Thoughts on waste in NSW part 2: plastics and product stewardship – is NSW doing enough?

There have been a number of recent developments in the plastics and product stewardship space. Most recently, the Plastic Reduction and Circular Economy Act 2021 (NSW) (PRCE Act) was passed by New South Wales parliament. How do these developments stack up and do they go far enough in curbing plastic waste and pollution?

Snapshot

• New South Wales recently passed the PRCE Act. It seeks to ban certain plastic products and to facilitate product stewardship requirements and targets.
• The PRCE Act has an extensive exemption regime, meaning a number of single-use plastics will remain in use in NSW.
• At the national level, further progress has been made, with the ban on waste exports and National Waste Policy Action Plan.

PRCE Act now in force, but does it go far enough?

On 29 November 2021, the PRCE Act came into force in NSW. The Act:

• establishes a power to make product stewardship requirements to regulate the life cycle of a product, including development, design, creation, production, assembly, supply, use or re-use, recovery, recycling or disposal. (Regulations establishing product stewardship requirements are yet to be made); and
• bans a number of plastic items and makes it an offence to supply prohibited plastic items. The bans will come into force progressively from June 2022, they will apply to items such as:
  • lightweight plastic bags from 1 June 2022;
  • other items from 1 November 2022, including single-use plastic straws, cutlery, stirrers, cotton buds, plates and bowls, and expanded polystyrene food service items; and
  • microbeads in cosmetic and personal care items, which will be phased out under a design standard from November 2022.

The PRCE Act will regulate the amount and quality of plastic items (and, in particular, single-use items) in use in NSW. However, the Act has an extensive exemption regime which permits the continued use of some plastics.

Some exemptions are necessary, for instance, the supply of plastic drinking straws for people with a disability or a medical requirement. However, a number of the exemptions go beyond this, for example the PRCE Act:

• does not ban ‘integrated packaging’ – being packaging used to seal or contain food e.g. a spoon sealed within packaging of yoghurt;
• bans ‘lightweight plastic bags’ but defines such bags narrowly to mean a bag with handles and does not include bags used to protect unpackaged food; and
• bans single use items such as straws, stirrers and bowls, but permits plastic bowls designed or intended to have a spill-proof lid (whether separate or attached).

Although the PRCE Act makes some overdue progress, it is not revolutionary or market-leading.

The PRCE Act will largely align the NSW position with other Australian jurisdictions. South Australia was the first state to introduce this kind of legislation, with bans commencing from March 2021. This was followed by the Australian Capital Territory in July 2021 and Queensland from September 2021. Victoria is proposing a ban from 2023.

The European Union banned plastic straws, stirrers, cutlery, plates and cups including their covers and lids from July 2021. The UK is using a 2-pronged approach with both legislated bans and a plastic packaging tax applied to plastic that is less than 30% recycled.

At the national level, the Commonwealth Government is also increasing its product stewardship requirements for plastics and other waste

• In 2019, the National Waste Policy Action Plan was released. The plan established seven national waste targets, including a ban on the export of waste, achieve an 80% average resource recovery rate by 2030 and reduce total waste generated by 10% per person by 2030.
• In 2020, the Recycling and Waste Reduction Act 2020 (Cth) came into effect, which will introduce bans on exporting certain types of waste. From 1 July 2022, plastic waste will only be able to be exported if it is sorted into single resin/polymer type and processed for further use or processed into engineered fuel.
• In 2021:
• A review of the National Environment Protection (Used Packaging Materials) Measure 2011 was conducted. The findings of the review are anticipated to be released by the end of 2021.
• Problematic and single-use plastics were added to the Minister’s Priority List for 2021-22. The Minister’s Priority List identifies products requiring a product stewardship approach. Nominations for products to be included on the Minister’s Priority List for 2022-23 are open until 17 December 2021.
• The National Plastics Plan was released. The plan records a number of existing initiatives, but also identifies new initiatives such as recycling targets for specific types of plastics.

Looking forward

Although progress on plastic product stewardship in NSW could be stronger, the PRCE Act makes a movement in the right direction and aligns NSW with other Australian and international jurisdictions.

The increasing focus on reducing single-use plastic and introducing product stewardship schemes signals the potential for increased regulatory activity in this area.

To have a significant impact, regulations and technical innovations will both be required to change consumer and producer behaviour. We note that plastics are only one item on the product stewardship/ circular economy regulation agenda. E-waste and electronics are also in line for further regulation.

By Peter Briggs, Partner, Rebecca Davie, Senior Associate, Brigitte Rheinberger, Solicitor and Rebecca Saleme, Vacation Clerk.