no fee is due at application. The Department will perform the work and then issue a demand specifying the total fee based on the time spent ($26.60 per quarter hour per person). The administrator should request an itemised breakdown and ensure that only reasonable time is charged. If the administrator believes the time is excessive, they may dispute the amount informally, but there is no formal review right for the fee amount itself. The only avenue is to pay under protest and then apply for remission or refund.

Step 4: Pay fees on time. The fixed fees are due at the time of application, so there is no grace period. The variation fee is due when the demand is made. The administrator should pay immediately upon receipt of the demand to avoid the late‑payment penalty. The penalty accrues from the due date, not from a later reminder. Set up systems to track due dates.

Step 5: Monitor for late‑payment penalty. If a fee is paid late, the administrator should calculate the penalty using the formula: amount × 0.2 × days overdue ÷ 365. The penalty is self‑assessed; the Department may issue a notice, but the liability is automatic. Pay the original fee and the penalty together. If the penalty seems disproportionate (e.g., for a very short delay), the administrator may apply for remission.

Step 6: Consider applying for remission or refund if circumstances justify. If the fee was paid in error, if the application was withdrawn early, or if there are genuine hardship grounds, the administrator can make a written application to the Minister under section 8. The application should set out the reasons why remission or refund is appropriate. There is no prescribed form. The Minister may also act on their own initiative, but it is safer to apply. If the Minister refuses, the administrator may then exercise the right to seek review of that decision under section 9. That review will be conducted under the Act’s internal review and AAT review mechanisms. Legal advice may be needed.

Step 7: Keep records. Maintain copies of applications, payment receipts, demands for payment, correspondence with the Department, and any remission applications. The instrument does not impose a record‑keeping obligation, but such records are essential for disputing fees or penalties, and for any subsequent review.

Step 8: Plan for cost uncertainty. The time‑based variation fee is uncertain. Administrators should factor in a potential cost of several thousand dollars for a complex variation. If the cost is likely to be high, a preliminary discussion with the Department about expected hours is advisable, though not legally required.