Single-use and Other Plastic Products (Waste Avoidance) Act 2020

The Single-use and Other Plastic Products (Waste Avoidance) Act 2020 creates a statutory framework that (1) identifies a set of single-use and other plastic products as prohibited, (2) forbids the manufacture, sale, supply and distribution of oxo-degradable plastic products, (3) requires producers, manufacturers and distributors to provide certification about oxo‑degradable content on request, and (4) establishes mechanisms for regulation-making, exemptions, enforcement and reporting. The Act names specific prohibited items in s 6(1)(a)-(g): single‑use plastic drinking straws, single‑use plastic cutlery, single‑use plastic beverage stirrers, and a set of expanded polystyrene items (cups, bowls, plates and clamshell containers). The regulations may add to, or exclude items from, that list (s 6(1)(h)). Before adding items by regulation the Minister must undertake public consultation that includes publication of a proposal, provision of reasons and information about alternatives and possible exemptions, a minimum eight‑week submission period, and consideration of submissions (s 6(2)).

For oxo‑degradable plastics the Act defines oxo‑degradable plastic in s 3 and then makes manufacture or production of products comprised in whole or in part of oxo‑degradable plastic an offence when carried out in the course of business (s 9). Selling, supplying or distributing products comprised in whole or in part of oxo‑degradable plastic in the course of carrying on a business is also an offence (s 10). Section 11 imposes an administrative certification requirement: on written request from an authorised officer, manufacturers, producers, wholesalers or distributors must provide certification as to whether a plastic product contains oxo‑degradable plastic, in a form and manner determined by the Authority and within 30 days. The Act establishes criminal and expiation penalties for contraventions of these prohibitions and certification requirements (see s 7, s 9, s 10, s 11, s 12), with higher maximum penalties for "prescribed persons" (manufacturers, producers, wholesalers and distributors) than for others in several offences (s 7(1), s 10(1)).

The Act links its administration and enforcement with the Environment Protection Act 1993. It directs that the two Acts be read together as if they were a single Act (s 15(1)), permits authorised officers under the Environment Protection Act to exercise their powers for administration and enforcement of this Act (s 15(2)), and states that where there is an inconsistency this Act prevails (s 15(3)). The Governor and the Minister have regulatory and exemption powers: the Governor may, by regulation, exempt persons or products (s 16(1)) and may permit the Minister to grant exemptions; s 16(2) specifically contemplates exemptions for single‑use plastic drinking straws for persons with disability or medical need.

The Act imposes reporting and review obligations. The Minister must prepare and publish an annual report on operation of the Act (s 14), and must commission a review report on the effects of Parts 2 and 3 as soon as practicable after the third anniversary of commencement (s 19). The legislative history supplied shows assent on 17 September 2020; commencement largely on 1 March 2021, but s 6(1)(d)-(g) (the expanded polystyrene items) and Part 3 (the oxo‑degradable provisions) commenced on 1 March 2022.

Mechanically, the Act therefore: imposes criminal and civil‑penalty style liability on businesses and certain persons for specified conduct; imposes an administrative certification and disclosure duty; vests regulatory discretion in the Governor and Minister to add or exempt products; connects enforcement and investigatory powers to authorised officers under the Environment Protection Act 1993; and requires parliamentary reporting and a formal statutory review after three years.

Definitions and scope set the Act’s mechanics. Key definitional points are: "plastic" is broadly defined as a material made from, or comprising, organic polymers, whether plant extracts or of fossil fuel origin (s 3). "Plastic product" is any product comprised, in whole or in part, of plastic; "single‑use" means designed or intended to be used once or for a limited number of times before disposal (s 3). "Oxo‑degradable plastic" is defined by reference to additives included to accelerate fragmentation via ultraviolet radiation or heat, whether or not followed by microbial breakdown (s 3). The Act expressly excludes beverage containers that are the subject of a beverage container approval under the Environment Protection Act 1993 from its application (s 4).

Prohibition architecture is twofold. Part 2 designates certain single‑use and other plastic products as "prohibited plastic product" (s 6). That list is closed in the Act except that regulations may add or exclude products (s 6(1)(h)). The Minister must undertake a particular public consultation process before regulations bring additional products within that definition (s 6(2)). Part 3 targets oxo‑degradable plastics: manufacture/production is prohibited (s 9), and sale/supply/distribution in the course of business is prohibited (s 10). The Act requires producer/manufacturer certification about oxo‑degradable content on request (s 11) and creates a representation offence for falsely stating a product is not comprised of oxo‑degradable plastic when the person knows or ought reasonably to have known (s 12).

Enforcement and compliance concepts include: criminal offences with maximum fines and expiation fees (s 7, s 9, s 10, s 11, s 12); a defence of reasonable belief for non‑prescribed persons in sales offences (s 7(3), s 10(2)); evidentiary presumptions that an allegation that a specified product was a prohibited plastic product is accepted as proved unless disproved (s 17); and an express link to authorised officers and enforcement powers under the Environment Protection Act 1993 (s 15(1)-(3)).

Regulation and administrative discretion are broad. The Governor may make regulations necessary or expedient for the Act (s 18(1)). Regulations may specify who is a "business" for the purpose of s 7 and s 10, provide saving or transitional provisions, incorporate codes, standards or documents prepared by the Minister or specified bodies, and delegate matters to Ministerial discretion (s 18(2)(a)-(e)). Exemptions may be made by regulation or delegated to the Minister (s 16(1)). The Minister may delegate functions (s 13).

Reporting and review embed oversight and potential policy change. The Minister must prepare an annual report addressing whether the Act has achieved its objects, consideration of further products for prohibition, enforcement activity and impacts of exemptions (s 14(1)). The initial report must include consideration of a list of additional single‑use products (s 14(2)). A statutory independent (or externally appointed) review of Parts 2 and 3 must be commissioned after three years, with the reviewer reporting within six months and the report tabled in Parliament (s 19).

The Act’s reach is deliberately broad in terms ofwho is regulated. Section 7 and s 10 apply to any person who, "in the course of carrying on a business", sells, supplies or distributes prohibited plastic products or oxo‑degradable plastic products. "Business" is defined expansively to include an enterprise, association, organisation or other body regardless of whether its activities are commercial, charitable, sporting, educational or community in nature (s 7(5); s 10(4)). That means not only retailers and wholesalers but also charities, schools, sporting clubs, community groups and event organisers who supply or distribute the listed products could fall within the prohibition if the activity is carried on in the course of their business-like activities.

"Prescribed persons" are given special status for penalty grading. For the offences in s 7 and s 10, a prescribed person is "a person who is a manufacturer or producer of the product, or who sells, supplies or distributes the product in the course of carrying on a business as a wholesaler or distributor" (s 7(7); s 10(6)). Prescribed persons face higher maximum penalties ($20,000) and higher expiation fees ($1,000) than other persons (s 7(1), s 7 Expiation fee; s 10(1), s 10 Expiation fee). Retailers and other smaller suppliers who do not act as wholesalers or distributors may therefore face lower statutory exposure, and they have a statutory defence if they are not prescribed persons and can prove reasonable belief that the product was not prohibited or oxo‑degradable (s 7(3); s 10(2)).

Manufacturers, producers and distributors have additional obligations under s 11. Those persons, when requested in writing by an authorised officer, must provide certification as to whether a product contains oxo‑degradable plastic, in the form and manner determined by "the Authority", within 30 days (s 11(1)-(3)). The Act does not define "the Authority" in the clauses reproduced here, but s 15(2) links authorised officers and enforcement under the Environment Protection Act 1993 to administration of this Act; that link points to the Environment Protection Authority and its officers as the likely enforcers. Practitioners should confirm the precise identity and powers of "the Authority" in the relevant institutional and subordinate instrument context before relying on any administrative procedures.

Consumers are indirectly affected because businesses that must remove prohibited items will need substitute products or service changes. The Act excludes beverage containers subject to a beverage container approval under the Environment Protection Act 1993 (s 4), so regulated beverage container schemes operate outside this Act’s prohibitions.

Duties created by the Act are statutory and several are material to commercial operations. Principal duties include:

• Refrain from selling, supplying or distributing prohibited plastic products in the course of carrying on a business (s 7(1)). The list in s 6 is the primary source of prohibited items; regulations may expand or exclude products (s 6(1)(h)). The Act excludes beverage containers covered by the beverage container approval regime from its operation (s 4).

• Refrain from manufacturing or producing oxo‑degradable plastic products in the course of carrying on a business (s 9).

• Refrain from selling, supplying or distributing products comprised in whole or in part of oxo‑degradable plastic in the course of carrying on a business (s 10(1)).

• If a written request is made by an authorised officer, manufacturers/producers must provide certification about oxo‑degradable content to "the Authority" within 30 days and distributors/ wholesalers/wholesale sellers must provide manufacturer/producer certification on request (s 11(1)-(3)). The certification format and content are determined by the Authority (s 11(3)(a)).

• Avoid representing that a product is not a prohibited plastic product when it is (s 8). This is a distinct offence with its own maximum penalty and expiation fee.

• Avoid falsely representing that a product is not comprised of oxo‑degradable plastic if the person knows or ought reasonably to have known it is (s 12). This representation offence carries the highest maximum penalty ($30,000) in the Act.

Rights and procedural protections include:

• A statutory defence for non‑prescribed persons accused under s 7 or s 10 where the accused proves they believed on reasonable grounds that the product was not prohibited or not comprised of oxo‑degradable plastic (s 7(3); s 10(2)). The defence does not apply to prescribed persons.

• A limited export exception: s 7(2) provides that s 7(1) does not apply to a manufacturer, producer or distributor supplying a product to a person outside South Australia.

• Delegation rights: the Minister may delegate functions or powers under the Act, subject to specified constraints and formalities (s 13). Delegation instruments must be in writing and can be absolute or conditional, revocable at will, and may allow sub‑delegation (s 13(1)-(3)).

The Act creates a mix of criminal offences and expiation (infringement) fees. Penalties vary by offence and sometimes by the class of offender.

Penalties summary:

• Selling, supplying or distributing a prohibited plastic product in the course of carrying on a business (s 7(1)): maximum penalty for a prescribed person is $20,000; for any other person $5,000. Expiation fees are $1,000 for a prescribed person and $315 for other persons (s 7 Expiation fee). Subsection (3) provides a defence for non‑prescribed persons who can prove reasonable belief on reasonable grounds that the product was not prohibited.

• Representation that a product is not a prohibited plastic product while selling or supplying it (s 8): maximum penalty $20,000; expiation fee $1,000.

• Manufacturing or producing oxo‑degradable plastic products in the course of carrying on a business (s 9): maximum penalty $20,000; expiation fee $1,000.

• Selling, supplying or distributing products comprised, in whole or in part, of oxo‑degradable plastic (s 10(1)): maximum penalty for a prescribed person $20,000; for any other person $5,000. Expiation fees are $1,000 and $315 respectively (s 10 Expiation fee). Non‑prescribed persons have a statutory defence of reasonable belief (s 10(2)).

• Failure to provide certification under s 11 when requested by an authorised officer, unless the person has a reasonable excuse (s 11(1)-(2)): maximum penalty $20,000.

• Representation that a product is not comprised of oxo‑degradable plastic when the person knows, or ought reasonably to have known, it is (s 12): maximum penalty $30,000.

Evidentiary feature and enforcement machinery:

• Evidentiary provision (s 17) states that in proceedings for an offence, an allegation in an information that a specified product was a prohibited plastic product will be accepted as proved unless there is proof to the contrary. That operates as a procedural advantage to the prosecution by lowering the threshold for establishing that a product falls within the statutory list, subject to the accused being able to adduce proof to rebut the allegation.

• Enforcement is to be carried out through authorised officers. The Act ties enforcement to the Environment Protection Act 1993 by providing that the Acts are to be read together (s 15(1)), that authorised officers may exercise their powers under the Environment Protection Act for the purposes of administering and enforcing this Act (s 15(2)), and that where there is inconsistency the provisions of this Act prevail (s 15(3)). Those authorised officers will therefore bring the investigatory powers provided by the Environment Protection Act,inspection, information notices and related powers,to enforcement of the prohibitions here.

The Act expressly integrates with the Environment Protection Act 1993. Sections 15(1) and (2) command that the Single‑use and Other Plastic Products Act and the Environment Protection Act be read together and construed as if they constituted a single Act (s 15(1)). Section 15(2) explicitly authorises authorised officers under the Environment Protection Act to exercise their powers for the purposes of administering and enforcing this Act. Where there is any inconsistency between the provisions of the two Acts, this Act prevails (s 15(3)). Mechanically, that means investigatory powers, enforcement procedures and authorised officer definitions in the Environment Protection Act provide the practical enforcement toolkit for this Act, and that the statutory hierarchy is resolved in favour of the newer Act to the extent of any conflict.

The Act excludes containers already subject to a beverage container approval under the Environment Protection Act 1993 from its application (s 4). That preserves the existing beverage container regulatory scheme as a parallel (and exclusive) regime for those containers.

Regulations made under this Act may incorporate codes, standards, policies or other documents prepared or published by the Minister or a specified person or body (s 18(2)(e)). If a code or standard is incorporated, a copy must be available for public inspection (s 18(3)(a)), and a Ministerial certificate may be used in proceedings to prove the contents (s 18(3)(b)). That incorporation‑by‑reference mechanism means the Act can interact functionally with subordinate instruments and ministerial policy; it also imports the associated administrative law and statutory instrument architecture that applies to regulations.

Exemptions and delegated decision‑making will implicate other administrative law principles. The Governor may, by regulation, exempt persons or products or empower the Minister to exempt them (s 16(1)). Regulations can impose conditions or limitations (s 16(3)). Where delegations are exercised or exemptions granted, decisions will sit within the administrative law framework for reviewability and procedural fairness, though the Act itself does not set out appeal or review procedures for decisions to exempt, nor an internal merits review mechanism.

Statutory reporting and review duties interact with parliamentary oversight and transparency duties. The Minister is required to prepare an annual report that covers enforcement activity under the Act, including the number of expiation notices and charges (s 14(1)(e)), and the Minister must commission a review of the effects of Parts 2 and 3 after three years (s 19). Those mechanisms create a statutory path to policy adjustment and can intersect with other policy instruments and regulatory settings, such as product stewardship schemes and waste management policies.

The legislative history appended to the Act provides the formal commencement and assent dates and identifies a staggered commencement for parts of the Act. The Act received assent on 17 September 2020. Most of the Act commenced on 1 March 2021, but s 6(1)(d)-(g) (the expanded polystyrene items: cups, bowls, plates and clamshell containers) and Part 3 (the oxo‑degradable plastic provisions) commenced later, on 1 March 2022 (Legislative history). The staggered commencement is recorded in the Gazette reference (Gazette 25.2.2021 p647).

There is no amendment history recorded in the text provided beyond the principal Act, and no subsequent amending Acts are listed in the supplied legislative history. The Act contains its own statutory review mechanism (s 19) and annual reporting obligations (s 14) that provide a mechanism for future policy change or legislative amendment to be considered following collected evidence and a formal review cycle. The Minister must commission a report on the effect on the community of Parts 2 and 3 as soon as practicable after the third anniversary of commencement, and that person must report within six months (s 19(1)-(2)); the review report must be tabled in Parliament (s 19(3)). Those provisions create a scheduled opportunity for Parliament and the Government to consider amendments based on empirical review and the Act’s performance.

Regulations are also a vehicle for substantive operational change. Section 6(1)(h) permits regulations to bring additional products within the definition of prohibited plastic products, and s 6(1) allows regulations to exclude products from that definition. Section 18 provides broad regulation‑making power including transitional provisions and the capacity to incorporate external documents. Section 16 allows the Governor to make exemptions by regulation or to empower the Minister to do so. Taken together, these powers permit regulatory change that can materially affect compliance burdens and the reach of the Act without the need for primary legislation. The consultation obligation in s 6(2) imposes a procedural constraint on the Minister before regulations that add products can be made, but other regulatory changes may not be subject to the same prescribed consultation mechanism.

Practitioners should monitor subordinate instruments (regulations) and the Minister’s website for notices and consultation processes mandated by s 6(2). The initial annual report has a specific content obligation to include consideration given to a particular list of additional plastic products (s 14(2)) which signals items likely to be considered for future regulation.

The text provided does not include any judicial decisions, proceedings, or case law interpreting the Act. There is no litigation history recorded in the supplied legislative material. The Act contains prosecutable offences, evidentiary provisions and administrative obligations that could give rise to litigation in the future, but no reported cases are named or discussed in the statute text you provided.

Observed features in the statute that are likely to generate litigation points, should disputes arise, include:

• The definitional scope of "single‑use" and "oxo‑degradable plastic" (s 3). The phrases "designed or intended to be used once or for a limited number of times" and the technical description of additives that accelerate fragmentation could be contested facts in prosecutions or civil compliance disputes, requiring expert evidence.

• The evidentiary provision (s 17) that an allegation that a specified product was a prohibited plastic product is "accepted as proved in the absence of proof to the contrary" may lead to contested proceedings about what constitutes adequate rebuttal evidence, and whether s 17 engages any reverse onus beyond conventional prosecution burden standards.

• The application of the defence of reasonable belief in s 7(3) and s 10(2) will raise questions about what procedural steps or due diligence a non‑prescribed person must have undertaken to establish reasonable belief, including reliance on supplier statements and certification.

• The identity and functions of "the Authority" in s 11 are not defined in the excerpts here; litigation could arise about who is entitled to receive certification requests, whether certification formats determined by the Authority are validly made, and the consequences of non‑compliance.

• Interactions with the Environment Protection Act 1993 may raise questions about the scope of authorised officer powers transferred or applied to this Act and the limits of powers exercised under the EPA for enforcement of this statute (s 15(2)).

Until cases arise and are reported, the Act’s enforcement and compliance posture will remain statutory and administrative. Practitioners should expect that prosecutions or judicial review of administrative decisions (for example, decisions to issue expiation notices, or to exercise delegated exemption powers) may be the first locus of litigation, and that technical questions about product composition and supplier chain documentation will be central factual issues.

Several features of the Act create areas of legal and practical risk where regulated parties and advisers should pay specific attention.

1. Broad definition of "business": The Act treats many non‑commercial entities as businesses for s 7 and s 10 purposes. "Business" expressly includes organisations "regardless of whether the activities it carries on are of a commercial, charitable, sporting, educational or community nature" (s 7(5); s 10(4)). Charities, schools, sporting clubs and community groups that provide food or event services may therefore be within scope unless regulations specify otherwise (s 7(6); s 10(5)).

2. Prescribed person penalty uplift: Manufacturers, producers, wholesalers and distributors are "prescribed persons" who face higher fines and expiation fees (s 7(1); s 10(1)). That means the party upstream in the supply chain can face significantly greater exposure than downstream retailers. The statutory defence of reasonable belief applies only to non‑prescribed persons (s 7(3); s 10(2)), so retailers have a narrower protective defence compared with manufacturers.

3. Export exception limited: The exclusion in s 7(2) applies where the manufacturer, producer or distributor supplies the product to a person outside the State. It does not explicitly provide for transit through South Australia or for retail sale to visiting purchasers; the exception is narrowly framed and will require documentary proof of the overseas supply to rely on it.

4. Broad oxo‑degradable definition: The Act defines oxo‑degradable plastic as plastic that includes additives to accelerate fragmentation triggered by UV or heat exposure, "whether or not this is, or may be, followed by partial or complete breakdown of the material by microbial action" (s 3). This technical definition captures materials that fragment but may not biodegrade, and that will require testing and supplier disclosure. Determining whether a product "contains oxo‑degradable plastic" can therefore be a technical, evidentiary issue.

5. Certification timing and format: Section 11 requires certification to be produced to "the Authority" in a form and manner determined by the Authority within 30 days of a written request (s 11(3)). Practically, that creates a tight compliance window and places importance on supply‑chain documentation and prompt administrative systems. The Act imposes maximum penalties for failing to comply (s 11(1)-(2)). The Act does not define "the Authority" in the supplied text; practitioners should confirm the statutory identity and published certification templates or standards.

Practical compliance should be approached as a combination of product audit, supplier due diligence, documentation, staff training and monitoring of regulatory developments. Key steps:

1. Conduct a product inventory and technical audit

   • Map all products supplied, sold or distributed in the course of carrying on a business against the prohibited list in s 6(1)(a)-(g). Include products that may be partly plastic (the Act applies to products comprised in whole or in part of plastic).
   • Identify any products that may contain oxo‑degradable additives as defined in s 3. Where composition is unclear, obtain material safety data sheets, supplier specifications and, if necessary, laboratory testing.

2. Revise procurement and supplier contracts

   • Insert warranty and indemnity clauses requiring suppliers to certify that supplied items do not contain oxo‑degradable additives and are not prohibited products.
   • Require supplier documentation sufficient to support a reasonable belief defence for non‑prescribed persons (s 7(3); s 10(2)). Maintain audit trails of supplier communications and certifications.
   • For manufacturers or prescribed persons, ensure upstream compliance systems are in place because they face higher penalties and certification obligations (s 7(7); s 10(6); s 11).

3. Establish an administrative process to respond to certification requests

   • Implement a system to receive and action written requests from authorised officers, and to collate manufacturer/producer certification for wholesalers/distributors, so that required certification can be provided to "the Authority" within 30 days as required by s 11(3)(b).
   • Confirm with the enforcing agency who "the Authority" is and obtain any prescribed forms or templates and submission channels used by the Authority.

4. Review labelling, marketing and representations

   • Ensure product labelling and staff statements do not represent that items are not prohibited or not oxo‑degradable unless substantiated; s 8 and s 12 create separate representation offences.
   • Train sales, procurement and customer service staff on what can and cannot be said about product composition.

5. Update point of sale and inventory systems

   • Block sale or distribution of listed prohibited items in POS systems. Ensure online listings do not offer prohibited products for sale in the course of business.