Amendments to the proposed e-waste bill could leave distribution and retail workers in the technology industry highly exposed, a legal expert warns.
Industry solicitor Rae Nield believes there is significant risk of prosecution for employees under the Waste Minimisation (Solids) Bill, if they dispose of IT products incorrectly.
Nield’s concerns are based on the provision under the bill for the creation of product stewardship schemes for technology equipment classed as priority products.
According to the bill these are products that the Minister of the Environment, who will enforce the bill, believes will or may cause significant environmental harm when they become waste. Or if there are significant benefits from the reduction, reuse, recycling, recovery or treatment of the product, and if the product can be effectively managed under a product stewardship scheme.
However, while the bill includes statuary defences for employers, employees are not covered by these, says Nield. “The defence provisions are unclear, but it does appear that employees might well be at a disadvantage, compared to their employers.”
The bill makes provision for two sets of defences, one for bodies corporate, such as companies, and another for general defence, on which employees will need to rely, says Nield. “Many employees won’t be able to use the Act’s defences because they won’t know that the defence provisions require them to fix problems caused by the contravention, and because it is not clear what you have to do to fix them.”
Employees will be at a disadvantage compared to employers because they will need their own legal advice, as the employer’s lawyer will have a conflict of interest because the employer may have a defence that is not available to the employee.
Another issue is that this is a brand-new law, which most employees will not know they are breaking, says Nield. “Employees know that stealing is a crime – laws against theft are centuries old. In contrast, most employees won’t have any idea whatsoever that they can commit a crime just by throwing out the wrong kind of product. In this situation, it is unfair to expose employees to greater risk of conviction than the risk that their employers face, although that is what the bill seems to do.”
However, the current version of the bill, which has just passed through a parliamentary select committee, does include improvements over an earlier draft, says Nield.
Following a submission by Nield that included feedback from a number of industry players, clauses that threatened to regard companies and individuals suspected of being in breach of the law guilty until proven innocent, have been removed.
In addition, the minister now needs to open decisions of what equipment is declared as priority products to public consultation. “We got that put in. Before it said the minister may consult with people seen as interested parties, but I said they also have to consult the public.”
The bill has now been tabled to go before Parliament, but Nield says it is too early to tell when it will receive its first hearing.