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Agricultural and Veterinary Chemicals Legislation Amendment Bill 2001

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1998-1999-2000-2001

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

AGRICULTURAL AND VETERINARY CHEMICALS LEGISLATION AMENDMENT BILL 2001

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry, Senator the Hon Judith Troeth)

 



 

AGRICULTURAL AND VETERINARY CHEMICALS LEGISLATION AMENDMENT BILL 2001

 

 

OUTLINE

 

This bill amends the Agricultural and Veterinary Chemicals Act 1994 (the Act) to clarify the powers, functions and duties of Commonwealth officials and authorities within the National Registration Scheme (NRS) for agricultural and veterinary chemicals following the decision of the High Court in R v. Hughes (2000) 171 ALR 155.

 

The bill also amends the Act to address certain gaps in the NRS legislative scheme, arising independently of Hughes but also concerning the conferral of duties, powers and functions on Commonwealth authorities and officials, relating to the Commonwealth Administrative Appeals Tribunal (AAT) and inspectors and analysts appointed under Commonwealth law.

 

Before the High Court’s decision in Hughes , the Commonwealth had acted on the assumption that a Commonwealth law which allowed Commonwealth officials and authorities to perform functions or exercise powers under State laws was not purporting to impose a duty on the Commonwealth official or authority to perform those functions and powers.  It was the State law that was intended to impose any such duty.  The Commonwealth law merely indicated that the Commonwealth Parliament supported the conferral of duties, functions and powers by State legislation.  The legislative expression of that support removed any argument that the State legislation conferring the duties, functions or powers would be invalid on the basis that it was inconsistent with Commonwealth legislation, discriminated against the Commonwealth or infringed the Commonwealth’s immunity from State laws.

 

In Hughes , the High Court held that Commonwealth legislation had purported to impose a duty on the Commonwealth Director of Public Prosecutions (DPP) to exercise State powers, and that the imposition of that duty needed to be firmly supported by a head of Commonwealth constitutional power, particularly where the exercise of the power could adversely affect the rights of individuals.  As just noted, the finding that the Commonwealth law itself operated to impose a duty to exercise State powers was contrary to the assumptions made by the Commonwealth in relation to the conferral of State duties, functions and powers on Commonwealth authorities and officials.

 

The Court in Hughes left open the question whether there was any ‘constitutional imperative’ for the Commonwealth law to have imposed the duty on the DPP (at 171 ALR 164) - in other words, whether it was necessary for this duty to have been imposed by Commonwealth rather than by State law.  It may be that the High Court will in future hold that any duty which a Commonwealth body has to perform State functions or powers must be imposed by Commonwealth law and cannot be imposed by State law.  Of course, such a finding may significantly undermine the rationale for Commonwealth/State cooperative schemes.

 

The Hughes decision related to the powers of the DPP within the Corporations Law cooperative legislative scheme, but is also potentially relevant to other Commonwealth-State cooperative schemes such as the NRS.  Within the NRS there are a range of Commonwealth officials and authorities which perform functions and exercise powers conferred under State legislation.

 

The amendments made by this Bill will:

 

•            clarify that the Commonwealth authorises the conferral by State law of duties, as well as functions and powers, on Commonwealth officials and authorities;

•            clarify that in authorising such a conferral, the Commonwealth intends to rely to the fullest extent possible, but not to exceed, the legislative powers available to it under the Constitution;

•            ensure, to the fullest extent possible within the Commonwealth’s legislative power, that a duty, function or power of a Commonwealth official or authority is conferred by Commonwealth law rather than State law, where there is a constitutional imperative to do so to ensure the valid conferral of the duty, function or power;

•            clarify that where duties, powers or functions of Commonwealth officials or authorities under State law are taken to be conferred by Commonwealth law, the Commonwealth intends to rely to the fullest extent possible, but not to exceed, the legislative powers available to it; and

•            specifically confirm, both prospectively and retrospectively, that a State law may confer duties, functions and powers on the AAT and on inspectors and analysts appointed under Commonwealth law.

 

In relation to the issues raised by Hughes , the Bill is designed to ensure, to the greatest extent possible, that within the NRS the duties, powers or functions of Commonwealth officials or authorities under State law will be able to be interpreted as being conferred by State law rather than Commonwealth law.

 

 

FINANCIAL IMPACT STATEMENT

 

There are no direct financial impacts from this Bill.

 



 

AGRICULTURAL AND VETERINARY CHEMICALS LEGISLATION AMENDMENT BILL 2001

 

 

NOTES ON CLAUSES

 

Clause 1:   Short Title

 

1.       The short title of the Act is the Agricultural and Veterinary Chemicals Legislation Amendment Act 2001 .

 

Clause 2:   Commencement

 

2.       Schedule 2 (which deals with amendments consequential on the commencement of the Administrative Review Tribunal Act 2001 ) commences either immediately after the commencement of Item 2 of Schedule 1 of the Bill, or at the time when Parts 4 to 10 of the Administrative Review Tribunal Act 2001 commence, whichever is later.  Otherwise, the Bill commences on Royal Asset.

 

Clause 3:   Schedules

 

3.       This clause gives effect to the amendments or repeals of Acts, or other items, provided by each Schedule to the Bill, subject to commencement of each Schedule under clause 2.

 

Schedule 1:   Amendments relating to constitutional matters

 

4.       This schedule effects a number of amendments to the Agricultural and Veterinary Chemicals Act 1994 (the Act) relating to the Hughes case and to the conferral by State law of duties, functions or powers on the AAT and inspectors and analysts appointed by under Commonwealth law.

 

Item 1:   Section 4

 

5.       This item inserts a definition of ‘confer’ into section 4 of the Act, to make it clear that a reference to the conferral of a duty is to be interpreted to include the concept of the imposition of a duty (see Items 2 and 3).

 

Item 2:   Section 18 and Item 4:  Application of Amendment

 

6.       This item replaces section 18 of the Act.  Previously, section 18 provided that a corresponding law of a State may confer prescribed functions and powers upon Commonwealth authorities and officers.  New subsection 18(2) will expressly authorise the conferral of duties, as well as functions and powers, in this manner.  A ‘corresponding law’ is defined in section 4 of the Act to be an Act or a related legislative instrument of a State which corresponds to the Commonwealth Act.

 

7.       In addition to the general authorisation in new subsection 18(2), new subsection 18(1) will specifically authorise the conferral of duties, functions or powers under a corresponding law on the AAT, and on inspectors appointed under section 69F and analysts appointed under section 69G of the Agricultural and Veterinary Chemicals (Administration) Act 1992 .  The duties, functions or powers may be conferred in respect of any matter relating to the applicable provisions of the State; the applicable provisions are defined in section 4 of the Act to be the Agvet Code or Regulations of the State or laws of the Commonwealth that apply in that jurisdiction in relation to the Agvet Code or Regulations of the State.

 

8.       The specific authorisation in new subsection 18(1) will have effect in relation to matters arising before, on or after the commencement of that provision (see Item 4).  This will provide a foundation for State legislation validating the past actions of the AAT and inspectors and analysts under relevant State laws where there is some doubt about the past conferral of relevant functions or powers.

 

9.       New subsection 18(3) will provide that the intention of Parliament is to rely on all legislative powers available to it under the Constitution in authorising the conferral of duties, functions or powers on Commonwealth officers or authorities under either subsection 18(1) or 18(2), thus ensuring the broadest possible scope for the conferral of State duties, functions or powers as authorised by those provisions.

 

10.     The effect of new section 18, together with new subsection 18A(1) (see Item 3), will be to ensure that to the maximum extent possible, the many duties, functions or powers of Commonwealth authorities and offices under the NRS which are set out in State laws will be taken to be conferred by State rather than Commonwealth law.

 

Item 3:   After Section 18

 

11.     This item will insert new section 18A into the Act.  New subsection 18A(1) will provide that where a Commonwealth authority or officer has a duty, function or power conferred by a corresponding law of a State, then that duty, function or power will not be taken to be conferred by Commonwealth law and  section 18 will not be taken to authorise that conferral if the conferral or authorisation would  contravene any constitutional doctrine or otherwise exceed the legislative power of the Commonwealth.  This is a reading down provision which will limit the operation of section 18 to the extent necessary to ensure that the authorisation of the conferral of duties, functions and powers under section 18 is constitutionally valid.

 

12.     New subsections 18A(2) and 18A(3) will apply in a situation where it is necessary for a constitutional reason for a particular duty, function or power which is purportedly conferred on a Commonwealth authority or officer to instead be conferred by Commonwealth law.  The majority of the High Court in Hughes seemed to leave open the question of whether there may be any such ‘constitutional imperative’ for a duty, power of function to be conferred by Commonwealth law.  In such a situation, subsection 18A(2) will operate to confer the duty, function or power on the relevant Commonwealth authority or officer.  Subsection 18A(1) and 18A(3) will ensure that in doing so, subsection 18A(2) operates to the fullest extent of the Commonwealth’s constitutional powers, but is not taken to exceed those powers.

 

13.     New subsection 18A(4) provides that subsections 18A(2) and (3) do not operate to limit section 18.  Accordingly, there can be no argument that the scope of the authorisation of the conferral of duties, functions and powers under section 18 is limited by the operation of subsections 18A(2) or (3).



 

Schedule 2:   Amendments consequential on changed administrative law arrangements

 

14.     This Schedule provides for the amendment of the reference to the AAT in new paragraph 18(1)(a) of the Act, on the commencement of the proposed Administrative Review Tribunal Act 2001 .