Discussion Paper - Review of the National Industrial Chemicals Notification and Assessment Scheme: June 2012

Part 4 - The Regulatory Framework for Industrial Chemicals

Page last updated: 30 March 2012

The current situation

As noted in Part 1 of this Discussion Paper:
  • the overall chemicals framework in Australia comprises a variety of bodies performing functions (policy oversight, risk assessment, risk management and enforcement) across a number of sectors (work health and safety, public health, the environment, product safety, transport)
  • NICNAS is one of four chemical assessment and registration schemes that operate in a complementary manner at the national level.
A key role of NICNAS is to undertake evidence-based assessments of certain chemicals and make risk management recommendations to Commonwealth, State, Territory and local government agencies. These other risk managers are then responsible for considering NICNAS recommendations and determining any necessary risk management conditions to control the use, release and disposal of industrial chemicals. This ensures that public health, worker safety and environmental risks can be managed as far as possible across the multiple sectors within the overall chemicals regulatory framework.

The areas of regulation (managed by other Commonwealth, state and territory bodies) include:
  • public health through the Standard for the Uniform Scheduling of Medicines and Poisons (the Poisons Standard). The purpose of the Poisons Standard is to promote uniformity in the scheduling of substances and in labelling and packaging requirements across the States and Territories
  • work health and safety. Safe Work Australia has the primary responsibility of improving work health and safety and workers’ compensation arrangements across Australia. Through Safe Work Australia, Commonwealth, state and territory legislation imposes a duty of care on employers to protect workers from the risks of hazardous chemicals
  • consumer product safety issues. The Australian Competition and Consumer Commission (ACCC) has responsibility for the regulation of consumer goods, which are products for personal, domestic or household use. Under the Australian Consumer Law, the ACCC advises the Minister responsible for Competition Policy and Consumer Affairs who may ban or compel the recall of consumer goods that will, or may, cause injury to any person. The Minister may also make or declare a mandatory safety standard or a mandatory information standard for particular consumer goods. The ACCC and state and territory consumer protection agencies share responsibility for monitoring compliance and enforcing these regulations.
  • environmental management. Commonwealth, state and territory agencies monitor and manage industrial chemicals in the environment2
  • the land transport of dangerous goods is regulated under state and territory legislation that reflects the Australian Dangerous Goods Code Road and Rail (the Code). The Code sets out consistent technical requirements for the land transport of dangerous goods across Australia.
In addition to the role it plays in risk assessment and recommendation, NICNAS also:
  • directly regulates the use of certain industrial chemicals via a system of exemptions, permits and annotations on AICS. This is discussed in more detail in Part 5
  • undertakes some monitoring of chemical use through review of annual reports for exemptions, notifications for permits, notifications for certificates, assessing existing chemicals on a priority basis and registration of chemical introducers
  • undertakes compliance and enforcement activity related to registrations, exemptions, permit conditions and annotations on AICS
  • makes risk assessment and safety information for industrial chemicals widely available
  • gives effect to Australia’s obligations under international agreements
  • establishes and enforces national standards for cosmetics imported into, or manufactured in Australia.

The problem

As noted by stakeholders, the problems with the existing system are:
  • the system is fragmented and complex and stakeholders have difficulty understanding the linkages between the regulators and their respective responsibilities. Stakeholders have noted that there are approximately 5 Ministerial Councils and in excess of 36 different Commonwealth, state and territory agencies involved in policy setting, risk assessment or risk management in relation to industrial chemicals
  • there are gaps in regulatory coverage for industrial chemicals as well as areas of duplication (as identified in the PC Report and discussed further in Part 5 of this Discussion Paper)
  • there is no common risk framework that applies across all of the agencies responsible for risk assessment and management in relation to industrial chemicals.
In addition, NICNAS has several MoUs and agreements with the relevant risk management agencies, a number of which are now outdated and not necessarily reflective of current roles and responsibilities. For example, a current MoU with State and Territories was signed in 1991 around the time that NICNAS was established.

The objectives of any reform

While continuing to operate within the existing multi-jurisdictional framework, the outcomes sought through this review are to:
  • clarify the relative roles and responsibilities of the different agencies
  • improve understanding of the regulatory system for industrial chemicals
  • better describe the risk assessment and management framework within which NICNAS operates.
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Possible options for reform

As noted in Part 1 of this Discussion Paper, this review is focussed on NICNAS and its role within the industrial chemical regulatory framework, rather than the broader framework for chemicals regulation generally. The review is therefore limited in terms of the recommendations that can be made in relation to the broader framework for chemicals regulation generally, and industrial chemicals specifically.

However, given the significant concerns expressed by stakeholders about the fragmentation and lack of clarity, it is important that this review considers proposals that relate to NICNAS but also have the potential to improve the system as a whole.

Following are some possible options for reform which could be implemented as a package, individually or as a combination of options.

A1. A detailed industrial chemicals risk assessment and management manual be developed. The manual would:
  • describe the roles and responsibilities of each of the agencies involved in risk assessment and management of industrial chemicals
  • describe NICNAS’ processes and approach to risk assessment and management
  • explain how NICNAS’ processes and approach interact with other risk assessors and managers of industrial chemicals.

A2. Following the cessation of the Standing Committee on Chemicals3, an ongoing Australian Government cross-portfolio group be established to consider chemical policy issues for the Australian Government. The group could for example: work to minimise duplication between Australian Government agencies; identify and develop options to address ‘gaps’ in regulatory coverage; and facilitate a co-ordinated approach to risk.

A3. Memorandum of Understanding (MOU) between NICNAS and other agencies (both Commonwealth and State and Territory) be reviewed and re-negotiated (or new ones developed) to ensure clarity regarding relative roles and responsibilities.

It should also be noted that many of the proposed reforms detailed in the following Parts are aimed at reducing duplication, closing gaps and improving clarity. To that end, they also contribute to the overall improvement of the regulatory framework for industrial chemicals.

Input sought from stakeholders

Do you think that an industrial chemicals risk assessment and risk management manual would assist? If not, why not?

If so, what are the specific matters that could usefully be addressed in the manual?

What are the strengths and weaknesses of the options?

2 Note that the Productivity Commission (PC) recommended the development of a national approach to environmental management of chemicals, which is being progressed, through the Standing Committee on Environment and Water, in parallel with the review of NICNAS.

3The Standing Committee on Chemicals (SCOC) was established by the Council of Australian Governments under a Memorandum of Understanding to achieve an effective and efficient national system of chemicals and plastics regulation. The Memorandum of Understanding establishing SCOC expires on 7 December 2014. Further information is available at SCOC.

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