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Part 10—Miscellaneous

Part 10 Miscellaneous

   

165   Simplified outline of this Part

This Part contains miscellaneous provisions including provisions about reconsideration of decisions by the Executive Director, review by the AAT, general requirements for applications, calculating consideration periods for applications, additional provisions about fees, protection from civil actions, use of computer programs, delegation provisions and annual reports.

This Part also contains the general rule making power.

166   Reconsideration and review of decisions

             (1)  A decision mentioned in an item in column 1 of the following table that is made by the Executive Director under the provision mentioned in column 2 of that item is a reviewable decision .

 

Reviewable decisions

Item

Column 1

Column 2

 

Decision

Provision

1

A decision to cancel a person’s registration

Paragraph 19(6)(a)

2

A decision to not issue an assessment certificate

Paragraph 37(1)(b)

3

A decision to include a condition on an assessment certificate

Paragraph 38(1)(c)

4

A decision to include on an assessment certificate a specific requirement to provide information

Paragraph 38(1)(d)

5

A decision to remove a person as a holder of a certificate or as a person covered by a certificate

Paragraph 42(5)(a)

6

A decision to not vary a term of an assessment certificate

Paragraph 49(1)(b)

7

A decision to vary a term of an assessment certificate on the Executive Director’s initiative

Paragraph 50(5)(a)

8

A decision to cancel an assessment certificate on the Executive Director’s initiative

Paragraph 52(5)(a)

9

A decision to not issue a commercial evaluation authorisation

Paragraph 58(1)(b)

10

A decision to include a condition on a commercial evaluation authorisation

Paragraph 59(1)(e)

11

A decision to include a specific requirement to provide information on a commercial evaluation authorisation

Paragraph 59(1)(f)

12

A decision to remove a person as a holder of a commercial evaluation authorisation

Paragraph 61(5)(a)

13

A decision to not vary a term of a commercial evaluation authorisation

Paragraph 63(4)(b)

14

A decision to vary a term of a commercial evaluation authorisation on the Executive Director’s initiative

Paragraph 64(5)(a)

15

A decision to cancel a commercial evaluation authorisation on the Executive Director’s initiative

Paragraph 66(5)(a)

16

A decision to not vary the terms of the Inventory listing for an industrial chemical

Paragraph 93(1)(b)

17

A decision to not approve an application for the proper name or end use for an industrial chemical to be treated as confidential business information

Paragraph 108(1)(b)

18

A decision to revoke an approval to treat the proper name or end use for an industrial chemical as confidential business information

Paragraph 111(8)(a)

19

A decision to not approve an application for information to be treated as confidential business information

Paragraph 114(2)(b)

 

             (2)  If another provision of this Act requires written notice to be given of a reviewable decision, the notice must include:

                     (a)  the reasons for the decision; and

                     (b)  information regarding a person’s rights to seek reconsideration or review of the decision under this section.

             (3)  A person whose interests are affected by a reviewable decision may request the Executive Director to reconsider the decision.

             (4)  The request must be made in writing and given to the Executive Director within 20 working days after the day on which the person was given notice of the reviewable decision, or within such longer period as the Executive Director allows.

             (5)  A decision on a request must be made under subsection (6) within 70 working days after the day the request is given.

             (6)  After receiving the request, the Executive Director must reconsider the decision and:

                     (a)  confirm the decision; or

                     (b)  vary the decision; or

                     (c)  set the decision aside and substitute a new decision.

             (7)  The Executive Director’s decision (the reconsidered decision ) to confirm, vary or set aside the reviewable decision takes effect:

                     (a)  on the day specified in the reconsidered decision; or

                     (b)  if a day is not specified—on the day on which the reconsidered decision is made.

             (8)  The Executive Director must give the person written notice of the reconsidered decision.

Note:          Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.

             (9)  An application may be made to the AAT for review of a reconsidered decision.

167   General requirements for applications

             (1)  An application under this Act must:

                     (a)  be in the approved form; and

                     (b)  contain the information required by the approved form; and

                     (c)  be accompanied by any documents required by the approved form; and

                     (d)  contain any information prescribed by the rules for the purposes of this paragraph; and

                     (e)  be accompanied by any documents prescribed by the rules for the purposes of this paragraph; and

                      (f)  be accompanied by any fee for the application:

                              (i)  prescribed by the rules for the purposes of this paragraph; or

                             (ii)  worked out in accordance with a method prescribed by the rules for the purposes of this paragraph.

             (2)  To avoid doubt, information or documents required to be given as part of an application under this Act may be provided to the Executive Director by a person other than the applicant.

Note:          A person other than the applicant who provides information or documents to the Executive Director in connection with an application may apply or give notice for that information to be considered confidential business information: see sections 105 and 112.

             (3)  To avoid doubt, the Executive Director, in considering an application, may have regard to any information the Executive Director is satisfied is relevant to the application.

             (4)  If information that is relevant to the application becomes available to an applicant before a decision on the application is made, the applicant must give the information to the Executive Director as soon as is practicable after the information becomes so available.

             (5)  An applicant may, at any time before a decision has been made on an application, in writing to the Executive Director, withdraw the application.

             (6)  Without limiting subsection (1), the Executive Director may approve different forms and the rules may prescribe different information, documents or fees for different:

                     (a)  classes of industrial chemicals; or

                     (b)  categories of introduction; or

                     (c)  circumstances of introduction; or

                     (d)  classes of applications or applicants.

168   Ban on animal test data for applications for cosmetics

             (1)  Without limiting subsection 167(1), if an industrial chemical is to be introduced for an end use solely in cosmetics, an application under this Act relating to the introduction must meet the requirement in subsection (2).

             (2)  The requirement is that the application must not include animal test data obtained from tests conducted on or after 1 July 2018 in circumstances prescribed by the rules for the purposes of this subsection.

169   Calculating the consideration period for an application

             (1)  If a circumstance mentioned in column 1 of an item in the following table applies in relation to an application, then for the purposes of calculating the consideration period for the application, exclude the period beginning on the day mentioned in column 2 of the item and ending on the day mentioned in column 3 of the item.

 

Calculating excluded periods

Item

Column 1

Column 2

Column 3

 

If this circumstance applies:

exclude the period beginning on this day:

and ending on this day:

1

Information is requested from an applicant under section 33 or 45

The day notice of the request is given

The earlier of:

(a) the day a complete response is given to the Executive Director; or

(b) the last day of the period specified in the notice in accordance with subsection 33(2) or 45(2)

2

Advice is sought from a prescribed body under section 34 or 46

The day notice of the request is given

The earlier of:

(a) the day a complete response is given to the Executive Director; or

(b) the last day of the period specified in the notice in accordance with subsection 34(4) or 46(4)

3

Advice is sought from the Gene Technology Regulator under section 35 or 47

The day notice of the request is given

The earlier of:

(a) the day a complete response is given to the request; or

(b) the last day of the period specified in the notice in accordance with subsection 35(3) or 47(3)

4

A draft assessment statement is given to an applicant under section 36 or 48

The day the draft assessment statement is given

The earlier of:

(a) the day a complete submission is given; or

(b) the last day of the period specified in the notice in accordance with subsection 36(3) or 48(3)

5

Information is requested from an applicant under section 55

The day notice of the request is given

The earlier of:

(a) the day a complete response is given to the Executive Director; or

(b) the last day of the period specified in the notice in accordance with subsection 55(2).

6

Advice is sought from a prescribed body under section 56

The day notice of the request is given

The earlier of:

(a) the day a complete response is given to the Executive Director; or

(b) the last day of the period specified in the notice in accordance with subsection 56(3)

7

Advice is sought from the Gene Technology Regulator under section 57

The day notice of the request is given

The earlier of:

(a) the day a complete response is given to the request; or

(b) the last day of the period specified in the notice in accordance with subsection 57(3)

8

Information is requested from an applicant under section 90

The day notice of the request is given

The earlier of:

(a) the day a complete response is given to the Executive Director; or

(b) the last day of the period specified in the notice in accordance with subsection 90(2)

9

Information is requested from an applicant under section 106

The day notice of the request is given

The earlier of:

(a) the day a complete response is given to the request; or

(b) the last day of the period specified in the notice in accordance with subsection 106(2)

10

A decision is made to not approve an application for information to be treated as confidential business information under paragraph 108(1)(b)

The day notice of the decision is given

The day the reconsideration and review rights under section 166 in relation to the decision have been exhausted or have expired

11

A notice is given to an applicant under subsection (3) of this section

The day the notice is given

The last day of the period specified in paragraph (3)(a) or (b) of this section

 

             (2)  For the purposes of calculating the total number of days to be excluded from a consideration period for an application under subsection (1), if a day in a period to be excluded under an item in the table in that subsection overlaps with a day in another period calculated for the same or a different item, that day must only be counted once.

             (3)  If the Executive Director receives information covered by subsection (4), the Executive Director may, by written notice given to the applicant, exclude a period from the calculation of the consideration period equal to the following:

                     (a)  for information relating to an application for an assessment certificate, a variation of a term of an assessment certificate or a variation of a term of an Inventory listing—20 working days after the day the notice is given;

                     (b)  for information relating to an application for a commercial evaluation authorisation or a variation to a term of a commercial evaluation authorisation—10 working days after the day the notice is given.

             (4)  Information is covered by this subsection if:

                     (a)  the information is given to the Executive Director in relation to an application before a decision has been made on the application; and

                     (b)  the information is about hazards to human health or the environment relating to the application; and

                     (c)  the Executive Director is satisfied that in considering the application, having regard to the information would involve significant additional time and effort.

170   Additional provisions about fees

             (1)  The rules may prescribe circumstances in which the Executive Director may, on behalf of the Commonwealth, wholly or partly waive fees that would otherwise be payable under a provision of this Act.

             (2)  A fee that is payable under a provision of this Act must not be such as to amount to taxation.

171   Protection from civil actions

             (1)  This section applies to:

                     (a)  the Secretary of the Department; and

                     (b)  the Executive Director; and

                     (c)  a person assisting the Executive Director in accordance with section 153 or 154.

             (2)  A person mentioned in subsection (1) is not liable to an action or other proceeding for damages for, or in relation to, an act done or omitted to be done in good faith by the person:

                     (a)  in the performance, or purported performance, of any functions under this Act; or

                     (b)  in the exercise, or purported exercise, of any powers under this Act.

172   Executive Director may use computer programs to make decisions

             (1)  The Executive Director may arrange for the use, under the Executive Director’s control, of computer programs for any purposes for which the Executive Director may or must take administrative action under this Act.

             (2)  Administrative action taken by the operation of a computer program under such an arrangement is, for the purposes of this Act, taken to be administrative action taken by the Executive Director.

             (3)  The Executive Director may substitute a decision for a decision the Executive Director is taken to have made under subsection (2) if the Executive Director is satisfied that the decision made by the operation of the computer program is incorrect.

173   Copies of documents

                   The Executive Director may inspect a document produced under a provision of this Act and may make and retain copies of, or take extracts from, such a document.

174   Executive Director may retain documents

             (1)  The Executive Director may take, and retain for as long as is necessary, possession of a document produced under a provision of this Act.

             (2)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Executive Director to be a true copy.

             (3)  The certified copy must be received in all courts and tribunals as evidence as if it were the original.

             (4)  Until a certified copy is supplied, the Executive Director must, at such times and places as the Executive Director thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

175   Self-incrimination

             (1)  An individual is not excused from giving information or producing a document under section 161 on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.

             (2)  However:

                     (a)  the information given or the document produced; or

                     (b)  giving the information or producing the document; or

                     (c)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document;

is not admissible in evidence against the individual:

                     (d)  in criminal proceedings other than proceedings for a contravention of subsection 162(1) or proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to section 161 or 162; or

                     (e)  in civil proceedings other than proceedings for the recovery of a penalty in relation to a contravention of subsection 162(1).

176   Delegations by Minister

             (1)  The Minister may, in writing, delegate his or her powers or functions under section 145, 147, 148 or 152 to:

                     (a)  the Secretary of the Department; or

                     (b)  an SES employee, or an acting SES employee, in the Department.

             (2)  In exercising powers or functions under a delegation, the delegate must comply with any directions of the Minister.

177   Delegations by Executive Director

             (1)  The Executive Director may, in writing, delegate any or all of his or her powers or functions under this Act to:

                     (a)  an APS employee who holds, or is acting in, an Executive Level 1, or equivalent, position in the Department; or

                     (b)  an official of another non-corporate Commonwealth entity who holds, or is acting in, an Executive Level 1, or equivalent, position in the entity.

             (2)  In exercising powers or functions under a delegation, the delegate must comply with any directions of the Executive Director.

178   Compensation for acquisition of property

             (1)  If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

179   Annual report

                   The annual report prepared by the Secretary of the Department and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include a report from the Executive Director on the operation of this Act during the period.

180   Rules

             (1)  The Minister may, by legislative instrument, make rules prescribing matters:

                     (a)  required or permitted by this Act to be prescribed by the rules; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  To avoid doubt, the rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  directly amend the text of this Act.

             (3)  Despite subsection 14(2) of the Legislation Act 2003 , the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time.