Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Agriculture, Fisheries and Forestry Legislation Amendment (Export Control and Quarantine) Bill 2006

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

2004 - 2005 - 2006

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION AMENDMENT (EXPORT CONTROL AND QUARANTINE) BILL 2006 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,

the Hon Peter McGauran MP)

 



2

 

 

AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION AMENDMENT (EXPORT CONTROL AND QUARANTINE) BILL 2006

 

OUTLINE

 

The purpose of the Agriculture, Fisheries and Forestry Legislation Amendment (Export Control and Quarantine) Bill 2006 (‘the Bill’) is to amend the Quarantine Act 1908 (‘the Quarantine Act’) and the Export Control Act 1982 (‘the Export Control Act’) in order to:

 

·          provide a legal basis for the recovery of fees for quarantine services provided under the Quarantine Act to other Commonwealth bodies;

 

·          inserts a definition for ‘fish’;

 

  • extend the definition of ‘preparation’ to the catching of fish and the definition of ‘premises’ to places in and on water in the Export Control Act;

 

  • clarify the use of certain terms in the Export Control Act;

 

  • create four new offences in the Export Control Act to enable the Commonwealth to prosecute those people who fail to prepare goods that are exported in accordance with the Act; and

 

  • extend the services for which fees may be charged under the Export Control Act to services provided by the Secretary or the Secretary’s delegate.

 

FINANCIAL IMPACT STATEMENT

 

The Bill is not expected to have any financial impact.



3

 

 

Notes on clauses

 

Section 1: Short Title

 

1.       Section 1 provides that the Bill, once enacted, may be cited as the Agriculture, Fisheries and Forestry Amendment (Export Control and Quarantine) Act 2006

 

Section 2: Commencement

 

2.       Section 2 provides that sections 1 to 3 of the Bill commence on the day on which the Act receives Royal Assent; Schedule 1 commences on the 28 th day after the day on which the Act receives Royal Assent and Schedule 2 commences the day after the Act receives Royal Assent.     

 

Section 3: Schedule(s)

 

3.       Section 3 provides that each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1 - Amendment of the Export Control Act

 

NOTES ON ITEMS

 

Item 1

 

4.       Item 1 inserts a new definition in section 3 of the Export Control Act to define the word ‘fish’.   This definition is necessary as a result of the extension of the definition of ‘preparation’ to include ‘fish’.  The definition extends beyond the normal meaning of fish to include all aquatic vertebrates such as crocodiles and all aquatic invertebrates such as prawns, mussels and scallops.

 

Item 2

 

5.       Item 2 extends the definition of ‘premises’ in section 3 of the Export Control Act to clarify that the definition includes places in or on water.  This extension is necessary as a result of the extension of the definition of ‘preparation’ to include the capturing or taking of fish whether from the wild or from stocks maintained using aquaculture.

 

Item 3

 

6.       Item 3 extends the definition of ‘preparation’ in section 3 of the Export Control Act to include the capturing or taking of fish whether from the wild or from stocks maintained using aquaculture that are prescribed goods or from which prescribed goods are obtained.   This amendment (as well as the consequential amendments in items 1 and 2 above) removes any doubt that the Commonwealth has a level of



4

 

 

control over the sourcing of fish intended for export.  To ensure ongoing access for exported product into overseas markets and consumer protection, fish, including shellfish must be harvested from areas that do not contain pathogenic organisms, biotoxins and chemical contaminants at levels that may represent a threat to consumer health.

 

Item 4

 

7.        Item 4 inserts a new definition in section 3 of the Export Control Act.  The new definition is for the expression ‘registered establishment’.  This amendment is intended to create greater uniformity, consistency and certainty in the way that certain expressions are used in the Act. The expression ‘registered establishment’ was defined for the purposes of section 24 of the Export Control Act only.  This item now applies the definition to the whole Act and consequential amendments ensure that this expression replaces the expression ‘registered premises’ that has also been used in the Export Control Act for a similar purpose.  The note to this item is intended to support the continued use of the expression ‘registered premises’ in subordinate legislation made under the Export Control Act.  Although most of the references in subordinate legislation are to the expression ‘registered establishment’, some subordinate legislation has a long record of usage of the expression ‘registered premises’. 

 

Item 5

 

8.       Item 5 repeals the definition of ‘registered premises’.  This amendment is made as a consequence of the adoption of the expression ‘registered establishment’ for the reasons explained in item 4 above.

 

Item 6

 

9.       Item 6 inserts four new offence provisions.  These offences fill a gap in the existing offence provisions in the Export Control Act. The provisions create offences that apply to a person who is in control of the preparation of goods that are exported and who has not ensured that the goods have been prepared in accordance with the conditions and restrictions set out in regulations. Offence provisions under the Export Control Act currently apply to the person exporting prescribed goods or to persons in possession of prescribed goods if they intend to export those goods or know that there is an intention to export those goods.  While there is a need for such offences, they do not focus on the very important preparation stage of the export process. For reasons of food safety the main emphasis of the Export Control Act’s subordinate legislation is on the preparation of goods, rather than their export.  By creating these preparation offences, the Commonwealth will be sending a clear message to those people who fail to ensure that goods are prepared for export in accordance with the legislation, and therefore will be more confident about the safety of food to be exported and its ability to meet overseas countries’ requirements.



5

 

 

10.   The offence provisions fall into two general categories: one category (new section 8A) deals with two offences that have no strict liability elements and the other category (new section 8B) deals with two offences each of which has three strict liability elements. The offences within each category are identical in all respects (i.e. they have the same physical and mental elements and penalties) except that the first offence in each category deals with the export of goods to any place and the second offence in each category deals with the export of goods to a particular place.  The creation of the offences in this way mirrors paragraphs 7(2)(c ) and (d) of the Export Control Act which enables regulations to be made prohibiting the export of prescribed goods (to any place) unless specified conditions or restrictions are complied with or prohibiting the export of prescribed goods to a particular place unless specified conditions or restrictions are complied with.   

 

11.   The four new offences each have the same mental elements except in relation to the physical elements of the person being the occupier of the establishment, the preparation of the goods at the establishment and the non-compliance with the conditions or restrictions described in paragraphs (a), (b) and (g) of each offence. The mental elements for these physical elements in the two offences in new section 8A are recklessness, intention and recklessness respectively in accordance with section 5.6 of the Criminal Code

 

12.   In the two offences in new section 8B, strict liability is applied to the physical elements in paragraphs (a), (b) and (g). The application of strict liability in these circumstances is important as otherwise persons in control of food preparation establishments can avoid the consequences of non-compliance with the law by simply saying that they were not aware of what was occurring at their establishment.  The addition of the strict liability offences is likely to significantly enhance the effectiveness of the enforcement regime by requiring such people to have systems in place to ensure that the law is complied with.

 

13.   In all four offences, section 9.4 of the Criminal Code is relied on to establish whether the alleged offender knew that the goods were prescribed, that the relevant regulations existed and that conditions or restrictions (as specified in regulations) applied.  These elements are found in paragraphs (c ), (e) and (f) of each offence.  Section 9.4 ensures that the prosecution does not have to prove the defendant knew of the existence of the relevant provisions in the subordinate legislation.

 

14.   The expression “occupier” is defined in both new section 8A and 8B in exactly the same way.  The scope of the definition includes occupiers of both registered and unregistered establishments.  To avoid inadvertently catching an innocent occupier of an establishment that usually prepares goods for domestic consumption only, strict liability is not applied to the physical element of the actual export of the goods after preparation.  The same fault element (recklessness) applies to this physical element in all four offences (found in paragraph (d) of each offence) under subsection 5.6(2) of the Criminal Code

 



6

 

 

15.   The maximum penalty for the two offences in new section 8A is imprisonment for 5 years. The maximum penalty for the two offences in new section 8B is 60 penalty units.  The level of penalty for the first two offence provisions is consistent with the penalties for existing offences in sections 7A and 8 of the Export Control Act.  The level of penalty for the second two offences is consistent with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

 

Item 7

 

16.   Item 7 substitutes a new subparagraph (i) in paragraph 10A(1)(a) of the Export Control Act.  This amendment is minor and technical and is made as a consequence of the replacement of the expression ‘registered premises’ with ‘registered establishment’ throughout the Export Control Act.     

 

Item 8   

 

17.   Item 8 substitutes a new paragraph (a) in subsection 10D (2) of the Export Control Act.   This amendment is minor and technical and is made as a consequence of the replacement of the expression ‘registered premises’ with ‘registered establishment’ throughout the Act.

 

Item 9

 

18.   Item 9 substitutes a new heading for Division 6 of Part III of the Export Control Act.   This amendment is minor and technical and is made as a consequence of the replacement of the expression ‘registered premises’ with ‘registered establishment’ throughout the Export Control Act. 

 

Item 10

 

19.   Item 10 omits the expression ‘registered premises’ and substitutes ‘premises that form part of a registered establishment’ in subsection 11P (1).  This amendment is minor and technical and is made as a consequence of the replacement of the expression ‘registered premises’ with ‘registered establishment’ throughout the Export Control Act.

 

Items 11 to 15

 

20.   Items 11 to 15 restructure section 24 of the Export Control Act.  These amendments are minor and technical and are made as a consequence of the replacement of the expression ‘registered premises’ with ‘registered establishment’ throughout the Export Control Act.   The amendments do not change the effect of the section but rather the way in which it is expressed.  Section 8 of the Acts Interpretation Act 1901 is relied on to preserve the right to prosecute and impose a penalty in respect of an offence committed under the now repealed subsections.



7

 

 

Item 16

 

21.   Item 16 substitutes ‘an establishment’ for ‘premises’ in paragraph 25(2)(d) of the Export Control Act.   This amendment is minor and technical and is made as a consequence of the replacement of the expression ‘registered premises’ with ‘registered establishment’ throughout the Export Control Act.

 

Item 17

 

22.   Item 17 inserts a new paragraph in subsection 25(2) of the Export Act Control Act.  Subsection 25(2) specifies the matters about which regulations may be made.  The new paragraph will empower the Governor-General to make regulations and orders imposing fees for the performance of a service by the Secretary or a delegate of the Secretary and for the remission of fees so imposed.  Currently, the Export Control Act authorises the imposition of fees for, amongst other things, the registration of premises and in connection with the performance of services of authorised officers.     As the Secretary and delegates of the Secretary also perform services under the Export Control Act which would normally attract fees if performed by authorised officers, this amendment will enable the Australian Quarantine and Inspection Service to recover appropriate costs for such services.  

 

Item 18

 

23.   Item 18 inserts a new subsection in section 25 of the Export Control Act.  The purpose of this amendment is to clarify that fees imposed under the Export Control Act are not taxes and therefore must comply with the legal principles that apply to the setting of fees.      

 

 

Schedule 2 - Amendment of the Quarantine Act

 

NOTES ON ITEMS

 

Item 1

 

1.   This item inserts a new section in the Quarantine Act that will facilitate business between the Australian Quarantine and Inspection Service (AQIS) and the rest of the Commonwealth.  In particular, the new section, section 86EA, imposes a notional liability on the Commonwealth to pay the fees specified in a determination made under subsection 86E(1B) of the Quarantine Act for quarantine services.   The effect of this amendment is to give AQIS the authority to require payment from agencies and other Commonwealth bodies for quarantine services and to give these agencies and other Commonwealth bodies the legal authority to make payments to AQIS for quarantine services.  



8

 

 

2.   The new section empowers the Finance Minister to give such written directions as are necessary or convenient for carrying out or giving effect to this new notional liability.  These written directions are not legislative instruments under the Legislative Instruments Act 2003 (the LIA).   F or the avoidance of doubt, however, the new section includes a declaratory statement in subsection 86EA (4) that the written directions are not legislative instruments for the purposes of the LIA.   

 

Item 2

 

3.   This item provides that section 86EA will apply to quarantine fees that are incurred on or after the commencement of this Schedule.