Part 4 — Miscellaneous
Division 1 — Civil penalty provisions
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Terms used 92
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Civil penalty provisions prescribed 92
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Court may make orders if person has contravened civil penalty provision 93
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Warning notice in respect of application for civil penalty order 94
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Proceedings for civil penalty order 94
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Enforcement of civil penalty order 95
Division 2 — Miscellaneous
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Performance audit by CEO 95
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Disclosure of information by CEO 96
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Transition period for displaying refund mark on containers 97
Notes
Compilation table 98
Defined terms
Waste Avoidance and Resource Recovery Act 2007
Part 1 — Preliminary
1. Citation
These regulations are the *Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulations 2019*.
2. Commencement
These regulations come into operation as follows —
(a) regulations 1 and 2 — on the day on which these regulations are published in the Gazette;
(b) the rest of the regulations — when the Waste Avoidance and Resource Recovery Amendment (Container Deposit) Act 2019 section 6 comes into operation.
3. Terms used
(1) In these regulations —
bale means containers that have been mechanically compressed together;
bottle crushing machine means a machine that is designed to crush empty glass containers;
bottle crushing service business means a business that is or includes the collection for processing for re‑use or recycling of containers that are crushed by operation of bottle crushing machines periodically or permanently installed at premises at which beverage products are sold;
business day means a day other than —
(a) a Saturday or Sunday; or
(b) a public holiday throughout the State;
business plan has the meaning given in section 47ZH(1) of the Act;
collection network means the infrastructure and arrangements for returning and processing containers under the scheme, including —
(a) the network of refund points within the State; and
(b) the arrangements for the transport of containers from refund points; and
(c) the processing facilities that prepare containers for recycling;
common transaction platform has the meaning given in regulation 9A;
container recovery rate, for a period, means the proportion of containers returned or collected during the period, expressed as a percentage, worked out using the formula —
where —
R is the container recovery rate for the period;
C is the number of containers returned to a refund point during the period;
M is the number of containers collected or received by an MRF operator during the period (other than containers returned to a refund point);
S is the number of containers used for beverage products that were first supplied in the State during the period;
E is the number of scheme containers (as defined in section 47P(1) of the Act) used for beverage products that were exported (as set out in section 47P(2) of the Act) by a person during the period;
executive officer has the meaning given in section 47U(1) of the Act;
minor beverage supplier has the meaning given in section 47U(1) of the Act and subregulation (3);
performance target means each of the requirements in the following regulations —
(a) regulation 10(4);
(b) regulation 11;
(c) regulation 12(3);
relevant beverage product, in relation to a container, means the beverage product that the container is or was used for;
Reporting Code means a document prepared by the CEO, as amended from time to time, setting out the information that the Coordinator is required to include on its website or in a report under Part 3 Division 3;
reverse vending machine means a device from which refund amounts can be obtained by an operation that involves placing empty containers into the device, whether or not some other action is required to activate the device;
scheme participant has the meaning given in section 47S(1) of the Act;
subsidiary has the meaning given in the Corporations Act 2001 (Commonwealth) section 9.
(1A) In these regulations, a beverage product is an approved beverage product if a container approval that applies to the beverage product is in force.
(1B) In these regulations —
(a) an amount has been claimed or attempted to be claimed under a material recovery agreement for a container if the container is included in a quantity of containers for which an amount has been claimed or attempted to be claimed; and
(b) an amount has been paid under a material recovery agreement for a container if the container is included in a quantity of containers for which an amount has been paid.
(2) For the purposes of the definition of corresponding law in section 47C(1) of the Act, each of the following laws is prescribed to be a law corresponding to the Act —
(a) the Environment Protection Act 1993 (South Australia) and any regulations made under that Act;
(b) the Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (Northern Territory) and any regulations made under that Act;
(c) the Waste Avoidance and Resource Recovery Act 2001 (New South Wales) and any regulations made under that Act;
(d) the Waste Management and Resource Recovery Act 2016 (Australian Capital Territory) and any regulations made under that Act;
(e) the Waste Reduction and Recycling Act 2011 (Queensland) and any regulations made under that Act.
(2A) For the purposes of the definition of material recovery facility in section 47C(1) of the Act, a facility or other place operated by a person for the purposes of carrying on a bottle crushing service business (not being premises where a bottle crushing machine is periodically or permanently installed for crushing containers sold at those premises) is prescribed to be a material recovery facility.
(3) For the purposes of the definition of minor beverage supplier in section 47U(1) of the Act, a beverage supplier who is likely to supply less than 300 000 beverage products in a financial year (including, for the avoidance of doubt, beverage products that are not supplied in the State), is prescribed to be a minor beverage supplier for that financial year.
(3A) For the purposes of the definition of refund point in section 47C(1) of the Act, a reverse vending machine is prescribed to be a refund point.
(4) If a term has a meaning in section 47C of the Act, it has the same meaning in these regulations.
[Regulation 3 amended: Gazette 17 Dec 2019 p. 4283-5; SL 2020/191 r. 4.]
3A. Things excluded from meaning of beverage
cordial means concentrated syrup that —
(a) contains all of the following ingredients (whether or not it also contains other ingredients) —
(i) water;
(ii) a sweetener (whether natural or artificial);
(iii) colouring (whether natural or artificial) or flavouring, or both;
and
(b) is intended to be diluted before consumption;
fermented milk product means a product made by fermenting milk or adding a culture to milk (for example, drinking yoghurt);
flavoured milk means milk to which flavouring has been added;
flavouring means any natural or artificial flavouring but does not include a sweetener;
milk includes —
(a) any liquid milk product (including any substance in the nature of milk produced from milk concentrate or milk powder), other than a fermented milk product; and
(b) any plant‑based milk substitute;
registered health tonic means a liquid that is —
(a) included in the Australian Register of Therapeutic Goods maintained under the Therapeutic Goods Act 1989 (Commonwealth) section 9A; and
(b) supplied with a label or other accompanying document specifying —
(i) that the liquid is for medicinal purposes; and
(ii) a recommended maximum dosage.
(2) For the purposes of the definition of beverage in section 47C(1) of the Act, each of the following things is prescribed not to be a beverage —
(a) milk, other than flavoured milk;
(b) concentrated fruit or vegetable juice (or a mixture of concentrated fruit and vegetable juices) that is intended to be diluted before consumption;
(c) cordial;
(d) a registered health tonic.
[Regulation 3A inserted: Gazette 17 Dec 2019 p. 4285-7; amended: SL 2020/191 r. 5.]
3B. Things included in or excluded from meaning of container
flavoured milk has the meaning given in regulation 3A(1);
flavouring means any natural or artificial flavouring but does not include a sweetener;
growler means a vessel that is designed to be —
(a) filled with a beverage and sealed; and
(b) once the beverage has been consumed, returned to the person from whom the beverage was purchased for re‑filling and re‑sealing;
sealable aluminium can means an aluminium can that —
(a) is designed to contain between 150 mL and 3 L (inclusive) of a beverage; and
(b) can be sealed on demand at the site at which it is sold; and
(c) is designed to be non‑reusable;
wine‑based beverage means a beverage that contains (whether or not it also contains other ingredients) a mixture of wine and either or both of the following —
(a) another beverage that is not a grape product;
(b) an added flavouring.
(2) In this regulation, a beverage is a spirituous liquor if the beverage is —
(a) a liqueur or alcoholic beverage produced by distillation (or a mixture of both); and
(b) not mixed with any beverage other than a liqueur or alcoholic beverage produced by distillation.
(3) In this regulation, a beverage is wine if the beverage —
(a) is produced by fermentation of grapes (whether or not it is mixed with any other grape product); and
(b) is not mixed with any beverage other than a grape product; and
(c) does not contain any added flavouring.
(4) For the purposes of the definition of container in section 47C(1) of the Act, a sealable aluminium can is prescribed to be a container.
(5) For the purposes of the definition of container in section 47C(1) of the Act, each of the following things is prescribed not to be a container —
(a) a vessel designed to contain less than 150 mL of beverage;
(b) a vessel designed to contain more than 3 L of beverage;
(c) a vessel made wholly or partly of glass and designed to contain only wine or spirituous liquor;
(d) a vessel designed to contain 1 L or more of —
(i) flavoured milk; or
(ii) a beverage composed of at least 90% fruit or vegetable juice (or a mixture of both);
(e) a vessel made of cardboard and plastic, cardboard and foil, or cardboard, plastic and foil (commonly known as a cask or an aseptic pack) and designed to contain 1 L or more of —
(i) wine; or
(ii) a wine‑based beverage; or
(iii) water (including mineral water and spring water);
(f) a vessel made of plastic or foil, or both, (commonly known as a sachet) and designed to contain 250 mL or more of wine;
(g) a growler.
[Regulation 3B inserted: Gazette 17 Dec 2019 p. 4287-9.]
3C. Manner prescribed to be or not to be prohibited manner
processed disposal, in relation to a glass container, means processing the container and using the output material —
(a) as a substitute for sand or aggregate in the construction of roads, asphalt or concrete; or
(b) as a substitute for sand for bedding of pipework or cables; or
(c) as a bedding for slab and footpath construction; or
(d) as abrasive blast material; or
(e) for water purification or drainage.
(2) For the purposes of the definition of prohibited manner in section 47C(1) of the Act, disposing of a container by burning or incinerating the container is prescribed to be a prohibited manner.
(3) For the purposes of the definition of prohibited manner in section 47C(1) of the Act, each of the following manners of disposal is prescribed not to be a prohibited manner —
(a) disposing of a glass container by processed disposal;
(b) disposing of a container by processing the container and using the output material for a purpose approved by the CEO.
[Regulation 3C inserted: Gazette 17 Dec 2019 p. 4289-90.]
3D. Persons included in or excluded from meaning of refund point operator
(1) For the purposes of the definition of refund point operator in section 47C(1) of the Act, each of the following persons is prescribed to be a refund point operator —
(a) a person who owns a reverse vending machine, unless the reverse vending machine has been leased or hired to another person;
(b) a person who leases or hires a reverse vending machine from the owner of the reverse vending machine.
(2) For the purposes of the definition of refund point operator in section 47C(1) of the Act, a person who merely uses a reverse vending machine (and is not also a person prescribed under subregulation (1) or the operator of a refund point that is not a reverse vending machine) is not a refund point operator.
[Regulation 3D inserted: Gazette 17 Dec 2019 p. 4290-1.]
3E. Meaning of first responsible supplier
(1) This regulation applies if a person (the contract bottler) is engaged under a contract to make beverage products or fill containers with a beverage for another person (the contract counterparty), in circumstances where the beverage products are manufactured solely for the contract counterparty.
(2) If the contract bottler and the contract counterparty do not expect that the contract bottler will make more than 300 000 beverage products (or fill more than 300 000 containers) for the contract counterparty in a financial year, the contract bottler and the contract counterparty may enter into an agreement under which the contract bottler agrees that it is the first responsible supplier of the beverage products (a first supplier agreement).
(3) For the purposes of section 47D of the Act, if the contract bottler and the contract counterparty have entered into a first supplier agreement, then, in relation to the first 300 000 beverage products the contract bottler makes (or the first 300 000 beverage products consisting of containers the contract bottler fills) for the contract counterparty in each financial year, the contract bottler is taken to be the first responsible supplier and the contract counterparty is taken not to be the first responsible supplier.
(4) Subregulation (3) does not apply unless the contract bottler has —
(a) provided a copy of the first supplier agreement to the Coordinator; and
(b) if the first supplier agreement is amended — provided a copy of the amended agreement to the Coordinator.
(5) The contract bottler must notify the Coordinator if the first supplier agreement ceases to be in force.
[Regulation 3E inserted: Gazette 17 Dec 2019 p. 4291-2.]
Part 1A — Supply of beverage products
Division 1 — Preliminary
3F. Terms used
(1) In this Part —
equivalent approval, in relation to a container approval, or an application for a container approval, that applies to a beverage product, means an approval (however described) under a corresponding law that applies to the beverage product (or that applies to the type of container used for the beverage product).
(2) In this Part, 2 or more beverage products belong to the same beverage product class if the beverage products all consist of the same particular beverage packaged in a container of the same particular type.
[Regulation 3F inserted: Gazette 17 Dec 2019 p. 4292.]
Division 2 — Requirement for container approval, refund mark and barcode
3G. Refund mark
For the purposes of the definition of refund mark in section 47C(1) of the Act, the requirement is that the refund mark contain the words “10c refund at collection depots/points in participating State/Territory of purchase” in clear and legible characters.
[Regulation 3G inserted: Gazette 17 Dec 2019 p. 4292-3.]
3H. Barcode requirements
GS1 Standard means the GS1 General Specifications standard published by GS1 AISBL from time to time;
GTIN barcode means a product barcode that contains a Global Trade Item Number (GTIN) encoding and complies with the GS1 Standard.
(2) This regulation sets out the requirements that a barcode for a container must comply with for the purposes of section 47E(2)(c) of the Act.
(3) Subject to subregulation (4), the barcode for the container must be either —
(a) a GTIN barcode unique to the beverage product class to which the relevant beverage product belongs; or
(b) a product barcode unique to the beverage product class to which the relevant beverage product belongs that —
(i) complies with the EAN/UPC symbology specifications for EAN–13, EAN–8, UPC–A or UPC–E barcodes, set out in the GS1 Standard; and
(ii) complies with the dimensional specifications and symbol placement guidelines that apply to the class of data carriers to which the barcode belongs, set out in the GS1 Standard; and
(iii) does not duplicate any GTIN barcode or other product barcode; and
(iv) is not fewer than 8, and not more than 14, digits.
(4) If the relevant beverage product is sold only in a multipack of beverage products and is not intended for individual sale, the barcode for the container —
(a) does not need to be unique to the beverage product class to which the relevant beverage product belongs; but
(b) must be unique to all beverage products manufactured by the same manufacturer that use the same type of container and are sold only in multipacks.
(5) The barcode must be positioned on the container so that when the container is empty, the barcode is easily readable by a scanner designed to read barcodes without the container needing to be significantly manipulated or modified.
[Regulation 3H inserted: Gazette 17 Dec 2019 p. 4293-4; amended: SL 2020/191 r. 6.]
Division 3 — Container approvals
[Heading inserted: Gazette 17 Dec 2019 p. 4294.]
Subdivision 1 — Grant of container approval
[Heading inserted: Gazette 17 Dec 2019 p. 4294.]
3I. Application process for container approval
(1) An application to the CEO under section 47F(1) of the Act is made by lodging the application with the Coordinator in a way approved by the CEO.
(2) The application must —
(a) be in a form approved by the CEO; and
(b) contain or be accompanied by the information or documents required by the CEO (as indicated in the form or in material accompanying the form); and
(c) be accompanied by the fee determined by the CEO by order published in the Gazette.
(3) Within 10 business days after the application is lodged with the Coordinator, the Coordinator must —
(a) review the application and —
(i) if the Coordinator considers that the criteria for the grant of a container approval in regulation 3J have not been met or the container approval should otherwise be refused — must make written submissions to the CEO in relation to the application; and
(ii) in any other case — may make written submissions to the CEO in relation to the application;
and
(b) forward the application to the CEO.
(4) For the purposes of deciding whether to grant the container approval, the CEO may —
(a) request the applicant to provide further specified information (including, without limitation, information in relation to the recyclability of the container) or documents within a specified time; or
(b) invite any person to provide written submissions or information in relation to the application within a specified time.
(5) The CEO may refuse to consider an application if the applicant does not comply with a request under subregulation (4)(a) within the specified time.
[Regulation 3I inserted: Gazette 17 Dec 2019 p. 4294-5.]
3J. Criteria for grant of container approval
The CEO may grant a container approval that applies to a beverage product only if satisfied that —
(a) the type of container used for the beverage product is capable of being recycled or re‑used; and
(b) the labelling, and the proposed way of displaying the refund mark, on the type of container used for the beverage product does not affect the capability of the type of container to be recycled and will not contaminate the recycling stream; and
(c) a barcode that complies with the requirements prescribed for the purposes of section 47E(2)(c) of the Act (other than the requirement in regulation 3H(5)) has been allocated for the beverage product.
[Regulation 3J inserted: Gazette 17 Dec 2019 p. 4296.]
3K. Grounds for refusal of container approval
(1) The CEO may refuse to grant a container approval that applies to a beverage product if —
(a) an application for an equivalent approval has been refused, or an equivalent approval has been suspended or cancelled; or
(b) the type of container used for the beverage product is, while capable of being recycled or re‑used, not suitable for recycling or re‑use; or
(c) ongoing, effective and appropriate arrangements are not available for the type of container used for the beverage product to be collected, sorted and recycled or re‑used.
(2) Subregulation (1) does not limit the grounds on which the CEO may refuse to grant a container approval.
[Regulation 3K inserted: Gazette 17 Dec 2019 p. 4296.]
3L. Matters to be considered by CEO in deciding application
(1) In deciding an application under section 47F(1) of the Act, the CEO —
(a) must have regard to the following —
(i) the information and documents provided by the applicant in or with the application or in response to a request from the CEO for further information or documents;
(ii) the objects of Part 5A of the Act and whether the decision the CEO proposes to make would assist in the achievement of those objects;
(iii) any written submissions made by the Coordinator in relation to the application within 10 business days after the application is lodged with the Coordinator;
(iv) if the CEO has invited any person to make written submissions or provide information in relation to the application within a specified time — any written submissions made or information provided by that person within the specified time;
and
(b) may have regard to —
(i) whether an equivalent approval is held or has been suspended or cancelled, or whether an application for an equivalent approval has been refused; and
(ii) if an approval referred to in subparagraph (i) is or has been held — any conditions attached to that approval;
and
(c) may consult with the Coordinator.
(2) Subregulation (1) does not limit the matters the CEO may consider in deciding an application.
[Regulation 3L inserted: Gazette 17 Dec 2019 p. 4297-8.]
3M. Decision in relation to container approval
(1) The CEO must decide an application under section 47F(1) of the Act within 20 business days after the later of the following days —
(a) the day on which the CEO receives the application from the Coordinator;
(b) if the CEO makes one or more requests under regulation 3I(4)(a) in relation to the application — the day on which the last of the requests to be complied with is complied with.
(2) If the CEO decides to grant a container approval, the CEO must notify the Coordinator of the decision within 5 business days after making the decision.
(3) The notice must include the details of the container approval that are set out in regulation 3V(2) (as applicable).
(4) The Coordinator must enter the details of the container approval in the register of container approvals kept under regulation 3V within 5 business days after receiving the notification under subregulation (2).
(5) The container approval commences when it is entered into the register of container approvals by the Coordinator.
(6) If the CEO decides to refuse to grant a container approval, the CEO must, within 10 business days after making the decision, give the applicant and the Coordinator written notice of the decision, stating the grounds on which the approval was refused.
[Regulation 3M inserted: Gazette 17 Dec 2019 p. 4298-9.]
3N. Conditions on container approvals
(1) For the purposes of section 47F(3)(a) of the Act, the following conditions are prescribed —
(a) the holder of the container approval and any first responsible supplier of a beverage product to which the container approval applies must give the Coordinator written notice if they have reason to believe that no beverage product to which the container approval applies will be supplied in the State in the future;
(b) the holder of the container approval and any first responsible supplier of a beverage product to which the container approval applies must give the Coordinator written notice if an equivalent approval that is held by the holder or the first responsible supplier is amended, transferred, suspended or cancelled.
(2) Without limiting the conditions that may be imposed, the CEO may impose a condition on a container approval that relates to the term of the container approval.
(3) If the Coordinator receives a notice under subregulation (1), the Coordinator must notify the CEO within 10 business days after receiving the notice.
[Regulation 3N inserted: Gazette 17 Dec 2019 p. 4299.]
Subdivision 2 — Transfer of container approval by application
[Heading inserted: Gazette 17 Dec 2019 p. 4300.]
3O. Application to transfer container approval
(1) The holder of a container approval may apply to the CEO to transfer the approval to another person.
(2) An application to the CEO is made by lodging the application with the Coordinator in a way approved by the CEO.
(3) The application must —
(a) be in a form approved by the CEO; and
(b) contain or be accompanied by the information or documents required by the CEO (as indicated in the form or in material accompanying the form); and
(c) be accompanied by the signed consent of the proposed transferee; and
(d) be accompanied by the fee determined by the CEO by order published in the Gazette.
(4) Within 10 business days after the application is lodged with the Coordinator, the Coordinator must —
(a) review the application and —
(i) if the Coordinator considers that the application should be refused — must make written submissions to the CEO in relation to the application; and
(ii) in any other case — may make written submissions to the CEO in relation to the application;
and
(b) forward the application to the CEO.
(5) For the purposes of deciding whether to grant the transfer, the CEO may —
(a) request the applicant to provide further specified information or documents within a specified time; or
(b) invite any person to provide written submissions or information in relation to the application within a specified time.
(6) The CEO may refuse to consider an application if the applicant does not comply with a request under subregulation (5)(a) within the specified time.
[Regulation 3O inserted: Gazette 17 Dec 2019 p. 4300-1.]
3P. Deciding transfer application
(1) If the CEO is deciding whether or not to transfer a container approval on an application under regulation 3O(1) —
(a) regulation 3K applies as if a refusal to transfer the container approval were a refusal to grant a container approval; and
(b) regulation 3L applies as if the decision were a decision about an application under section 47F(1) of the Act.
(2) The CEO must decide an application under regulation 3O(1) within 20 business days after the later of the following days —
(a) the day on which the CEO receives the application from the Coordinator;
(b) if the CEO makes one or more requests under regulation 3O(5)(a) in relation to the application — the day on which the last of the requests to be complied with is complied with.
(3) If the CEO decides to transfer the container approval, the CEO must notify the Coordinator of the decision within 5 business days after making the decision.
(4) The notice must include the following information —
(a) the person to whom the container approval is being transferred;
(b) the date on which the transfer takes effect.
(5) The Coordinator must update the details of the container approval in the register of container approvals kept under regulation 3V within 5 business days after receiving the notification under subregulation (3) or, if later, within 5 business days after the date on which the transfer takes effect.
(6) If the CEO decides to refuse to transfer the container approval, the CEO must, within 10 business days after making the decision, give the applicant, the proposed transferee and the Coordinator written notice of the decision, stating the grounds on which the transfer was refused.
[Regulation 3P inserted: Gazette 17 Dec 2019 p. 4301-2.]
Subdivision 3 — Amendment, suspension or cancellation of container approval on CEO’s initiative
[Heading inserted: Gazette 17 Dec 2019 p. 4302.]
3Q. Amendment of container approval on CEO’s initiative
The CEO may, on the CEO’s own initiative, amend a container approval, including amending or revoking the conditions on the approval, or attaching new conditions to the approval.
[Regulation 3Q inserted: Gazette 17 Dec 2019 p. 4302.]
3R. Suspension or cancellation of container approval
Without limiting the grounds on which the CEO may suspend or cancel a container approval, the CEO may suspend or cancel a container approval if —
(a) the type of container used for the beverage products to which the container approval applies is not, or is no longer, capable of being recycled or re‑used; or
(b) a container approval is no longer required under the scheme for the beverage products to which the container approval applies; or
(c) no beverage product to which the container approval applies is to be supplied in the State in the future; or
(d) the container approval was granted because of a materially false or misleading representation or declaration; or
(e) an equivalent approval is amended, transferred, suspended or cancelled; or
(f) the CEO considers that the suspension or cancellation is necessary for the proper operation of the scheme.
[Regulation 3R inserted: Gazette 17 Dec 2019 p. 4303.]
3S. Process for amendment, suspension or cancellation of container approval
(1) This regulation applies if the CEO proposes to amend, suspend or cancel a container approval (the proposed action).
(2) The CEO must —
(a) give the holder a written notice about the proposed action; and
(b) publish a copy of the notice on the Department’s website.
(3) The notice must —
(a) state the proposed action; and
(b) if the proposed action is to amend the container approval — state the proposed amendment; and
(c) if the proposed action is to suspend the container approval — state the proposed period of the suspension; and
(d) state the grounds for the proposed action; and
(e) state the facts and circumstances that form the basis for the grounds; and
(f) invite any person to make written submissions to the CEO about why the proposed action should not be taken; and
(g) state the period (which must be at least 20 business days after the notice is given to the holder) within which written submissions may be made (the submission period).
(4) The CEO may, after the end of the submission period —
(a) take the proposed action; or
(b) if the proposed action was to suspend the container approval for a stated period — suspend the container approval for a period shorter than the stated period (the alternative action); or
(c) if the proposed action was to cancel the container approval — suspend the container approval for a period (also the alternative action).
(5) The CEO —
(a) must consider any written submissions made by any person within the submission period; and
(b) may consider any other information the CEO considers relevant.
[Regulation 3S inserted: Gazette 17 Dec 2019 p. 4303-5.]
3T. Notice of amendment, suspension or cancellation of container approval
(1) This regulation applies if the CEO has made a decision to take or not take a proposed action under regulation 3S(1) (the proposed action), or to take an alternative action under regulation 3S(4) (the alternative action).
(2) The CEO must give the holder and the Coordinator written notice that the CEO has —
(a) taken the proposed action or the alternative action; or
(b) decided not to take the proposed action.
(3) A written notice under subregulation (2)(a) must specify the day on which the proposed action or the alternative action takes effect, which must be at least 10 business days after the CEO has given the written notice to the holder and the Coordinator, and published a copy of the notice under subregulation (4).
(4) The CEO must publish a copy of a written notice given under subregulation (2) on the Department’s website.
(5) If the Coordinator receives written notice under subregulation (2)(a), the Coordinator must, not later than the day on which the proposed action or alternative action takes effect, update the register of container approvals kept under regulation 3V to record the action taken.
(6) The Coordinator must ensure that the register specifies the day on which the action takes effect.
[Regulation 3T inserted: Gazette 17 Dec 2019 p. 4305.]
3U. Container approval continues in force
(1) A container approval continues in force until either of the following happens —
(a) if the approval was granted for a term — the term ends;
(b) the container approval is cancelled.
(2) However, if a container approval is suspended, the approval is not in force for the period of the suspension.
[Regulation 3U inserted: Gazette 17 Dec 2019 p. 4306.]
Subdivision 4 — Miscellaneous
[Heading inserted: Gazette 17 Dec 2019 p. 4306.]
3V. Register of container approvals
(1) The Coordinator must establish and maintain an up‑to‑date register of container approvals.
(2) The register must contain the following details for each container approval —
(a) a description of the beverage products to which the approval applies, including the following —
(i) the beverage in the products;
(ii) the volume of beverage in the products;
(iii) the type of container used for the products;
(iv) the barcode for the products;
(b) the person who holds the approval;
(c) whether the approval has been suspended;
(d) the following days —
(i) the day on which the approval commences (being the day on which the approval is entered into the register);
(ii) if the approval is granted for a term — the day on which the approval ends;
(iii) if the approval is suspended — the day on which the suspension ends;
(iv) if the approval is cancelled — the day on which the cancellation takes effect;
(e) any conditions on the approval.
(3) The Coordinator may also record in the register any other information the Coordinator considers appropriate.
(4) The register —
(a) may be kept in any form, including electronically, that the Coordinator considers appropriate; but
(b) subject to subregulation (5), must be accessible and searchable by scheme participants and the public.
(5) The Coordinator may restrict access to, and visibility of, the details of any container approval recorded on the register if no beverage product to which the approval applies has been supplied in the State.
[Regulation 3V inserted: Gazette 17 Dec 2019 p. 4306-7.]
3W. Verification by statutory declaration
The CEO may require any information or documents supplied by an applicant for a container approval or by a holder of a container approval to be verified by statutory declaration.
[Regulation 3W inserted: Gazette 17 Dec 2019 p. 4307.]
Part 2 — Return of containers
Division 1 — Refund point operators
[Heading inserted: Gazette 17 Dec 2019 p. 4308.]
4. Eligibility criteria for refund point operators
(1) The Coordinator must not enter into a refund point agreement with a person unless —
(a) the person is an eligible individual or, in the case of a company, each director of the company is an eligible individual; and
(b) the Coordinator is satisfied that the person is a fit and proper person to operate a refund point.
(2) In determining whether a person is a fit and proper person to operate a refund point, the Coordinator must have regard to the following factors —
(a) whether the person has previously been required to stop operating a refund point;
(b) whether the person has breached a term of a refund point agreement and if so, the seriousness of that breach;
(c) whether the person has contravened a provision of the Act;
(d) whether something equivalent to paragraphs (a) to (c) has occurred under a corresponding law.
(3) Nothing in subregulation (2) limits the circumstances in which a person may be considered not to be a fit and proper person to operate a refund point.
Division 2 — Claiming refund amount
[Heading inserted: Gazette 17 Dec 2019 p. 4308.]
4A. Refund amount (s. 47J)
For the purposes of Part 5A of the Act, the refund amount is 10 cents.
[Regulation 4A inserted: Gazette 17 Dec 2019 p. 4308.]
4B. Claiming refund amount from refund point
(1) On and after the appointed day for section 47E of the Act, a person may claim or attempt to claim a refund amount for an empty container by presenting the container at a refund point.
(2) Subject to regulation 4C, the refund point operator of the refund point must accept the container and pay the person the refund amount for the container.
(3) This regulation does not apply to a refund point that is a reverse vending machine.
[Regulation 4B inserted: Gazette 17 Dec 2019 p. 4308.]
4C. When refund point operator not required to accept container and pay person refund amount
contaminated container means a container (including any labelling) presented to a refund point that is contaminated with any substance such that, in the reasonable opinion of the refund point operator of the refund point (taking into account any guidelines prepared under regulation 4D), the container —
(a) is unsuitable for re‑use or recycling; or
(b) poses a serious risk to health or safety or to the proper operation of the refund point;
damaged container means a container (including any labelling) presented to a refund point that is so damaged, or in such a condition, that the barcode cannot be scanned or otherwise recognised;
whole container means a container that is whole, or that is not missing anything other than labelling or a lid, ring pull or other portion of the container that is designed to be removed by consumers for the purposes of accessing the contents of the container.
(2) If a person presenting a container at a refund point requests the refund amount for the container be paid to another entity, the refund point operator of the refund point may pay the refund amount to that other entity.
Example for this subregulation:
A refund point operator may agree to pay the refund amount to a charity.
(3) If a person donates a container to a refund point operator, the refund point operator is not required to pay the person a refund amount for the container.
(4) A refund point operator may refuse to accept a container and to pay the refund amount for the container if —
(a) the container is a damaged container; or
(b) on and after the transition day (as defined in regulation 41(1)), the refund mark is not displayed on the container or the container is in such a condition that the refund mark cannot be read; or
(c) the refund point operator reasonably believes that the relevant beverage product was supplied in the State before the appointed day for section 47E of the Act; or
(d) if a sign at the refund point operated by the refund point operator states that the refund point operator pays refund amounts in a way other than in cash — the person presenting the container refuses to accept the refund amount paid in the other way; or
(e) the refund point operator suspects the container was part of a bale.
(5) A refund point operator must refuse to accept a container and to pay a person the refund amount for the container if —
(a) the refund point operator knows, or ought reasonably to know, that —
(i) a refund amount has already been paid for the container; or
(ii) the relevant beverage product is not an approved beverage product; or
(iii) the container was collected or received by an MRF operator in its capacity as an MRF operator; or
(iv) the container was collected pursuant to an agreement to collect the container and deliver it to an MRF operator; or
(v) an amount has already been claimed (or attempted to be claimed) for the container under a refund point agreement or a material recovery agreement (whether the claim or attempted claim was by the refund point operator, or another person); or
(vi) the container is or was part of a bale; or
(vii) the relevant beverage product was not supplied in the State;
or
(b) the container is not empty; or
(c) the container is not a whole container; or
(d) the container is a contaminated container; or
(e) the refund point operator is not able to ascertain the relevant beverage product; or
(f) the container is in such a condition that the refund point operator is not reasonably able to confirm that it is a container; or
(g) the person is required to give the refund point operator a refund declaration under regulation 4E and does not comply with the requirement.
(6) This regulation does not apply to a refund point that is a reverse vending machine.
[Regulation 4C inserted: Gazette 17 Dec 2019 p. 4309-11.]
4D. Guidelines in relation to contaminated containers
(1) The CEO may prepare, and amend or revoke at any time, a document that sets out guidelines for determining if a container is a contaminated container for the purposes of regulations 4C and 4G.
(2) The CEO must publish a document prepared under subregulation (1) on the Department’s website.
[Regulation 4D inserted: Gazette 17 Dec 2019 p. 4312.]
4E. Refund declaration and proof of identity
bulk claim arrangement, between a person and a refund point operator, is an arrangement in writing —
(a) under which the refund point operator agrees to accept claims for refund amounts for bulk quantities of empty containers from the person; and
(b) that states the person’s obligations under the arrangement in relation to claiming the refund amounts and delivering empty containers to the refund point; and
(c) under which the person warrants the matters in subregulation (3)(a) and (b) in relation to the containers delivered under the arrangement;
bulk quantity, of empty containers, means 1 500 or more containers.
(2) A person who claims or attempts to claim a refund amount at a refund point under regulation 4B must give the refund point operator of the refund point a refund declaration if —
(a) the claim is for a bulk quantity of empty containers and is not covered by a bulk claim arrangement between the person and the refund point operator; or
(b) the claim is not for a bulk quantity of empty containers and the refund point operator asks the person for a refund declaration.
(3) A refund declaration is a notice in which a person declares, for the containers for which the person is claiming or attempting to claim a refund amount —
(a) that the containers were collected in the State for the purpose of claiming the refund amount under the scheme; and
(b) that the person reasonably believes that —
(i) all of the containers were first supplied in the State on or after the appointed day for section 47E of the Act; and
(ii) the relevant beverage product in relation to each container is an approved beverage product; and
(iii) a refund amount has not previously been paid for any container; and
(iv) none of the containers are or were part of a bale.
(4) A refund declaration must be —
(a) in a form approved by the CEO; and
(b) signed by the person making the declaration; and
(c) witnessed by the refund point operator to whom the refund declaration is given or by an employee of that refund point operator; and
(d) accompanied by an official document containing the person’s photograph (for example, a passport or driver’s licence) as proof of the person’s identity.
[Regulation 4E inserted: Gazette 17 Dec 2019 p. 4312-13.]
4F. Ways refund amount may be paid
(1) A refund point operator may pay refund amounts for containers presented at a refund point in one or more of the following ways, and in different ways for different quantities of containers —
(a) in cash;
(b) if the Coordinator agrees to another way of payment (for example, electronic funds transfer to a bank account or credit card account) — in that other way.
(2) If a refund point operator pays a refund amount as a voucher or card redeemable for cash, goods or services, the refund point operator must ensure that —
(a) the voucher expires 3 years after the date on which the refund amount is paid; and
(b) either the expiry date, or the date on which the voucher was issued plus a statement that the voucher expires 3 years after that date, is shown on the voucher.
(3) If a refund point operator pays a refund amount for containers presented at a refund point other than in cash, the refund point operator must ensure that the following information is clearly displayed at the refund point —
(a) the way or ways in which the refund point operator pays the refund amount;
(b) if the refund point operator pays a refund amount as a voucher or card redeemable for cash, goods or services — what the holder of the voucher will be entitled to redeem the voucher or card for;
(c) if the refund point operator pays the refund amount in different ways for different quantities of containers — the quantities of containers that apply for each different way.
(4) This regulation does not apply to a refund point that is a reverse vending machine.
[Regulation 4F inserted: Gazette 17 Dec 2019 p. 4314-15.]
4G. Claiming refund amount from refund point that is reverse vending machine
contaminated container means a container (including any labelling) placed into a reverse vending machine that is contaminated with any substance such that, in the reasonable opinion of the person who owns the reverse vending machine (or, if the machine has been leased or hired to another person, that other person), taking into account any guidelines prepared under regulation 4D, the container —
(a) is unsuitable for re‑use or recycling; or
(b) poses a serious risk to health or safety or to the proper operation of the reverse vending machine.
(2) On and after the appointed day for section 47E of the Act, a person may claim or attempt to claim a refund amount for an empty container from a refund point that is a reverse vending machine by placing the container in the machine.
(3) Subject to subregulations (4) and (5), the person who owns the reverse vending machine (or, if the machine has been leased or hired to another person, that other person) must ensure that the machine, if working properly, pays a refund amount for the container.
(4) The person who owns the reverse vending machine (or, if the machine has been leased or hired to another person, that other person) must ensure that the machine does not pay a refund amount for a container if the relevant beverage product is not an approved beverage product.
(5) A refund amount is not required to be paid by a reverse vending machine for a container that —
(a) is so damaged, or in such a condition, that —
(i) the barcode cannot be scanned or otherwise recognised; or
(ii) the reverse vending machine is not able to confirm that it is a container;
or
(b) is not empty; or
(c) is not a whole container (as defined in regulation 4C(1)); or
(d) is a contaminated container.
(6) A refund amount is paid for the container when the reverse vending machine —
(a) accepts the container; and
(b) dispenses the refund amount for the container in a way mentioned in regulation 4H(1); and
(c) gives the person a written record (which may be given electronically) of —
(i) the container accepted; and
(ii) the refund amount for the container; and
(iii) how and, if the refund amount was not dispensed to the person, to whom the refund amount was dispensed.
(7) A refund amount paid by a reverse vending machine is taken to be a refund amount paid by the person who owns the reverse vending machine (or, if the machine has been leased or hired to another person, that other person).
[Regulation 4G inserted: Gazette 17 Dec 2019 p. 4315-17.]
4H. Ways reverse vending machine may dispense refund amount
(1) A refund amount may be dispensed by a reverse vending machine —
(a) to —
(i) the person claiming the refund amount; or
(ii) if the person claiming the refund amount requests the refund amount be paid to another entity — that other entity;
and
(b) in one or more of the following ways and in different ways for different quantities of containers —
(i) in cash;
(ii) if the Coordinator agrees to another way of payment (for example, electronic funds transfer to a bank account or credit card account) — in that other way.
(2) If a reverse vending machine dispenses a refund amount as a voucher or card redeemable for cash, goods or services, the person who owns the machine (or, if the machine has been leased or hired to another person, that other person) must ensure that —
(a) the voucher expires 3 years after the date on which the refund amount is dispensed; and
(b) either the expiry date, or the date on which the voucher was dispensed plus a statement that the voucher expires 3 years after that date, is shown on the voucher.
(3) If a reverse vending machine dispenses a refund amount for a container other than in cash, the person who owns the machine (or, if the machine has been leased or hired to another person, that other person) must ensure that the following information is clearly displayed on or near the machine —
(a) the way or ways in which the refund amount is dispensed;
(b) if the machine dispenses a refund amount as a voucher or card redeemable for cash, goods or services — what the holder of the voucher will be entitled to redeem the voucher or card for;
(c) if the machine dispenses a refund amount in different ways for different quantities of containers — the quantities of containers that apply for each different way.
[Regulation 4H inserted: Gazette 17 Dec 2019 p. 4317-18.]
4I. When refund amount must not be claimed
A person must not claim or attempt to claim a refund amount for an empty container at a refund point if —
(a) the person —
(i) is an MRF operator that has collected or received the container in its capacity as an MRF operator; or
(ii) otherwise knows, or ought reasonably to know, that the container was collected or received by an MRF operator in its capacity as an MRF operator;
or
(b) the person has collected the container pursuant to an agreement to collect the container and deliver it to an MRF operator; or
(c) the person knows, or ought reasonably to know, that —
(i) a refund amount has already been paid for the container; or
(ii) the container is or was part of a bale.
Penalty: a fine of $10 000.
[Regulation 4I inserted: Gazette 17 Dec 2019 p. 4319.]
Division 3 — Obligations in relation to refund points
[Heading inserted: Gazette 17 Dec 2019 p. 4319.]
4J. Refund point operator must keep refund declarations
(1) A refund point operator must —
(a) keep each refund declaration given to the refund point operator under regulation 4E for at least 3 years after the declaration was given; and
(b) for the proof of identity document mentioned in regulation 4E(4)(d) that accompanied the declaration —
(i) make a copy of the proof of identity document; and
(ii) keep the copy with the declaration for the period mentioned in paragraph (a).
(2) For this regulation, a document may be made or kept —
(a) electronically; or
(b) by making or keeping a copy of the document.
[Regulation 4J inserted: Gazette 17 Dec 2019 p. 4319-20.]
4K. Obligations in relation to refund points other than reverse vending machines
(1) On and after the appointed day for section 47E of the Act, a refund point operator must, in relation to each refund point that the refund point operator operates —
(a) ensure that the refund point is maintained in good working order; and
(b) ensure that facilities are —
(i) provided at the refund point to receive material that is not accepted at the refund point to prevent litter in and around the refund point; and
(ii) maintained to a standard acceptable to the Coordinator.
(2) This regulation does not apply to a refund point that is a reverse vending machine.
[Regulation 4K inserted: Gazette 17 Dec 2019 p. 4320.]
4L. Obligations in relation to reverse vending machines
(1) This regulation applies to a refund point operator that is prescribed under regulation 3D(1).
(2) On and after the appointed day for section 47E of the Act, the refund point operator must, in relation to each reverse vending machine that the refund point operator owns (other than a reverse vending machine that has been leased or hired to another person) or leases or hires from another person, ensure as far as is reasonably practicable —
(a) that the reverse vending machine is working properly; and
(b) if the machine is not working properly —
(i) that the machine is turned off; or
(ii) that a sign or other method is used to indicate to users the machine is not working properly;
and
(c) that the machine, if working properly, dispenses a refund amount for each container that it accepts; and
(d) that facilities are —
(i) provided at the reverse vending machine to receive material that is not accepted at the reverse vending machine to prevent litter in and around the reverse vending machine; and
(ii) maintained to a standard acceptable to the Coordinator.
[Regulation 4L inserted: Gazette 17 Dec 2019 p. 4321.]
Part 2A — Scheme agreements and scheme participants
[Heading inserted: Gazette 17 Dec 2019 p. 4322.]
Division 1 — Scheme agreements
[Heading inserted: Gazette 17 Dec 2019 p. 4322.]
4M. Terms used
approved scheme agreement template means each template approved by the CEO under regulation 4N(5), as amended by any amendments that have effect under regulation 4O;
counterparty means a party, or proposed party, to a scheme agreement, not being the Coordinator.
[Regulation 4M inserted: Gazette 17 Dec 2019 p. 4322.]
4N. Scheme agreement template
(1) If required by the CEO, the Coordinator must prepare, and give to the CEO within the time specified by the CEO, at least one proposed template for each of the following types of scheme agreement —
(a) an export rebate agreement;
(b) a material recovery agreement;
(c) a refund point agreement;
(d) a supply agreement.
(2) A proposed template for a particular type of scheme agreement may —
(a) apply to all scheme agreements of that type that are to be entered into; or
(b) apply only to certain scheme agreements of that type that are to be entered into, by reference to specified factors including (without limitation) by reference to characteristics of the counterparty that is to enter into the scheme agreement.
(3) A proposed template must set out the standard provisions that the Coordinator proposes should, unless otherwise approved by the CEO, be included in each scheme agreement to which the template applies.
(4) If there is more than one proposed template for a particular type of scheme agreement, each template may contain different standard provisions to the other proposed templates for that particular type of scheme agreement.
(5) If the Coordinator gives the CEO a template under subregulation (1) or (7), the CEO may, by written notice —
(a) approve the template; or
(b) direct the Coordinator to, within the period specified in the notice (which must be at least 20 business days after the notice is given to the Coordinator) —
(i) take specified steps in relation to the template or make specified modifications to the template (including, without limitation, modifications in relation to the scheme agreements to which the template applies); and
(ii) submit a revised template.
(6) Before directing the Coordinator under subregulation (5)(b), the CEO must consult with the Coordinator on the proposed direction and have regard to any views expressed by the Coordinator.
(7) The Coordinator must comply with a direction under subregulation (5)(b) as soon as is practicable and in any event within the period specified in the notice.
[Regulation 4N inserted: Gazette 17 Dec 2019 p. 4322-4.]
4O. Amendment of scheme agreement template
(1) If the Coordinator wishes to amend a scheme agreement template, the Coordinator must give the amended scheme agreement template to the CEO.
(2) An amendment to a scheme agreement template under subregulation (1) has no effect until the amended scheme agreement template has been approved by the CEO.
(3) The CEO may, after consultation with the Coordinator and having regard to any views expressed by the Coordinator, amend a scheme agreement template by giving a written notice to the Coordinator that states —
(a) the amendment; and
(b) the date on which the amendment is to take effect (which must be after the notice is given to the Coordinator).
(4) An amendment to a scheme agreement template under subregulation (3) has effect on the date stated in the notice given under subregulation (3).
[Regulation 4O inserted: Gazette 17 Dec 2019 p. 4324.]
4P. Content and publication of approved scheme agreement template
(1) Each approved scheme agreement template must include provisions about the following —
(a) how and when claims and payments are to be made between the Coordinator and the counterparty and how any GST impacts are to be dealt with;
(b) how and when claims and payments are to be made between the Coordinator and the counterparty in relation to overpaid and underpaid amounts;
(c) record keeping by the counterparty;
(d) the counterparty’s obligations in relation to giving information or documents to the Coordinator, including how and when the information or documents are to be given;
(e) the circumstances and manner in which the Coordinator can appoint an independent auditor to audit the counterparty’s systems in relation to the scheme or verify or review data supplied by the counterparty to the Coordinator;
(f) a dispute resolution process for settling disputes between the Coordinator and the counterparty;
(g) the term of the agreement and when the agreement must be reviewed;
(h) a process for either party to the agreement to seek an earlier review of the agreement or an amendment to it;
(i) the consequences of a breach of the agreement and a process to manage breaches;
(j) termination, including the events or circumstances giving rise to a right to terminate and a process for either party to terminate in the absence of any breach;
(k) assignment of the agreement by the counterparty;
(l) the categories of information that may be published or disclosed by the Coordinator;
(m) protection of confidential information disclosed by the counterparty, and permitted uses of that information by the Coordinator;
(n) any other matter the CEO may require in support of the objectives of Part 5A of the Act.
(2) In addition to the matters in subregulation (1), each approved scheme agreement template must include provisions about the matters set out in regulations 4W, 4Z, 4ZA and 4ZJ to the extent that the regulation relates to the type of scheme agreement to which the approved scheme agreement template applies.
(3) The Coordinator must publish each approved scheme agreement template on its website.
[Regulation 4P inserted: Gazette 17 Dec 2019 p. 4324-6.]
4Q. Compliance with approved scheme agreement template
relevant approved scheme agreement template, in relation to a scheme agreement, means the approved scheme agreement template that applies to the scheme agreement, as at the date on which the scheme agreement is entered into.
(2) Unless the CEO approves otherwise, each scheme agreement that the Coordinator enters into must contain the standard provisions set out in the relevant approved scheme agreement template.
(3) Subregulation (2) does not limit the provisions which a scheme agreement may contain.
(4) Unless approved by the CEO, a provision of a scheme agreement has no effect to the extent the provision is inconsistent with the standard provisions set out in the relevant approved scheme agreement template (except to the extent the inconsistency arises from the Coordinator’s compliance with subregulation (5)).
(5) If amendments are made (and have effect under regulation 4O) to a scheme agreement template that applies to a scheme agreement after the scheme agreement is entered into, the Coordinator must use its best endeavours to incorporate the amendments into the scheme agreement.
[Regulation 4Q inserted: Gazette 17 Dec 2019 p. 4326-7.]
4R. Deemed term in scheme agreements
It is a term of every scheme agreement that the counterparty —
(a) consents to any novation of the agreement by the Coordinator on terms determined by the Coordinator; and
(b) agrees to enter into a deed of novation reflecting those terms.
[Regulation 4R inserted: Gazette 17 Dec 2019 p. 4327.]
Division 2 — Supply agreements
[Heading inserted: Gazette 17 Dec 2019 p. 4327.]
4S. Term used: approved supply amounts calculation methodology
approved supply amounts calculation methodology means the document approved by the CEO under regulation 4T(4), as amended by any amendments that have effect under regulation 4U.
[Regulation 4S inserted: Gazette 17 Dec 2019 p. 4327.]
4T. Supply amounts calculation methodology
(1) If required by the CEO, the Coordinator must prepare, and give to the CEO within the time specified by the CEO, a document setting out how supply amounts are to be calculated.
(2) The document may include more than one method of calculating supply amounts.
(3) A method of calculating supply amounts may —
(a) apply generally or be limited in its application by reference to specified exceptions or factors; or
(b) apply differently according to different factors of a specified kind; or
(c) authorise any matter to be from time to time determined, applied or regulated by any specified person or body.
(4) If the Coordinator gives the CEO a document under subregulation (1) or (6), the CEO may, by written notice —
(a) approve the document; or
(b) direct the Coordinator to, within the period specified in the notice (which must be at least 20 business days after the notice is given to the Coordinator) —
(i) take specified steps in relation to the document or make specified modifications to the document; and
(ii) submit a revised document.
(5) Before directing the Coordinator under subregulation (4)(b), the CEO must consult with the Coordinator on the proposed direction and have regard to any views expressed by the Coordinator.
(6) The Coordinator must comply with a direction under subregulation (4)(b) as soon as is practicable and in any event within the period specified in the notice.
[Regulation 4T inserted: Gazette 17 Dec 2019 p. 4327-8.]
4U. Amendment of supply amounts calculation methodology
(1) The CEO may, after consultation with the Coordinator and having regard to any views expressed by the Coordinator, amend the supply amounts calculation methodology by giving a written notice to the Coordinator that states —
(a) the amendment; and
(b) the date on which the amendment is to take effect (which must be after the notice is given to the Coordinator).
(2) An amendment to the supply amounts calculation methodology under subregulation (1) has effect on the date stated in the notice given under subregulation (1).
[Regulation 4U inserted: Gazette 17 Dec 2019 p. 4329.]
4V. Content and publication of approved supply amounts calculation methodology
(1) Each method of calculating supply amounts contained in the approved supply amounts calculation methodology must provide for supply amounts under a supply agreement between the Coordinator and a person (the counterparty) for a particular period to be calculated by reference to the following factors (whether or not other factors are also referred to) —
(a) the number of beverage products the counterparty to the supply agreement declares it has first supplied in the State during the period;
(b) an estimate of the number of containers that are returned to refund points or collected or received by an MRF operator during the period;
(c) the container recovery rate for the period;
(d) the recovery value of the material used for the container, being the cost incurred in, or revenue received from, getting the material recycled, as determined by the Coordinator.
(2) The Coordinator must publish the approved supply amounts calculation methodology on its website.
[Regulation 4V inserted: Gazette 17 Dec 2019 p. 4329-30.]
4W. Content of supply agreement
(1) For the purposes of section 47O(1)(b) of the Act, the following matters are prescribed as matters that a supply agreement between the Coordinator and a person (the counterparty) must include provisions about —
(b) the calculation of supply amounts in accordance with the approved supply amounts calculation methodology.
(2) Where, in the Coordinator’s opinion, the counterparty is a minor beverage supplier, the frequency of payments and reporting to the Coordinator required under the supply agreement must not, unless the counterparty elects for the frequency to be monthly, be more than quarterly.
[Regulation 4W inserted: Gazette 17 Dec 2019 p. 4330.]
Division 3 — Export rebate agreements
[Heading inserted: Gazette 17 Dec 2019 p. 4330.]
4X. Term used: export rebate protocol
export rebate protocol has the meaning given in regulation 4Y(1).
[Regulation 4X inserted: Gazette 17 Dec 2019 p. 4330.]
4Y. Export rebate protocol
(1) The CEO may prepare, and amend or revoke at any time, a document that relates to exporters and export rebate agreements (the export rebate protocol).
(2) The CEO must publish the export rebate protocol on the Department’s website.
(3) If the CEO prepares an export rebate protocol, the CEO —
(b) must review the document if the Coordinator or an exporter asks the CEO in writing to review the document.
[Regulation 4Y inserted: Gazette 17 Dec 2019 p. 4330-1.]
4Z. Content of export rebate agreements
(1) For the purposes of section 47P(3)(b) of the Act, the following matters are prescribed as matters that an export rebate agreement must include provisions about —
(b) the calculation of amounts payable to the exporter under the agreement in accordance with the export rebate protocol;
(c) the exporter’s obligations in relation to demonstrating that the containers for which payment is claimed are scheme containers (as defined in section 47P(1) of the Act);
(d) the process if the Coordinator reasonably suspects a fraudulent claim.
(2) To the extent that the export rebate protocol deals with any of the matters in subregulation (1), the export rebate agreement must provide that the matter be dealt with in accordance with the export rebate protocol.
[Regulation 4Z inserted: Gazette 17 Dec 2019 p. 4331.]
Division 4 — Refund point agreements
[Heading inserted: Gazette 17 Dec 2019 p. 4332.]
4ZA. Content of refund point agreements
For the purposes of section 47Q(1)(b) of the Act, the following matters are prescribed as matters that a refund point agreement between the Coordinator and a person (the counterparty) must include provisions about —
(b) how the amounts payable to the counterparty under the agreement are to be calculated, including amounts for —
(i) refund amounts paid, or to be paid, by the counterparty for containers; and
(ii) handling and sorting the containers for recycling;
(c) the counterparty’s obligation to comply with the Minimum Network Standards (as defined in regulation 12(1));
(d) the counterparty’s obligation not to accept bales;
(e) the counterparty’s obligations in relation to sorting and transporting empty containers;
(f) the counterparty’s obligations in relation to operating refund points, including in relation to accessibility, public safety, compliance with relevant laws, public liability insurance and theft prevention;
(g) whether the counterparty can subcontract the operation of the refund point and the counterparty’s obligations to the Coordinator if the operation is subcontracted;
(h) the ability for the Coordinator to undertake an audit of the counterparty’s performance of its obligations and the counterparty’s obligations to give access to the counterparty’s premises for the purposes of the audit and provide any information and documents that the Coordinator requests;
(i) the process if the Coordinator reasonably suspects a fraudulent claim.
[Regulation 4ZA inserted: Gazette 17 Dec 2019 p. 4332-3.]
4ZB. Circumstances in which refund point operator must not claim payment
(1) For the purposes of section 47Q(2)(b) of the Act, a refund point operator must not claim, or attempt to claim, payment from the Coordinator under a refund point agreement in relation to a container if any of the following apply —
(a) the refund point operator has not paid a refund amount for the container (unless the container was donated to the refund point operator);
(b) the refund point operator should have refused to accept the container under regulation 4C(5);
(c) if the claim relates to a container accepted by a reverse vending machine —
(i) the relevant beverage product is not an approved beverage product; or
(ii) the container is not empty; or
(iii) the container is not a whole container (as defined in regulation 4C(1)); or
(iv) the container is a contaminated container (as defined in regulation 4G(1));
(d) the refund point operator has contravened section 47M(5) of the Act in relation to the container;
(e) the refund point operator knows, or ought reasonably to know, that the container has been disposed of in contravention of section 47M(3), (4) or (5) of the Act;
(f) the refund point operator is also an MRF operator and collected or received the container in its capacity as MRF operator;
(g) the refund point operator knows, or ought reasonably to know, that an amount has already been claimed (or attempted to be claimed) for the container under a refund point agreement or a material recovery agreement (whether the claim or attempted claim was by the refund point operator or another person);
(h) the refund point operator knows, or ought reasonably to know, that a refund amount has been paid for the container on more than one occasion at any one or more refund points.
(2) Subregulation (1)(d) and (e) does not apply to a container that is the subject of an extraordinary circumstances exemption granted under section 47N(3) of the Act.
[Regulation 4ZB inserted: Gazette 17 Dec 2019 p. 4333-4.]
Division 5 — Material recovery agreements
[Heading inserted: Gazette 17 Dec 2019 p. 4334.]
Subdivision 1 — Sampling plans and eligible container factors
[Heading inserted: SL 2020/191 r. 7.]
4ZC. Terms used
In this Subdivision —
approved sampling plan means a document approved by the CEO under regulation 4ZD(3) for a recovery amount protocol, as amended by any amendments that have effect under regulation 4ZE;
recovery amount protocol has the meaning given in regulation 4ZI(1).
[Regulation 4ZC inserted: Gazette 17 Dec 2019 p. 4334-5; amended: SL 2020/191 r. 8.]
4ZD. Coordinator to prepare draft sampling plan
(1) If required by the CEO, the Coordinator must prepare, and give to the CEO within the time specified by the CEO, a draft sampling plan for a recovery amount protocol.
(2) The draft sampling plan must set out the Coordinator’s proposed arrangements for engaging independent auditors (including the frequency of audits and the responsibility for the costs of the audits) to undertake sampling in order for the Coordinator to make determinations under regulation 4ZG(1) in relation to the recovery amount protocol, including sampling of quantities of recyclable material that include containers to work out the proportion of the material that is containers.
(2A) The draft sampling plan must also set out the things that the Coordinator proposes that MRF operators be required, or may be required, to do for the purpose of or in relation to —
(a) determining numbers of containers for the purposes of the recovery amount protocol and verifying any determinations; or
(b) estimating numbers of containers for the purposes of the recovery amount protocol and verifying any estimates.
(3) If the Coordinator gives the CEO a document under subregulation (1) or (5), the CEO may, by written notice —
(a) approve the document; or
(b) direct the Coordinator to, within the period specified in the notice (which must be at least 20 business days after the notice is given to the Coordinator) —
(i) take specified steps in relation to the document or make specified modifications to the document; and
(ii) submit a revised document.
(4) Before directing the Coordinator under subregulation (3)(b), the CEO must consult with the Coordinator on the proposed direction and have regard to any views expressed by the Coordinator.
(5) The Coordinator must comply with a direction under subregulation (3)(b) as soon as is practicable and in any event within the period specified in the notice.
(6) The Coordinator must publish each approved sampling plan on its website.
[Regulation 4ZD inserted: Gazette 17 Dec 2019 p. 4335-6; amended: SL 2020/191 r. 9.]
4ZE. Amendment of approved sampling plan
(1) If the Coordinator wishes to amend an approved sampling plan, the Coordinator must give the amended approved sampling plan to the CEO.
(2) An amendment to an approved sampling plan has no effect until the amended approved sampling plan has been approved by the CEO.
[Regulation 4ZE inserted: Gazette 17 Dec 2019 p. 4336; amended: SL 2020/191 r. 10.]
4ZF. Cooperation with sampling
A local government and an MRF operator must —
(a) cooperate with the conduct of any audit, or other procedure, carried out under an approved sampling plan by an independent auditor; and
(b) in the case of an MRF operator — give access to the MRF operator’s premises for the purposes of the audit or procedure; and
(c) provide any information and documents requested in connection with the audit or procedure.
[Regulation 4ZF inserted: Gazette 17 Dec 2019 p. 4336; amended: SL 2020/191 r. 11.]
4ZG. Eligible container factor
(1) Subject to subregulation (5), in relation to each recovery amount protocol, the Coordinator must, for each material type listed in the recovery amount protocol, determine an estimate of the number of containers of that material type that are in a tonne of that material type.
(2) The determination must be made using —
(a) the data obtained from the sampling undertaken in accordance with the approved sampling plan for the recovery amount protocol; and
(b) information in relation to claims under material recovery agreements (if any); and
(c) any other relevant information.
(3) The Coordinator must make a new determination under subregulation (1) for a material type if —
(a) directed to do so by the CEO; or
(b) the Coordinator considers that the existing determination no longer accurately estimates the number of containers of the material type that are in a tonne of that material type.
(4) The Coordinator must publish each determination made under subregulation (1) on its website within 20 business days after making the determination.
(5) In relation to a recovery amount protocol, the CEO may, by written notice, advise the Coordinator that the Coordinator is not required to make a determination under subregulation (1) for a material type specified in the notice.
(6) In deciding whether to give a notice under subregulation (5) in relation to a material type, the CEO must consider how likely it is that any estimate determined under subregulation (1) for the material type will be used under the recovery amount protocol for the purpose of calculating payments.
[Regulation 4ZG inserted: Gazette 17 Dec 2019 p. 4336-7; amended: SL 2020/191 r. 12.]
Subdivision 2 — MRF operators and material recovery agreements
[Heading inserted: Gazette 17 Dec 2019 p. 4337.]
4ZH. Terms used
In this Subdivision —
eligible container factor, for a material type, means the latest estimate determined for the material type under regulation 4ZG(1);
recovery amount protocol has the meaning given in regulation 4ZI(1).
[Regulation 4ZH inserted: Gazette 17 Dec 2019 p. 4337.]
4ZI. Recovery amount protocol
(1) The CEO may prepare, and amend or revoke at any time, one or more documents that relate to MRF operators and payments under material recovery agreements (each a recovery amount protocol).
(2) Without limiting subregulation (1), a recovery amount protocol may do one or more of the following —
(a) state that payments under a material recovery agreement for a quantity of containers are, if the number of containers in the quantity is known, to be calculated by totalling the refund amounts for the number of containers;
(b) provide for payments under a material recovery agreement for a quantity of containers to be calculated by reference to an estimate, determined using the eligible container factor for the material type of which the containers are made, of the number of containers in the quantity;
(c) provide for payments under a material recovery agreement for a quantity of containers to be calculated by reference to an estimate, determined in a way permitted by the recovery amount protocol (other than the way referred to in paragraph (b)), of the number of containers in the quantity.
(3) A particular recovery amount protocol may —
(a) apply generally to all MRF operators or be limited in its application by reference to specified exceptions or factors; or
(b) apply to an MRF operator in relation to a certain type of material recovery facility only; or
(c) apply differently to MRF operators according to different factors of a specified kind; or
(d) authorise any matter to be from time to time determined, applied or regulated by any specified person or body.
(4) The CEO must publish each recovery amount protocol on the Department’s website.
(5) If the CEO prepares a recovery amount protocol, the CEO —
(b) must review the document if the Coordinator or an MRF operator asks the CEO in writing to review the document.
[Regulation 4ZI inserted: Gazette 17 Dec 2019 p. 4338-9; amended: SL 2020/191 r. 13.]
4ZJ. Content of material recovery agreement
(1) For the purposes of section 47R(2)(b) of the Act, the following matters are prescribed as matters that a material recovery agreement between the Coordinator and an MRF operator must include provisions about —
(a) the type of material recovery facility to which the agreement applies;
(b) the matters set out in regulation 4P(1);
(c) the calculation of amounts payable to the MRF operator under the agreement which must —
(i) if a recovery amount protocol applies to the MRF operator in relation to the type of material recovery facility to which the agreement applies — be in accordance with the recovery amount protocol; or
(ii) if the MRF operator carries on a bottle crushing service business and the agreement applies to the material recovery facility prescribed under regulation 3(2A) — be based on the number of containers for which the relevant beverage product is an approved beverage product that have been crushed by the bottle crushing machines and collected by the MRF operator, or be worked out in accordance with another methodology that has been approved by the CEO in consultation with the Coordinator;
(d) the MRF operator’s obligations in relation to audits;
(e) the arrangements the MRF operator and the Coordinator have in place for recycling the containers or sending the containers to a facility for recycling including, if the Coordinator has established a common transaction platform, the circumstances in which the MRF operator is required to use the platform;
(f) whether the MRF operator can subcontract the operation of the material recovery facility and the MRF operator’s obligations to the Coordinator if the operation is subcontracted;
(g) the process if the Coordinator reasonably suspects a fraudulent claim.
(2) Subregulation (3) applies if a recovery amount protocol (the relevant recovery amount protocol) applies to an MRF operator in relation to the type of material recovery facility to which a material recovery agreement applies.
(3) To the extent that the relevant recovery amount protocol deals with any of the matters in subregulation (1), the material recovery agreement must provide that the matter be dealt with in accordance with the relevant recovery amount protocol.
[Regulation 4ZJ inserted: Gazette 17 Dec 2019 p. 4339-40.]
4ZK. Circumstances in which MRF operator must not claim recovery amount
(1) For the purposes of section 47R(3)(b) of the Act, an MRF operator must not claim, or attempt to claim, payment from the Coordinator under a material recovery agreement for a container if any of the following apply —
(a) the MRF operator knows, or ought reasonably to know, that a refund amount has been paid for the container at a refund point;
(b) the MRF operator knows, or ought reasonably to know, that the relevant beverage product is not an approved beverage product;
(c) the material recovery agreement applies to a material recovery facility prescribed under regulation 3(2A) and the container was not collected as part of the MRF operator’s bottle crushing service business;
(d) the MRF operator has contravened section 47M(4) of the Act in relation to the container;
(e) the MRF operator knows, or ought reasonably to know, that the container has been disposed of in contravention of section 47M(3), (4) or (5) of the Act;
(f) the MRF operator is also a refund point operator and received the container in its capacity as a refund point operator;
(g) the MRF operator knows, or ought reasonably to know, that an amount has already been claimed (or attempted to be claimed) for the container under a refund point agreement or a material recovery agreement (whether the claim or attempted claim was by the MRF operator or another person);
(h) the container was collected or received by the MRF operator prior to the date on which the MRF operator and the Coordinator entered into the material recovery agreement.
(2) Subregulation (1)(d) and (e) does not apply to a container that is the subject of an extraordinary circumstances exemption granted under section 47N(3) of the Act.
[Regulation 4ZK inserted: Gazette 17 Dec 2019 p. 4341-2.]
4ZL. Audits of MRF operators
bottle crushing machine operator means an MRF operator who is the operator of a material recovery facility prescribed under regulation 3(2A) and not the operator of any other type of material recovery facility.
(2) The Coordinator, in relation to each MRF operator who is party to a material recovery agreement —
(a) must engage, at the cost of the Coordinator, an auditor to conduct an audit of containers held by the MRF operator that were collected or received by the MRF operator prior to the date on which the MRF operator and the Coordinator entered into the material recovery agreement; and
(b) must (in the case of an MRF operator who is not a bottle crushing machine operator) and may (in the case of a bottle crushing machine operator) engage, at the cost of the MRF operator, an auditor to conduct an annual audit of the MRF operator’s claims under the material recovery agreement and the evidence supporting those claims; and
(c) may engage, at the cost of the Coordinator if the audit does not reveal a material contravention by the MRF operator of the Act, these regulations or the material recovery agreement and otherwise at the cost of the MRF operator, an auditor to conduct additional audits of the MRF operator’s claims under the material recovery agreement and the evidence supporting those claims.
(3) The audit under subregulation (2)(a) must be conducted within 10 business days after the MRF operator and the Coordinator enter into the material recovery agreement.
(4) The Coordinator must not engage a person as an auditor under subregulation (2) unless the Coordinator is satisfied that the person —
(a) has qualifications and experience that are appropriate to the audit; and
(b) is independent of the Coordinator and the MRF operator and any business conducted by either of them; and
(c) is able to conduct the audit and prepare a report in accordance with the terms of the engagement.
(5) An MRF operator must —
(a) cooperate with the conduct of an audit under subregulation (2); and
(b) give access to the MRF operator’s premises for the purposes of the audit; and
(c) provide any information and documents that the auditor requests in connection with the audit.
[Regulation 4ZL inserted: Gazette 17 Dec 2019 p. 4342-3.]
Subdivision 3 — Sharing payments with local governments
[Heading inserted: Gazette 17 Dec 2019 p. 4344.]
4ZM. Terms used
(1) In this Subdivision —
local government sharing protocol has the meaning given in regulation 4ZN(1);
recovery amount payments, received by an MRF operator in relation to particular containers, means the amounts paid to the MRF operator by the Coordinator for those containers under a material recovery agreement —
(a) less —
(i) any costs reasonably incurred by the MRF operator that are of a type specified in the local government sharing protocol; and
(ii) the amount of revenue that has been lost by the MRF operator that is of a type specified in the local government sharing protocol;
and
(b) adjusted for any other amounts specified in the local government sharing protocol.
(2) In this Subdivision, a local government is a relevant local government in relation to an MRF operator if the MRF operator collects containers from, or receives containers collected from, kerbsides in the local government’s district.
(3) In this Subdivision, a person is a third party operator in relation to an MRF operator if the person has been contracted to collect containers from kerbsides in one or more local government districts and deliver them to the MRF operator.
[Regulation 4ZM inserted: Gazette 17 Dec 2019 p. 4344.]
4ZN. Local government sharing protocol
(1) The CEO may prepare, and amend or revoke at any time, a document that relates to MRF operators sharing payments with local governments (the local government sharing protocol).
(2) The CEO must publish the local government sharing protocol on the Department’s website.
(3) If the CEO prepares a local government sharing protocol, the CEO —
(b) must review the document if the Coordinator, an MRF operator or a local government asks the CEO in writing to review the document.
[Regulation 4ZN inserted: Gazette 17 Dec 2019 p. 4345.]
4ZO. MRF operators to share payments with local governments
(1) If, and to the extent that, an MRF operator, a third party operator (where relevant) and a relevant local government have not agreed otherwise —
(a) the MRF operator must —
(i) if the MRF operator does not collect containers from kerbsides in a local government’s district itself, but receives them from a third party operator — pay to the third party operator 50% of all recovery amount payments received by the MRF operator in relation to containers received from the third party operator, and the third party operator must distribute those amounts to the local government or governments from whose districts the containers were collected from kerbsides, in proportion to the number of containers collected in each district; or
(ii) in any other case — pay to the relevant local government 50% of all recovery amount payments received by the MRF operator in relation to containers collected from kerbsides in the relevant local government’s district;
and
(b) the MRF operator, the third party operator and the relevant local government must comply with the local government sharing protocol.
(2) If an MRF operator is required to make payments under subregulation (1)(a)(i), the third party operator must, on request, provide to the MRF operator —
(a) any information reasonably required by the MRF operator to enable the MRF operator to calculate the amounts to be paid under subregulation (1)(a)(i); and
(b) evidence that the third party operator has distributed the amounts to local governments under subregulation (1)(a)(i).
(3) A local government may recover an amount payable to it under subregulation (1) in a court of competent jurisdiction as a debt due to the local government.
[Regulation 4ZO inserted: Gazette 17 Dec 2019 p. 4345-6.]
4ZP. Audits of MRF operators and local governments
(1) An MRF operator, a third party operator or a relevant local government may engage, at its own cost, an auditor to conduct an audit of any amounts deducted or added in calculating the recovery amount payments received by the MRF operator in relation to containers collected by the MRF operator or the third party operator from kerbsides in the relevant local government’s district.
(2) A person must not engage a person (the proposed auditor) as an auditor under subregulation (1) unless the person is satisfied that the proposed auditor —
(a) has qualifications and experience that are appropriate to the audit; and
(b) is independent of the MRF operator, the third party operator and the relevant local government, and any business conducted by any of them; and
(c) is able to conduct the audit and prepare a report in accordance with the terms of the engagement.
(3) An MRF operator, a third party operator and a relevant local government must —
(a) cooperate with the conduct of an audit under subregulation (1); and
(b) in the case of an MRF operator or third party operator — give access to their premises for the purposes of the audit; and
(c) provide any information and documents that the auditor requests in connection with the audit.
[Regulation 4ZP inserted: Gazette 17 Dec 2019 p. 4346-7.]
Part 3 — Coordinator of the scheme
Division 1 — Appointment of Coordinator of the scheme
5. Approval of board members
The Minister may refuse to approve a person under section 47V(3)(a)(iv) or (e)(iv) of the Act only if the Minister is satisfied that —
(a) the person is not a fit and proper person to be a director of the Coordinator; or
(b) the person is biased or could be perceived to be biased in favour of or against any scheme participant; or
(c) the person does not have adequate relevant experience to be a director and, in the case of an approval under section 47V(3)(a)(iv) of the Act, the chair of the Coordinator; or
(d) the appointment of the person would not support the achievement of the objects of Part 5A of the Act.
6. Conditions of appointment of Coordinator
(1) For the purposes of sections 47Y(1) and 47ZQ(1)(a) of the Act, the Minister may attach a condition to an appointment under section 47X(1) of the Act, or amend a condition that applies to the appointment, only if the Minister is satisfied that the content of the condition or the condition as amended relates to the achievement of 1 or more of the objects of Part 5A of the Act.
(2) If the Minister attaches a condition to an appointment or amends a condition, the Coordinator must publish a copy of the condition or the condition as amended on its website.
7. Functions of Coordinator
(1) In carrying out any of its functions the Coordinator must endeavour to achieve the objects of Part 5A of the Act.
(2) For the purposes of section 47Z(3)(a) of the Act, the Coordinator has the following additional functions —
(a) to ensure arrangements are in place for verifying that all collected containers and returned containers (as those terms are defined in section 47M of the Act) are reused or recycled;
(b) to ensure arrangements are in place for verifying the number of containers that have been collected through the kerbside collection of waste that has been separated for the purpose of recycling;
(ba) to ensure arrangements are in place for verifying the number of containers that have been returned to refund points;
(c) to ensure arrangements are in place to verify the eligibility of any first responsible supplier of a beverage product claiming to be a minor beverage supplier;
(ca) to receive applications under regulations 3I and 3O in relation to container approvals on behalf of the CEO and to advise the CEO in relation to the applications;
(cb) to publish guidelines to assist people in identifying the person that is the first responsible supplier under section 47D of the Act;
(d) to identify and report to the CEO on persons suspected of committing an offence under section 47E(2) of the Act, and to attempt to ensure that the persons comply with the requirements of that section.
(3) The engagement of a person on contract, or the use of a subsidiary, by the Coordinator to perform certain tasks for the Coordinator does not affect any function or obligation of the Coordinator under the Act or these regulations (including, without limitation, an obligation on the Coordinator to provide, publish or report information).
[Regulation 7 amended: Gazette 17 Dec 2019 p. 4347-8.]
7A. Performance of Coordinator’s functions in relation to contracts
specified counterparty means each of the following —
(a) a contractor of the Coordinator who is contracted to carry out work that relates to the statutory functions of the Coordinator;
(b) a subsidiary of the Coordinator;
(c) a scheme participant;
(d) an entity involved in the collection, sorting, transporting or processing of containers.
(2) In performing its functions under section 47Z of the Act, the Coordinator must ensure that each contract the Coordinator enters into with a specified counterparty requires the specified counterparty’s compliance in all material respects with all applicable legislation including, without limitation, the Work Health and Safety Act 2020.
[Regulation 7A inserted: Gazette 17 Dec 2019 p. 4348-9; amended: SL 2020/191 r. 14; SL 2022/25 r. 9.]
8. Performance of Coordinator’s functions in relation to refund points
(1) In performing its functions under section 47Z(2)(d) and (e) of the Act, the Coordinator must have regard to the following —
(a) the economic viability of each proposed refund point, including (without limitation) the impact of the refund point on the collection network including the proximity of any existing refund points;
(b) whether the network of refund points in a community is appropriate for that community.
(2) If the Coordinator refuses to enter into a refund point agreement with a person, the Coordinator must provide the person and the CEO with written reasons for the refusal.
9. Performance of Coordinator’s functions in relation to recycling
(1) In performing its functions under section 47Z(2)(g) of the Act in relation to ensuring arrangements are in place for recycling containers, the Coordinator must approve persons as persons to whom containers may be sold for recycling (each an approved recycler).
(2) The Coordinator may cancel the approval of a person as an approved recycler.
(3) The Coordinator must determine, and publish on its website —
(a) the manner and form in which an application to be an approved recycler is to be made and the process for applying; and
(b) the criteria that must be met for a person to be approved as an approved recycler, and the grounds on which approval of a person as an approved recycler may be refused; and
(c) the grounds on which a person’s approval as an approved recycler may be cancelled.
(4) If the Coordinator refuses to approve a person as an approved recycler, or cancels a person’s approval as an approved recycler, the Coordinator must provide the person with written reasons for the decision.
(5) The CEO may review any decision made by the Coordinator in relation to approved recyclers.
[Regulation 9 inserted: Gazette 17 Dec 2019 p. 4349-50.]
9A. Performance of Coordinator’s functions in relation to verification and recycling
In performing its functions under section 47Z(2)(g) and (j) of the Act and regulation 7(2)(a), (b) and (ba), the Coordinator may establish an online platform on which parties can enter into arrangements to buy and sell containers for recycling (a common transaction platform).
[Regulation 9A inserted: Gazette 17 Dec 2019 p. 4350.]
Division 2 — Coordinator performance targets
10. Container recovery rate: preliminary years
preliminary year means each of the following periods —
(a) the period starting on the day on which the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Amendment Regulations 2020 regulation 15 comes into operation and ending on 30 June 2021;
(b) the financial year starting on 1 July 2021;
(c) the financial year starting on 1 July 2022.
(2) The Coordinator must, for each preliminary year, decide a percentage it proposes to achieve as the container recovery rate for the preliminary year.
(3) The Coordinator must publish on its website the percentage decided under subregulation (2) for each preliminary year on or before —
(a) for the preliminary year starting on the day on which the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Amendment Regulations 2020 regulation 15 comes into operation — a time directed by the CEO; and
(b) for the preliminary year starting on 1 July 2021 — 1 June 2021; and
(c) for the preliminary year starting on 1 July 2022 — 1 June 2022.
(4) For each preliminary year, the Coordinator must achieve a container recovery rate of at least the percentage published under subregulation (3) for the preliminary year.
[Regulation 10 amended: SL 2020/191 r. 15.]
11. Container recovery rate: other years
The Coordinator must achieve a container recovery rate of at least 85% for —
(a) the financial year starting on 1 July 2023; and
(b) each later financial year.
[Regulation 11 amended: SL 2020/191 r. 16.]
12. Accessibility and coverage of refund points
(1) The CEO may prepare, and amend from time to time, a document that sets out the minimum standards for refund point locations and hours of operation (the Minimum Network Standards).
(2) If the CEO prepares Minimum Network Standards, the CEO must review the document to ensure the minimum standards in the document are adequate —
(a) as soon as practicable after the 6 month anniversary of the appointed day for section 47E of the Act; and
(b) after that, at intervals of not more than 6 months for the first 3 years after the appointed day for section 47E of the Act; and
(c) after that, at intervals of not more than 1 year.
(3) The Coordinator must comply with each requirement contained in the Minimum Network Standards.
[Regulation 12 amended: Gazette 17 Dec 2019 p. 4350.]
Division 3 — Reporting by Coordinator
13. Coordinator website
The Coordinator must establish and maintain a website containing —
(a) information required under these regulations to be published on the website; and
(b) any other information that the Coordinator considers appropriate.
14. Notice to Minister of adverse matters
The Coordinator must promptly inform the Minister about any matter that the Coordinator considers may —
(a) prevent, or significantly affect, its achievement of —
(i) the objectives in its business plan for the current period; or
(ii) a performance target;
or
(b) significantly impact on —
(i) its performance of its functions; or
(ii) its financial position or viability; or
(iii) public confidence in the scheme.
15. Annual report
(1) The Coordinator must give the Minister a report (an annual report) about its operations for —
(a) the period beginning on the day on which the Coordinator commences occupying the office of Coordinator of the scheme (or, in the case of an Interim Coordinator, commences performing the functions of the Coordinator) and ending on the following 30 June; and
(b) each subsequent financial year; and
(c) if the Coordinator ceases occupying the office of Coordinator of the scheme (or, in the case of an Interim Coordinator, ceases performing the functions of the Coordinator) on a day other than 30 June, the period ending on that day that has not been covered by a previous annual report.
(2) The annual report must —
(a) be given to the Minister within 4 months after the end of the period the report covers; and
(c) include the information that the Reporting Code specifies must be included in an annual report; and
(d) be signed by the chief executive officer (however described) and the chair of the Coordinator.
(3) The Minister may cause a copy of an annual report given to the Minister to be laid before each House of Parliament.
(4) The Coordinator may request the Minister to delete from a copy of an annual report to be laid before a House of Parliament information that is of a commercially sensitive nature and the Minister may, if the Minister is satisfied that the information is commercially sensitive, comply with the request.
(5) A copy of an annual report from which any information has been deleted under subregulation (4) must contain a statement, at the place in the report where the information was deleted, detailing the reasons for the deletion.
[Regulation 15 amended: Gazette 17 Dec 2019 p. 4351.]
16. Quarterly report
initial period means the period —
(a) beginning on the day on which the Coordinator commences occupying the office of Coordinator of the scheme (or, in the case of an Interim Coordinator, commences performing the functions of the Coordinator); and
(b) ending on the first to occur of the following dates —
(i) 30 September;
(ii) 31 December;
(iii) 31 March;
(iv) 30 June;
quarter, in a financial year, means the following periods in the year —
(a) 1 July to 30 September;
(b) 1 October to 31 December;
(c) 1 January to 31 March;
(d) 1 April to 30 June.
(2) The Coordinator must give the Minister a report (a quarterly report) about its operations for —
(a) the initial period; and
(b) each subsequent quarter in a financial year.
(3) The quarterly report must —
(a) be given to the Minister —
(i) within 2 months after the end of the period the report covers; or
(ii) if another period after the end of the period the report covers is agreed between the Coordinator and the Minister — within the agreed period;
and
(c) include the information that the Reporting Code specifies must be included in a quarterly report; and
(d) be signed by the chief executive officer (however described) of the Coordinator.
(4) The Minister may, by notice in writing, require the Coordinator to publish some or all of the quarterly report on its website.
(5) If the Coordinator is required to publish some or all of a quarterly report on its website, the Coordinator may request the Minister for permission to delete from the report information that is of a commercially sensitive nature and the Minister may, if the Minister is satisfied that the information is commercially sensitive, grant the permission.
(6) If any information has been deleted under subregulation (5), the publication of the report must contain a statement, at the place in the report where the information was deleted, detailing the reasons for the deletion.
[Regulation 16 amended: Gazette 17 Dec 2019 p. 4351.]
17. Minister may require reports for periods of less than 3 months
(1) The Minister may, by written notice, require the Coordinator to give the Minister a report about its operations for a period specified in the notice (the specified period) that is less than 3 months.
(2) The report must —
(a) subject to subregulation (3), be given to the Minister within 20 business days after —
(i) the last day of the specified period; or
(ii) if the Minister’s notice is given to the Coordinator after the end of the specified period — the day on which the Minister’s notice is given to the Coordinator;
and
(c) include the following information —
(i) if the specified period is 1 month — the information that the Reporting Code specifies must be included in a report for 1 month;
(ii) in any other case — the information that the Minister’s notice specifies must be included;
and
(d) be signed by the chief executive officer (however described) of the Coordinator.
(3) If the specified period is a period other than 1 month and the Minister considers it appropriate having regard to the length of the specified period, the Minister’s notice may require the report to be given to the Minister within a period that is different to the period of 20 business days referred to in subregulation (2)(a).
[Regulation 17 inserted: SL 2020/191 r. 17.]
18. Website reporting
(1) The Coordinator must publish on its website a report (a website annual report) about its operations for —
(a) the period beginning on the day on which the Coordinator commences occupying the office of Coordinator of the scheme (or, in the case of an Interim Coordinator, commences performing the functions of the Coordinator) and ending on the following 30 June; and
(b) each subsequent financial year.
(2) The website annual report must —
(a) be published by 31 October after the end of the period the report covers; and
(b) include the information that the Reporting Code specifies must be included in a website annual report; and
(c) continue to be available on the website until the Coordinator ceases occupying the office of Coordinator of the scheme (or, in the case of an Interim Coordinator, ceases performing the functions of the Coordinator).
(3) In addition to the website annual report, the Coordinator must publish on its website the information that the Reporting Code specifies must be published on the website.
19. Coordinator must obtain required information from subsidiary or contractor
Where the Coordinator is required under the Act or these regulations to provide, publish or report information, if the Coordinator does not have the information but a subsidiary of the Coordinator or a person engaged on contract by the Coordinator has the information, the Coordinator must obtain the information from that subsidiary or person.
Division 4 — Scheme Account
20. Scheme funds
approved recycler means a person who is an approved recycler under regulation 9.
(2) For the purposes of the definition of scheme funds in section 47ZL of the Act, the following moneys are prescribed —
(a) amounts received by the Coordinator under a scheme agreement;
(b) any amount paid or loaned to the Coordinator by the State on the condition that it be placed in the Scheme Account or that the amount is scheme funds;
(ba) any amount received by the Coordinator, or by any of its subsidiaries, from an approved recycler in respect of the sale of containers for the purpose of the containers being recycled;
(c) in respect of the sale of containers by the Coordinator or any of its subsidiaries to a person for the purpose of the containers being recycled, any amount retained by the Coordinator or its subsidiaries at the conclusion of the sale process (to the extent not covered by paragraph (ba));
(ca) any amount that is refunded under the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) —
(i) to the Coordinator; or
(ii) to a subsidiary of the Coordinator that performs tasks for the Coordinator in respect of the Coordinator’s functions;
(cb) any amount of interest, in respect of the late payment of a refund referred to in paragraph (ca), paid on behalf of the Commonwealth —
(i) to the Coordinator; or
(ii) to a subsidiary of the Coordinator that performs tasks for the Coordinator in respect of the Coordinator’s functions;
(d) any interest earned on money in the Scheme Account;
(e) any amount that, as part of the transition from a person who is, or has been, the Coordinator or an Interim Coordinator to a person who subsequently is to, or has, become the Coordinator or an Interim Coordinator (the incoming Coordinator), is transferred into the Scheme Account or otherwise received by the incoming Coordinator.
[Regulation 20 amended: Gazette 17 Dec 2019 p. 4352; SL 2020/191 r. 18.]
Division 5 — Ministerial directions
21. Term used: direction
direction means a direction given to the Coordinator under section 47ZP(1) of the Act.
22. Content of direction
(1) The Minister may give a direction requiring the Coordinator to —
(a) take a specified action; or
(b) cease a specified activity; or
(c) provide a report or plan to the Minister addressing the matters specified in the direction.
(2) The Minister may amend a direction only if the amendment —
(a) extends the time by which the direction must be complied with; or
(b) is, in the opinion of the Minister, necessary to correct a clerical mistake, an unintentional error or omission or a misdescription of any person, thing or matter referred to in the direction; or
(c) is, in the opinion of the Minister, a minor amendment that does not materially change the direction.
23. Form of direction
(1) A direction must specify the time by which the direction must be complied with.
(2) An amendment or revocation of a direction must be by written notice given to the Coordinator.
(3) The Minister may publish any direction, or any amendment or revocation of a direction.
(4) The Minister must cause a copy of any direction, or any amendment or revocation of a direction, to be laid before each House of Parliament within 10 sitting days of that House after the direction, amendment or revocation is given.
24. Grounds for giving direction
The Minister may give a direction only if the Minister is satisfied that —
(a) the Coordinator has not performed a statutory function; or
(b) the Coordinator has not complied with the business plan for the current period; or
(c) the Coordinator has not complied with the approved governance plan (as defined in section 47ZL of the Act) for the Scheme Account; or
(d) the Coordinator has not achieved, or is unlikely to achieve, a performance target; or
(e) the Coordinator has breached the terms of a scheme agreement; or
(f) the Coordinator has contravened a provision of Part 5A of the Act or these regulations; or
(fa) the Coordinator has breached the terms of an agreement that the Coordinator has with the State; or
(fb) the Coordinator has not complied with a condition attached to its appointment; or
(g) the direction is necessary or convenient for the transition from a person who is, or has been the Coordinator or an Interim Coordinator to a person who subsequently is to, or has, become the Coordinator or an Interim Coordinator.
[Regulation 24 amended: Gazette 17 Dec 2019 p. 4353.]
25. Process for giving direction
(a) the Minister proposes to give a direction; and
(b) regulation 26 does not apply.
(2) The Minister must give the Coordinator a written notice about the proposed direction that —
(a) states the proposed direction; and
(b) states the grounds for the proposed direction; and
(d) invites the Coordinator to make written submissions to the Minister about why the proposed direction should not be given; and
(e) states the period (which must be at least 14 days after the notice is given to the Coordinator unless a shorter period is agreed by the Minister and the Coordinator) within which written submissions may be made (the submission period).
(3) The Minister may give the proposed direction —
(a) at any time after the Coordinator gives the Minister written notice that the Coordinator does not intend to make any submissions or any further submissions; or
(b) if the Coordinator does not give the notice referred to in paragraph (a) during the submission period, after the end of the submission period.
(4) The Minister —
(b) may consider any other information the Minister considers relevant.
(5) The Minister must give the Coordinator written notice if the Minister decides not to give the proposed direction.
26. Urgent direction may be given immediately
(a) the Minister proposes to give a direction; and
(b) the Minister is satisfied that the circumstances warrant the immediate giving of the direction to ensure —
(i) the safety of persons; or
(ii) that the efficiency or functionality of the collection network is not materially adversely affected; or
(iii) that the public confidence in the scheme is not adversely affected.
(2) The Minister may give the proposed direction immediately.
Division 6 — Amendment, administration and revocation
27. Grounds for appointing administrator or revoking appointment of Coordinator
Unless requested by the Coordinator under regulation 28(1), the Minister may appoint an administrator under section 47ZQ(1)(b) of the Act or revoke the appointment of the Coordinator under section 47ZQ(1)(c) of the Act only if the Minister is satisfied that —
(a) the Coordinator is not, or is no longer, an eligible company; or
(b) an executive officer of the Coordinator is not, or is no longer, an eligible individual; or
(c) the Coordinator is not, or is no longer, suitable to occupy the office of Coordinator of the scheme; or
(d) the Coordinator has not complied with a condition attached to its appointment; or
(e) the Coordinator has failed to comply with a direction given by the Minister under section 47ZP(1) of the Act; or
(ea) the Coordinator has breached the terms of an agreement that the Coordinator has with the State; or
(f) the Coordinator has not achieved, or is unlikely to achieve, a performance target; or
(g) any information given or statement made by the Coordinator to the CEO, Minister, public or any scheme participant, either before or after the Coordinator’s appointment was false or misleading; or
(h) the Coordinator has misused scheme funds (as defined in section 47ZL of the Act); or
(i) the Coordinator has committed an offence under the Act or the Environmental Protection Act 1986 or under any regulations made under either Act.
[Regulation 27 amended: Gazette 17 Dec 2019 p. 4353.]
28. Process for amendment, administration or revocation by request
(1) The Coordinator may request the Minister to, by taking the action stated in the request, exercise a power under section 47ZQ(1) of the Act (the requested action).
(2) If the requested action is to amend the conditions that apply to the appointment of the Coordinator or attach new conditions, the request must state the proposed amendment or proposed new conditions.
(3) The request must —
(a) be in writing; and
(b) state the reasons for the request.
(4) The Minister may ask the CEO to assess the Coordinator’s request and prepare a report about the request.
(5) The Minister must give the Coordinator written notice —
(a) that the Minister has taken the requested action; or
(b) that the Minister has decided not to take the requested action.
(6) A written notice under subregulation (5)(a) must specify the day the requested action takes effect.
29. Process for amendment, administration or revocation by Minister’s initiative
(a) the Minister proposes, of the Minister’s own initiative, to exercise a power under section 47ZQ(1) of the Act (the proposed action), other than the power to revoke the conditions that apply to the appointment of the Coordinator or the power to remove an administrator; and
(b) regulation 30 does not apply.
(2) The Minister must give the Coordinator a written notice about the proposed action that —
(a) states the proposed action and, if the proposed action is to amend the conditions that apply to the appointment of the Coordinator or attach new conditions, states the proposed amendment or proposed new conditions; and
(b) states the grounds for the proposed action; and
(d) invites the Coordinator to make written submissions to the Minister about why the proposed action should not be taken; and
(e) states the period (which must be at least 14 days after the notice is given to the Coordinator unless a shorter period is agreed by the Minister and the Coordinator) within which written submissions may be made (the submission period).
(3) The Minister may ask the CEO to prepare a report about the submissions made by the Coordinator during the submission period.
(4) The Minister may take the proposed action or, if the proposed action is to revoke the appointment of the Coordinator, appoint an administrator to the Coordinator (the alternative action) —
(a) at any time after the Coordinator gives the Minister written notice that the Coordinator does not intend to make any submissions or any further submissions; or
(b) if the Coordinator does not give the notice referred to in paragraph (a) during the submission period, after the end of the submission period.
(5) The Minister —
(b) must consider any report prepared by the CEO under subregulation (3); and
(c) must consider the objects of Part 5A of the Act and whether the proposed action or the alternative action would assist in the achievement of those objects; and
(d) may consider any other information the Minister considers relevant.
(6) The Minister must give the Coordinator written notice —
(a) that the Minister has taken the proposed action or the alternative action; or
(b) that the Minister has decided not to take the proposed action.
(7) A written notice under subregulation (6)(a) must specify the day the proposed action or the alternative action takes effect.
30. Immediate appointment of administrator
(a) the Minister proposes, of the Minister’s own initiative, to appoint an administrator under section 47ZQ(1)(b) of the Act; and
(b) the Minister is satisfied that the circumstances warrant the immediate appointment of the administrator to ensure —
(i) the safety of persons; or
(ii) that the public confidence in the scheme is not adversely affected.
(2) The Minister may appoint an administrator under section 47ZQ(1)(b) of the Act immediately.
(3) The appointment of the administrator has effect until the Minister removes the administrator or the administrator’s appointment otherwise ends.
(4) The Minister must give the Coordinator a written notice at the time of the appointment of the administrator that —
(a) states that an administrator has been appointed; and
(b) states the grounds for the appointment; and
(d) states the reasons for the immediate appointment; and
(e) invites the Coordinator to make written submissions to the Minister about why the administrator should not have been appointed or why the administrator should be removed; and
(f) states the period (which must be at least 14 days after the notice is given to the Coordinator unless a shorter period is agreed by the Minister and the Coordinator) within which written submissions may be made (the submission period).
(5) The Minister may ask the CEO to prepare a report about the submissions made by the Coordinator during the submission period.
(6) Within 28 days after the end of the submission period, the Minister must decide whether to —
(a) retain the administrator; or
(b) remove the administrator and, if the administrator is removed, whether to appoint a different administrator.
(7) The Minister —
(b) must consider any report prepared by the CEO under subregulation (5); and
(c) must consider the objects of Part 5A of the Act and whether the decision the Minister proposes to make would assist in the achievement of those objects; and
(d) may consider any other information the Minister considers relevant.
(8) The Minister must give the Coordinator written notice of the Minister’s decision.
31. Publication of amendment, administration or revocation
If the Minister exercises a power under section 47ZQ(1) of the Act —
(a) the Coordinator must publish a copy of the written notice of the exercise of the power on the Coordinator’s website; and
(b) the CEO may publish a copy of the written notice of the exercise of the power on the Department’s website.
32. Interim Coordinator and Scheme Account
(1) If an Interim Coordinator is appointed, section 47ZN(2) of the Act is modified so that a Scheme Account must be established by the Interim Coordinator before the Interim Coordinator commences performing the functions of the Coordinator.
(2) If an Interim Coordinator is appointed, section 47ZN(3) of the Act is modified so that the Interim Coordinator is required to maintain the Scheme Account in accordance with the Act and the governance plan most recently approved by the CEO under section 47ZM(4) of the Act, as amended by any amendments that have effect under section 47ZM of the Act and with any modifications determined by the CEO.
Division 7 — Transitional arrangements
[Heading inserted: Gazette 17 Dec 2019 p. 4353.]
32A. Compliance with transition out plan
transition out plan means a plan that is required to be prepared under an agreement between the State and a person who is, or has been, the Coordinator or an Interim Coordinator, that includes arrangements for the transition and handover from that person to a person who subsequently is to, or has, become the Coordinator or an Interim Coordinator.
(2) If the Coordinator or a person who has previously been a Coordinator or an Interim Coordinator has prepared a transition out plan, they must comply with the latest version of that plan that has been approved by the State.
[Regulation 32A inserted: Gazette 17 Dec 2019 p. 4353-4.]
32B. Transition costs
(a) a company has been notified of its appointment to the office of Coordinator of the scheme under section 47X of the Act or a person has been appointed to perform the functions of the Coordinator under section 47ZT of the Act (each the incoming Coordinator); and
(b) the incoming Coordinator will be replacing an existing Coordinator or Interim Coordinator (the outgoing Coordinator).
(2) Except to the extent that section 47ZU(3) of the Act requires otherwise, the incoming Coordinator is liable to pay the outgoing Coordinator the costs incurred by the outgoing Coordinator in relation to the transition and handover from the outgoing Coordinator to the incoming Coordinator.
(3) The costs referred to in subregulation (2) are, for the purposes of section 47O of the Act, costs of administering the scheme.
[Regulation 32B inserted: Gazette 17 Dec 2019 p. 4354.]
Part 4 — Miscellaneous
Division 1 — Civil penalty provisions
33. Terms used
civil penalty has the meaning given in section 47ZZ(1) of the Act;
civil penalty order means an order under regulation 35(2);
civil penalty provision has the meaning given in section 47ZZ(1) of the Act;
court means —
(a) for a civil penalty provision other than sections 47ZP(3) and 47ZZE(6) of the Act, the Magistrates Court; or
(b) for sections 47ZP(3) and 47ZZE(6) of the Act, the District Court.
34. Civil penalty provisions prescribed
(1) Each of the following provisions is a civil penalty provision —
(a) regulation 4B(2);
(b) regulation 4F(2);
(c) regulation 4F(3);
(d) regulation 4G(3);
(e) regulation 4H(2);
(f) regulation 4H(3);
(g) regulation 4J(1);
(h) regulation 4K(1);
(i) regulation 4L(2);
(j) regulation 10(4);
(k) regulation 11;
(l) regulation 12(3);
(m) regulation 14;
(n) regulation 32A(2).
(2) The amount that may be demanded from or imposed on a person who contravenes a provision referred to in subregulation (1) is the amount following the expression “Civil penalty:” below that provision.
[Regulation 34 amended: Gazette 17 Dec 2019 p. 4355.]
35. Court may make orders if person has contravened civil penalty provision
(1) The CEO may apply to the court for an order under subregulation (2).
(2) If the court is satisfied that a person has contravened a civil penalty provision, the court may make any orders as it thinks appropriate against or in relation to the person, including either or both of the following —
(a) an order that the person pay to the CEO an amount not exceeding the civil penalty for that civil penalty provision;
(b) an order against the person for the purpose of preventing any further contravention of the civil penalty provision.
(3) An order under subregulation (2)(b) —
(a) may be subject to any terms and conditions the court thinks appropriate; and
(b) may be revoked at any time.
(4) An interim order may be made under subregulation (2)(b) pending final determination of the application.
36. Warning notice in respect of application for civil penalty order
(1) The CEO cannot make an application for a civil penalty order against or in relation to a person unless —
(a) the CEO has given a warning notice to the person; and
(b) the time period specified in the notice within which the alleged contravention must be rectified has expired; and
(c) the person has not rectified the alleged contravention to the satisfaction of the CEO.
(2) A warning notice must —
(a) identify the civil penalty provision that the CEO believes has been, or is being, contravened; and
(b) describe the conduct that comprises the alleged contravention; and
(c) request an explanation for the alleged contravention; and
(d) request that the alleged contravention be rectified and specify the time period within which it must be rectified.
(3) The time period referred to in subregulation (2)(d) must be reasonable having regard to the seriousness of the alleged contravention and the risk of adverse impacts on the environment or on the public confidence in the scheme.
[(4) deleted]
[Regulation 36 amended: Gazette 17 Dec 2019 p. 4355.]
37. Proceedings for civil penalty order
(1) The Coordinator may intervene in an application for a civil penalty order against or in relation to a person other than the Coordinator.
(2) The standard of proof to be applied in determining whether there has been a contravention of a civil penalty provision is the standard observed in civil proceedings.
(3) The court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
38. Enforcement of civil penalty order
(1) A person must comply with a civil penalty order made against or in relation to the person.
Penalty for this subregulation: a fine of $10 000.
(2) The CEO may enforce a civil penalty order under regulation 35(2)(a) as if it were an order made in civil proceedings against the person to recover a debt due from the person.
(3) The debt arising from the order is taken to be a judgment debt.
(4) An amount received by the CEO from the enforcement of a civil penalty order must be credited to the WARR Account.
Division 2 — Miscellaneous
[Heading inserted: Gazette 17 Dec 2019 p. 4356.]
39. Performance audit by CEO
(1) If an audit is carried out under section 47ZZE(1)(a) of the Act or pursuant to a direction under section 47ZZE(1)(b) of the Act, the Coordinator must grant to any person carrying out the audit entry to the Coordinator’s premises for the purposes of carrying out the audit.
(2) The Coordinator is liable for any expenses incurred by the CEO in carrying out an audit under section 47ZZE(1)(a) of the Act and the CEO may recover the expenses from the Coordinator in a court of competent jurisdiction as a debt due to the State.
[Regulation 39 inserted: Gazette 17 Dec 2019 p. 4356.]
40. Disclosure of information by CEO
(1) The CEO may publish any of the following —
(a) any information, document or thing that the Reporting Code specifies may be published by the CEO;
(b) any information, document or thing that the Reporting Code specifies must be published by the Coordinator;
(c) any information, document or thing provided to the Minister in response to a direction given by the Minister under section 47ZP of the Act;
(d) any information, document or thing provided or produced to an authorised person under section 47ZZC(2) of the Act.
(2) If the CEO proposes to publish any information, document or thing referred to in subregulation (1)(c) or (d) (the relevant matter), the CEO must give the person who provided or produced the relevant matter written notice that —
(a) states that the CEO proposes to publish the relevant matter; and
(b) invites the person to make written submissions to the CEO about why some or all of the relevant matter is confidential and should not be published; and
(c) states the period (which must be at least 20 business days after the notice is given to the person) within which written submissions may be made (the submission period).
(3) The CEO may publish the relevant matter —
(a) at any time after the person gives the CEO written notice that the person does not intend to make any submissions or any further submissions; or
(b) if the person does not give the notice referred to in paragraph (a) during the submission period — after the end of the submission period.
(4) The CEO must consider any written submissions made by the person within the submission period.
[Regulation 40 inserted: Gazette 17 Dec 2019 p. 4356-7.]
41. Transition period for displaying refund mark on containers
transition day means the day that is 24 months after the appointed day for section 47E of the Act.
(2) Before the transition day, a person does not commit an offence against section 47E(2) of the Act by reason only that the container used for a beverage product does not bear a refund mark.
[Regulation 41 inserted: Gazette 17 Dec 2019 p. 4357-8.]
dline
Notes
This is a compilation of the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulations 2019 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table.
Compilation table
| Citation | Published | Commencement |
|---|
| Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulations 2019 | 18 Apr 2019 p. 1177-205 | r. 1 and 2: 18 Apr 2019 (see r. 2(a)); Regulations other than r. 1 and 2: 19 Apr 2019 (see r. 2(b) and Gazette 18 Apr 2019 p. 1157) |
| Waste Avoidance and Resource Recovery (Container Deposit Scheme) Amendment Regulations 2019 | 17 Dec 2019<br>4279‑358 | r. 1 and 2: 17 Dec 2019 (see r. 2(a)) Regulations other than r. 1 and 2: 18 Dec 2019 (see r. 2(b)) |
| Waste Avoidance and Resource Recovery (Container Deposit Scheme) Amendment Regulations 2020 | SL 2020/191 9 Oct 2020 | r. 1 and 2: 9 Oct 2020 (see r. 2(a)); Regulations other than r. 1 and 2: 10 Oct 2020 (see r. 2(b)) |
| Environment Regulations Amendment (Work Health and Safety) Regulations 2022 Pt. 3 | SL 2022/25 11 Mar 2022 | 31 Mar 2022 (see r. 2(b) and SL 2022/18 cl. 2) |
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined term Provision(s)
alternative action 3S(4), 3S(4), 3T(1), 29(4)
annual report 15(1)
approved beverage product 3(1A)
approved recycler 9(1), 20(1)
approved sampling plan 4ZC
approved scheme agreement template 4M
approved supply amounts calculation methodology 4S
bale 3(1)
beverage product class 3F(2)
bottle crushing machine 3(1)
bottle crushing machine operator 4ZL(1)
bottle crushing service business 3(1)
bulk claim arrangement 4E(1)
bulk quantity 4E(1)
business day 3(1)
business plan 3(1)
civil penalty 33
civil penalty order 33
civil penalty provision 33
collection network 3(1)
common transaction platform 3(1), 9A
container recovery rate 3(1)
contaminated container 4C(1), 4G(1)
contract bottler 3E(1)
contract counterparty 3E(1)
cordial 3A(1)
counterparty 4M, 4V(1), 4W(1), 4ZA
court 33
damaged container 4C(1)
direction 21
eligible container factor 4ZH
equivalent approval 3F(1)
executive officer 3(1)
export rebate protocol 4X, 4Y(1)
fermented milk product 3A(1)
first supplier agreement 3E(2)
flavoured milk 3A(1), 3B(1)
flavouring 3A(1), 3B(1)
growler 3B(1)
GS1 Standard 3H(1)
GTIN barcode 3H(1)
incoming Coordinator 20(2), 32B(1)
initial period 16(1)
local government sharing protocol 4ZM(1), 4ZN(1)
milk 3A(1)
Minimum Network Standards 12(1)
minor beverage supplier 3(1)
outgoing Coordinator 32B(1)
performance target 3(1)
preliminary year 10(1)
processed disposal 3C(1)
proposed action 3S(1), 3T(1), 29(1)
proposed auditor 4ZP(2)
quarter 16(1)
quarterly report 16(2)
recovery amount payments 4ZM(1)
recovery amount protocol 4ZC, 4ZH, 4ZI(1)
refund declaration 4E(3)
registered health tonic 3A(1)
relevant approved scheme agreement template 4Q(1)
relevant beverage product 3(1)
relevant local government 4ZM(2)
relevant matter 40(2)
relevant recovery amount protocol 4ZJ(2)
Reporting Code 3(1)
requested action 28(1)
reverse vending machine 3(1)
scheme participant 3(1)
sealable aluminium can 3B(1)
specified counterparty 7A(1)
specified period 17(1)
spirituous liquor 3B(2)
submission period 3S(3), 25(2), 29(2), 30(4), 40(2)
subsidiary 3(1)
third party operator 4ZM(3)
transition day 41(1)
transition out plan 32A(1)
website annual report 18(1)
whole container 4C(1)
wine 3B(3)
wine‑based beverage 3B(1)