In an earlier Focus Paper1, we outlined the regimes for the regulation of waste in Australia and referred to the Australian Packaging Covenant. In this paper, we provide insight into the recently introduced NSW-based container deposit scheme.
On 1 December 2017, the Container Deposit Scheme (CDS), otherwise known as “Return and Earn”, commenced in NSW2.
The CDS applies to all suppliers of beverages in containers that are intended for human consumption, whether they are provided by way of sale or otherwise, so long as the supply occurs in NSW. In order to appreciate the application of the CDS, it is important to understand the types of beverage containers to which the scheme applies and what businesses or suppliers are affected.
All beverage containers are included in the CDS, save for those expressly excluded. Types of beverage containers excluded from the CDS are those:
- with a volume of under 150mL or over 3L;
- that contain milk, cordial, concentrated juice or registered health tonics;
- containing wine or spirits which are made of glass;
- which contain flavoured milk or 90% fruit juice with a capacity of 1L or more;
- casks with a capacity of 1L or more of wine or water; and
- wine sachets with a capacity of 250ml or more.
The obligations under CDS apply to “first suppliers”. A “first supplier” of a beverage container of a particular class must not supply, or offer to supply, that beverage container to any person unless:
- that supplier enters into an arrangement with a “recycling scheme coordinator”; and
- an approval for the container is in force.
A “first supplier” of a beverage container is the first to supply customers, retailers, wholesalers or distributors in NSW with the physical product.
Some examples of first supply and the corresponding first supplier are set out in the below table:
| Description of supply | Point of supply | First supplier |
| Beverage manufacturer in NSW supplies a retailer in NSW | Where manufacturer supplies retailer | Manufacturer |
| Distributor in SA supplies to retailer in NSW but distributor transfers risk of bringing goods to final destination to retailer in SA | Distributor’s premises | Retailer |
| Overseas manufacturer supplies distributor outside NSW that supplies to NSW retailers and bears risk of transporting to NSW | Where distributor supplies to NSW retailers | Distributor |
Upon entering a supply arrangement with a scheme coordinator, the first supplier must pay contributions towards the cost of the management, administration and operation of the CDS. At first this contribution is based on the supplier’s share of the market for the containers that it supplies as a proportion of the total monthly cost of the CDS. Essentially, the first suppliers fund the collection and administration of the CDS via the supply arrangement.
First suppliers must also ensure that the beverage containers it supplies also have a “container approval” issued by the Environmental Protection Agency (EPA) for each class of beverage container supplied. Applications can be made using the EPA’s Return and Earn Container Portal and paying the appropriate fee per container type (currently $80).
All suppliers must ensure that beverage containers subject to the CDS display the appropriate barcodes and labelling. From 1 December 2019, containers subject to the scheme must contain the text “10c refund at collection depots/points in participating State/Territory of purchase” in clear and legible characters as a condition of approval. A national approach has been adopted to the refund mark to enable compliance amongst multiple State and Territory schemes.
The EPA can seize containers that have been supplied in contravention of the WARR Act. Penalties of $440,000 for corporations or $110,000 for individuals apply where a first supplier breaches a condition of a container approval or supplies CDS-regulated containers in NSW without a supply arrangement in place with the scheme coordinator.
Conclusion
Businesses that are unsure of their obligations with regard to waste packaging and the supply of beverage containers in NSW or nationally, should seek legal advice.
1. http://www.addisonslawyers.com.au/knowledge/Australia-s_War_on_Waste1136.aspx
2. Established under the Waste Avoidance and Resource Recovery Act 2001 (WARR Act) https://www.legislation.nsw.gov.au/~/view/act/2001/58 and the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 https://www.legislation.nsw.gov.au/regulations/2017-66 (CDS Regulation).
Liability limited by a scheme approved under Professional Standards Legislation.
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