South Australia was the first in Australia to introduce a single-use plastic ban on 1 March 2021 when the Single-use and Other Plastic Products (Waste Avoidance) Act 2020 (the Act) came into force. At that time the Act applied to single use plastic straws, cutlery and beverage stirrers only but on 1 March 2022 the ban was extended to other plastic products including polystyrene cups, bowls and plates as well as oxo-degradable plastic products.
Whilst the Act is clear in its intention to prohibit the distribution, sale and supply of certain single-use and other plastic products defined as “prohibited plastic products” it is less clear how these products are to be assessed against the definitions of “plastic” and “single use” which incorporate terms that are broad and somewhat imprecise.
Better definition of “plastic”
Plastic is broadly defined by the Act as “a material made from, or comprising, organic polymers, whether plant extracts or of fossil fuel origin”.
The terms ‘plastic’ and ‘organic polymer’ are not further defined in the Act or the Regulations and there is no reference to compostable plastics or any criteria about bioplastics that may be naturally formed and capable of biodegrading. This has the effect that any product containing any organic polymer is prohibited in South Australia, regardless of whether it meets the stringent Australian standards for home composting or is otherwise capable of complete biodegradation.
The South Australian Government’s “Replace the Waste” website suggests that the definition of “plastic” does not distinguish or exclude compostable (bioplastic) plastic products.[1] This is inconsistent with the approaches of Queensland, ACT and Western Australia, where single use plastics bans exempt certain compostable bioplastics (such as bioplastics that meet Australian Composting Standards) or products which are certified as being biodegradable.
Exemptions for biodegradable plastics
Exemptions for certified biodegradable plastic products would be consistent with the broader objects of the Act, which include the promotion and support of better waste management practices including the reduction of marine litter as well as the promotion and support of the waste management hierarchy and the circular economy. Indeed, products which are home composted, or which biodegrade in soil or the ocean, will not end up in landfill, unlike some single use paper products.
Excluding certified biodegradable or compostable products from the Act is also desirable because it will promote innovation of sustainable and biodegradable bioplastic products in Australia which may provide viable and long-term alternatives to single-use products, both plastic and paper based.
Better definition of “single use”
The definition of “single use” in the Act strangely extends to ‘a product designed or intended to be used once or for a limited number of times before being disposed of’ (my emphasis).
The reference to use of a product ‘for a limited number of times’ is not subject to further definition or explanation in the Act which means it is unclear how many uses is required to exceed ‘a limited number’ and fall outside the definition of “single use”. This approach is inconsistent with the definition of ‘single use’ in NSW, ACT and Queensland where similar single-use plastics legislation incorporates the ordinary meaning of the words ‘single use’ (being use once only). In the ACT[2], the legislation helpfully provides examples of when a product will be intended to be used ‘once only’, and when subsequent re-use of a product will be considered to be ‘unrelated’ to the intended use.
The Act would benefit from a refined definition of “single use” that aligns with the ordinary meaning of those words. Alternatively, the Act should provide legislative examples or other clarification as to what level of reuse, or capacity for reuse, if any, will be sufficient to render a product reusable rather than “single use”.
The design and intention assessment unclear
The definition of a single use plastic product depends on whether it is ‘designed or intended to be used once or a limited number of times before being disposed of”.
The Act does not further define the concepts of ‘designed’ or ‘intended’, or provide any further details about how a design and intention assessment of a plastic product should be carried out. As a result, it is unclear whether the legislation intends this assessment to be objective or subjective and what factors will be relevant to determining the design and intent of a product.
Assessment and determination of whether or not products are “prohibited plastic products” under the Act is currently being undertaken by Authorised Environment Protection Authority (EPA) officers, who have administrative and enforcement powers under the Act.
The EPA has published a ‘Guideline for assessing prohibited plastic products under the Single-use and Other Plastic Products (Waste Avoidance) Act 2020’ (The Guideline) explaining its approach to the design and intention assessment of plastic products. On the scope of this assessment the Guideline states:
The whole of the circumstances must be considered in deciding whether a product has been ‘designed’ or ‘intended’ for single or limited use. The physical properties of the product, however, will be an important consideration.[3]
The Guideline further identifies the factors that the EPA considers relevant to a ‘design and intention assessment’ including the durability and thickness of products and whether the product has any certification for dishwashing safety, child safety or food safety. The Guideline indicates that the EPA will also consider a product’s price point, packaging and labelling as well as the way in which a product is being supplied in determining its ‘design’ and ‘intention’. However, the extent to which a product’s supply and/or end use by consumers in the market is relevant to the assessment, is not clarified.
Given the lack of detail in the Act about the scope of the design and intention assessment and the ambiguity about the level of product reusability contemplated by the definition of “single use” the Act itself does little to inform EPA product assessment and determinations.
EPA determinations
The Act does not provide a right of appeal against an EPA determination that a product is a “prohibited plastic product”. This means that a supplier or distributor must commence judicial review proceedings in the Supreme Court or wait for the EPA to issue enforcement proceedings in order to formally challenge a determination about its products. This undermines the efficiency, transparency and accountability of the regulatory regime and is not consistent with other waste management schemes the EPA regulates, such as beverage container approvals, which can be appealed to the Environment, Resources and Development Court.[4]
Until the Act clarifies the definition of “plastic” and “single use”, suppliers and distributors of products which may be caught by the definition of “prohibited plastic products” will face uncertainty about how their products will be assessed and what factors will be relevant to EPA assessments and determinations. This makes it inherently difficult for suppliers and distributors to source legally compliant products, or to re-design, relabel or redirect the supply of their existing products in compliance with the Act.
Public consultation and amendment
The Minister for Environment and Water is required to provide an annual report on the operation of the Act in September 2022. That report will be informed by the results of the recent public consultation on a Green Industries SA discussion paper titled ‘Turning the Tide – the future of single use plastic in South Australia’, which primarily focuses on broadening the scope of the legislation to ban other single use plastic products.
Further expanding the definition of “prohibited plastic products” in the Act may be desirable from an environmental perspective but will do little to remedy the ambiguity in the legislation. This requires amended definitions of “plastic” and “single use” and clarification about what, if any, Australian composting or biodegradability standards or certifications may give rise to a product exemption.
Such changes would provide clarity for distributors and suppliers of plastic products about what certifications, product features or factors will be required and what level of reusability will render a product outside the prohibition.
Lastly, the Act should promote efficient, transparent and accountable decision making by providing an express right of appeal against EPA determinations to the Environment, Resources and Development Court.
For any queries about the regulation of plastic products or the Single-use and Other Plastic Products (Waste Avoidance) Act 2020, please contact Rosie Jervis, Special Counsel rhj@bllawyers.com.au
[1] Replace the Waste Website ‘Single-Use Plastics FAQs – Restricted and Prohibited Items’ at https://www.replacethewaste.sa.gov.au/single-use-plastic-faqs-restricted-and-prohibited-items
[2] The Plastic Reduction Act 2021 (ACT), s 8.
[3] EPA Guideline, Assessment of Single Use Products, page 2.
[4] Environmental Protection Act 1993 s 106 (cb) and (cc)