Thursday, 15 August 2019

The DEPUTY PRESIDENT (18:00): I have a message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Environment Protection Act 1970 to prohibit the provision of certain plastic bags and to prevent the provision of misleading information relating to plastic bags and to make technical and consequential amendments to the Environment Protection Amendment Act 2018 and for other purposes’.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:01): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Ms MIKAKOS: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:01): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the ‘Charter’), I make this Statement of Compatibility with respect to the Environment Protection Amendment Bill 2019.

In my opinion, the Environment Protection Amendment Bill 2019, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Environment Protection Amendment Bill 2019 amends the Environment Protection Act 1970 to introduce a ban on lightweight plastic shopping bags and creates related offences. The Bill bans the provision by retailers of all bags with handles that comprise, either wholly or partly, plastic; and where any part of the bag has a thickness of 35 microns or less, including degradable, biodegradable and compostable plastic. The Bill provides for new offences relating to the supply of banned plastic bags (the ‘supply offence’) and the provision of false information as to the composition of a banned plastic bag and, whether a plastic bag is a banned plastic bag (the ‘information offence’). New compliance and enforcement powers are included, which will enable the Environment Protection Authority (EPA) or authorised officers to issue remedial notices and prevent and respond to breaches of the new ban provisions.

The Bill also makes a number of unrelated amendments to the Environment Protection Amendment Act 2018 to make technical changes and rectify minor errors in that Act. When the key provisions of the Environment Protection Amendment Act 2018 commence, the Act will repeal the Environment Protection Act 1970 to set out a reformed environment protection framework. The Bill provides for the errors in the Environment Protection Amendment Act 2018 to be rectified ahead of the commencement of the relevant provisions. These amendments will ensure the original intent of the Act is given effect. They do not give rise to any new Charter issues beyond those outlined in the Statement of Compatibility in relation to the Environment Protection Amendment Act 2018.

Human Rights Issues

The human rights protected by the Charter that are relevant to the Bill are:

•   The right to privacy and reputation (section 13);

•   Property rights (section 20); and

•   The right to be presumed innocent (section 25(1)).

The right to privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Adverse publicity order

If a person is found guilty of either the supply offence or the information offence contained in the Bill, they may be made subject to one of the penalties contained in existing section 67AC of the Environment Protection Act 1970, including an order that they take action to publicise the offence or related matters.

To the extent that this may interfere with a person’s privacy or reputation, in my view any such interference will be lawful and not arbitrary, and therefore will not limit the right to privacy. Any interference with a person’s privacy or reputation arising from an adverse publicity order made under section 67AC relating to a finding of guilt would be lawful, as it is provided for by the clear provisions of the Act. Such an order will also not be arbitrary as it serves legitimate purposes of deterrence and informing the public of wrongdoing, and will have been subject to the safeguards that apply to court proceedings including the obligation to provide the offender with a fair hearing. Further, any information made public pursuant to an adverse publicity order is likely to already be in the public domain as a result of the court proceedings.

Authorized officer power of entry

Section 55(1) of the Environment Protection Act 1970 sets out the current circumstances in which an authorized officer may enter premises for compliance purposes. The powers of entry in section 55(1), in their current form, do not enable an authorized officer to enter retail premises to determine whether a retailer complies with the plastic bag ban. Failing to extend these powers of entry would limit the EPA’s ability to prevent environmental harm through enforcing the ban, which largely relies on regulation at the point of supply to effect a reduction in the number of plastic bags in circulation.

To ensure that the ban is effective, clause 7 of the Bill amends section 55(1) of the Environment Protection Act 1970 to extend existing powers of entry of authorized officers to enter, ‘at any reasonable time, any retail premises’. The purpose of extending powers of entry to retail premises is to ensure compliance with the new plastic bag offences at the point of supply. I acknowledge that these powers of entry may result in interferences with the privacy of occupants in retail premises; however, in my view, any such interferences will be lawful and not arbitrary and therefore not amount to a limit on the right to privacy.

The proposed expanded powers of entry onto retail premises are proportional to the existing powers of entry afforded to authorized officers under the Environment Protection Act 1970 onto other regulated premises; and consistent with the Environment Protection Act 2017 amendments which are yet to take effect. As the exercise of the proposed powers of entry will be lawful, compatibility with the right to privacy turns on whether any interference they may cause is arbitrary. The prohibition on arbitrariness requires that the interference with privacy must be reasonable in the circumstances of the law’s legitimate purpose.

Clause 7 provides appropriate safeguards to reduce the potential for these interferences to be arbitrary in nature. For example, the exercise of these powers of entry is permitted ‘at any reasonable time’. This requires authorised officers to consider, on every occasion they propose to exercise these powers of entry, whether entering at that time is ‘reasonable’. Further, the criteria contained in section 55 that apply to the existing powers of entry will also apply in this case, including the requirement that the entry be only for a permitted purpose such as to determine whether there has been compliance with or any contravention of the Act. These statutory requirements mean that the powers of entry do not apply at large, and will protect against unreasonable or arbitrary exercise of the proposed powers of entry.

Additionally, the proposed powers of entry to retail premises are rationally connected to the purpose of reducing the provision of banned plastic bags from the retail premises. Without extending the powers of entry to retail premises, the ability of EPA to enforce the plastic bag ban would be frustrated. Failing to extend these powers would limit the EPA’s ability to enforce the ban, and therefore the effectiveness of the policy, noting that a reduction in the number of plastic bags in circulation relies on regulation at the point of supply.

I consider that any interference with privacy under the proposed powers of entry will be lawful and not arbitrary, as it will be reasonable in the circumstances and proportional to the end sought.

Property rights

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

Seizure and forfeiture of property

Section 55(1) of the Environment Protection Act 1970 provides that an authorized officer may take and remove samples to determine whether there has been compliance or contravention with the Environment Protection Act 1970 and to protect the environment. Under the Bill, enforcing compliance with the plastic bag ban will be subject to the existing enforcement scheme contained in the Environment Protection Act 1970, including the seizure power in section 55(1). This means that when enforcing the supply and information offences under proposed sections 45ZM and 45ZN, a retailer may be deprived of samples of plastic bags which are suspected of being banned plastic bags.

However, any exercise of the seizure powers by the EPA would be in accordance with the law as formulated by these precise provisions. In my view, any deprivation of property through the enforcement of the plastic bag ban will be reasonable and lawful and is therefore compatible with section 20 of the Charter.

The right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

The supply offence in proposed section 45ZM, contained in clause 6 of the Bill, constitutes a strict liability offence for the provision of banned plastic bags. In order for the offence to be made out, the prosecution will only have to prove the conduct of the retailer, namely the prohibited provision of the plastic bag, occurred. The creation of a strict liability offence removes the requirement for the prosecution to prove the element of fault. This gives rise to a risk that a person may be found guilty of the offence where they did not know that they were providing a banned plastic bag, although a person does not commit a strict liability offence if they act under an honest and reasonable mistake as to the existence of facts which, if true, would have made that conduct innocent.

The availability of the defence of honest and reasonable mistake of fact that applies to strict liability offences may appear to engage the Charter right to be presumed innocent of a criminal charge until proven guilty, to the extent that in order to raise that defence, a person would be required to adduce some evidence that he or she acted under an honest and reasonable mistake. However, the prosecution retains the burden of proving the absence of an honest and reasonable mistake.

Further, the proposed strict liability offence serves an important public purpose as it is fundamental to the effective deterrence of the supply of banned plastic bags. As such, it is justified in preventing the serious environmental harm that results from the widespread dissemination of plastic bags from multiple points of supply. The ban’s enforcement regime would be undermined if the EPA was required to prove mental intent, knowledge or recklessness for each prosecution.

In my view, a less restrictive measure of enforcement, such as by creating an exception for reasonable excuse for supply, would not be appropriate considering the strong public interest in preventing indelible harm to the environment through the dissemination of banned plastic bags. I do not consider that the supply offence being one of strict liability limits the right to be presumed innocent as it only places an evidential burden on an accused. Moreover, for the reasons stated here, I consider the imposition of strict liability for the supply offence is necessary and appropriate in the circumstance.

Hon Gavin Jennings MLC

Special Minister of State

Minister for Priority Precincts

Minister for Aboriginal Affairs

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:01): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Ms MIKAKOS: I move:

That the bill be now read a second time.

Incorporated speech as follows:

This Bill will achieve two objectives—to introduce a ban on lightweight plastic shopping bags, and to correct minor technical errors in the Environment Protection Amendment Act 2018.

The problems with plastic

Plastic is ubiquitous in our society. Because it is light and inexpensive—much cheaper than other materials—it has become an almost indispensable material across all sectors of the economy. We recognise that plastic is fundamental to our modern lives and is used in sectors ranging from construction and transportation to healthcare and packaging. We acknowledge its important role in the global economy—including Victoria’s. It protects goods against contamination, preserves food and because it’s light—reduces weight in transportation, saving fuel and reducing greenhouse gas emissions from transport.

However, one of the adverse effects of the omnipresent nature of plastics has been the rise of a throwaway culture centred on convenience. Single-use plastic items, many of which are used for minutes or even seconds, have become commonplace in our society, yet they can take hundreds of years to break up in the environment. Microplastics, which are very small pieces of plastic that pollute the environment, have been recognised by the Environment Protection Authority as an emerging pollutant of concern. When plastic waste ends up in the environment, it becomes increasingly problematic to manage and can be devastating for animals and entire ecosystems. Reducing the number of plastic bags we use is an important part of addressing the overall impact of plastic pollution in Victoria.

We are addressing the growing issue of plastics

The Bill I am introducing today will implement a ban on lightweight plastic shopping bags in Victoria. It is an important milestone in tackling problematic plastics in our environment and will deliver positive outcomes for our natural environment, animal life, waste stream and our public amenity. The ban will encourage greater uptake of reusable bags and build on positive momentum that has been growing in our communities towards embracing more sustainable alternatives.

The Bill bans the provision of all lightweight plastic shopping bags made—in whole or part—of plastic, where any part of the bag has a thickness of 35 microns or less. The ban will include biodegradable, degradable and compostable plastic bags as we know they have comparable impacts on the environment.

The ban will result in significant behaviour change by preventing retailers from providing shoppers a banned plastic bag. The ban also prohibits retailers, wholesalers and manufacturers from providing false or misleading information about the composition of a banned plastic bag; or whether a bag is banned. This includes the omission of information that a retailer, wholesaler or manufacturer should reasonably know about a bag’s composition, or whether it is in fact a banned or exempt plastic bag. Similar to other jurisdictions, the Bill introduces penalties for the two offences I have just outlined.

The Bill will also correct minor technical errors in the Environment Protection Amendment Act 2018, expected to commence on the first of July 2020. That Act was passed to comprehensively reform Victoria’s environment protection laws. The technical amendments will ensure the new legislation operates as intended.

We have worked closely with Victorian communities and businesses during the development of the plastic bag ban. We have learnt from other jurisdictions, both in Australia and overseas, and from these experiences we have designed a ban that will produce the right outcomes for Victoria. The ban builds on initiatives already taken by retailers in Victoria to stop providing lightweight plastics bags, including most recently Coles and Woolworths in July 2018. The ban will not only reduce plastic pollution and the consequential negative impacts on our environment, wildlife and amenity, it will also build awareness and encourage all Victorians to use more sustainable products and packaging. It will help inspire the adoption of circular economy principles, where avoidance and reuse are encouraged as much as possible.

We have observed the recent introduction of plastic bag bans elsewhere in Australia and have aligned our approach with that taken in other jurisdictions to ensure consistency for retailers and suppliers, some of whom operate in a national market. National consistency is also important for consumers who can travel between jurisdictions in the knowledge that the policy on lightweight plastic bags is the same wherever they go. The ban will also help reduce the rate of contamination from plastic bags in kerbside recycling bins, and improve sorting, reprocessing and the quality of recyclable packaging. Through this ban we support global efforts to improve the productive use of finite resources, reduce greenhouse gas emissions and tackle the impacts of single-use plastics.

We have listened to the views of the Victorian community and are therefore putting a ban in place by the end of 2019. This Bill provides for this, via amendments to the Environment Protection Act 1970. The legislative framework for environmental protection has recently been overhauled by the Environment Protection Amendment Act 2018, which is expected to commence on the first of July 2020. The new legislation will include broader regulation-making powers, including the ability to ban plastic bags, and expanded powers of entry and inspection by authorised officers to aid enforcement of the ban. Introducing a plastic bag ban in 2019 therefore requires the ban to initially take effect through amendments to the Environment Protection Act 1970, and then continue under regulations to be made under the Environment Protection Act 2017.

Preparing retailers and consumers

To ensure Victorian retailers are ready for the ban, the government has engaged the National Retail Association to deliver a 12-month education and engagement program. The program will focus on in-store face-to-face engagement with small-to-medium businesses across Victoria, providing information in accessible ways, and encouraging long-term sustainable packaging solutions. In implementing this program, the National Retail Association draws on years of experience in the retail sector and utilises its extensive network and learnings from similar programs it’s run in Queensland and Western Australia as part of the implementation of plastic bag bans in those states. By its nature, the program will also assist in promoting the ban to consumers, including through signage at retail outlets.

Sustainability Victoria commenced a consumer-targeted education campaign, ‘Better Bag Habits’ in 2018 to get the Victorian public ready for the ban. This innovative campaign involved comedian Sam Simmons singing instructions to the public to remember their ‘Bag, Wallet, Keys & Phone’. The catchy tune reached almost six million consumers. Sustainability Victoria will deliver Phase 2 of this campaign across Victoria in the months leading up to the ban taking effect in November.

We are listening to the Victorian public

We know that the Victorian community takes the issue of plastic pollution very seriously. Our public consultation on plastic pollution, held in 2018, received over 8,000 submissions—more than any public consultation undertaken by the government that year. Respondents expressed strong support for a ban on lightweight plastic shopping bags, with more than 96 per cent of submissions supporting a ban.

We also heard that the Victorian community wants more action on plastic pollution. We are therefore committed to turning the tide on plastic pollution entering the Victorian environment.

We know that the problem with plastic starts long before it reaches our natural environment. Plastic waste and pollution are symptomatic of an imperfect system in which most products are designed with little or no consideration of what happens to them after they are used. We must move upstream and tackle the plastic pollution at its source.

To enjoy the benefits that plastic brings to all of us without compromising the Victorian environment, we need to align our entire plastics system around a common vision, namely to:

• Eliminate plastic we do not need and replace those we do with sustainable alternatives

• Support innovation so purposeful plastics are designed to be safely reused, recycled or composted

• Circulate everything we use, making sure the plastic we produce stays in the economy and never becomes waste or pollution.

To achieve this vision, the Victorian Government has committed to developing and implementing several complementary policies, in line with national and international best practice, which will reduce plastic pollution, transition Victoria to a circular economy and improve the value of our recycling system.

We have committed to developing a Plastic Pollution Prevention Plan to prioritise the most effective actions to reduce plastic pollution in Victoria. To help guide this plan, we established a reference group of government, industry, community, environmental and academic representatives to provide strategic and expert advice on how plastic pollution can be tackled both at source and in the environment. By 2025, we want to see Victoria leading the country in tackling plastic pollution.

Shifting Victoria to a more circular economy can reduce waste generation, increase reuse and recycling of resources and improve waste management. Our circular economy policy and action plan will provide clear policy direction on resource productivity in Victoria. It will consider how governments, businesses and households can all avoid waste, make better use of materials and resources, prolong the life of infrastructure and products, and increase reuse and recycling.

The Victorian Government recognises that more needs to be done to increase the resilience of the recycling sector which is why the government released the Recycling Industry Strategic Plan (the Plan) in July 2018 and committed $37 million from the Sustainability Fund to implement it. The central vision of the Plan is that Victoria’s recycling sector transitions to a more resilient, sustainable model. The Plan’s main objectives are to increase our capacity to locally sort and process our recyclable waste, build demand for recycled products, and educate the community to recycle more effectively. This will reduce our reliance on export markets, and therefore our exposure to future market disruptions.

The Victorian Government is tackling the challenges facing the recycling industry and helping to reduce plastic pollution with a new $34.9 million package of recycling reforms in its 2019–2020 state budget.

This latest package has been committed towards immediate priorities to strengthen the Victorian recycling sector and builds on the strong foundations of the $37 million Recycling Industry Strategic Plan—bringing this government’s total investment in the waste and resource recovery industry to more than $135 million over the last four years to 30 June 2019.

Conclusion

To close, I want to acknowledge the countless people—volunteers and other dedicated people—who give their time and energy to combatting problematic plastics in our environment. Their commitment to the health of Victoria’s environment and actions to conserve it for future generations is commendable. And to all the individuals and organisations who have been advocating for the introduction of a ban on lightweight plastic bags—thank you for your efforts. We heard you and now it’s done.

I commend the Bill to the house.

 Mr ONDARCHIE (Northern Metropolitan) (18:02): I move, on behalf of my colleague Ms Wooldridge:

That debate on this matter be adjourned for one week.

Motion agreed to and debate adjourned for one week.