Chapter 4 > Part 4.2A
Part 4.2A Recall notices
Recall notices
ch 4, pt 4.2A: Ins 2024 No 20, Sch 9[18]. 94A Definitions In this part— recall cost notice —see section 94M(1). recall notice —see section 94B. supply chain participant —see section 94C(1)(c). s 94A: Ins 2024 No 20, Sch 9[18]. 94B Issue of recall notice The EPA may, with the approval of the Minister, issue a notice (a recall notice ) if, in the EPA’s opinion, 1 or more of the following grounds apply— (a) either— (i) a substance poses a potential risk of harm to human health or the environment, or (ii) a particular use of, or activity involving, the substance poses a potential risk of harm to human health or the environment, (b) a substance— (i) is required by environment protection legislation or a national environment protection measure to comply with a prescribed standard or other specific requirements, and (ii) does not comply with the standard or other requirements, (c) environment protection legislation has been contravened, (d) another matter prescribed by the regulations. s 94B: Ins 2024 No 20, Sch 9[18]. 94C Content of recall notice (1) A recall notice must— (a) identify the substance the subject of the notice, and (b) state the reason under section 94B the recall notice has been issued, and (c) identify the persons or class of persons (both supply chain participants ) who are subject to the recall notice, and (d) give information or advice about how to minimise the risk of potential harm from the substance, and (e) state the actions required to be taken by the supply chain participants who are subject to the recall notice, and (f) include any other matters prescribed by the regulations. (2) For subsection (1)(c), the recall notice may identify the supply chain participants in either or both of the following ways— (a) specifically by name, (b) by reference to a class of persons. s 94C: Ins 2024 No 20, Sch 9[18]. 94D Application of recall notice to supply chain participants A recall notice may apply to any supply chain participant involved in the supply chain of the substance, including a supply chain participant— (a) producing, generating, processing or reprocessing the substance, including processing or reprocessing the substance with other substances or by mixing the substance with other substances, or (b) selling, distributing, transporting, supplying, resupplying or storing the substance, or (c) receiving or processing the substance, whether or not to supply the substance to another person, or (d) making the substance available or providing the substance to another person. s 94D: Ins 2024 No 20, Sch 9[18]. 94E Actions required by recall notice For section 94C(1)(e), a recall notice may require a supply chain participant who is subject to the notice to do any of the following— (a) stop supplying the substance, or a particular batch of the substance, immediately or within a specified time, (b) take action to recover the substance from another person and return the substance to— (i) the supply chain participant’s premises, or (ii) another specified location, (c) take specified action in relation to the substance, including— (i) sampling, testing, remediating or disposing of the substance, or (ii) moving the substance to a specified location, (d) give information and records to the EPA about— (i) who the supply chain participant has supplied the substance to, and (ii) the supply chain for the substance, (e) if the substance cannot be recalled from a person who has received a supply of the substance—take specified actions, including the following— (i) securing the substance at its current location, (ii) taking action or giving information to the person to prevent or minimise the likelihood of the substance causing harm to human health or the environment, (f) publish, in a form approved by the EPA— (i) warnings that the substance is being recalled on the basis of 1 or more of the grounds referred to in section 94B(a)–(d), and (ii) other specified particulars, including the following— (A) batch numbers or other identifying particulars of the substance, (B) information about preventing or minimising the likelihood of the substance causing harm to human health or the environment, (C) information about the recall of the substance, (g) control the movement of the substance at premises used or controlled by the supply chain participant, including the following— (i) isolating the substance from other substances, (ii) securing, or restricting or preventing access to, the substance in place, (iii) prohibiting the movement of the substance on the premises at which the substance is located or to other premises, (h) not produce the substance for a specified period, (i) report on compliance with the recall notice, (j) if the supply chain participant has received supply or resupply of the substance—not supply the substance to another person, (k) take the following action and provide evidence of the action taken— (i) action to dispose of the substance at a facility that can lawfully receive the substance, (ii) action to destroy the substance, (l) another action prescribed by the regulations. s 94E: Ins 2024 No 20, Sch 9[18]. 94F Publication of recall notice (1) A recall notice must be published— (a) on the EPA’s website, and (b) if the EPA considers it necessary to publish the notice in other ways to bring the notice to the attention of members of the public generally or in a particular part of the State—in other ways the EPA is satisfied are likely to bring the notice to the attention of members of the public generally or in that part of the State. (2) A recall notice takes effect— (a) when the notice is published on the EPA’s website, or (b) on a later date specified in the notice. (3) A recall notice must also be published in the Gazette as soon as practicable after the notice is published on the EPA’s website. s 94F: Ins 2024 No 20, Sch 9[18]. 94G Recall notices may be given to directors and related bodies corporate (1) This section applies if — (a) a recall notice (the previous recall notice ) has been issued by the EPA in relation to a supply chain participant that is a corporation, and (b) the corporation has not complied with the previous recall notice within the period specified in the notice. (2) The EPA may, by written notice (the supplementary recall notice ), direct 1 or more of the following to carry out, or ensure the carrying out of, the action specified in the recall notice within the period specified in the notice— (a) a current director of the supply chain participant, (b) a former director of the supply chain participant, (c) a related body corporate. (3) The supplementary recall notice may also require the person to whom the notice is given to provide reports to the EPA about progress on the carrying out of the action specified in the notice. (4) If the person given a supplementary recall notice complies with the notice but was not the person who caused, or solely caused, the circumstances the subject of the recall notice, the cost, or part of the cost, of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from another person who caused or contributed to the relevant circumstances. (5) A reference in subsection (2) to a director of a supply chain participant that is a corporation extends to a person involved in the management of the corporation. s 94G: Ins 2024 No 20, Sch 9[18]. 94H Development consent and approval not required for action under recall notice (1) This section applies if— (a) under this part, a person is required to take action under a recall notice, and (b) the carrying out of the action would, but for this section, require consent or approval under the Environmental Planning and Assessment Act 1979 . (2) Despite the Environmental Planning and Assessment Act 1979 or an instrument made under that Act, consent or approval under that Act or instrument is not required to carry out the action under the recall notice. s 94H: Ins 2024 No 20, Sch 9[18]. 94I Public authority may take action in relation to recall notice (1) This section applies if— (a) a supply chain participant is given a recall notice, and (b) either— (i) the supply chain participant does not comply with the notice, or (ii) the EPA or a public authority otherwise considers it would be appropriate for the EPA or public authority to take action required under the recall notice. (2) The EPA may take action required under the recall notice if the EPA considers it appropriate to take the action. (3) The public authority may take action required under the recall notice if the public authority— (a) is directed by the EPA to take the action, or (b) otherwise considers it appropriate to take the action. s 94I: Ins 2024 No 20, Sch 9[18]. 94J Costs of complying with recall notice (1) A supply chain participant to whom a recall notice is given must pay the participant’s own costs of complying with the notice. (2) To avoid doubt, subsection (1) does not prevent the supply chain participant from recovering costs, or making another claim for damages or compensation, to which the supply chain participant may be entitled other than under this Act. (3) If the EPA or a public authority takes action to comply with a recall notice itself or its officers, employees or contractors take the action, the EPA or public authority may recover the relevant costs under sections 94M and 94N. s 94J: Ins 2024 No 20, Sch 9[18]. 94K Reviews and appeals For this part— (a) a decision by the Minister or EPA is not an administratively reviewable decision for the Administrative Decisions Review Act 1997 , and (b) in proceedings for judicial review or other provisions, a court or tribunal must not make an interlocutory order that has the effect of staying the operation of a recall notice. s 94K: Ins 2024 No 20, Sch 9[18]. 94L Failure to comply with recall notice A supply chain participant who is subject to a recall notice must, unless the participant has a reasonable excuse, comply with the notice. Maximum penalty— (a) for a corporation—$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or (b) for an individual—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues. s 94L: Ins 2024 No 20, Sch 9[18]. 94M Recall cost notices (1) The EPA or a public authority may, by written notice (a recall cost notice ), require the supply chain participant to whom a recall notice is given to pay all or any reasonable costs and expenses incurred by the EPA or public authority in connection with— (a) taking action or monitoring under the recall notice, and (b) ensuring the notice is complied with, and (c) other associated matters. (2) If the EPA or a public authority takes action under subsection (1), the EPA or public authority may, by written notice given to the supply chain participant to whom the recall notice was given, require the participant to pay all or any reasonable costs and expenses incurred by the EPA or public authority in taking the action. s 94M: Ins 2024 No 20, Sch 9[18]. 94N Recovery of amounts The EPA or a public authority may recover any unpaid amounts specified in a recall cost notice as a debt in a court of competent jurisdiction. s 94N: Ins 2024 No 20, Sch 9[18]. 94O Voluntary recalls (1) A person involved in the supply chain of a substance may initiate a voluntary recall of the substance if the person considers it necessary or appropriate, including if— (a) either— (i) the substance poses a potential risk of harm to human health or the environment, or (ii) a particular use of, or activity involving, the substance poses a potential risk of harm to human health or the environment, or (b) the substance— (i) is required by environment protection legislation or a national protection measure to comply with a prescribed standard or other specific requirements, and (ii) does not comply with the standard or other requirements, or (c) environment protection legislation has been contravened, or (d) another matter prescribed by a regulation under section 94B(d) applies. (2) If a person initiates a voluntary recall, the person must immediately give the EPA written notice of the recall. (3) The notice must include the following information— (a) that a voluntary recall is occurring, (b) details of the substance that is subject to the recall, (c) if the substance may pose a risk to human health or the environment—the circumstances in which the substance may pose the risk and the nature of the risk, (d) if the substance does not comply with a prescribed standard or other requirements—the nature of the non-compliance, (e) any information or advice for minimising any risk to human health or the environment posed by the substance, (f) the nature of the actions being taken by the person as part of the recall, (g) any other matters prescribed by the regulations. (4) If the EPA is given notice about a voluntary recall of a substance, the EPA must publish information about the recall on the EPA’s website. (5) A voluntary recall under this section does not prevent the EPA from issuing a recall notice to the person in relation to the same substance or matter. s 94O: Ins 2024 No 20, Sch 9[18].