An Australian national plastics “plan”: one plan to rule all?

Gerry Nagtzaam and Steve Kourabas FACULTY OF LAW MONASH UNIVERSITY

Introduction

Plastics have become a ubiquitous part of our lives.^[1] Beginning from the 20^th Century, they were marketed as lightweight, cheap and available for countless uses. However, between 1950 and 2015, a total of 6.3 billion tonnes of plastic waste was produced. Only 9% was recycled, 12% incinerated, and the remaining 79% either stored in landfills or released directly into the natural environment.^[2] The problem is getting worse: the World Bank estimates that the world is on a trajectory where waste generation will drastically outpace population growth by more than double by 2050.^[3]

Australian regulators have responded to these challenges through increased efforts to encourage less plastic consumption via a number of "end use" programs including recycling or utilising alternative materials. These efforts have tended to be fractured and in some cases, inconsistent. This article explores the legal and regulatory responses to the issue.

The plastics problem: plastic consumption and recycling in Australia

Australia produces approximately 2.5 million tonnes of plastic waste each year,^[4] and approximately 130,000 tonnes of plastic leaks into the environment each year.^[5] In 2017–18, the total consumption of plastics in Australia was 3,407,300 tonnes with a recovery of 320,000 tonnes, giving a recycling rate in 2017–18 of 9.4%.^[6] In 2017–18, NSW consumed 1,090,000 tonnes of plastic, Victoria consumed 880,900 tonnes and Queensland 683,000 tonnes.^[7] Victoria currently has the highest recycling rate at 15.6%, followed by South Australia at 14.1%.^[8] The below graph breaks down by state jurisdiction of recycling and polymer type in 2017–18:^[9]

A “national plastics plan”?

In 2021, the Morrison Government released its National Plastics Plan (NPP) to facilitate a unified approach to plastic use at each stage of production and consumption. The plan addresses the following:^[10]

Prevention:

The NPP includes a promise to ‘work with industry to fast-track phase outs of problematic plastic materials’ by 2022.^[11] The government also promised to work with state and territory governments to align disparate approaches to plastic bans.^{[12] [13]} However, in the absence of any concrete action, a number of states and local governments implemented their own single-use plastic bans.^[14]

Recycling:

The Morrison government sought to strengthen the Commonwealth Procurement Rules to make sustainability, including the use of recycled materials, part of the value-for-money assessment for everything the government buys.^[15]

Most significantly, the Recycling and Waste Reduction Act 2020 (Cth) sought to regulate the export of waste material to promote environmentally sound management of waste material (including plastic).^[16] The Act bans glass exports, whole new tyres, unprocessed single resin/polymer plastics, and export of mixed and unsorted paper and cardboard.^[17] The export bans provide an impetus to reconfigure local infrastructure to reprocess and re-manufacture recyclables onshore and facilitate a move towards a circular economy. ^[18] Materials that have been re-processed and turned into other “value-added” materials can still be exported under the law.^[19]

Product stewardship provisions, which require the Minister to publish a “priority list” the Minister proposes to regulate, are meant to help achieve these goals.^[20] There are three approaches:

(a) voluntary product stewardship: an accreditation scheme;

(b) co-regulatory product stewardship: where companies are required to be members of co-regulatory arrangements; and

(c) mandatory product stewardship: which might require certain persons, to do, or not do, something in relation to specific products (ie restricting manufacture/import, prohibiting use of certain substances, labelling, packaging or other design elements, or reusing, recycling, recovering, treating or disposing of products).^[21]

The Recycling Modernisation Fund and the Modern Manufacturing Strategy Funding, also seek to enhance recycling capacities with promises of new jobs and new recycling infrastructure (with contributions from federal, state and territory governments as well as industry groups).^[22]

Consumer Education

The NPP includes a commitment for governments to work with industry to ensure all APCO members, with annual revenue greater than $500 million, use the Australasian Recycling Label by the end of 2023.^[23]

To combat greenwashing,^[24] the Morrison government committed to refer companies making false or misleading environmental claims to the ACCC. The government also supported the national rollout of the Recycle Mate App in 2021, which helps consumers determine whether a product can be recycled.^[25] The NPP also takes aim at kerbside bin collection and container deposit schemes (CDSs) in every state and territory.

To date, these issues have been treated with differing levels of commitment by the states and territories.^[26] For instance, the Victorian government committed to reform the recycling system, including provision of access to four core waste and recycling services (food and garden organics; glass; paper, plastic and metals; and residual waste).^[27] The Queensland government, however, was criticised for postponing its kerbside collection services until July 2022 as part of efforts to gain revenue under the council’s 2020–21 budget. The suspension raised concerns regarding an increase in illegal dumping, which could cost the Council up to $100,000 per year.^[28] In response to the criticisms, the Brisbane Council issued waste vouchers to every household, including tenants, from 1 July 2020 to help residents dispose of household items.^[29]

South Australia was an early mover in establishing its CDS, introduced in 1977 to address significant volumes of beverage containers in the litter stream. The program broadly coincided with the introduction of non-refillable beverage containers such as cans and then later, plastic soft drink bottles.^[30] In 2003, the scope of containers covered by CDS was expanded to include additional beverage containers prevalent in the litter stream at the time. In 2008, the refund amount was increased to 10 cents.^[31] In 2017–18, almost 603 million containers were recovered by collection depots for recycling, representing a return rate of almost 77% and diverting about 42,913 tonnes from landfill or litter in that year.^[32] Other states have followed the South Australian example.^[33]

Protection of Ocean and Waterways

By 2019-20, the then federal government had supported over 1,330 community-led projects, totalling $18 million that address environmental problems.^[34] The Environment Restoration Fund committed $100 million over 4 years to protect the environment for future generations and committed $14.08 million to remove ghost nets and marine debris pollution from strategic locations in Northern Australia.

Conclusion

Despite lofty rhetoric regarding co-ordination in the NPP, regulation of plastic in Australia continues to be sporadic, inconsistent and incomplete. States and territories take their own approaches with varying degrees of commitment and success.^[35]

This runs contrary to the NPP’s endorsement of the CSIRO’s National Circular Economy Roadmap for Plastics, Glass, Paper and Tyres: Pathways for Unlocking Future Growth Opportunities for Australia (the Roadmap). The Roadmap is intended to act as a way for governments, industry and researchers to inform future decisions on investment, policy developments and research priorities.^[36]

In light of the piecemeal approach, it is not surprising that efforts such as the NPP continue to receive a mix of reactions. Conservation groups have warned that the largely voluntary packaging and recycling targets must be mandated.^[37] So far, the new Albanese government has not made any strong commitments regarding plastic pollution. The government has, however, emphasised the need to promote a circular economy,^[38] and the Prime Minister signalled his intention to remedy perceived problems with the previous government’s policy in the following terms:

We will pick up the delayed and missing pieces in the National Waste Policy Action Plan, work with industry to improve arrangements for key materials like plastics and packaging, and lead collaboration with local, State, and Territory governments to make greater progress in standardising high-quality kerbside collection, phasing out harmful single-use plastics, and harmonising state-based container deposit schemes.^[39]

It remains to be seen whether such pronouncement amount to more than vague promises.

Gerry Nagtzaam Associate Professor Faculty of Law Monash University

Steve Kourabas Senior Lecturer Faculty of Law Monash University