Industrial Chemicals (Consequential Amendments and Transitional Provisions) Act 2019

In this Schedule:

An expression used in this Schedule that is also used in the new law has the same meaning in this Schedule as it has in the new law.

Despite the repeal of the old law by Part 1 of Schedule 1, the old law continues to apply on and after 1 July 2020 in relation to registration charge imposed before that day.

Despite the repeal of the Industrial Chemicals (Registration Charge—Customs) Act 1997 by Part 1 of Schedule 1, that Act, as in force immediately before 1 July 2020, continues to apply on and after that day in relation to registration charge imposed before that day.

Despite the repeal of the Industrial Chemicals (Registration Charge—Excise) Act 1997 by Part 1 of Schedule 1, that Act, as in force immediately before 1 July 2020, continues to apply on and after that day in relation to registration charge imposed before that day.

Despite the repeal of the Industrial Chemicals (Registration Charge—General) Act 1997 by Part 1 of Schedule 1, that Act, as in force immediately before 1 July 2020, continues to apply on and after that day in relation to registration charge imposed before that day.

the registration year beginning on 1 September 2019; and

each earlier registration year.

Despite the repeal of the old law by Part 1 of Schedule 1:

section 30A of the old law continues to apply in relation to an application (the related application) for an assessment certificate for an industrial chemical made under section 23 or 23A of the old law, until a decision is made on the related application; and

until that decision is made, a permit granted under subsection 30A(3) of the old law is taken to be an authorisation for the introduction of the industrial chemical for the purposes of paragraph 24(1)(b) of the new law so long as the introduction is in accordance with any conditions that are specified in the permit under subsection 30A(10) of the old law.

To avoid doubt, subitem (1) does not limit the operation of item 13 (which deals with pending applications for assessment certificates).

This item applies to a person who was, immediately before 1 July 2020, the Director under section 90 of the old law.

For the purposes of the new law, on and after 1 July 2020, the person is taken to have been appointed as the Executive Director under section 143 of the new law.

The person holds office, on and after 1 July 2020:

on the terms and conditions that were applicable to the person immediately before that day; and

for the balance of the person’s term of appointment that remained immediately before that day.

Despite subitem (3), the Minister may, by writing, determine different terms and conditions (other than terms and conditions covered by a determination referred to in subitem (5)) that are to apply to the person for any part of the remaining balance of the person’s term of appointment.

A determination in operation under the Remuneration Tribunal Act 1973 immediately before 1 July 2020 in relation to the person:

continues in operation until another determination comes into operation in substitution for it; and

before then, may be varied in accordance with that Act.

This item applies in relation to a person if, immediately before 1 July 2020, the person was registered under the old law in relation to the registration year beginning on 1 September 2020.

For the purposes of the new law, subject to any modifications prescribed by the transitional rules:

the person is taken, on and after 1 July 2020, to be registered under the new law for the registration year beginning on 1 September 2020; and

the person’s registration number under the old law is taken to be the registration number allocated to the person under section 17 of the new law.

To avoid doubt, nothing in this item is taken to change the time at which the person was registered.

This item applies in relation to an application, if:

the application is for:

registration under section 80E of the old law; or

renewal of registration under section 80K of the old law; and

the application is in relation to the registration year beginning on 1 September 2020; and

the application is pending immediately before 1 July 2020.

For the purposes of the new law, subject to any modifications prescribed by the transitional rules, the application has effect, on and after 1 July 2020, as if it were an application made under section 16 of the new law.

This item applies in relation to an assessment certificate for an industrial chemical that is in force under the old law immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the assessment certificate is taken, on and after 1 July 2020, to be an assessment certificate issued for the industrial chemical under the new law; and

the person who was, immediately before 1 July 2020, the holder in relation to the assessment certificate is taken to be the holder of the assessment certificate under the new law; and

if the assessment certificate has been extended under the old law to cover a person—the person is taken to be covered by the assessment certificate under the new law; and

the terms of the assessment certificate under the old law are taken to be the terms of the assessment certificate under the new law; and

the notification obligations under subsections 64(1) and (2) of the old law are taken to be specific requirements to provide information to the Executive Director under paragraph 38(1)(d) of the new law.

To avoid doubt, nothing in this item is taken to change the time at which the assessment certificate was issued.

This item applies in relation to an application, if:

the application is for an assessment certificate for an industrial chemical under section 23 of the old law; and

the application is pending immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules, the application has effect, on and after 1 July 2020, as if it were an application for an assessment certificate for the introduction of the industrial chemical made under section 31 of the new law.

is taken to have been issued under the new law in accordance with item 11; or

is issued under the new law in accordance with item 13.

This item applies in relation to a commercial evaluation permit for the introduction of an industrial chemical that is in force under the old law immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the commercial evaluation permit is taken, on and after 1 July 2020, to be a commercial evaluation authorisation for the introduction of the industrial chemical issued under the new law; and

the person who was, immediately before 1 July 2020, the holder of the commercial evaluation permit is taken to be the holder of the commercial evaluation authorisation under the new law; and

the terms of the commercial evaluation permit under the old law are taken to be the terms of the commercial evaluation authorisation under the new law; and

the conditions the commercial evaluation permit is subject to under subsection 21L(1) of the old law are taken to be conditions relating to the introduction or use of the industrial chemical under paragraph 59(1)(e) of the new law; and

the remaining period for which the commercial evaluation permit would have been in force under section 21K of the old law is taken to be the period for which the authorisation is in force under the new law.

This item applies in relation to an application, if:

the application is for a commercial evaluation permit relating to an industrial chemical under subsection 21B(1) of the old law; and

the application is pending immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules, the application has effect, on and after 1 July 2020, as if it were an application for a commercial evaluation authorisation for the introduction of the industrial chemical made under section 53 of the new law.

This item applies in relation to a low volume permit in respect of an industrial chemical that is in force under the old law immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the low volume permit is taken, on and after 1 July 2020, to be an assessment certificate issued for the industrial chemical under the new law; and

the person who was, immediately before 1 July 2020, the holder of the low volume permit is taken to be the holder of the assessment certificate under the new law; and

the terms of the low volume permit under the old law are taken to be the terms of the assessment certificate under the new law; and

any conditions the low volume permit is subject to under subsection 21W(3) of the old law are taken to be conditions to which the assessment certificate is subject under paragraph 38(1)(c) of the new law; and

the condition the low volume permit is subject to under subsection 21W(1) of the old law is taken to be a specific requirement to provide information to the Executive Director under paragraph 38(1)(d) of the new law; and

section 39 of the new law applies in relation to the assessment certificate as if that section expressly limited the period for which the assessment certificate is in force to the remaining period for which the permit would have been in force under section 21V of the old law.

This item applies in relation to an application, if:

the application is for a low volume permit in respect of an industrial chemical under subsection 21R(1) of the old law; and

the application is pending immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the application has effect, on and after 1 July 2020, as if it were an application for an assessment certificate for the introduction of the industrial chemical made under section 31 of the new law; and

if the assessment certificate is issued—section 39 of the new law applies in relation to the assessment certificate as if that section expressly limited the period for which the assessment certificate is in force to the period of 3 years beginning the day the assessment certificate is issued under the new law.

is taken to have been issued under the new law in accordance with item 19; or

is issued under the new law in accordance with item 21.

is taken to have been issued under the new law in accordance with item 19; or

is issued under the new law in accordance with item 21.

This item applies in relation to a controlled use permit in respect of an industrial chemical that is in force under the old law immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the controlled use permit is taken, on and after 1 July 2020, to be an assessment certificate issued for the industrial chemical under the new law; and

the person who was, immediately before 1 July 2020, the holder of the controlled use permit is taken to be the holder of the assessment certificate under the new law; and

the terms of the controlled use permit under the old law are taken to be the terms of the assessment certificate under the new law; and

the condition the controlled use permit is subject to under subsection 22H(1) of the old law is taken to be a condition to which the assessment certificate is subject under paragraph 38(1)(c) of the new law; and

the condition the controlled use permit is subject to under subsection 22H(2) of the old law is taken to be a specific requirement to provide information to the Executive Director under paragraph 38(1)(d) of the new law; and

section 39 of the new law applies in relation to the assessment certificate as if that section expressly limited the period for which the assessment certificate is in force to the remaining period for which the permit would have been in force under section 22G of the old law.

This item applies in relation to an application, if:

the application is for a controlled use permit in respect of an industrial chemical under subsection 22B(1) of the old law; and

the application is pending immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the application has effect, on and after 1 July 2020, as if it were an application for an assessment certificate for the introduction of the industrial chemical made under section 31 of the new law; and

if the assessment certificate is issued—section 39 of the new law applies in relation to the assessment certificate as if that section expressly limited the period for which the assessment certificate is in force to the period of 3 years beginning the day the assessment certificate is issued under the new law.

is taken to have been issued under the new law in accordance with item 26; or

is issued under the new law in accordance with item 28.

is taken to have been issued under the new law in accordance with item 26; or

is issued under the new law in accordance with item 28.

This item applies in relation to the introduction of an industrial chemical if:

the industrial chemical was introduced in the registration year beginning on 1 September 2019 under the old law; and

the introduction was under paragraph 21(3)(b), subsection (4) or paragraph (6)(c) (the authorising provisions) of the old law; and

the introduction complies with:

the requirements of the relevant authorising provision, as if the relevant provision was still in force; and

regulations made in relation to the relevant authorising provision, as if those regulations were still in force; and

the introduction is made before 1 July 2021.

For the purposes of the new law, subject to any modifications prescribed by the transitional rules:

the introduction of the industrial chemical is taken, on and after 1 July 2020, to be authorised under section 27 of the new law; and

the following are taken to be the terms of the pre‑introduction report for the purposes of paragraph 27(1)(c) of the new law:

the terms of the relevant authorising provision, as if the relevant provision was still in force;

regulations made in relation to the relevant authorising provision, as if those regulations were still in force.

This item applies in relation to the introduction of an industrial chemical if:

the industrial chemical was introduced in the registration year beginning on 1 September 2019 under the old law; and

the introduction was under paragraph 21(6)(a) of the old law; and

the introduction complies with:

the requirements of that paragraph, as if that paragraph was still in force; and

regulations made in relation to the relevant authorising provision, as if those regulations were still in force; and

the introduction is made before 1 July 2021.

For the purposes of the new law, subject to any modifications prescribed by the transitional rules, the introduction of the industrial chemical is taken, on and after 1 July 2020, to be authorised under section 26 of the new law if the introduction continues to comply with:

the requirements under paragraph 21(6)(a) of the old law, as if that paragraph was still in force; and

regulations made in relation to the relevant authorising provision, as if those regulations were still in force.

This item applies in relation to a person if, immediately before 1 July 2020, the person was a holder of a confidence about an industrial chemical under the old law.

For the purposes of the new law, subject to any modifications prescribed by the transitional rules, the person is taken, on and after 1 July 2020, to be a confidence holder for an approval for the proper name or end use for the industrial chemical to be treated as confidential business information under the new law.

This item applies in relation to an industrial chemical that is listed on the Inventory with “confidential” in lieu of each term of the listing for the industrial chemical.

A person may apply to the Executive Director to be taken, for the purposes of the new law, subject to any modifications prescribed by the transitional rules, to be a confidence holder for an approval for the proper name or end use for the industrial chemical to be treated as confidential business information under the new law.

The Executive Director must grant the application if the Executive Director is satisfied that the publication of some or all of the terms of the Inventory listing for the industrial chemical could substantially prejudice the commercial interests of the applicant.

After considering the application, the Executive Director must decide to:

approve the application; or

not approve the application.

The Executive Director must:

give the applicant written notice of:

the Executive Director’s decision on the application; and

if the decision is to not approve the application—the reasons for the decision; and

do so within 20 working days after the day the application is made.

Section 167 of the new law applies in relation to the application as if the application were an application made under the new law.

This item applies in relation to an application that certain information be treated as exempt information, if:

the application was made under section 21AAA, 21P, 21ZB, 22O, 25, 29, 30B, 40D, 42, 45, 50, 60, 66 or 89 of the old law; and

the application is pending immediately before 1 July 2020.

For the purposes of the new law, subject to any modifications prescribed by the transitional rules, the application has effect, on and after 1 July 2020, as if it were an application made under subsection 113(2) of the new law in relation to the information.

This item applies in relation to:

information that was treated as exempt information under the old law; and

information for which an application to treat the information as confidential business information has been:

made under subsection 113(2) of the new law, in accordance with item 37; and

approved under paragraph 114(2)(a) of the new law.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the information is taken to be protected information; and

sections 117, 119, 121, 122 and 124 of the new law do not apply in relation to the information.

This item applies if, immediately before 1 July 2020, an industrial chemical was included in the non‑confidential section of the old Inventory.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the industrial chemical is taken, on and after 1 July 2020, to have been listed on the Inventory under the new law; and

the approved particulars under paragraphs 12(3)(db), (f) and (g) of the old law are taken to be the terms of the Inventory listing for the industrial chemical under the new law.

To avoid doubt, nothing in this item is taken to change the time at which the industrial chemical was listed on the Inventory.

This item applies if, immediately before 1 July 2020, an industrial chemical was included in the confidential section of the old Inventory.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the industrial chemical is taken, on and after 1 July 2020, to have been listed on the Inventory under the new law; and

the approved particulars under subsections 12(4) and (4A) of the old law are taken to be the terms of the Inventory listing for the industrial chemical under the new law; and

Subdivisions A and B of Division 4 of Part 6 of the new law apply as if an application for the proper name for the industrial chemical to be treated as confidential business information had been approved under subsection 108(1) of the new law; and

a reference in the new law to a requirement to publish an AACN in lieu of the proper name (including the CAS name, CAS number or molecular formula) for the industrial chemical were instead taken to be a requirement to publish “confidential” in lieu of each term of the Inventory listing for the industrial chemical.

To avoid doubt, nothing in this item is taken to change the time at which the industrial chemical was listed on the Inventory.

This item applies in relation to an application, if:

the application is for the inclusion of an industrial chemical in the non‑confidential section of the old Inventory under section 13B of the old law; and

the application is pending immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules, the application has effect, on and after 1 July 2020, as if it were an application made under section 83 of the new law for the industrial chemical to be listed on the Inventory.

This item applies in relation to an application if:

the application is for the inclusion of an industrial chemical in the confidential section of the old Inventory under subsection 14(3) of the old law; and

the application is pending immediately before 1 July 2020.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

the application has effect, on and after 1 July 2020, as if it were an application made under subsection 105(1) of the new law for the proper name for the industrial chemical to be treated as confidential business information; and

subsection 82(2) of the new law applies as if:

paragraph (2)(b) did not apply; and

paragraph (2)(c) were instead a requirement for a decision to have been made on the application and for the reconsideration and review rights under section 166 of the new law in relation to the decision to have been exhausted or have expired; and

paragraph (2)(d) did not apply; and

if the application is approved:

paragraph 108(3)(a) of the new law does not apply in relation to the industrial chemical; and

a reference in the new law to a requirement to publish an AACN in lieu of the proper name (including the CAS name, CAS number or molecular formula) for an industrial chemical is instead taken to be a reference to a requirement to publish “confidential” in lieu of each term of the Inventory listing for the industrial chemical.

This item applies in relation to an industrial chemical if:

immediately before 1 July 2020 an assessment certificate for the industrial chemical was in force under the old law; and

the Executive Director has given notice to a holder of the assessment certificate that the industrial chemical is to be listed on the Inventory; and

the notice was given under subsection 14(2) of the old law or paragraph 82(2)(a) of the new law.

The holder of the assessment certificate may apply to the Executive Director for “confidential” to be published in lieu of each term of the Inventory listing for the industrial chemical.

For the purposes of the new law, subject to this Part and any modifications prescribed by the transitional rules:

an application made under subitem (2) is taken to be an application made under subsection 105(1) of the new law for the proper name for the industrial chemical to be treated as confidential business information; and

subsection 82(2) of the new law applies as if:

paragraph (2)(b) did not apply; and

paragraph (2)(c) were instead a requirement for a decision to have been made on the application and for the reconsideration and review rights under section 166 of the new law in relation to the decision to have been exhausted or have expired; and

paragraph (2)(d) did not apply; and

if the application is approved:

paragraph 108(3)(a) of the new law does not apply in relation to the industrial chemical; and

a reference in the new law to a requirement to publish an AACN in lieu of the proper name (including the CAS name, CAS number or molecular formula) for an industrial chemical is instead taken to be a reference to a requirement to publish “confidential” in lieu of each term of the Inventory listing for the industrial chemical.

each confidence holder for an approval for the proper name or end use for the industrial chemical to be treated as confidential business information; and

if:

a person has inquired of the Director, under subsection 18(2) of the old law, about whether the industrial chemical is included in the confidential section of the old Inventory; and

the Director was satisfied, under paragraph 18(2)(b) of the old law, that the person intended to introduce the chemical;

if subsection 120(2) of the new law applies to a person in relation to the industrial chemical—each such person.

each confidence holder for an approval for the proper name or end use for the industrial chemical to be treated as confidential business information; and

if:

a person has inquired of the Director, under subsection 18(2) of the old law, about whether the industrial chemical is included in the confidential section of the old Inventory; and

the Director was satisfied, under paragraph 18(2)(b) of the old law, that the person intended to introduce the chemical;

if subsection 120(2) of the new law applies to a person in relation to the industrial chemical—each such person.

the reference in paragraph 110(1)(a) of the new law to 5 years having passed since notice of the approval was given were instead a reference to 5 years having passed since the industrial chemical was included in the confidential section of the old Inventory; and

a review of the inclusion of the industrial chemical in the confidential section of the old Inventory under section 19 of the old law were taken to be a review under section 110 of the new law.

Anything done by, or in relation to, the Director under the old law before 1 July 2020 has effect on and after that day as if it had been done by the Executive Director under the new law. However, this is not taken to change the time at which the thing was actually done.

The Minister may, by writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Director before 1 July 2020.

A determination made under subitem (2) is not a legislative instrument.

If the operation of this Act, or the transitional rules, would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

The Minister may, by legislative instrument, make rules prescribing matters:

required or permitted by this Act to be prescribed by the rules; or

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

The rules may also prescribe matters of a transitional nature (including prescribing any saving or application provisions) relating to:

the repeals or amendments made by this Act; or

the enactment of this Act or the Industrial Chemicals Act 2019.

Without limiting subitem (1) or (2), rules made before 1 July 2022 may provide that this Act or any other Act or instrument has effect with any modifications prescribed by the rules.

Subsection 12(2) of the Legislation Act 2003 does not apply to rules made before 1 July 2022.

Subsection 12(2) of the Legislation Act 2003 is about the retrospective application of legislative instruments.

To avoid doubt, the rules may not do the following:

create an offence or civil penalty;

provide powers of:

arrest or detention; or

entry, search or seizure;

impose a tax;

set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

directly amend the text of this Act.

This Act (other than subitem (5)) does not limit the rules that may be made.