The bill would enable the Authority, through notice in the Gazette, to recognise overseas bodies as “international regulators” if they meet certain criteria. The Authority could then use information from international regulators to:

• carry out a rapid assessment for hazardous substances, using a process created in the bill (clause 5)

• update hazard classifications of substances and corresponding controls, following a simplified process created under the bill (clause 9)

• make a decision to temporarily restrict certain uses of a hazardous substance if certain criteria are met, which could be based on international information (clause 10).

The bill seeks to make the following improvements to the Authority’s reassessment processes:

• enabling the Authority to engage in more targeted consultation during modified reassessments (clause 7)

• requiring the Authority to develop a publicly available work plan for reassessments (clause 4)

• providing a simplified process for the Authority to update hazard classifications of substances when the Authority has undertaken a recent assessment of a related hazardous substance (clause 9)

• enabling the delegation of some decision-making powers in certain situations, such as the simplified process for updating hazard controls, if the Authority decides not to consult (clause 15)

• enabling the Authority to align the time frames for the assessment and reassessment of related hazardous substances (clause 8)

• enabling the Authority to temporarily restrict certain uses of a hazardous substance, subject to specific requirements being met (clause 10).

We note that clause 27 of the bill would create a strict liability offence for breaching a temporary restriction on the use of a hazardous substance under new section 64A. Clause 28 of the bill would create a corresponding penalty of a fine not exceeding $50,000 for a natural person or $100,000 for other legal persons (such as a company). The new offence and penalty are similar in approach to existing offences and penalties in the Act.

The bill would make three changes to the Act that are unrelated to improving assessments, but that would assist in improving the Act’s overall operation. The changes are:

• clarifying that, under section 68, the Minister can call-in decisions relating to reassessments (as well as assessments)

• correcting certain sections of the Act so they refer to the powers of entry for inspection in both sections 103 and 103A

• creating a penalty for the offence set out in section 109(1)(da) for failing to comply with certain notices from the Authority.

These amendments are to address omissions or provide clarification to previous amendments to the Act.

Clause 4 of the bill would insert section 20B into the Act, setting out the notification requirements when the Authority makes certain decisions. We understand that the processes prescribed in the new section are the current practice of the Authority, and the bill would make them a statutory requirement.

New section 20B provides that, when the Authority makes certain decisions¹ on applications, it would be required to:

• give its decision in writing

• give written notice of its decision to the applicant, and to every person who made a submission

• give public notice of the decision as soon as possible.

The Authority could withhold any information if it deemed information relating to transhipment was a risk to national safety and security.

We consider that, rather than just giving written notice of a decision to the applicant and submitters, the new section should require the Authority to give a copy of the decision to the applicant and submitters. We recommend amending clause 4, proposed section 20B(1)(b) accordingly.

We understand that the Authority’s current practice also includes publishing its decisions on approvals. Our expectation is this practice would continue.

Under the Act, hazardous substances that are approved are approved in perpetuity. However, there can be reassessments when new information or other circumstances come to light that indicate the need to review a hazard classification, controls, or the approval itself. The Authority’s chief executive can initiate reassessments. However, anyone can ask the Authority to initiate a reassessment.

Clause 4 of the bill would insert section 20C into the Act. New section 20C would create a statutory requirement for the Authority to develop a work plan that sets priorities for reassessments of hazardous substances. The plan must include a list of substances (or groups of related chemicals or substances) to be reassessed, and indicative time frames for the start of work on each. The work plan would need to:

• give priority to certain hazardous substances that are either prohibited or restricted during a reassessment under sections 64 and 64A of the Act

• be made available free of charge on an Internet site maintained by, or on behalf of, the Authority

• be updated at least once each calendar year.

We propose two amendments to new section 20C, which we discuss below.

The bill seeks to allow the Authority to make better use of information from international regulators, including in the following ways:

• Clause 5 would amend section 28A of the Act to enable the Authority to make a rapid assessment of a hazardous substance if the use of that substance, or a substance of similar composition or hazardous properties, has already been lawfully authorised by an international regulator.

• Clause 9 would insert new section 63D, which would enable the Authority to do a modified reassessment to change a hazard classification or control to align with a classification or control set either by an international regulator or by the Authority for a related substance.

Clause 11 would insert new section 76E into the Act to provide the process for determining an overseas body’s status as an “international regulator” for the purposes of sections 28A and 63D. The Authority could, by notice in the Gazette, recognise one or more overseas bodies as international regulators for the purposes of decision-making under sections 28A and 63D.

We think that the new section should be amended to provide an express power to amend notices about international regulators. The power to amend a notice should be carried out taking into account the same process and considerations as when making a notice. An exception to this should be where the Authority considers an amendment is minor in effect or corrects a minor or technical error.

We recommend inserting new section 76E(4) accordingly.

As discussed earlier in our commentary, clause 10 would insert new section 64A into the Act, giving the Authority a power to temporarily restrict the use of a hazardous substance during reassessment if certain circumstances are met.

This new section would complement existing section 64 of the Act. Under section 64, where a decision to reassess a hazardous substance has been publicly notified under section 63(2), the Authority can prohibit the use of a hazardous substance during the reassessment if certain circumstances are met.

We propose amending a typographical error in section 64. Where the section references “a decision to reassess”, it should refer to “an application to reassess”, to provide consistency with section 63(2) to which it refers.

We recommend inserting clause 24A into the bill to amend section 64 of the Act accordingly.