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Export Control Bill 2019

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EXPORT CONTROL BILL 2019

GENERAL OUTLINE

The regulation of goods for export by the Australian Government is, in many circumstances, a prerequisite for the acceptance of those goods by importing countries. The Export Control Bill 2019 (the Bill) will create a legislative framework that will provide the primary means for the Australian Government to regulate goods exported from Australian territory. This framework will support access to international trading markets for Australian goods and protect Australia’s global trading reputation as a reliable source of safe and high-quality goods.

Australia’s existing legislative framework for agricultural production and certification of exports (including fish, forestry, fibre and food products) has developed over 35 years and currently comprises 17 Acts (including the Export Control Act 1982 and the Australian Meat and Live-stock Industry Act 1997 ) and more than 40 legislative instruments. This includes legislative instruments which regulate the export of fish, eggs, dairy, beef, lamb, goat, rabbit and pig meat, poultry meat, wild game meat, ratite (e.g. emu) meat, live animals (including livestock), and plants and plant products. The framework has served Australia well by enabling the export of agricultural products that meet importing country requirements, and will continue to do so until the Bill commences.

Many of the legislative instruments that support the existing export certification framework are due to sunset (cease to be law) on 1 April 2021 in accordance with the requirements of the Legislation Act 2003 . This deadline provided the opportunity to review those legislative instruments as part of a broader review of the entire agricultural exports legislative framework, which took place in 2015 (the Review). The Review sought to verify whether farmers and exporters are being supported by contemporary, flexible and efficient legislation, and whether Australia’s trading partners continue to have confidence in Australia’s agricultural exports.

The Review found that, while the existing legislative framework serves Australian exporters well, there is scope for improvements to better support farmers and exporters to meet future importing country requirements and seize trade opportunities in a changing global environment. This included being more flexible to allow government and industry to respond to changes in technologies and future importing country requirements. The Review also found that if the framework is maintained in its current complex and duplicative state, it may lead to inefficient export procedures, increase transaction costs, and delay the clearance of agricultural goods for export in the longer term. All these potential effects may have an adverse impact on Australia’s export trade with other countries.

It is in Australia’s interest to ensure that appropriate regulation is in place. The administration of this legislative framework should also be the least burdensome for government, businesses, community organisations and individuals involved in the agricultural export system. Australia’s export legislation must support our agricultural industry but also provide assurance to our trading partners and deter the few that would seek to undermine our reputation as a reliable supplier of quality products.

The Bill, which is informed by the Review, is intended to replace the existing legislative framework for agricultural exports to provide more contemporary, flexible and efficient legislation that better regulates Australia’s agricultural exports into the future. The Bill will set out the overarching principles for the operation of the improved export certification system and will incorporate and consolidate common principles from the existing legislative framework. This will remove a lot of the duplication in the current framework and enable the harmonisation of requirements (where appropriate) as well as enabling commodity-specific rules to be made.

It will be more flexible than the existing framework, enabling the Australian Government to be more responsive and better able to manage changes and issues as they arise. The Bill is also designed to draw upon, support and give effect to Australia’s rights and obligations under relevant international agreements, including trade-related agreements.

The objects of the Bill will include ensuring that goods that are exported meet the requirements of importing countries to enable and maintain market access for goods exported from Australia, that government and relevant industry standards are complied with, and that there is traceability of goods throughout the export supply chain, from production and processing to exporting, where required. The Bill will ensure the integrity of goods as well as the accuracy of trade descriptions and official marks that are applied to goods.

The Bill will absolutely prohibit the export of split vetch. It will also provide the Minister with the power to temporarily prohibit the export of certain goods, or the export of certain goods to a particular place, in circumstances where the Minister is satisfied that the prohibition is necessary to protect human, animal or plant life or health, or to secure compliance with an Australian law (other than the Bill).

Under the Bill, the export of ‘prescribed goods’ (being ‘goods’ that are set out in the delegated legislation (rules)) will be prohibited unless the requirements of the Bill or conditions specified in the rules are met. The Secretary will be able to grant exemptions from one or more provisions of the Bill in relation to prescribed goods in certain circumstances. ‘Non-prescribed goods’ (being all goods other than prescribed goods) will not be subject to the same requirements for exporting as prescribed goods.

The Bill will enable certificates to be issued for both prescribed and non-prescribed goods. Government certificates constitute evidence that goods that are to be, or have been, exported have been assessed as being compliant with the requirements of the Bill, and meet relevant importing country requirements.

The Bill and the rules will set out the requirements for the export of goods from Australian territory. The rules will be able to prescribe conditions that must be complied with depending on the goods being exported. For example, the rules may require that:

·          export operations for a kind of prescribed goods are carried out at an accredited property or registered establishment or in accordance with an approved arrangement;

·          a person must hold an export licence;

·          an export permit has been issued;

·          a notice of intention to export has been given; or

·          a trade description or official mark has been applied to the goods.

In order to give effect to Australia’s rights and obligations under relevant international trade-related agreements, the rules will be able to provide for a system of tariff rate quotas to be administered for the export of certain goods.

The Bill will also make provision for the authorisation of persons to exercise certain powers and perform certain functions under the Bill. These powers will include conducting audits of export operations, carrying out assessments of goods, and giving directions that must be complied with by exporters and producers in the course of carrying out export operations relating to prescribed goods.

In order to deter people from engaging in conduct that contravenes the conditions and requirements of the Bill, and to ensure the Bill’s swift and effective enforcement, the Bill will provide for a range of powers that can be exercised by the Secretary or authorised officers, including those triggered by the Regulatory Powers (Standard Provisions) Act 2014 . These powers will include action such as revocation and suspension of regulatory tools (for example, registration of establishments or export licences), as well as injunctions, enforceable undertakings and infringement notices. For more serious compliance issues, the Bill will provide for a number of civil penalty provisions as well as criminal offences.

The Bill will also provide for the Secretary to make a number of decisions, some of which may affect the interests of individuals. The Bill provides for merits review to be available in relation to decisions by the Secretary that affect individuals. Decisions will also be able to be reviewed externally by the Administrative Appeals Tribunal.

The use and disclosure of ‘protected information’ will be regulated under the Bill. Protected information will be able to be obtained under, or in accordance with, the Bill, and may then be used or disclosed in certain circumstances, in accordance with the Privacy Act 1988 . A person may commit an offence if the person uses or discloses protected information other than in accordance with the Bill.

Fees will be able to be imposed under the Bill, on a cost-recovery basis, in relation to activities carried out by, or on behalf of, the Commonwealth (for example, by authorised officers) in the performance of functions or the exercise of powers under the Bill.

Finally, the Bill will delegate the power to make rules to the Secretary. The rules will be legislative instruments and will be subject to the requirements of the Legislation Act 2003 , including parliamentary scrutiny, oversight, disallowance and sunsetting. The Bill will also include a power for the Minister to issue directions to the Secretary about the Secretary’s rule-making power. Directions made by the Minister to the Secretary will be legislative instruments but will not be subject to disallowance or sunsetting. This will ensure that the Minister has appropriate oversight of the regulatory framework.

FINANCIAL IMPACT STATEMENT

The Bill will have no financial impact on the Australian Government Budget.

REGULATION IMPACT STATEMENT

The Regulation Impact Statement is attached to this explanatory memorandum.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

The full statement of compatibility with human rights is attached to this explanatory memorandum.

 



ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

Term, acronym or abbreviation

Meaning

Acts Interpretation Act

Acts Interpretation Act 1901.

Administrative Appeals Tribunal Act

Administrative Appeals Tribunal Act 1975.

Bankruptcy Act

Bankruptcy Act 1961.

the Bill

the Export Control Bill 2019.

Biosecurity Act

Biosecurity Act 2015.

Corporations Act

Corporations Act 2001.

Crimes Act

Crimes Act 1914.

Criminal Code

Schedule 1 to the Criminal Code Act 1995.

the Department

the Department administered by the Minister who will administer the ‘Export Control Act 2019’, which is an Act that will be created by this Bill if the Bill passes the Parliament and receives the Royal Assent.

the Guide

the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers published by the Attorney-General’s Department.

Legislation Act

Legislation Act 2003.

the Minister

the Minister responsible for administering the ‘Export Control Act 2019’, which is an Act that will be created by this Bill if the Bill passes the Parliament and receives the Royal Assent.

PGPA Act

Public Governance, Performance and Accountability Act 2013.

Privacy Act

Privacy Act 1988.

Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014.

the rules

the Export Control Rules made under clause 432 of the Bill.

the Secretary

the Secretary of the Department administered by the Minister who will administer the ‘Export Control Act 2019’, which is an Act that will be created by this Bill if the Bill passes the Parliament and receives the Royal Assent.

trading partner

a foreign country to whom Australia exports goods.



NOTES ON CLAUSES

The information set out below provides information, in addition to that included in the relevant notes on clauses, about the power to make rules under clause 432 of the Bill and the offence and civil penalty provisions included in the Bill. This information has been provided to assist the reader and should be read in conjunction with the detailed notes on the clauses that refer to these matters.

Rules made under the Bill

The Bill will set out the overarching legislative framework for the Government to regulate the export of goods from Australian territory. The Bill will enable the Secretary to make rules by legislative instrument that set out the detailed requirements for the export of goods. These rules will be made under clause 432 of the Bill. This clause will allow the Secretary to prescribe matters that are:

·          required or permitted by the Bill to be prescribed by the rules; or

·          necessary or convenient to be prescribed by the rules in order to carry out or give effect to the Bill.

There are a number of provisions in the Bill that require or permit the Secretary to make rules. These provisions set the parameters of the Secretary’s rule-making power and either:

·          provide examples of the kinds of things for which the Secretary may make provision in the rules; or

·          set out the default matters for the provision and allow the Secretary to give further detail in the rules.

Power of the Secretary to make rules

The Bill will give the Secretary the power to make rules.

The rules will set out the detailed requirements and establish conditions relating to the export of goods from Australian territory. The matters that will be set out in the rules will ensure that exported goods will meet importing country requirements and requirements of the Bill. For example, the rules may include requirements that ensure goods meet Australia’s and importing countries’ food safety standards, or that minimise plant or animal health risks and biosecurity risks of goods.

Importing country requirements change regularly. Many of these changes are technical matters, concerning the way that goods are to be produced, prepared or exported. Making these changes quickly will be crucial to ensuring that Australian producers, processors and exporters do not experience disruption in market access and can continue to export goods that meet importing country requirements. This is particularly important because one non-compliant export of goods can have significant consequences for other exports, including restrictions on, or the closure of, market access.

The requirements for producing and preparing goods for export, and for exporting goods, vary substantially between commodities. For example, the requirements to ensure that red meat for export is safe for human consumption are substantially different to the requirements to ensure that wood chips do not contain any pests or diseases. The requirements also vary depending on the purpose for which the Government regulates a commodity. For some commodities, these requirements ensure that the goods meet those of the importing country. For others, the requirements may relate to Australia’s standards for goods that are exported or to give effect to Australia’s rights and obligation under any international agreement to which Australia is a party.

It is appropriate that the Secretary is given the power to set the requirements for the export of goods in the rules. The combination of their technical nature, the need to rapidly respond to changes in importing country requirements, and the need to deal with a wide range of commodities mean that the Secretary is in the best position to set the requirements for the export of goods from Australia.

Oversight mechanisms

The Bill also envisages oversight mechanisms for the Secretary’s power to make rules. These mechanisms ensure that the Secretary remains accountable to both Parliament and the Minister in determining the requirements for exporting goods.

First, the rules will be legislative instruments. In accordance with the Legislation Act, the rules and any changes to them made by the Secretary will need to be tabled in each House of Parliament within six sitting days of registration to be scrutinised. The rules will then be subject to disallowance by either house for fifteen sitting days.

Second, clause 289 empowers the Minister to give, by legislative instrument, directions to the Secretary in relation to the exercise of the Secretary’s rule-making power. For example, the Minister may give a direction that the Secretary must take certain matters into account when making a rule in relation to prescribed goods. The Minister may also give a direction requiring the Secretary to make or amend the rules in a particular way. The Secretary must comply with directions given by the Minister. This gives the Minister an additional level of oversight and control over the Secretary’s rule-making power, and ensures that the Secretary is appropriately accountable to the Minister. A direction by the Minister to the Secretary is a legislative instrument, but is not subject to tabling or disallowance.

Finally, the Secretary will need to comply with the ordinary processes of government in making rules. This will include obtaining appropriate authority from government for policy changes, preparing a regulation impact statement where required, and conducting appropriate and reasonable consultation with industry and other stakeholders.

Compliance and enforcement

The Bill will include a modernised compliance and enforcement framework. It will include a range of mechanisms that are aimed at detecting, deterring and punishing non-compliance. These include powers to monitor and investigate suspected non-compliance and a range of sanctions to deal with non-compliance.

Monitoring and investigation powers

The Bill will trigger the Regulatory Powers Act. This will give authorised officers access to the monitoring and investigatory powers available under that Act. These include powers to enter premises (by consent or warrant) and exercise monitoring or investigation powers. These powers will ensure that authorised officers are able to effectively monitor compliance and investigate wrongdoing in relation to a provision of the Bill in a way that is consistent with other Commonwealth regulatory agencies.

The Bill will provide for some modifications to the application of the Regulatory Powers Act. The modifications include the ability for authorised officers to secure goods in exercising their monitoring powers for the purposes of sampling, testing or analysing those goods (clause 327).

The Bill will also give additional powers to authorised officers, including to:

·          enter accredited properties or registered establishments in the absence of consent or a warrant to monitor compliance with the Bill (clause 346); and

·          stop and search conveyances in emergency situations (clause 354).

These modifications and additional powers are appropriately adapted to enable authorised officers to enforce the regulatory scheme set up by the Bill and ensure that it achieves its objects. The modifications and additional powers ensure that authorised officers are able to exercise powers to ensure that goods that are exported from Australia meet the requirements of the Bill and importing countries, and that the actions of one exporter do not jeopardise market access for all.

Sanctions for non-compliance

The Bill will provide for a graduated set of sanctions to respond to non-compliance. The range of compliance and enforcement powers in the Bill is intended to allow the Government to choose between different enforcement options and ensure that sanctions are appropriate and proportionate to the non-compliance.

The Government will continue to use administrative sanctions as the primary mechanism of responding to non-compliance. These sanctions may include increasing the frequency and scope of audits; refusing to grant, or revoking, permits or certificates; or varying, suspending, revoking or placing additional conditions on an accredited property, registered establishment, approved arrangement or export licence. As these sanctions directly affect the livelihood of people who prepare, produce or export goods, in most cases, they will be the most effective way to address non-compliance and deter similar conduct in the future.

The Bill will also allow for a range of regulatory sanctions for non-compliance. These include criminal penalties, civil penalties, infringement notices, injunctions and enforceable undertakings. Further information about the role of criminal offences and civil penalties in the Bill is set out below.

Criminal offences

The Bill will include a range of criminal offences. The Government has carefully considered the need for these offences and has included them in the Bill only where necessary to deter and punish non-compliance.

Australia’s ongoing access to overseas markets depends upon exported goods meeting importing country requirements and Australian standards, such as having accurate trade descriptions. Contraventions of the offence provisions in the Bill at any point in the export supply chain may result in the export of non-compliant goods. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact the confidence of trading partners in the Government’s regulation of exported goods and adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export goods. The offences provide an effective deterrent to, and punishment for, conduct that may undermine Australian trade or risk the livelihoods of people who produce, prepare and export goods. In this sense, the offences in the Bill are crucial to upholding Australia’s strong trading reputation and maintaining market access for all.

The consequences of exporting non-compliant goods are not limited to economic or trading matters. The Bill and rules may prescribe requirements to minimise risks to plant or animal health, human health and biosecurity risks of goods exported from Australia. Contraventions of these requirements may have significant ramifications for biosecurity—both in Australia and abroad—and create risks to animal, plant and human health.

The penalty for each offence provision takes into account the gravity of the offence and the serious consequences that may flow from non-compliance. Penalties have been set to deter non-compliance and provide proportionate and appropriate punishment for deliberate or reckless wrongdoing.

The Criminal Code applies in relation to the Bill. Notes are included under some provisions of the Bill to direct the reader to particularly relevant sections of the Criminal Code . These include where:

·          a person may commit an offence if the person makes a false or misleading statement in an application or provides false or misleading information or documents under sections 136.1, 137.1 and 137.2 of the Criminal Code ; and

·          where a defendant will bear the evidential burden in relation to a matter under the Bill, in accordance with subsection 13.3(3) of the Criminal Code .

Other relevant parts of the Criminal Code will apply to the Bill. This includes sections 9.3 and 9.4, which clarify that a person can be criminally responsible even if the person is ignorant of or mistaken about the existence of the relevant provisions in the Bill or the rules. Ignorance of the law is not to be a reason for escaping criminal liability.

The Bill contains a small number of strict liability offences. Where strict liability applies to an offence, the prosecution is only required to prove the physical elements of an offence in order for the defendant to be found guilty, in accordance with section 6.1 of the Criminal Code . Strict liability offences have been used where there is a strong public interest in ensuring that the regulatory scheme is observed and it can be reasonably expected that the person was aware of their duties and obligations.

Strict liability also attaches to elements of a number of offences. In clauses 30 to 50, 252 and 253, these elements are matters of law. It is appropriate for these elements to be strict liability because persons engaged in export operations in relation to goods should know their legal obligations, and ignorance of the law should not be a ground on which a person may escape liability.

Civil penalties

The Bill also includes a range of civil penalties. It will trigger the framework for civil penalties in Part 4 of the Regulatory Powers Act. The civil penalties in the Bill have been designed to encourage compliance with the Bill without resorting to criminal prosecution. Contraventions of civil penalty provisions will need to be proved in court on the balance of probabilities.

The civil penalty provisions in the Bill will deter non-compliance with the requirements in the Bill for exporting goods. As noted above, non-compliance with these requirements could have significant and lasting negative consequences for Australia’s economy and trading relationships, as well as people who produce, prepare and export goods. The Bill includes civil penalties for provisions which are regulatory in nature, and where a pecuniary penalty is the appropriate remedy for non-compliance.

Civil penalty provisions offer an alternative to criminal prosecution. The penalties have been set at a level substantially higher than the maximum fines available for criminal offences in the Bill. Given the regulatory nature of the Bill, it is important that civil penalties are set at a level that means that the penalty is not merely perceived as a cost of doing business. This is particularly the case for bodies corporate. Under subsection 82(5) of the Regulatory Powers Act, where a body corporate contravenes a civil penalty provision, the maximum civil penalty that a relevant court could order that person to pay the Commonwealth is five times the penalty specified in the provision, unless the provision specifies otherwise. Clause 50A of the Bill will provide a method for calculating the civil penalty amount for specified clauses involving certain contraventions by bodies corporate and will modify the operation of subsection 82(5) of the Regulatory Powers Act in relation to those clauses.

Some provisions will have both criminal and civil penalties attached. This is intended to allow the Government to choose the most appropriate sanction in the circumstances. The civil penalty framework in the Bill is intended to operate in parallel to, but distinct from, the framework of criminal offences. In particular, while some civil penalties and criminal offences may share physical elements, it is not intended that the criminal fault elements under the Criminal Code apply to civil penalty proceedings.

 

Chapter 1—Preliminary

PART 1—PRELIMINARY

Clause 1              Short Title

Clause 1 will provide that the short title of the Bill is the Export Control Act 2019 .

Clause 2              Commencement

Subclause 2(1) will provide that each provision of the Bill specified in column 1 of the table that is set out in subclause 2(1), will commence, or will be taken to have commenced, in accordance with column 2 of that table. Any other statement in column 2 will have effect according to its terms.

Item 1 of the table in subclause 2(1) will provide that clauses 1 and 2 of the Bill (and anything else in the Bill not specified in the commencement table in subclause 2(1) of the Bill) commences on the day that the Bill receives the Royal Assent.

Item 2 of the table in subclause 2(1) will provide that clauses 3 to 432 of the Bill will commence at a single time in the Australian Capital Territory to be fixed by Proclamation.

However, if clauses 3 to 432 of the Bill do not commence before 3 am (by legal time in the Australian Capital Territory) on 28 March 2021, they will commence at that time. This will mean that if clauses 3 to 432 of the Bill have not been proclaimed to commence before 3 am on 28 March 2021, they will commence at 3 am on 28 March 2021. A note will be included at the end of the table in subclause 2(1), which will provide that the commencement table in subclause 2(1) relates only to the provisions in the Bill as originally enacted and will not be amended to deal with any later amendments of the Bill.

The default commencement period for an Act is usually six months after the Royal Assent. However, the Bill will provide the option of a longer commencement period. This timeframe will coincide with the sunsetting of many of the legislative instruments that make up the existing regulatory framework for the export of goods. This timing will also enable continued consultation with trading partners. This is necessary to build their confidence in the regulatory scheme the Bill will establish and will reduce the risk of disruption to trade. 

Subclause 2(2) will provide that any information in column 3 of the table that is set out in subclause 2(1) of the Bill will not be part of the Bill. Information will be able to be inserted in this column, or information in it will be able to be edited, in any published version of the Bill.

Clause 3              Objects of this Act

Clause 3 will set out the objects of the Bill. The objects of the Bill will be:

·          to ensure that goods that are exported:

o    meet relevant importing country requirements to enable and maintain overseas market access for goods exported from Australia; and

o    comply with government or industry standards or requirements relating to the goods; and

o    are traceable and can be recalled if necessary.

·          to ensure the integrity of goods that are exported;

·          to ensure that trade descriptions for goods that are exported are accurate;

·          to give effect to Australia’s rights and obligations relating to goods that are exported under any international agreements to which Australia is a party.

Clause 4              Simplified outline of this Act

Clause 4 will create a simplified outline of the Bill. It will provide that the Bill creates a framework for regulating the export of goods, including agricultural products and food, from Australian territory. The Bill will include provisions about its application and the relationship of the Bill with State and Territory laws.

The Bill will provide that certain goods will be prohibited absolutely from being exported from Australian territory. In addition, the Bill will provide that the Minister may, by legislative instrument (a temporary prohibition determination), determine that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, is prohibited absolutely for a specified period of up to six months; or that the export of a specified kind of goods (including prescribed goods) from Australian territory, or from a part of Australian territory, to a specified place is prohibited for a specified period of up to six months.

The Bill will also provide that the Minister may only make a temporary prohibition determination if the Minister is satisfied that the determination is necessary to protect human, animal or plant life or health; or to secure compliance with an Australian law (other than the Bill).

The Bill will provide that the rules may prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless prescribed conditions are complied with. Conditions may be prescribed for the purpose of ensuring importing country requirements are met, or government or industry standards or requirements are complied with, or to give effect to Australia’s international obligations. The Secretary will be able to grant an exemption from one or more provisions of the Bill in relation to prescribed goods that will be exported in certain circumstances. The Bill will also provide that a government certificate may be issued in relation to prescribed goods and non-prescribed goods that are to be, or that have been, exported.

The Bill will provide that the rules may also make provision for and in relation to the establishment and administration of a system, or systems, of tariff rate quotas for the export of certain goods.

The Bill will enable authorised officers (including third party authorised officers) and other persons to exercise certain powers under the Bill.

The Bill will provide for a range of compliance and enforcement powers, including by applying the Regulatory Powers Act. Certain decisions under the Bill will be able to be reviewed internally and by the Administrative Appeals Tribunal. The Bill will regulate the use and disclosure of protected information and will provide that fees will be able to be charged, on a cost-recovery basis, in relation to activities carried out by, or on behalf of, the Commonwealth in the performance of functions or the exercise of powers under the Bill.

Finally, the Bill will enable the Secretary to make rules for the purposes of the Bill. The rules will be disallowable legislative instruments.

The simplified outline is included to assist the reader to understand the regulatory scheme in relation to the export of goods that will be established by the Bill. It is not intended to be comprehensive. It is intended that the reader will rely on the substantive clauses of the Bill.

Clause 5              Act binds the Crown

Clause 5 will provide that the Bill will bind the Crown in each of its capacities, but will not make the Crown liable to be prosecuted for an offence, be subject to a civil proceeding for a civil penalty order under Part 4 of the Regulatory Powers Act, or be given an infringement notice under Part 5 of the Regulatory Powers Act.

This will mean that the Commonwealth and State and Territory governments will be bound to comply with the provisions of the Bill, but they cannot be prosecuted for an offence, be subject to a civil penalty, or be given an infringement notice under the Bill.

Clause 6              Application of this Act in Australia

Clause 6 will give effect to international law principles about the applicat ion of legislation in the territory of a state and in a coastal state’s maritime zones. Subclause 6(5) will provide that clause 6 is subject to clause 10 of the Bill, which will set out the right of innocent passage at internatio nal law.

General

Subclause 6(1) will provide that, subject to subclauses 6(2), 6(3) and 6(4), the Bill applies in Australia, in the exclusive economic zone adjacent to Australia, and on or in the continental shelf adjacent to Australia in relation to:

·          all persons or bodies (including foreign persons or bodies); and

·          all aircraft (including foreign aircraft); and

·          all vessels (including foreign vessels).

A note will be included at the end of subclause 6(1) to direct the reader to section 15B of the Acts Interpretation Act, which will clarify that a reference to Australia includes a reference to the coastal sea of Australia.

The effect of subclause 6(1) will be that the Bill applies in Australia (including the coastal sea of Australia) in relation to:

·          all Australian persons or bodies, Australian aircraft and Australian vessels; and

·          all foreign persons or bodies, foreign aircraft and foreign vessels.

Subclause 6(1) will provide that, in accordance with international law, all persons or bodies, aircraft and vessels (including foreigners) are subject to the regulatory controls set out in the Bill when they are in Australia (including its coastal s ea). It will also enable the appropriate authorities to take enforcement action against those persons, if necessary.

Limited application in the exclusive economic zone

The combined effect of subclauses 6(1) and 6(2) will be that the Bill applies in the exclusive economic zone adjacent to Australia in relation to:

·          all Australian persons or bodies, Australian aircraft and Australian vessels; and

·          all foreign persons or bodies, foreign aircraft and foreign vessels, but only in relation to the export of goods that have been taken in that area.

This will mean that the regulatory controls set out in the Bill will apply in the exclusive economic zone adjacent to Australia in relation to Australian persons or bodies, Australian aircraft and Australian vessels. In relation to foreign persons or bodies, foreign aircraft and foreign vessels, the jurisdiction in the exclusive economic zone will be limited. The regulatory controls that will be set out in the Bill will only apply to foreign persons or bodies, foreign aircraft and foreign vessels in relation to the export of goods that have been taken in that area. For example, the Bill will apply to a foreign vessel in the exclusive economic zone adjacent to Australia that was carrying fish to be exported, if the fish was taken from the exclusive economic zone adjacent to Australia. However, the Bill cannot, for example, regulate a foreign vessel carrying goods exported from Australia that is just passing through the exclusive economic zone.

Subclause 6(3) will provide that subclause 6(2) will not prevent the exercise of powers under the Bill in the contiguous zone of Australia in relation to a foreign person or body, foreign aircraft or foreign vessel, to investigate a contravention of the Bill that occurred in Australia or to prevent a contravention of the Bill from occurring in Australia.

Subclause 6(3) will provide that, consistent with international law, the limitation on the exercise of jurisdiction in the exclusive economic zone in relation to foreign persons or bodies, foreign aircraft and foreign vessels (see subclause 6(2)) will not prevent Australia from taking enforcement action in the contiguous zone (which is a part of the exclusive economic zone). The powers that will be able to be exercised pursuant to subclause 6(3) of the Bill will include the power to investigate a contravention of the Bill that occurred in Australia (for example, before the vessel left Australia) and to prevent a contravention of the Bill from occurring in Australia.

Limited application on or in the continental shelf

The combined effect of subclauses 6(1) and 6(4) will be that the Bill will apply on or in the continental shelf adjacent to Australia (excluding the area covered by the exclusive economic zone) in relation to:

·          all Australian persons or bodies, Australian aircraft and Australian vessels; and

·          all foreign persons or bodies, foreign aircrafts or foreign vessels, but only in relation to the export of natural resources that have been harvested on the continental shelf in that area.

This will mean that the regulatory controls that will be set out in the Bill will apply on or in the continental shelf adjacent to Australia in relation to all Australian persons or bodies, Australian aircraft and Australian vessels. In relation to foreign persons and bodies, foreign aircraft and foreign vessels, the jurisdiction on or in the continental shelf will be limited. The regulatory controls that will be set out in the Bill will only apply to foreign persons or bodies, foreign aircraft and foreign vessels in relation to the export of natural resources (for example, sea cucumbers) that have been harvested on the continental shelf in that area. For example, the Bill will apply to a foreign vessel in the waters above the continental shelf adjacent to Australia that was carrying sea cucumbers to be exported, if the sea cucumbers were taken from the continental shelf adjacent to Australia. However, the Bill will not be able to, for example, apply its regulatory controls to a foreign vessel that is fishing in the waters above the continental shelf adjacent to Australia.

A note will be included at the end of subclause 6(4) that will direct the reader to the definition of natural resources in clause 12 of the Bill.

Clause 7              Limited application of the Act outside Australia

Clause 7 will address the application of the Bill in an area that is outside the outer limits of the exclusive economic zone adjacent to Australia and is not on or in the continental shelf adjacent to Australia; but excludes an external Territory, the exclusive economic zone adjacent to an external Territory and on or in the continental shelf adjacent to an external Territory (see subclause 7(2) of the Bill).

Subclause 7(1) will provide that, in an area covered by subclause 7(2), the regulatory controls set out in the Bill apply to Australian nationals, Australian residents, the Commonwealth, Commonwealth bodies, Australian aircraft and Australian vessels, and members of crews of Australian aircraft and vessels.

This will mean that the regulatory controls that are set out in the Bill will apply outside Australia in an area covered by subclause 7(2), but only in relation to the persons listed in subclause 7(1).

Clause 8              Extension of this Act to external Territories and other areas

The effect of subclauses 8(1) and 8(2) will be that the Bill will not automatically apply to the external Territories, but the rules may extend the Bill or a provision of the Bill to:

·          an external Territory prescribed by the rules;

·          the whole or a part of the exclusive economic zone adjacent to an external Territory;

·          the whole or a part of the area that is on or in the continental shelf adjacent to an external Territory and is not within the exclusive economic zone adjacent to that Territory; or

·          an area outside the Australian fishing zone in relation to which the Fisheries Management Act 1991 applies under regulations made for the purposes of section 8 of that Act.

Subclause 8(3) will provide that the rules may extend the Bill or a provision of the Bill to an area adjacent to an external Territory under paragraph 8(2)(b), even if the Bill has not been extended to the external Territory itself. Enabling the rules to extend the operation of the Bill to an external Territory, such as Christmas Island or Cocos (Keeling) Island, the whole or a part of the exclusive economic zone of an external Territory, or the continental shelf of such a Territory that is outside the exclusive economic zone will give the Secretary the flexibility to regulate the export of goods from those areas but only when it is necessary and appropriate to do so.

This will mean, for example, that the Bill or a provision of the Bill will be able to be extended to the exclusive economic zone adjacent to Heard Island and McDonald Islands, without the Bill applying to the Territory itself. If the certification provisions in the Bill are extended to these areas, it would allow the fish caught in this area to be certified as product of Australia or product of the Australian Territory of Heard Island and McDonald Islands.

Two notes will be included at the end of clause 8. Note 1 will direct the reader to the definition of this Act in clause 12 of the Bill, and will provide that the reference to this Act in clause 8 includes a reference to legislative instruments made under the Bill. This will mean that the reference to this Act in clause 8 will include the rules made under clause 432 of the Bill, as the rules will be legislative instruments. Note 2 will direct the reader to subsection 15B(3) of the Acts Interpretation Act, and will provide that a provision of the Bill that extends to an external Territory will be taken to have effect in, and in relation to, the coastal sea of the Territory as if that coastal sea was part of the Territory.

Clause 9              Application of this Act in external Territor ies and other areas

Clause  9 will apply the principles of international law to the external Territories, but only if the Bill has been extended to an external Territory or an area adjacent to an external Territory under clause 8 of the Bill. Subclause 9(6) will provide that clause 9 will be subject to clause 10 of the Bill, whi ch will set out the right of innocent passage at international law.

General

Subclause 9(1) will provide that, subject to subclauses 9(2), 9(3), 9(4) and 9(5), if a provision in the Bill is extended to an external Territory under subclause 8(2) of the Bill, the provision will apply in the external Territory or the adjacent area in relation to:

·          all persons or bodies (including foreign persons or bodies); and

·          all aircraft (including foreign aircraft); and

·          all vessels (including foreign vessels).

The effect of subclause 9(1) will be that, if a provision in the Bill is extended to an external Territory under clause 8(2) of the Bill, the provision will apply to the external Territory (including the coastal sea of the external Territory) in relation to:

·          all Australian persons or bodies, Australian aircraft and Australian vessels; and

·          all foreign persons or bodies, foreign aircraft and foreign vessels.

The effect of subclause 9(1) will be that all persons or bodies, aircraft and vessels (including foreigners) are subject to the regulatory controls set out in the Bill when they are in an external Territory (including its coastal sea). It will also enable the appropriate authorities to take enforcement action against those persons, if necessary.

Limited application in the contiguous zone

Subclause 9(2) will provide that, if a provision of the Bill is extended to an external Territory under paragraph 8(2)(a) of the Bill, nothing in the Bill will prevent the exercise of powers under the Bill in the contiguous zone adjacent to the external Territory (or in the contiguous zone adjacent to Australia) in relation to a foreign person or body, foreign aircraft or foreign vessel, to investigate a contravention of the Bill that occurred in the external Territory or to prevent a contravention of the Bill from occurring in the external Territory.

Subclause 9(2) will provide that, consistent with international law, the exercise of jurisdiction in the exclusive economic zone in relation to foreign persons or bodies, foreign aircraft and foreign vessels (see subclause 8(2) of the Bill) does not prevent Australia from taking enforcement action in the contiguous zone (which is a part of the exclusive economic zone) adjacent to an external Territory or Australia. The powers that may be exercised pursuant to subclause 9(2) include the power to investigate a contravention of the Bill that occurred in the external Territory (for example, before the vessel left the external Territory) and to prevent a contravention of the Bill from occurring in the external Territory.

Limited application in the exclusive economic zone

The combined effect of subclauses 9(1) and 9(3) will be that, if a provision of the Bill is extended to the exclusive economic zone adjacent to an external Territory under subparagraph 8(2)(b)(i) of the Bill, the provision will apply in that area in relation to:

·          all Australian persons or bodies, Australian aircraft and Australian vessels; and

·          all foreign persons or bodies, foreign aircraft and foreign vessels, but only in relation to the export of goods that have been taken in that area.

This will mean that the regulatory controls set out in the Bill will apply in the exclusive economic zone adjacent to an external Territory in relation to Australian persons or bodies, Australian aircraft and Australian vessels. In relation to foreign persons or bodies, foreign aircraft and foreign vessels, the jurisdiction in the exclusive economic zone will be limited. The regulatory controls set out in the Bill will only apply to foreign persons or bodies, foreign aircraft and foreign vessels in relation to the export of goods that have been taken in that area. For example, if the Bill is extended to the exclusive economic zone of an external Territory, the Bill will apply to a foreign vessel in the exclusive economic zone adjacent to the external Territory that was carrying fish to be exported, if the fish were taken from the exclusive economic zone adjacent to the external Territory. However, the Bill cannot, for example, regulate a foreign vessel that is carrying goods exported from Australia which is just passing through the exclusive economic zone of that external Territory.

Subclause 9(4) will provide that subclause 9(3) does not prevent the exercise of powers under the Bill in the contiguous zone adjacent to an external Territory (or in the contiguous zone adjacent to Australia) in relation to a foreign person or body, foreign aircraft or foreign vessel, to investigate a contravention of the Bill that occurred in an external Territory or to prevent a contravention of the Bill from occurring in an external Territory.

Subclause 9(4) will provide that, consistent with international law, the limitation on the exercise of jurisdiction in the exclusive economic zone in relation to foreign persons or bodies, foreign aircraft and foreign vessels (see subclause 9(3)) does not prevent Australia from taking enforcement action in the contiguous zone (which is a part of the exclusive economic zone) adjacent to an external Territory or Australia. The powers that may be exercised pursuant to subclause 9(4) include the power to investigate a contravention of the Bill that occurred in the external Territory (for example, before the vessel left the external Territory) and to prevent a contravention of the Bill from occurring in the external Territory (see subclause 9(2)).

Limited application on or in the continental shelf

The combined effect of subclauses 9(1) and 9(5) will be that, if a provision in the Bill is extended to the continental shelf adjacent to an external Territory under subparagraph 8(2)(b)(ii) of the Bill, the provision will apply in that area in relation to:

·          all Australian persons or bodies, Australian aircraft and Australian vessels; and

·          all foreign persons or bodies, foreign aircrafts or foreign vessels, but only in relation to the export of natural resources that have been harvested on the continental shelf in that area.

This will mean that the regulatory controls that are set out in the Bill will apply on or in the continental shelf adjacent to an external Territory in relation to all Australian persons or bodies, Australian aircraft and Australian vessels. In relation to foreign persons and bodies, foreign aircraft and foreign vessels, the jurisdiction on or in the continental shelf will be limited. The regulatory controls set out in the Bill will only apply to foreign persons or bodies, foreign aircraft and foreign vessels in relation to the export of natural resources (for example, sea cucumbers) that have been harvested on the continental shelf in that area. For example, if the Bill is extended to the continental shelf of an external Territory, the Bill will apply to a foreign vessel in the waters above the continental shelf adjacent to the external Territory that was carrying sea cucumbers to be exported, if the sea cucumbers were taken from the continental shelf adjacent to the external Territory. However, the Bill cannot, for example, apply its export regulatory controls to a foreign vessel that is fishing in the waters above the continental shelf adjacent to the external Territory.

A note will be included at the end of subclause 9(5) to direct the reader to the definition of natural resources in clause 12 of the Bill.

Clause 10            Rights of foreign aircraft and vessels under Convention on the Law of the Sea not affected

Clause 10 will provide that the Bill does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign aircraft or foreign vessels, in accordance with the United Nations Convention on the Law of the Sea, above or in:

·          the territorial sea of Australia (including the external Territories);

·          the exclusive economic zone of Australia (including the external Territories);

·          waters above the continental shelf of Australia (including the external Territories).

Clause 10 will, in accordance with international law, preserve the rights of foreign aircraft or foreign vessels to exercise the right of innocent passage above or in the territorial sea, exclusive economic zone and waters above the continental shelf of Australia (including the external Territories). Passage will be innocent so long as it does not adversely affect the peace, good order or security of Australia. An aircraft or vessel in innocent passage may travel in and through the areas listed in the dot points above, provided that it travels without stopping or anchoring except in any circumstances beyond the aircraft’s or vessel’s control.

Clause 11            Concurrent operation of State and Territory law s

Subclause 11(1) will provide that the Bill does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the Bill.

This will be subject to two exceptions. Section 109 of the Constitution invalidates a State law to the extent that it is inconsistent with a Commonwealth law. Determining whether a State law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of the State law, the State law will be inconsistent with the Commonwealth law and invalid. Clause 11 will also apply to Territory laws in the same way as it will apply to State laws. While section 109 of the Constitution does not apply to Territory laws, similar principles apply in relation to the inconsistency of Territory laws with Commonwealth laws.

A concurrent operation provision, such as clause 11, will be used in interpreting the Commonwealth law to determine whether it operates to the exclusion of State or Territory law. It will indicate the Parliament`s intention that the Commonwealth law should not operate to the exclusion of State or Territory law to the extent that the laws are capable of operating concurrently. That is, it will not be intended to cover the subject matter exclusively or exhaustively. In some cases, the laws may not be able to operate concurrently in specific instances despite the general intention that the laws should do so.

Subclause 11(2), will clarify that, without limiting subclause 11(1), the Bill does not exclude or limit the concurrent operation of State or Territory laws that impose offences or civil penalties, where the same or similar conduct is also an offence or subject to a civil penalty under the Bill. Under subclause 11(3), subclause 11(2) will apply even if the penalty, fault elements, defences or exceptions that apply to the offence or civil penalty provisions under the State law differ to those that will be set out in the Bill.

PART 2—INTERPRETATION

Division 1—Definitions

Clause 12            Definitions

Clause 12 will provide definitions for key terms that are used throughout the Bill. These definitions are set out below.

accredited property

This definition will provide that an ‘accredited property’ means a property that is accredited under Chapter 3 of the Bill.

An accredited property will be a kind of prescribed export condition. That is, rules made under clause 432 of the Bill for the purpose of clause 29 of the Bill may prohibit the export of a kind of prescribed goods completely or to a specified place, unless export operations are carried out in an accredited property, and certain conditions in relation to an accredited property are met.

In circumstances where an accredited property, or condition relating to an accredited property, is a prescribed export condition for a kind of prescribed goods, the offences and civil penalty provisions set out in clauses 38 to 49 of the Bill may apply.

The term accredited property will primarily be used in Chapter 3 of the Bill, which will set out a number of matters in relation to accredited properties. An accredited property will generally relate to the production of prescribed goods for export, and will usually be at the beginning of the supply chain, for example, where animals are raised or crops are grown.

Also see the definition of property.

accredited veterinarian

This definition will provide that an ‘accredited veterinarian’ means a veterinarian who is accredited in accordance with rules made under clause 432 of the Bill for the purposes of subclause 312(1) of the Bill.

The term will primarily be used in Division 2 of Part 5 of Chapter 9 of the Bill, which will set out a number of matters relating to accredited veterinarians and approved export programs. Accredited veterinarians may carry out activities that are set out in an approved export program for the purpose of ensuring:

·          the health and welfare of eligible live animals; or

·          the health and condition of eligible animal reproductive material throughout the export process.

adjacent premises warrant

This definition will provide that an ‘adjacent premises warrant’ means a warrant issued under clause 335 of the Bill. The term will primarily be used in Part 4 of Chapter 10 of the Bill in relation to entry to adjacent premises for monitoring and investigation purposes.

aircraft

This definition will provide that ‘aircraft’ means any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface.

The term will primarily be used in Part 1 of Chapter 1 of the Bill in relation to the application of the Bill. It will also be relevant to clause 253 of the Bill, which will create a civil penalty and make it an offence to put prescribed goods on an aircraft in circumstances where a false trade description has been applied to the prescribed goods.

animal

This definition will provide that ‘animal’ includes a dead animal and any part of an animal, but does not include a human or a part of a human, whether the human is dead or alive.

The term will be used in the definition of goods, which will relevantly provide that goods mean an animal, or an article, substance or thing (including reproductive material) derived from an animal whether or not in combination with any other article, substance or thing. The term will also be used in the definitions of animal reproductive material, eligible live animals, eligible animal reproductive material, goods and prepare.

animal reproductive material

This definition will provide that ‘animal reproductive material’ means any part of an animal from which another animal can be produced; and includes an embryo, an egg or ovum, and semen.

Also see the definition of animal.

applied

This definition will provide that ‘applied’, in relation to a trade description, has the meaning given by clause 247 of the Bill.

Clause 247 of the Bill will set out the circumstances in which a trade description is applied to goods. This includes, for example, when a trade description is applied directly to the goods, their packaging or anything containing the goods.

Also see the definition of trade description.

appropriate person

This definition will provide that an ‘appropriate person’, for premises to which an adjacent premises warrant relates, or premises entered under clauses 346 or 347 of the Bill, means the occupier of the premises or any other person who apparently represents the occupier.

The term will primarily be used in Chapter 10 of the Bill in relation to compliance and enforcement. Part 4 of Chapter 10 will provide for entry to adjacent premises. The appropriate person for the adjacent premises may observe the execution of the adjacent premises warrant and must provide reasonable facilities and assistance. Part 5 of Chapter 10 will provide for entry and the exercise of powers on premises without a warrant or consent. The appropriate person for the premises may observe the exercise of powers by the authorised officer and must provide reasonable facilities and assistance.

Also see the definitions of adjacent premises warrant and premises in this clause, and the meaning of occupier in clause 19 of the Bill.

approved arrangement

This definition will provide that an ‘approved arrangement’ means an approved arrangement under Chapter 5 of the Bill.

The term will primarily be used in Chapter 5 of the Bill, which deals with approved arrangements. An approved arrangement will enable the Secretary to have oversight of the export operations of the holder of the approved arrangement. For example, an exporter may have an approved arrangement which sets out the ways in which they will meet legislative and importing country requirements in relation to a kind of prescribed goods. In these circumstances, an approved arrangement will be a kind of prescribed export condition. That is, rules made under clause 432 of the Bill for the purpose of clause 29 of the Bill may prohibit the export of a kind of prescribed goods completely or to a specified place, unless export operations are carried out in accordance with an approved arrangement and certain conditions in relation to an approved arrangement are met.

In circumstances where an approved arrangement, or condition relating to an approved arrangement is a prescribed export condition for a kind of prescribed goods, the offence and civil penalty provisions under clauses 38 to 49 of the Bill will apply.

Approved arrangements are not limited to persons who are exporting prescribed goods. For example, a third party body who performs certain functions or duties under the Bill, such as Halal certification for meat products, may also have an approved arrangement which sets out their obligations and the procedures under which they will be authorised to perform their functions.

approved assessor

This definition will provide that an ‘approved assessor’ is a person, or a person included in a class of persons, approved under subclause 281(1) of the Bill, and a person included in a class of persons specified by rules made under clause 432 of the Bill for the purposes of clause 282 of the Bill.

An approved assessor will be a kind of assessor who may conduct an assessment of goods under Part 2 of Chapter 9 of the Bill, and may, for example, exercise the powers set out in clause 280 of the Bill for the purpose of conducting an assessment of goods.

The term will be used in the definition of assessor.

approved auditor

This definition will provide that an ‘approved auditor’ means a person, or a person included in a class of persons, approved under subclause 273(1) of the Bill, and a person included in a class of persons specified by rules made under clause 432 of the Bill for the purposes of clause 274 of the Bill.

An approved auditor will be a kind of auditor who may conduct an audit under Part 1 of Chapter 9 of the Bill, and may, for example, exercise the powers set out in clause 272 of the Bill for the purpose of conducting an audit.

The term will be used in the definition of auditor.

approved export program

This definition will provide that an ‘approved export program’ means a program of export operations approved under subclause 311(1) of the Bill.

The term will primarily be used in Division 2 of Part 5 of Chapter 9 of the Bill, which deals with accredited veterinarians and approved export programs. Clause 311(2) of the Bill will provide that an approved export program is a program of export operations to be carried out by an accredited veterinarian or authorised officer for the purpose of ensuring the health and welfare of eligible live animals or the health and condition of eligible animal reproductive material in the course of export operations.

An approved export program will be a kind of prescribed export condition. That is, rules made under clause 432 of the Bill for the purpose of clause 29 of the Bill may prohibit the export of a kind of prescribed goods completely or to a specified place, unless export operations are carried out in accordance with an approved export program and certain conditions in relation to an approved export program are met.

In circumstances where an approved export program, or condition relating to an approved export program is a prescribed export condition for a kind of prescribed goods, the offence and civil penalty provisions under clauses 38 to 49 of the Bill will apply.

assessor

This definition will provide that an ‘assessor’ means an approved assessor or an authorised officer whose functions and powers include carrying out an assessment of goods under Part 2 of Chapter 9 of the Bill and who may, for example, exercise the powers set out in clause 280 of the Bill in carrying out an assessment of goods.

The Bill will enable an assessment of goods to be carried out in certain circumstances. For example, the Secretary may require an assessment of goods in order to consider an application for a government certificate (see clause 68 of the Bill). The purpose of an assessment of goods will be to verify whether goods comply with relevant legislative and importing country requirements, or matters to be stated on a certificate, prior to the goods being imported into an importing country.

Also see the definition of authorised officer and approved assessor.

associate

This definition will provide that an ‘associate’ of a person has a meaning affected by clause 13 of the Bill.

The term will be relevant to Chapter 6 of the Bill in relation to export licences and Part 11 of Chapter 10 of the Bill in relation to the fit and proper person test.

auditor

This definition will provide that an ‘auditor’ means or an approved auditor or an authorised officer whose functions and powers include conducting an audit under Part 1 of Chapter 9 of the Bill and who may, for example, exercise the powers set out in clause 272 of the Bill in conducting an audit.

The Bill will enable audits to be conducted in relation to export operations. Audits are generally undertaken to verify whether goods are being produced, prepared and exported in accordance with relevant legislative and importing country requirements. Audits can also be used to ensure that a person who performs functions on behalf of the Government, such as a third party authorised officer or the holder of an approved arrangement, is complying with their obligations.

Also see the definition of authorised officer and approved auditor.

Australian aircraft

This definition will provide that ‘Australian aircraft’ means an aircraft that is registered under regulations made under the Civil Aviation Act 1988 .

Australia New Zealand Food Standards Code

This definition will provide that the ‘Australia New Zealand Food Standards Code’ has the same meaning as in the Food Standards Australia New Zealand Act 1991 .

The Food Standards Australia New Zealand Act 1991 currently provides that the Australia New Zealand Food Standards Code means the code published under the name Food Standards Code in the Gazette on 27 August 1987 together with any amendments of the standards in that code:

·          approved by a former Council before the Food Standards Australia New Zealand Act 1991 commenced and published in the Gazette as forming part of that code; or

·          made under the Food Standards Australia New Zealand Act 1991.

This term will be used in clause 410 of the Bill in relation to sampling methods, and clause 432 of the Bill in relation to the kind of documents that may be incorporated from time to time by the rules made under clause 432 of the Bill.

Australian fishing zone

This definition will provide that the ‘Australian fishing zone’ has the same meaning as in the Fisheries Management Act 1991.

The Fisheries Management Act 1991 currently provides that Australian fishing zone means:

·          the waters adjacent to Australia within the outer limits of the exclusive economic zone adjacent to the coast of Australia; and

·          the waters adjacent to each external Territory within the outer limits of the exclusive economic zone adjacent to the coast of the external Territory;

but does not include:

·          coastal waters of, or waters within the limits of, a State or internal Territory; or

·          waters that are excepted waters.

The term will be relevant to the meaning of Australian territory in clause 14 of the Bill.

Australian law

This definition will provide that an ‘Australia n law’ means a law of the Commonwealth, or a law of a State or Territory. This term will also include any legislative instruments made under such a law.

Australian national

This definition will provide that ‘Australian nat ional’ means an Australian citizen or a body corporate established by or under a law of the Commonwealth or of a State or Territory. The term will be used in Part 1 of Chapter 1 of the Bill in relation to the application of the Bill.

Australian resident

This definition will provide that ‘Australian resident’ means either:

·          an individual who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

·          a body corporate that has its principal place of business in Australia.

The term will be used in Part 1 of Chapter 1 of the Bill in relation to the application of the Bill.

Australian territory

This definition will provide that ‘Australian territory’ has the meaning given by clause 14 of the Bill.

authorised officer

This definition will provide that an ‘authorised officer’ means, except as provided by clause 324 of the Bill, a person who is authorised under clause 291 of the Bill to be an authorised officer under the Bill.

Clause 291 of the Bill will provide that the Secretary may authorise a person, or each person in a class of persons, to be an authorised officer under the Bill, provided that the requirements in clause 291 of the Bill are satisfied. An authorised officer may be a Commonwealth authorised officer, a State or Territory authorised officer, or a third party authorised officer.

A note at the end of this definition will direct the reader to clause 324 of the Bill, which will provide a modified meaning of authorised officer for the purposes of Chapter 10 of the Bill. For the purposes of Chapter 10 of the Bill, and any other provision of the Bill to the extent that it relates to Chapter 10, subclause 324(1) of the Bill will provide that an authorised officer means a Commonwealth authorised officer or a State or Territory authorised officer. A reference to an authorised officer in Chapter 10 of the Bill and related provisions will exclude third party authorised officers.

certificate of registration

This definition will provide that a ‘certificate of registration’ for a registered establishment means the most recent certificate of registration for the establishment given to the occupier of the establishment under Chapter 4 of the Bill.

If the Secretary registers an establishment, under clause 114 of the Bill the Secretary must give the applicant a certificate of registration. The intent of the certificate of registration is to provide the occupier with a document that shows that their establishment is a registered establishment.

A certificate of registration will not be a government certificate.

Also see the definitions of establishment, occupier and registered establishment.

civil penalty provision

This definition will provide that ‘civil penalty provision’ has the same meaning as in the Regulatory Powers Act.

Civil penalty provisions can be applied to a variety of contraventions of the Bill, and have been included in addition to criminal offences with the intention of providing flexibility to take action where non-compliance has been identified. The Secretary may apply to a relevant court for a civil penalty order where a person contravenes a civil penalty provision.

Commonwealth authorised officer

This definition will provide that a ‘Commonwealth authorised officer’ means an authorised officer who is an officer or employee of a Commonwealth body. This includes, for example, an officer or employee of the Department who has been authorised to be an authorised officer.

Also see the definition of authorised officer and Commonwealth body.

Commonwealth body

This definition will provide that a ‘Commonwealth body’ includes a Department of State, or an authority, of the Commonwealth.

The term will be used in the definition of Commonwealth authorised officer because a Commonwealth authorised officer must be an officer or employee of a Commonwealth body.

conveyance

This definition will provide that a ‘conveyance’ means any of the following:

·          an aircraft;

·          a vessel;

·          a vehicle;

·          any other means of transport prescribed by the rules.

This term will be used in the definition of premises. Also see the definition of aircraft and vessel.

corporation

This definition will provide that a ‘corporation’ means a corporation within the meaning of the Corporations Act, which currently provides that a corporation includes:

·          a company;

·          any body corporate (whether incorporated in this jurisdiction or elsewhere);

·          an unincorporated body that under the law of its place of origin, may sue or be sued, or may hold property in the name of its secretary or of an office holder of the body duly appointed for that purpose; and

·          an Aboriginal and Torres Strait Islander corporation;

but does not include:

·          an exempt public authority; or

·          a corporation sole.

cost-recovery charge

This definition will provide that a ‘cost-recovery charge’ means:

·          a fee prescribed by rules made under clause 432 of the Bill for the purposes of subclause 399(1) of the Bill for a fee-bearing activity; or

·          a charge imposed by any of the following laws: the Export Charges (Imposition—Customs) Act 2015, the Export Charges (Imposition—Excise) Act 2015 or the Export Charges (Imposition—General) Act 2015; or

·          a late payment fee relating to a fee or charge described in the two points above.

Part 4 of Chapter 11 of the Bill deals with recovering cost-recovery charges.

The term will be used in the definition of relevant Commonwealth liability.

covering

This definition will provide that ‘covering’, in relation to goods, includes a bottle, box, capsule, case, container, frame, glass, seal, stopper and wrapper. This list is not intended to be exhaustive, but provides examples of things that may cover goods to which a trade description will be applied (see clause 247 of the Bill), in relation to the covering on goods which were subject to analysis (see clause 414 of the Bill) and the forfeiture of a covering on goods that are forfeited (see clause 416 of the Bill).

dishonest

This definition will provide that ‘dishonest’, in relation to conduct engaged by a person, means dishonest according to the standards of ordinary people

This term will be relevant for the purposes of requiring certain persons to disclose matters involving dishonesty as provided for in clauses 187, 299, 365 and 374 and in relation to offence and civil penalty provisions in clause 427A of the Bill.

economic consequences for Australia

This definition will provide that ‘economic consequences for Australia’ includes:

·          substantial damage to Australia’s trading reputation;

·          a restriction on, or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia.

This term will be relevant to the aggravated offences in clauses 32, 36, 40 and 44 in Part 2 of Chapter 2 of the Bill.

This is not intended to be an exhaustive definition, but will give examples of the kinds of circumstances that will be considered to be economic consequences for Australia for the purpose of the aggravated offences in the Bill.

eligible animal reproductive material

This definition will provide that ‘eligible animal reproductive material’ means prescribed goods that are animal reproductive material.

The term will be relevant to Division 2 of Part 5 of Chapter 9 of the Bill, which will deal with accredited veterinarians and approved export programs. An approved export program will be a program of export operations that may be carried out by an accredited veterinarian or authorised officer for the purpose of ensuring the health and welfare of eligible animal reproductive material in the course of export activities.

Also see the definition of animal reproductive material and prescribed goods.

eligible live animals

This definition will provide that ‘eligible live animals’ means prescribed goods that are live animals.

The term will be relevant to Division 2 of Part 5 of Chapter 9 of the Bill, which will deal with approved export programs and accredited veterinarians. An approved export program will be a program of export operations that may be carried out by an accredited veterinarian or authorised officer for the purpose of ensuring the health and welfare of eligible live animals.

Also see the definition of prescribed goods.

enforcement body

This definition will provide that ‘enforcement body’ has the same meaning as in the Privacy Act, which currently provides that an enforcement body includes, for example, the Australian Federal Police and the police forces of a State or Territory.

The term will be relevant to clause 393 of the Bill, which will provide a specific ground for a person to use or disclose protected information to an enforcement body for the purposes of an enforcement-related activity.

enforcement-related activity

This definition will provide that ‘enforcement-related activity’ has the same meaning as in the Privacy Act.

The term will be relevant to clause 393 of the Bill, which will provide a specific ground for a person to use or disclose protected information to an enforcement body for the purposes of an enforcement-related activity.

engage in conduct

This definition will provide that ‘engage in conduct’ means to either perform an act or omit to perform an act. This definition is the same as in the Criminal Code .

entered for export

This definition will provide that ‘entered for export’ has the meaning given by clause 16 of the Bill.

Clause 16 of the Bill will provide that goods are entered for export if, at any stage in the course of the preparation or production of the goods for export, the goods are presented to, or information about the goods is given to an authorised officer or another person who is authorised to exercise powers or perform functions under the Bill in relation to the goods, for the purpose of the authorised officer or other person exercising powers or performing functions under the Bill in relation to the goods.

The point at which goods are entered for export will be relevant to several offences and civil penalty provisions in Part 1 of Chapter 2 of the Bill.

This term will also be used in Part 2 of Chapter 8 of the Bill in relation to false trade descriptions.

Also see the definition of authorised officer, prepare and produce.

establishment

This definition will provide that ‘establishment’ has the same meaning as premises.

The term will primarily be used in Chapter 4 of the Bill, which sets out a number of matters in relation to registered establishments. A registered establishment will be a kind of establishment.

The term will also be used in the definitions of certificate of registration, occupier and registered establishment.

Also see the definition of premises.

evidential material

This definition will provide that ‘evidential material’ has the same meaning as in the Regulatory Powers Act , which currently provides that it means any of the following:

·          a thing with respect to which an offence provision or a civil penalty provision subject to investigation under this Part has been contravened or is suspected, on reasonable grounds, to have been contravened;

·          a thing that there are reasonable grounds for suspecting will afford evidence as to the contravention of such an offence provision or a civil penalty provision;

·          a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of contravening such an offence provision or a civil penalty provision.

The term will be used in the definition of investigation warrant. Also see the definition of Regulatory Powers Act.

examine

This definition will provide that ‘examine’ includes count, gauge, grade, measure and weigh. The term will provide examples of the kinds of activities which expand on the ordinary meaning of examine, and is not intended to be exhaustive.

An assessor may examine goods or export operations for the purpose of an assessment of goods under clause 280 of the Bill. The Secretary may also examine export operations in relation to goods for the purpose of making decisions in relation to government certificates and export permits under clauses 68 and 241 of the Bill respectively.

executive officer

This definition will provide that ‘executive officer’ of a body corporate means a person, by whatever name called and whether or not a director of the body corporate, who is concerned in, or takes part in, the management of the body corporate.

This definition will clarify that the meaning of executive officer includes both executive and non-executive directors. The term will be relevant to Part 10A of the Bill which will deal with the liability of executive officers and adverse publicity orders.  

expiry date

This definition will provide that ‘expiry date’:

·          for the accreditation of a property - has the meaning given by subclause 82(4); or

·          for the registration of an establishment - has the meaning given by subclause 115(4); or

·          for an approved arrangement- has the meaning given by subclause 154(4); or for an export licence - has the meaning given by subclause 194(4).

The term will be relevant to Chapter 3, 4, 5 and 6 of the Bill applying to accredited properties, registered establishments, approved arrangements and export licences. 

export

This definition will provide that ‘export’ means export from Australian territory to a place outside Australian territory. A note to this definition will direct the reader to clause 20 of the Bill, which will provide for when goods are exported.

The term will be used throughout the Bill. For example, numerous offence and civil penalty provisions in Division 4 of Part 1 of Chapter 2 of the Bill will apply from the point at which goods are exported.

The term will be used in the definition of export operations, permanently prohibited goods and secondary permissible purpose.

Also see the definition of Australian territory and goods.

export business

This definition will provide that ‘export business’ means a business that carries out export operations in relation to a kind of goods.

The term will be relevant to whether a person is a fit and proper person for the purpose of an export licence under Chapter 6 of the Bill. In particular, the Secretary may have regard to the interests of the industry, or industries that relate to the person’s export business for the purpose of determining whether a person is a fit and proper person under clause 372 of the Bill.

export licence

This definition will provide that ‘export licence’ means an export licence granted under Chapter 6 of the Bill.

An export licence will be a kind of prescribed export condition. That is, rules made under clause 432 of the Bill for the purpose of clause 29 of the Bill may prohibit the export of a kind of prescribed goods completely or to a specified place, unless an exporter holds an export licence, and complies with certain conditions in relation to the export licence.

In circumstances where an export licence, or condition relating to an export licence, is a prescribed export condition for a kind of prescribed goods, the offence and civil penalty provisions under clauses 38 to 49 of the Bill will apply.

Chapter 6 of the Bill will enable the Secretary to grant an export licence that authorises the holder to carry out a kind of export operations in relation to a kind of prescribed goods, if deemed necessary. Licences ensure that the holder is a fit and proper person, of sound financial standing, and competent to be involved in export operations.

export operations

This definition will provide that ‘export operations’ has the meaning given by clause 16 of the Bill.

This term represents an important concept throughout the Bill and will be relevant to, for example, accredited properties, registered establishments, approved arrangements and export licences. The term will be used in the definition of export business and occupier.

Also see the definition of authorised officer, export, goods, prepare and produce.

export permit

This definition will provide that an ‘export permit’ is a permit issued under Part 2 of Chapter 7 of the Bill.

The term will be relevant to Chapter 7 of the Bill which will set out a number of matters in relation to export permits. Chapter 7 of the Bill will enable a person to apply for an export permit, which will provide permission to export prescribed goods from Australia. The Secretary may grant a permit, which may be subject to conditions, once the Secretary is satisfied that the prescribed goods meet legislative and importing country requirements.

An export permit will be a kind of prescribed export condition. That is, rules will be able to be made for the purpose of clause 29 of the Bill to prohibit the export of a kind of prescribed goods completely or to a specified place, unless there is an export permit in force for those prescribed goods, and certain conditions in relation to the export permit are complied with.

In circumstances where an export permit, or condition relating to an export permit, is a prescribed export condition for a kind of prescribed goods, the offence and civil penalty provisions under clauses 38 to 49 of the Bill will apply.

false trade description

This definition will provide that a ‘false trade description’ has the meaning given by clause 251 of the Bill, which will provide that a trade description for goods is a false trade description if it is false, or likely to mislead in a material respect due to:

·          anything contained in or omitted from the description; or

·          any alteration of or interference with the description (whether by way of addition, removal, defacement or otherwise).

The term will primarily be relevant to Part 2 of Chapter 8 of the Bill, which deals with trade descriptions.

Federal Circuit Court

This definition will provide that the ‘Federal Circuit Court’ means the Federal Circuit Court of Australia. This term will be used in the definition of relevant court, which will primarily be relevant to Chapter 10 of the Bill in relation to compliance and enforcement. For example, clause 355 of the Bill will provide that civil penalty orders may be sought under Part 4 of the Regulatory Powers Act from a relevant court.

Federal Court

This definition will provide that ‘Federal Court’ means the Federal Court of Australia. This term will be used in the definition of relevant court, which will primarily be relevant to Chapter 10 of the Bill in relation to compliance and enforcement. For example, clause 355 of the Bill will provide that civil penalty orders may be sought under Part 4 of the Regulatory Powers Act from a relevant court.

fee-bearing activities

This definition will provide that ‘fee-bearing activities’ has the meaning given by subclause 399(1) of the Bill as activities carried out by, or behalf of, the Commonwealth in relation to the performance of functions or powers under the Bill. For example, a fee-bearing activity may include an audit of export operations or an assessment of goods under the Bill.

fish

This definition will provide that ‘fish’ means aquatic vertebrates and aquatic invertebrates but does not include mammal or birds. The term will be used in the definitions of prepare, produce and take.

fit for human consumption

This definition will provide that ‘fit for human consumption’ means safe and suitable for human consumption, for example, suitable for consumption as food or drink. The term will be used in the definition of food.

food

This definition will provide that ‘food’ includes:

·          any substance or thing of a kind used, or capable of being used for human consumption (whether it is live, raw, prepared or partly prepared); and

·          any substance or thing of a kind used, or capable of being used, as an ingredient or additive in a substance or thing referred to in the first dot-point above.

This definition of food applies whether or not the substance or thing is in a condition fit for human consumption.

The term will be used in the definition of goods, which provides that goods will include food.

foreign aircraft

This definition will provide that ‘foreign aircraft’ means an aircraft other than an Australian aircraft. The term will be used in Part 1 of Chapter 1 of the Bill in relation to the application of the Bill.

Also see the definition of aircraft.

foreign person or body

This definition will provide that ‘foreign person or body’ means any of the following:

·          an individual who is not an Australian national or an Australian resident;

·          a body corporate that is not an Australian national or an Australian resident;

·          a body politic of a foreign country;

·          a trust, where the trustee, or a majority of the trustees, are covered by any or all of the above paragraphs.

The term will be used in Part 1 of Chapter 1 of the Bill in relation to the application of the Bill.

Also see the definitions of Australian national and Australian resident.

foreign vessel

This definition will provide that ‘foreign vessel’ means a vessel other than an Australian vessel. The term will be used in Part 1 of Chapter 1 of the Bill in relation to the application of the Bill.

Also see the definition of vessel.

goods

This definition will provide that ‘goods’ means:

·          an animal or a plant;

·          an article, substance or thing (including reproductive material) derived from an animal or a plant, whether or not in combination with any other article, substance or thing;

·          food;

·          any other article, substance or thing;

but does not include narcotic goods within the meaning of the Customs Act 1901 .

The term will be central to the application and scope of the Bill.

The term will be used in the definitions of covering, economic consequences for Australia, export, export business, export operations, government certificate, importing country requirements, issuing body, non-prescribed goods, occupier, permanently prohibited goods, prepare, prescribed goods, produce, relevant person and secondary permissible purpose.

Also see the definitions of animal, plant , andfood.

government certificate

This definition will provide that ‘government certificate’ means a certificate (other than a tariff rate quota certificate) in relation to goods that are to be, or that have been, exported and that relates to any of the following:

·          matters in respect of which a country requires certification before goods of that kind may be imported into that country from Australian territory or from a part of Australian territory;

·          requirements of the Bill that must be complied with before goods of that kind may be exported;

·          other matters concerning goods of that kind.

The term will primarily be relevant to Part 3 of Chapter 2 of the Bill, which will provide for the issue of government certificates in relation to both prescribed and non-prescribed goods.

The term will be used in the definition of issuing body.

Also see the definitions of goods and Australian territory.

husbandry activities

This definition will provide that ‘husbandry activities’, in relation to a live animal, means activities relating to the care and maintenance of the animal. Examples include, but are not limited to, daily monitoring and feeding. The term will be used in the definition of produce.

importing country requirement

This definition will provide that an ‘importing country requirement’, in relation to goods that are to be imported into a country from Australian territory or from a part of Australian territory, means a requirement of that country that must be met before the goods may be imported into that country from Australian territory or from that part of Australian territory. This definition is intended to be operate consistently with international agreements to which Australia is a party.  It will be an object of the Bill (set out in clause 3 of the Bill) to ensure that goods that are exported meet importing country requirements relating to the goods, to enable and maintain overseas market access for goods from Australia. The term will be used throughout the Bill.

installation

This definition will provide that ‘installation’ has the meaning given by clause 17 of the Bill. The term will be used in the definition of a vessel. A vessel includes an installation for the purposes of the Bill.

integrity

This definition will provide that ‘integrity’ has the meaning given by clause 18 of the Bill.

It will be an object of the Bill (set out in clause 3 of the Bill) to ensure the integrity of goods that are exported. For example, the Secretary may revoke a government certificate under clause 75 of the Bill if the integrity of the goods cannot be ensured.

International Plant Protection Convention

This definition will provide that the ‘International Plant Protection Convention’ means the International Plant Protection Convention, done at Rome on 6 December 1951, as in force from time to time.

Rules made under the Bill may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification, any matter in an instrument or writing made under the International Plant Protection Convention (see clause 432 of the Bill).

investigation warrant

This definition will provide that ‘investigation warrant’ means:

·          a warrant issued under section 70 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subclause 329(1) of the Bill; or

·          a warrant signed by an issuing officer under section 71 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subclause 329(1) of the Bill.

The term will be used in Part 3 of Chapter 10 of the Bill, which deals with investigations in relation to non-compliance with the Bill.

issuing body

This definition will provide that an ‘issuing body’, for a government certificate in relation to a kind of goods, means a person or body that may issue a government certificate in relation to goods of that kind under clause 61 of the Bill.

The term will be used under Part 3 of Chapter 2 of the Bill in relation to government certificates. Clause 63 of the Bill will provide that an issuing body is the person or body prescribed by the rules in relation to goods of that kind. If no person is prescribed in relation to those kinds of goods, the issuing body will be the Secretary.

issuing officer

This definition will provide that an ‘issuing officer’ means a magistrate, a Judge of the Federal Court or Federal Circuit Court, or a Judge or a State or Territory court. Issuing officers will have the power to issue a monitoring or investigation warrant under Chapter 10 of the Bill.

label

This definition will provide that a ‘label’ includes a tag, band, ticket, brand and pictorial or other descriptive matter. This definition will give examples of the kind of things that are labels for the purposes of the Bill and will is not intended to be exhaustive. The definition of mark will include a label.

The term will be relevant to trade descriptions under Part 2 of Chapter 8 of the Bill and certificates of analysis (see clause 414 of the Bill).

landing place

This definition will provide that ‘landing place’ means any place where an aircraft can land, which could include an area of land or water, and an area on a building or a vessel. The term will be used in clause 253 of the Bill, which will provide that it is an offence to bring prescribed goods with a false trade description to any landing place for the purpose of exporting them.

late payment fee

This definition will provide that ‘late payment fee’ has the meaning given by clause 403 of the Bill. It will be used under Part 4 of Chapter 11 of the Bill, which deals with cost recovery. A late payment fee will be a fee that is due and payable if the cost-recovery charge (specified in the rules) is not paid within the time specified in the rules.

The term will be used in the definition of cost-recovery charge.

manager

This definition will provide that a ‘manager’ of a property means the person who is responsible for the day-to-day management of that property. This term will be used in Chapter 3 of the Bill in relation to accredited properties. The Secretary may, on application by the manager of a property, accredit a property for a kind of export operations in relation to a kind of prescribed goods. Managers of an accredited property must comply with certain conditions.

mark

This definition will provide that a ‘mark’ includes a stamp, seal and label. This definition will give examples of the kind of things that are marks for the purposes of the Bill and is not intended to be exhaustive.

The term will be relevant to Part 2 of Chapter 8 of the Bill in relation to trade descriptions. The meaning of trade description will include a mark (see clause 246 of the Bill).

The term will also be used in the definition of official mark, and will be relevant to Part 3 of Chapter 8 of the Bill, which will deal with official marks.

monitoring warrant

This definition will provide that ‘monitoring warrant’ means a warrant issued under section 32 of the Regulatory Powers Act as it applies in relation to the Bill.

The term will be relevant to Part 2 of Chapter 10 of the Bill which deals with monitoring.

natural resources

This definition will provide that ‘natural resources’ has the same meaning as in paragraph 4 of Article 77 of the United Nations Convention on the Law of the Sea, which currently provides that natural resources consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species. The term will be used in clause 9 of the Bill and relates to the jurisdiction of the Bill on or in the continental shelf.

nominated export permit issuer

This definition will provide that ‘nominated export permit issuer’ means a person who:

·          manages or controls export operations in relation to goods of that kind that are covered by an approved arrangement; and

·          is nominated in the approved arrangement as a person who may issue export permits for goods of that kind.

Nominated export permit issuers will be able to issue export permits if the power to issue export permits for goods of that kind has been subdelegated to the nominated export permit issuer under paragraph 288(2)(c).

non-prescribed goods

This definition will provide that ‘non-prescribed goods’ means goods of a kind that are not prescribed goods.

Goods that are not prescribed as prescribed goods in the rules made under clause 432 of the Bill for the purpose of subclause 28(1) will be non-prescribed goods. In addition, subclause 28(3) of the Bill will provide that the rules made under clause 432 of the Bill for the purposes of clause 28 may prescribe the circumstances in which a kind of goods is taken not to be prescribed goods for the purposes of the Bill (that is, when the goods will be taken to be non-prescribed goods).

notice of intention to export

This definition will provide that a ‘notice of intention to export’ means a notice under clause 243 of the Bill. The term will primarily be relevant to Part 1 of Chapter 8 of the Bill, which deals with notices of intention to export.

A notice of intention to export will be a kind of prescribed export condition. That is, rules made under clause 432 of the Bill for the purpose of clause 29 of the Bill may prohibit the export of a kind of prescribed goods completely or to a specified place unless an exporter has given a notice of intention to export and certain condition in relation to that notice of intention to export are met.

In circumstances where a notice of intention to export or a condition related to a notice of intention to export is a prescribed export condition for a kind of prescribed goods, the offence and civil penalty provisions under clauses 38 to 49 of the Bill will apply.

A notice of intention to export serves as advice to the Secretary about a person’s intention to export a kind of prescribed goods. This allows the Government to manage the export process effectively, particularly when sufficient time is needed to, for example, examine documents, verify sourcing and preparation details, and assess a consignment prior to export.

occupier

This definition will provide that an ‘occupier’ of an establishment where export operations in relation to goods are, were, or will be carried out, has the meaning given by clause 19 of the Bill.

The term will be used in the definitions of appropriate person and certificate of registration. Also see the definitions of occupier, export operations, and goods.

official mark

This definition will provide that an ‘official mark’ means a mark that is an official mark for the purposes of the Bill under rules made under clause 432 of the Bill for the purposes of subclause 255(1) of the Bill.

The term will primarily be used in Part 3 of Chapter 8 of the Bill which deals with official marks.

An official mark will be a kind of prescribed export condition. That is, rules made under clause 432 of the Bill for the purpose of clause 29 of the Bill may prohibit the export of a kind of prescribed goods unless a kind of official mark is applied, or unless certain conditions relating to official marks are met.

Division 3 of Part 3 of Chapter 8 of the Bill will set out offence and civil penalty provisions that relate to official marks. The offence and civil penalty provisions under clauses 38 to 49 of the Bill will also apply in circumstances where an official mark or a condition relating to an official mark are prescribed export conditions for a kind of prescribed goods. The offence and civil penalty provisions under clause 50 of the Bill may apply in relation to official marks if the goods are non-prescribed goods.

The term will also be used in the definition of official marking device. Also see the definition of mark.

official marking device

This definition will provide that an ‘official marking device’ has the meaning given by subclause 257(1) of the Bill, which will provide that it is a device that is capable of being used to apply an official mark. The term will be used primarily in Part 3 of Chapter 8 of the Bill in relation to official marks. As this definition covers many types of devices, the rules may prescribe the kinds of devices that are not official marking devices.

permanently prohibited goods

This definition will provide that ‘permanently prohibited goods’ means goods which are prohibited absolutely from export under Subdivision A of Division 2 of Part 1 of Chapter 2 of the Bill.

person

This definition will provide that the meaning of ‘person’ is affected by clauses 421, 422 and 423 of the Bill. Person is also defined in the Acts Interpretation Act to include a body corporate.

The Bill will apply to a partnership, unincorporated association and trust as if it was a person, subject to the changes set out in clauses 421, 422 and 423 of the Bill.

The term will be used throughout the Bill and in various definitions.

personal information

This definition will provide that ‘personal information’ has the same meaning as in the Privacy Act, which currently provides that ‘personal information’ means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

·          whether the information or opinion is true or not; and

·          whether the information or opinion is recorded in a material form or not.

The term will be used in the definition of sensitive information.

plant

This definition will provide that a ‘plant’ means a live plant or a dead plant, and includes any part of a plant.

The term will be used in the definition of goods, which will provide that a plant, and an article, substance or thing (including reproductive material) derived from a plant whether or not in combination with any other article, substance or thing, are goods.

The term will also be used in the definition of produce.

port

This definition will provide that a ‘port’ includes a harbour.

The term will be used in clause 253 of the Bill, which will provide that a person may commit an offence and be liable for a civil penalty for bringing prescribed goods with a false trade description to a port for the purpose of exporting the prescribed goods. The term will also be used in clause 424 of the Bill, which will require the Minister to report to Parliament on certain matters in relation to the carriage of livestock on a vessel to a port outside the Australian territory.

PPSA security interest

This definition will provide that ‘PPSA security interest’ means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies. Two notes will be included at the end of the definition of PPSA security interest. Note 1 will provide that the Personal Property Securities Act 2009 applies to certain security interests in personal property and will refer the reader to the following provisions of that Act:

·          section 8 (interests to which the Act does not apply);

·          section 12 (meaning of security interest );

·          Chapter 9 (transitional provisions).

Note 2 will provide that for the meaning of transitional security interest , see section 308 of the Personal Property Securities Act 2009 .

The term PPSA security interest will be used in the definition of owner for the purposes of clause 414 of the Bill in relation to claims for compensation for the damage or destruction of goods.

premises

This definition will provide that ‘premises’ includes the following:

·          a structure, building or conveyance;

·          a place (either enclosed or built on), including a place situated underground or under water;

·          a part of a structure, building, conveyance or a place.

A note to this definition will direct the reader to clause 332 of the Bill, which will provide that, in Part 4 of Chapter 10 of the Bill, premises do not include a conveyance.

The term will give examples of kinds of premises and is not intended to be exhaustive. The term will primarily be relevant to Chapter 10 of the Bill in relation to compliance and enforcement.

The term will be used in the definitions of appropriate person, establishment and property. Also see the definition of conveyance.

prepare

This definition will provide that ‘prepare’, in relation to goods, includes:

·          admission of animals for slaughter, being animals from which goods are to be derived;

·          slaughtering or killing animals from which goods are to be derived;

·          dressing carcases from which goods are to be derived;

·          taking (catching, capturing or harvesting), whether from the wild or otherwise, fish or fish from which goods are to be derived;

·          processing, packing and storing goods;

·          treating goods;

·          handling and loading goods.

This term will primarily be relevant to the definition of export operations that will be set out in clause 16 of the Bill. It will also be used in various offence provisions in Part 2 of Chapter 2 of the Bill.

A note to this definition will advise the reader that take, in relation to fish, means catch, capture, or harvest.

prescribed agriculture law

This definition will provide that a ‘prescribed agriculture law’ means a law (other than the Bill) that is administered by the Minister and is prescribed by the rules made under clause 432 of the Bill.

The term will be used in the definitions of relevant Commonwealth liability and secondary permissible purpose.

prescribed export conditions

This definition will provide that ‘prescribed export condition’ means conditions prescribed by rules made under clause 432 of the Bill for the purposes of clause 29 of the Bill.

Clause 29 of the Bill will allow the rules to prohibit the export of prescribed goods unless conditions prescribed by the rules are complied with. For example, the rules may prescribe that the export of meat is prohibited unless it is produced in a registered establishment, and certain conditions in relation to the registered establishment are met. A person may commit an offence or be liable to a civil penalty if they export prescribed goods in contravention of a prescribed export condition.

prescribed goods

This definition will provide that ‘prescribed goods’ means goods of a kind prescribed by rules made under clause 432 of the Bill for the purposes of subclause 28(1) of the Bill, but does not include a kind of goods in the circumstances prescribed by rules made for the purposes of subclause 28(4) of the Bill.

The concept of prescribed goods will be central to the imposition of export regulatory controls.

A note will be included at the end of the definition of prescribed goods and will advise the reader that the rules made under clause 432 of the Bill may prescribe a class of goods for the purposes of subclauses 28(1) or 28(4) of the Bill.

produce

This definition will provide that ‘produce’, in relation to goods, includes the following:

·          pick or harvest (whether from the wild or otherwise):

o    goods; or

o    goods from which goods are to be derived;

·          capture or take (whether from the wild or otherwise):

o    goods other than fish; or

o    goods other than fish from which goods are to be derived;

·          propagate, rear, keep or breed (including as part of aquaculture operations):

o    fish; or

o    fish from which goods are to be derived;

·          breed or carry out husbandry activities in relation to:

o    live animals; or

o    live animals from which goods are to be derived;

·          grow:

o    plants; or

o    plants from which goods are to be derived.

This term will primarily be relevant to the definition of export operations that will be set out in clause 16 of the Bill. It will also be used in various offence provisions in Part 2 of Chapter 2 of the Bill.

property

This definition will provide that ‘property’ has the same meaning as premises. The definition of property will also have the same meaning as establishment. The term will be used in the definitions of accredited property, manager and premises.

protected information

This definition will provide that ‘protected information’ means information obtained under, or in accordance with, the Bill. The term will be used in Part 3 of Chapter 11 of the Bill in relation to confidentiality of information.

protected person

This definition will provide that a ‘protected person’ has the meaning given by subclause 430(4) of the Bill, which will provide that a protected person means a person who is, or was, the Minister, the Secretary, an authorised officer or an officer or employee of the Department. Clause 430 of the Bill will provide that no civil proceeding will lie against a protected person in relation to anything done, or omitted to be done, in good faith under a provision of the Bill.

registered establishment

This definition will provide that ‘registered establishment’ means an establishment that is registered under Chapter 4 of the Bill.

A registered establishment may be a prescribed export condition for some kinds of prescribed goods. That is, rules made under clause 432 of the Bill for the purpose of clause 29 of the Bill may prohibit the export of a kind of prescribed goods completely or to a certain place unless export operations in relation to the goods are carried out at a registered establishment, and certain conditions in relation to the registered establishment are met.

In circumstances where a registered establishment, or condition in relation to a registered establishment, is a prescribed export condition for a kind of prescribed goods, the offence and civil penalty provisions under clauses 38 to 49 of the Bill will apply.

The term uses the definition of establishment.

Regulatory Powers Act

This definition will provide that the ‘Regulatory Powers Act’ means the Regulatory Powers (Standard Provisions) Act 2014 . This term will be used throughout the Bill, particularly in Chapter 10 of the Bill in relation to compliance and enforcement. The Bill will adopt the Regulatory Powers Act, with some modification, to avoid duplicating standard regulatory powers, such as monitoring and investigation.

The term will be used in the definitions of civil penalty provisions, this Act, evidential material, investigation warrant, monitoring warrant and throughout the Bill.

related provision

This definition will provide that ‘related provision’ means:

·          a provision of the Bill that creates an offence;

·          a civil penalty provision under the Bill;

·          a provision of the Crimes Act or the Criminal Code that relates to the Bill and creates an offence.

The term will be used in Chapter 10 of the Bill in relation to compliance and enforcement.

relevant Commonwealth liability

This definition will provide that a ‘relevant Commonwealth liability’ means a cost-recovery charge that is due and payable, or a pecuniary penalty, or other liability for an amount, imposed by or under a prescribed agriculture law.

A note to the definition will provide that a relevant Commonwealth liability of a person is taken to have been paid for the purposes of a provision of the Bill in certain circumstances (see clause 431 of the Bill). Whether a person has a relevant Commonwealth liability that is due and payable will be relevant to a number of provisions of the Bill. For example, it affects whether the Secretary may have regard to whether a person has a relevant Commonwealth liability when deciding whether to register an establishment in Chapter 4 of the Bill.

Also see the definitions of cost-recovery charge and prescribed agriculture law.

relevant court

This definition will provide that ‘relevant court’ means the Federal Court, the Federal Circuit Court or a court of a State or Territory that has jurisdiction in relation to matters arising under the Bill. Also see the definition of Federal Court and Federal Circuit Court.

The term will primarily be relevant to Chapter 10 of the Bill in relation to compliance and enforcement. For example, clause 355 of the Bill will provide that civil penalty orders may be sought under Part 4 of the Regulatory Powers Act from a relevant court.

relevant person

This definition will provide that a ‘relevant person’ has a number of different meanings.

For an audit under Part 1 of Chapter 9 of the Bill, relevant person will have the meaning given by clause 269 of the Bill.

For an assessment of goods under Part 2 of Chapter 9 of the Bill, relevant person will have the meaning given by clause 278 of the Bill.

For a reviewable decision referred to in column 1 of an item in the table in subclause 381(1) of the Bill, relevant person will mean the person referred to in column 3 of that item in relation to that decision.

For a reviewable decision prescribed by rules made under clause 432 of the Bill for the purposes of subclause 381(2) of the Bill, relevant person will mean the person specified by the rules as the relevant person for that decision.

relevant premises

This definition will provide that ‘relevant premises’ in Part 5 of Chapter 10 of the Bill has the meaning given by clause 345 of the Bill. Clause 345 of the Bill will provide that ‘relevant premises’ means premises that are, or that form part of, a registered establishment, and premises in or on, or that form part of, an accredited property.

This term will be used in Part 5 of Chapter 10 of the Bill in relation to monitoring powers. An authorised officer may enter relevant premises for the purposes of determining whether the Bill has been, or is being, complied with; or determining whether information provided for the purposes of the Bill is correct.

reviewable decision

This definition will provide that ‘reviewable decision’ has the meaning given by subclauses 381(1) and 381(2) of the Bill. Subclause 381(1) of the Bill will list decisions that are reviewable and subclause 381(2) of the Bill will provide that rules may prescribe further decisions that are reviewable decisions.

Applications can be made to the Administrative Appeals Tribunal for a decision made personally by the Secretary , or for a decision that has been reviewed by the Secretary or other internal reviewer.

The term will be used in the definition of relevant person.

rules

This definition will provide that ‘rules’ means rules made by the Secretary under clause 432 of the Bill.

Clause 432 of the Bill will provide that the Secretary may, by legislative instrument, make rules prescribing matters required or permitted by the Bill to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to the Bill. The rules will be legislative instruments for the purposes of the Legislation Act.

The term will be used throughout the Bill and in various definitions.

secondary permissible purpose

This definition will provide that ‘second permissible purpose’ means a purpose of either:

·          achieving the objects of the Bill; or

·          administering or enforcing:

o    a prescribed agriculture law; or

o    another Australian law to the extent that the law relates to public health, food safety, biosecurity, the export of goods from Australian territory, the health and welfare of live animals, or the health and condition of animal reproductive material.

This term will be used in Part 3 of Chapter 11 of the Bill, which will deal with confidentiality of information. For example, the Bill enables the Secretary to authorise the use or disclosure of information for secondary permissible purposes.

Secretary

This definition will provide that ‘Secretary’ means the Secretary of the Department.

sensitive information

This definition will provide that ‘sensitive information’ means information or an opinion about an individual’s criminal record that will also be personal information. The term will be used in Part 3 of Chapter 11 of the Bill in relation to confidentiality of information.

State or Territory authorised officer

This definition will provide that ‘State or Territory authorised officer’ means an authorised officer who is an officer or employee of a State or Territory body.

The term will primarily be used in Part 4 of Chapter 9 of the Bill, which deals with authorised officers.

Also see the definition of authorised officer and State or Territory body.

State or Territory body

This definition will provide that a ‘State or Territory body’ includes a Department of State, or an authority, of a State or Territory.

The term will primarily be used in Parts 3 and 4 of Chapter 9 of the Bill, which will deal with powers of the Secretary and authorised officers respectively. The term will also be used in the definition of State or Territory authorised officer.

take

This definition will provide that to ‘take’, in regards to fish, means catch, capture or harvest. This term will be used in the definitions of prepare and produce.

tariff rate quota certificate

This definition will provide that a ‘tariff rate quota certificate’ means a certificate provided for by rules made under clause 432 of the Bill for the purposes of clause 264 of the Bill.

Tariff rate quotas between the Government and trading partners enable a specific quantity of exported product to enter the importing country at a reduced tariff rate. Tariff rate quota certificates are issued in respect of an export consignment to facilitate its entry under the relevant concessional tariff rate applicable to the tariff rate quota.

The term will be used in the definition of government certificate, which will provide that a tariff rate quota certificate is not a government certificate.

temporary prohibition determination

This definition will provide that a ‘temporary prohibition determination’ means a determination made under paragraphs 24(1)(a) or 24(1)(b) of the Bill.

Subdivision B of Division 2 of Part 1 of Chapter 2 of the Bill will deal with temporary prohibition determinations. For example, clause 24 of the Bill will enable the Minister to determine, through legislative instrument, that certain kinds of goods are temporarily prohibited from export from the Australian territory or part of the Australian territory either absolutely for a specified period of time, or prohibited to a specified place for a specified period of time. However, the Minister may only make a temporary prohibition determination if the Minister is satisfied that the determination is necessary:

·          to protect human, animal or plant life or health; or

·          to secure compliance with an Australian law.

The export of goods that are permanently prohibited goods will enliven the offences and civil penalty provisions under clauses 30 to 37 of Chapter 2 of the Bill.

third party authorised officer

This definition will provide that ‘third party authorised officer’ means a person who is authorised to be an authorised officer under paragraph 291(6)(a) of the Bill.

Paragraph 291(3) of the Bill will enable a person who is not an officer or employee of a Commonwealth body or a State or Territory body to apply to the Secretary to be a third party authorised officer.

Also see the definition of authorised officer.

this Act

This definition will provide that ‘this Act’ includes any legislative instruments made under the Bill, and the Regulatory Powers Act as it applies in relation to the Bill. Therefore, a reference in the Bill to this Act will include a reference to the rules made under clause 432 of the Bill, which will be legislative instruments.

The term will be used throughout the Bill and in various definitions. Also see the definition of Regulatory Powers Act.

trade description

This definition will provide that ‘trade description’ has the meaning given by subclauses 246(1) and 246(2) of the Bill.

Subclause 246(1) of the Bill will provide that a trade description for goods is a description or statement (whether in English or any other language), or a pictorial representation, indication or suggestion (direct or indirect) that describes the goods. A trade description for goods will include, for example, the country or place where the goods were made, produced or grown.

A trade description will be a kind of prescribed export condition. That is, rules made under clause 432 of the Bill for the purpose of clause 29 of the Bill may prohibit the export of a kind of prescribed goods completely or to a specified place unless a certain trade description is applied to the prescribed goods , or certain conditions relating to trade descriptions are met.

In circumstances where a trade description or condition relating to a trade description is a prescribed export condition for a kind of prescribed goods, the offence and civil penalty provisions under clauses 38 to 49 of the Bill will apply.

United Nations Convention on the Law of the Sea

This definition will provide that the ‘United Nations Convention on the Law of the Sea’ means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, as in force for Australia from time to time.

This term will be used in clause 10 of the Bill, which deals with the application of the Bill.

use

This definition will provide that ‘use’, in relation to information, includes making a record of something. This is intended to expand the ordinary meaning of use and is not an exhaustive definition.

vessel

This definition will provide that ‘vessel' means any kind of vessel used in navigation by water, however propelled or moved, including:

·          a barge or other floating craft;

·          an air-cushion vehicle, or other similar craft, used wholly or primarily in navigation by water.

The definition will also include an installation and any floating structure.

The term will be used in Part 1 of Chapter 1 of the Bill in relation to the application of the Bill. The term will be also used in the definition of installation that will be set out in clause 17 of the Bill.

Clause 13            Meaning of associate

Clause 13 will provide the meaning of the term ‘associate . Clause 12 of the Bill will define associate as having the meaning given by clause 13.

The definition will allow the Secretary to take into account the association between a certain person or corporation (an associate) and a person who has made certain applications or to which certain decisions under the Bill may relate. This is intended to identify circumstances where the association may be relevant to the Secretary’s decision-making powers under the Bill.

Subclause 13(1) will provide that an associate of a person (the first person ), is:

·          a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of the first person or any corporation of which the first person is an officer or employee or in which the first person holds shares;

·          a spouse, de facto partner, child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of the first person;

·          a child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of a spouse or de facto partner of the first person;

·          any other person not mentioned above who is or was directly or indirectly concerned in or in a position to control or influence the conduct of a business or undertaking of the first person or a corporation of which the first person is an officer or employee, or in which the first person holds shares;

·          a corporation of which the first person or any of the other persons mentioned above is an officer or employee, or in which the first person, or any of those other persons, holds shares; and

·          another body corporate that is a related body corporate (within the meaning of the Corporations Act) of the first person, if the first person is a body corporate.

Subclause 13(2) will clarify that, without limiting who is a child for the purposes of the Bill, the child of another person is:

·          a stepchild or adopted child of the other person; or

·          a child of the other person within the meaning of the Family Law Act 1975 .

Subclause 13(3) will state that, without limiting who is a stepchild of another person for the purposes of the Bill, a de facto partner of the other person is the stepchild of the other person if the child would be the other person’s stepchild except that the other person is not legally married to the partner.

Subclause 13(4) will state that, without limiting who is a parent of a person for the purposes of the Bill, a person (the first person ) is the parent of another person (the second person ) if the other person is a child of the person because of the definition of child in subclause 13(2).

Subclause 13(5) will clarify that, for the purposes of the Bill, if one person is the child of another person because of the definition of child in subclause 13(2), relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

Clause 14            Meaning of Australian territory

Clause 14 will provide for the meaning of the term ‘Australian territory’. Clause 12 of the Bill will define Australian territory to have the meaning given by clause 14.

This meaning will be necessary to clearly set out the circumstances in which the Bill applies in relation to certain activities and conduct under the Bill. For example:

·          Clause 20 of the Bill will rely on the meaning of Australian territory to determine when goods have been exported.

·          Division 2 of Part 1 of Chapter 2 of the Bill will rely on the meaning of Australian territory in relation to goods that are prohibited from export on a permanent or temporary basis. Offences may apply when these goods are exported from Australian territory.

Clause 14 will provide that a reference to Australian territory in the Bill is a reference to each of the following:

·          Australia;

·          the exclusive economic zone adjacent to Australia;

·          the waters above the continental shelf adjacent to Australia;

·          each external Territory or area to which the provision extends under paragraph 8(2)(a) and subparagraph 8(2)(b)(i)of the Bill;

·          the waters above each area to which the provision extends under subparagraph 8(2)(b)(ii) of the Bill;

·          each area to which the provision extends under paragraph 8(2)(c).

A note will be included at the end of clause 14, which will direct the reader to subclause 8(2) of the Bill, which will provide that the rules made under clause 432 of the Bill may extend the Bill, or any provisions of the Bill, to an external Territory and to certain other areas. If this occurs, the area covered by the extended application of the Bill becomes part of the Australian territory.

Clause 15            Meaning of entered for export

Clause 15 will provide for the meaning of the term ‘entered for export’, which will be defined by clause 12 of the Bill to have the meaning given by clause 15.

Clause 15 will provide that goods are entered for export if, in the course of the preparation or production of the goods for export, the goods are presented to, or information about the goods is given to, an authorised officer or another person who is authorised to exercise powers or perform functions under the Bill in relation to the goods, for the purpose of the authorised officer or other person exercising powers or performing functions under the Bill in relation to the goods. For example, goods will be entered for export at the point a person gives information to an assessor while an assessment of goods is being conducted.

The point at which goods are entered for export will be relevant to several offences and civil penalty provisions in Part 1 of Chapter 2 of the Bill. For example, clauses 48 and 49 of the Bill will apply when a person makes a false or misleading representation about prescribed goods when those goods are entered for export generally, or to a certain place, respectively. Clause 50 of the Bill will apply when a person makes a false or misleading representation about non-prescribed goods when those goods are entered for export.

This term will also be used in Part 2 of Chapter 8 of the Bill in relation to trade descriptions. Clause 253 of the Bill will provide that goods to which a false trade description has been applied must not be entered for export.

Clause 16            Meaning of export operations

Clause 16 will provide the meaning of the term ‘export operations’, which will be defined by clause 12 of the Bill to have the meaning given by clause 16.

Clause 16 will provide that export operations means any of the following:

·          operations to export goods;

·          operations to produce, or prepare, goods for export;

·          operations (other than operations to export goods or to produce or prepare goods for export) in relation to goods for export before they are exported;

·          operations in relation to goods that have been exported up until the delivery of the goods to their final overseas destination or, in the case of live animals intended to be slaughtered, up until and including the point of slaughter;

·          any other operations in relation to the export of goods.

Examples of operations will be included after the definition in clause 16. Those examples will be:

·          for the purposes of operations to produce, or prepare, goods for export—breeding or carrying out husbandry activities in relation to livestock from which meat for export is to be derived;

·          for the purposes of operations (other than operations to export goods or to produce or prepare goods for export) in relation to goods for export before they are exported—transporting goods, applying a trade description or official mark to goods, carrying out certification functions in relation to goods, and issuing an export permit for a kind of prescribed goods;

·          for the purposes of operations in relation to goods that have been exported up until the delivery of the goods to their final overseas destination—monitoring the goods during their journey to the importing country and up until their delivery to their final overseas destination or, in the case of live animals intended to be slaughtered, up until and including the point of slaughter; and

·          for the purposes of any other operations in relation to the export of goods—operations for the purpose of assuring the supply chain relating to certain prescribed goods up until their delivery to their final overseas destination, and manufacturing official marks or official marking devices. A note will be included at the end of clause 16 which will direct the reader to clause 20 of the Bill which provides for when goods are exported.

The concept of carrying out of export operations will be an integral part of regulating the export of goods from Australia under the Bill. The concept will be central to, for example, the accreditation of a property, registration of an establishment, approval of an arrangement and the issuing of a licence.

Clause 17            Meaning of installation

Clause 17 will provide for the meaning of the term ‘installation’, which will be defined by clause 12 of the Bill to have the meaning given by clause 17.

Clause 17 will provide that an installation is a structure that is:

·          able to float, or to be floated; and

·          able to move, or to be moved, as an entity from one place to another; and

·          is, or is to be, used wholly or principally in exploring or exploiting natural resources (such as fish or minerals) with equipment that is on or forms part of the structure, or operations or activities associated with, or incidental to, activities of a kind in relation to exploring or exploiting natural resources; and

·          is either attached to or resting on the seabed, or is attached semi-permanently or permanently to a structure that is attached to or resting on the seabed.

A note will be included at the end of clause 17 which will direct the reader to the definition of vessel in clause 12 of the Bill. The note will clarify that an installation will be a vessel for the purposes of the Bill.

Clause 18            Meaning of integrity

Clause 18 will provide for the meaning of the term integrity, which will be defined by clause 12 of the Bill to have the meaning given by clause 18.

Clause 18 will provide that the integrity of goods is ensured if the identity or composition of the goods, in relation to any condition, restriction or other description that applies in relation to the goods is:

·          ascertainable; and

·          maintained without loss, addition or substitution; and

·          not confused with that of any other goods.

Ensuring the integrity of goods that are exported is a key object of the Bill as set out in clause 3 of the Bill and will be a fundamental concept in relation to the regulation of exports.

Clause 19            Meaning of occupier

Clause 19 will provide the meaning of the term ‘occupier’, which will be defined by clause 12 of the Bill to have the meaning given by clause 19.

Clause 19 will provide that occupier has two meanings depending on whether it will be for a registered establishment or an establishment other than a registered establishment (which includes premises and properties).

Subclause 19(1) will provide that the occupier of a registered establishment is the person in whose name the establishment is registered.

Subclause 19(2) will provide that an occupier of an establishment (other than a registered establishment) where export operations in relation to goods are, were or will be carried out, is the person that:

·          operates, operated or will operate the business of carrying out export operations in relation to goods at the establishment; or

·          manages or controls, managed or controlled or will manage or control export operations carried out in relation to goods at the establishment.

The term establishment will include premises and properties and the term occupier will include the manager of any premises or property, as well as an establishment. Therefore, the term occupier as it will be defined in subclause 19(2) will include the manager of an accredited property.

Division 2 - Other interpretation provisions

Clause 20            When goods are exported

Subclause 20(1) will provide that goods are exported when the conveyance transporting the goods from Australian territory commences its journey to a place outside Australian territory (whether or not that place is the intended final overseas destination for the goods).

A note to subclause 20(1) will clarify that if goods are transported between landing places or ports in Australian territory, the goods are exported when the conveyance transporting the goods commences its journey from the last landing place or port in Australian territory before leaving Australian territory.

Subclause 20(2) will be an avoidance of doubt provision which will provide that subclause 20(1) will apply if:

·          goods were taken from waters (other than internal waters) in Australian territory, were harvested on the continental shelf adjacent to Australia or were harvested in an area on the continental shelf adjacent to an external Territory to which the Bill is extended under subparagraph 8(2)(b)(ii) of the Bill; and

·          after being taken or harvested, the goods:

o    were loaded onto a conveyance in Australian territory for transportation to a place outside Australian territory; or

o    were taken to a place outside Australian territory; and

·          the goods were not unloaded at any time at a place on land in Australian territory. For example, the transhipment of fish taken in the waters of the Australian territory will come within the concept of when goods are exported.

Clause 21            Persons who manage or control export operations

Clause 21 will clarify that, for the purposes of the Bill, a person is taken to be a person who manages or controls, or would manage or control, export operations if the person has, or would have the authority to either direct the export operations, or an important or substantial part of the export operations; or direct another person who has, or would have, authority to direct export operations.

The person who manages or controls export operations has certain obligations relevant to numerous chapters in the Bill, including, Chapter 3 of the Bill which deals with accredited properties, Chapter 4 of the Bill which deals with registered establishments, Chapter 5 of the Bill which deals with approved arrangements and Chapter 6 of the Bill which deals with export licences.

Chapter 2—Exporting goods

PART 1-GOODS

Division 1—Introduction

Clause 22            Simplified outline of this Part

Clause 22 will provide a simplified outline of Part 1 of Chapter 2 of the Bill. Part 1 of Chapter 2 will provide that certain goods will be prohibited absolutely from being exported from Australian territory. These goods will be called permanently prohibited goods.

Part 1 of Chapter 2 will provide that the Minister may, by legislative instrument, determine that the export of a particular kind of goods from Australian territory, or from a part of Australian territory, is prohibited absolutely for a specified period of up to six months; or that the export of a specified kind of goods from Australian territory, or from a part of Australian territory, to a specified place is prohibited for a specified period of up to six months. The legislative instrument will be called a temporary prohibition determination.

The Minister may only make a temporary prohibition determination if the Minister is satisfied that the determination will be necessary to protect human, animal or plant life or health, or to secure compliance with an Australian law (other than the Bill). In addition, a temporary prohibition determination may be varied to extend the temporary prohibition period for further periods of up to six months.

Part 1 of Chapter 2 will also provide that rules made under clause 432 of the Bill may prescribe kinds of goods ( prescribed goods ) for the purposes of the Bill. In deciding whether to prescribe goods that are not animals, plants or food, the Secretary may have regard to relevant matters, including importing country requirements, sanitary matters, Australian laws and standards, Australia’s international rights and obligations, and international standards.

Part 1 of Chapter 2 will also enable the rules to prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless conditions prescribed by the rules are complied with; or prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, to a specified place unless conditions prescribed by the rules are complied with.

In addition, a person may commit an offence or be liable to a civil penalty if permanently prohibited goods, or goods in relation to which a temporary prohibition determination applies, are exported, and are intended to be imported into a particular place, and the export of the goods to that place is temporarily prohibited.

A person may also commit an offence or be liable to a civil penalty if goods are exported in contravention of prescribed export conditions, or the person makes a false or misleading representation about goods that are entered for export.

The simplified outline is included to assist the reader to understand the substantive clauses of Part 1 of Chapter 2 of the Bill; however, it is not intended to be comprehensive. It is intended that the reader will rely on the substantive clauses of the Bill to which the outline relates.

Division 2—Prohibited goods

Subdivision A—Permanently prohibited goods

Clause 23            Goods that are prohibited from export absolutely

Clause 23 will enable the Bill to prohibit absolutely the export of goods from Australian territory.

Clause 23 will provide that the export of split vetch (being split seed of Vivia sativa ) from Australian territory is prohibited permanently and absolutely. Split vetch seeds are a particular form of vetch seeds and are not the same as whole vetch seeds that have been broken (for example, in the course of harvesting or transport). The requirement to prohibit absolutely the export of split vetch seeds results from its toxic properties and possible use as a substitute for edible red lentils. Goods prohibited from export under clause 23 will be defined as permanently prohibited goods in clause 12 of the Bill.

Clause 23 will only apply to a single commodity—split vetch. If there is a need to permanently prohibit other goods from export in the future, the prohibition will need to be subject to consideration, and passage of, an amendment Bill by Parliament, rather than a responsibility delegated to the Minister or Secretary. A permanent prohibition on the export of a good may be required if, for example, those goods pose a significant and ongoing risk to human, animal or plant life or health that cannot be appropriately managed by a temporary prohibition provided for in Subdivision B of Division 2 of Part 1 of Chapter 2 of the Bill or other regulatory controls set out in the Bill.

Two notes will be included at the end of clause 23. Note 1 will refer the reader to clause 14 of the Bill for the meaning of Australian territory . Note 2 will advise the reader that Division 4 of Part 1 of Chapter 2 of the Bill will set out offences and civil penalty provisions for exporting permanently prohibited goods.

Clause 30 of the Bill will provide an offence or make a person liable to a civil penalty if a person exports goods that are totally prohibited from being exported (either temporarily or permanently). Clause 31 of the Bill will provide an aggravated offence or make a person liable to a civil penalty if the person exports goods that are subject to absolute prohibition on export (either temporarily or permanently) with the intention of obtaining a commercial advantage. Clause 32 of the Bill will make it an aggravated offence or make a person liable to a civil penalty if the person exports goods that are subject to absolute prohibition (either temporarily or permanently) and there will be economic consequences for Australia (as defined in clause 12 of the Bill).

Subdivision B—Temporarily prohibited goods

Clause 24            Minister may temporarily prohibit export of goods from Australian territory, or from a part of Australian territory, for a period

Clause 24 will enable the Minister to temporarily prohibit the export of goods from Australian territory.

Subclause 24(1) will provide that the Minister may determine, by legislative instrument, that certain kinds of goods are temporarily prohibited from export from all or part of Australian territory for a specified period of up to six months. The temporary prohibition determination will either prohibit the export of goods absolutely (that is, the goods will not be able to be exported to any place) (see paragraph 24(1)(a)), or prohibit the export of goods to a specified place) (see paragraph 24(1)(b)).

The temporary prohibition determination will be a legislative instrument and therefore will be subject to Parliamentary scrutiny though the disallowance process, and to sunsetting in accordance with the Legislation Act.

Three notes will be included at the end of subclause 24(1). Note 1 will provide that a determination in force under paragraphs 24(1)(a) or 24(1)(b) will be called a temporary prohibition determination. Note 2 will advise the reader that the temporary prohibition period may be extended under clause 25 of the Bill. Note 3 will refer the reader to clause 14 of the Bill for the meaning of Australian territory .

Subclause 24(2) will provide that the Minister may only make a temporary prohibition determination under subclause 24(1) if the Minister is satisfied that it will be necessary to protect human, animal or plant life or health, or to secure compliance with an Australian law (other than the Bill). The Minister will only have discretion to make a temporary prohibition determination when it will be necessary to achieve the outcomes set out in subclause 24(2). This will be an important limitation on the power of the Minister to temporarily prohibit the export of goods and recognises that only in the serious circumstances that will be listed in subclause 24(2) should it be possible to make a temporary prohibition determination.

Subclause 24(3) will require that a determination made under subclause 24(1) must set out the reasons for making the determination. This will enable the Parliament and exporters to understand the basis of, and reasons for, the temporary prohibition determination.

A note will be included at the end of subclause 24(3), which will advise the reader that Division 4 of Part 1 of Chapter 2 of the Bill will set out offences and civil penalty provisions for exporting goods in relation to which a temporary prohibition determination will apply.

Clause 34 of the Bill will provide an offence or make a person liable to a civil penalty if a person exports goods that are totally prohibited from being exported (either temporarily or permanently). Clause 35 of the Bill will provide an aggravated offence or make a person liable to a civil penalty if the person exports goods that are subject to absolute prohibition on export (either temporarily or permanently) with the intention of obtaining a commercial advantage. Clause 36 of the Bill will make it an aggravated offence or make a person liable to a civil penalty if the person exports goods that are subject to absolute prohibition (either temporarily or permanently) and there will be economic consequences for Australia.

Clause 25            Variation of temporary prohibition determination

Subclause 25(1) will enable the Minister to vary a temporary prohibition determination to extend the period of prohibition on export specified in the original temporary prohibition determination for a further period of up to six months. The ability to vary the period of the temporary prohibition determination for six months only is designed to ensure that the reasons for the temporary prohibition period are constantly reviewed and that the prohibition will not be left in place for longer than is necessary.

As with the original temporary prohibition determination, subclause 25(2) will provide that the Minister may only vary a temporary prohibition determination under subclause 25(1) if the Minister is satisfied that it will be necessary to protect human, animal or plant life or health, or secure compliance with an Australian law (other than the Bill). This will mean that the Minister may only vary the temporary prohibition determination when it is necessary to achieve these outcomes, and not for any other purpose. This will be an important limitation on the power of the Minister and recognises that a temporary prohibition determination should only be varied in serious circumstances.

A variation to a temporary prohibition determination will be a legislative instrument and therefore will be subject to Parliamentary scrutiny though the disallowance process, and to sunsetting in accordance with the Legislation Act.

Subclause 25(3) will confirm that the Minister may vary a temporary prohibition determination made under subclause 25(1) more than once. This will enable the Minister to respond to ongoing concerns that will have necessitated the issue of the temporary prohibition determination in the first place. It will ensure that those concerns are addressed before the temporary prohibition determination is removed. Alternatively, where it is considered the prohibition should be permanent, the Minister will be able to extend the prohibition and ensure it remains in place until an amendment Bill can be considered by Parliament.

Subclause 25(4) will require that a determination varying a temporary prohibition determination must set out the reasons for making the variation. This will enable Parliament and exporters to understand why the variation is being made.

Subclause 25(5) will make it clear that this clause does not otherwise limit the application of subsection 33(3) of the Acts Interpretation Act in relation to a temporary prohibition determination. This will mean that the Minister will be able to repeal, rescind, revoke or amend the determination in addition to being able to vary the determination. However, as with any variation, any repeal, rescission, revocation or amendment may only be made if it will be necessary to protect human, animal or plant life or health, or secure compliance with an Australian law (other than the Bill).

Clause 26            Effect of temporary prohibition determination on government certificate or export permit

Effect on government certificate

Subclause 26(1) will provide that, when a temporary prohibition determination prohibits the export of a kind of goods under clause 24 of the Bill, any government certificate that has been, or is, issued in relation to those goods will be taken to have been revoked.

The revocation of a government certificate will apply in relation to goods that are to be exported, as well as goods that have already been exported. A government certificate will be taken to have been revoked on the date the temporary prohibition determination takes effect or the date immediately after the certificate will be issued, whichever is the later.

Subclause 26(1) will ensure that government certificates will not be used to facilitate the import of goods when the export of those goods is prohibited under a temporary prohibition determination. This will apply in relation to goods that have already been exported (but which have not yet been imported) and goods that have yet to be exported. Once a temporary prohibition determination has been issued, the export (and import) of those goods must cease.

Effect on export permit

Subclause 26(2) will provide that, when a temporary prohibition determination prohibits the export of a kind of goods under clause 24 of the Bill, any export permit that has been, or is, issued in relation to those goods will be taken to have been revoked.

An export permit that relates to goods before the goods are exported will automatically be revoked to prevent the goods leaving Australia territory after a temporary prohibition determination is made. Once the goods have left Australian territory the issue of a temporary prohibition determination cannot alter this fact. Revoking a permit in these circumstances would have no effect.

An export permit will be taken to have been revoked on the date the temporary prohibition determination takes effect or immediately after the export permit is issued, whichever is the later. This will ensure that export permits will not be used to facilitate the export of goods when the export is prohibited under the temporary prohibition determination.

Clause 27            Temporary prohibition determination prevails over inconsistent rules

C lause 27 will provide that a temporary prohibition determination made under clause 24 of the Bill will prevail over the rules made under clause 432 of the Bill, to the extent of any inconsistency. This is intended to ensure that the temporary prohibition determination will have the intended outcome of preventing the export of goods, which might otherwise be permitted under the Bill, in order to protect human, animal or plant life or health or to secure compliance with an Australian law (other than the Bill).

Division 3 - Prescribed goods and conditions of export

Clause 28            Rules may prescribe goods for the purposes of this Act

Clause 28 will operate in conjunction with clause 29 of the Bill and will be a key provision used to regulate the export of goods from Australian territory.

Subclause 28(1) will provide that rules made under clause 432 of the Bill will be able to prescribe kinds of goods ( prescribed goods ) for the purposes of the Bill. What the rules will be able to prescribe as prescribed goods will depend on whether the item will be covered by the definition of goods . This term ‘goods’ will be defined in clause 12 of the Bill as follows:

·          an animal or a plant;

·          an article, substance or thing (including reproductive material) derived from an animal or a plant, whether or not in combination with any other article, substance or thing;

·          food;

·          any other article, substance or thing;

but does not include narcotic goods within the meaning of the Customs Act 1901 .

Animal, plant and food will also be defined in clause 12 of the Bill. The definitions of animal, plant and food are intended to be broad enough to ensure that the export of all kinds of animals, plant and food may be regulated under the Bill without the Secretary having to consider whether goods of that kind should be regulated as prescribed goods.

The rules made under clause 432 of the Bill may therefore prescribe any of these kinds of goods to be prescribed goods and therefore they will be subject to the regulatory controls that will be set out in the Bill.

Subclause 28(2) will provide that rules made under subclause 28(1) may prescribe a kind of goods by reference to particular circumstances, including, for example, the place to which the goods are, or are intended to be, exported and the intended use of the goods. Enabling the rules to set out which goods will be prescribed goods will give the Secretary the flexibility to increase or decrease the level of regulation of goods as required, such as in response to changes in industry and market requirements, and to regulate the export of goods only when there is a need to do so.

For example, certain goods, such as raw meat, may present a health risk to consumers if they are not prepared in a particular way. The Secretary will be able to make rules to prescribe such goods so their preparation could be regulated to ensure they were fit for consumption and safe to be exported. Where there is no identifiable risk and no importing country requirements, there may be no need to make the goods prescribed goods. Goods of a kind that are not prescribed goods are defined as non-prescribed goods in clause 12 of the Bill.

Subclause 28(3) will provide that in deciding whether to prescribe a kind of goods referred to in paragraph (d) of the definition of goods in clause 12 (that is, any other article, substance or thing) as a prescribed goods, the Secretary may have regard to the following matters:

·          any importing country requirements relating to goods of that kind;

·          sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to goods of that kind;

·          any Australian laws and standards relating to goods of that kind;

·          Australia’s rights and obligations relating to goods of that kind under any international agreements to which Australia is a party;

·          any international standards relating to goods of that kind;

·          any other matter the Secretary considers relevant.

The effect of subclause 28(3) will be that the Secretary will have the discretion to prescribe any other article, substance or thing as a prescribed good, taking into account the matters that will be set out in subclause 28(3). This will enable the Secretary to bring any other article, substance or thing within the regulatory controls that will be set out in the Bill but only when it is necessary and appropriate to do so.

Subclause 28(4) will provide that the rules made under clause 432 of the Bill may provide that a kind of prescribed goods will be taken not to be prescribed goods for the purposes of the Bill, in the circumstances provided by the rules. That is, they will be treated as non-prescribed goods for the purposes of the Bill.

Enabling the rules to set out the circumstances in which prescribed goods will be taken to be non-prescribed goods, and hence not subject to the regulatory controls that apply to prescribed goods in the Bill, will give the Secretary flexibility to exclude what would otherwise be prescribed goods from the regulatory controls. This will only be in situations where it is appropriate to do so, for example, where there are no importing country requirements or there is no requirement to regulate the export of the goods, for example, because of the size or weight of the consignment. Enabling the rules to set out when prescribed goods may be taken not to be prescribed goods differs from exemptions in that it will be done on an on-going basis in relation to all goods that fit within the relevant description and not on a case-by-case basis for a limited time.

Clause 29            Rules may prohibit export of prescribed goods subject to conditions

Clause 28 of the Bill will operate in conjunction with clause 29 and will allow the rules made under clause 432 of the Bill to prohibit the export of prescribed goods unless they comply with certain conditions. Clauses 28 and 29 will be key provisions to regulating the export of prescribed goods from Australian territory.

Subclause 29(1) will enable the Secretary to make rules under clause 432 of the Bill to:

·          prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, unless conditions prescribed by the rules are complied with; or

·          prohibit the export of prescribed goods from Australian territory, or from a part of Australian territory, to a specified place unless conditions prescribed by the rules are complied with.

The conditions prescribed by the rules will be known as prescribed export conditions (which will be defined in clause 12 of the Bill as meaning conditions prescribed by rules made under clause 432 of the Bill for the purposes of clause 29).

Enabling the rules to set out the conditions in relation to the export of prescribed goods, or the export of prescribed goods to a particular place, will give the Secretary the flexibility to regulate the export of goods to suit the requirements of the particular commodity or importing country requirements. Subclause 29(2) will provide examples of the types of matters that may be prescribed as conditions (that is, prescribed export conditions) in the rules (see below).

Four notes will be included at the end of subclause 29(1). Note 1 will provide that the rules will be made by the Secretary under clause 432 of the Bill. The note will provide that the rules will be disallowable legislative instruments and will be subject to sunsetting under the Legislation Act.

Note 2 will direct the reader to subclause 289(1) of the Bill, which will provide that the Minister will be able to give directions to the Secretary in relation to the performance of the Secretary’s functions or the exercise of the Secretary’s powers in making rules under clause 432 of the Bill. The direction by the Minister will be a legislative instrument. This will mean that the direction will be subject to tabling in Parliament; however, section 42 of the Legislation Act relating to disallowance of legislative instruments and Part 4 of Chapter 3 of that Act (relating to sunsetting) will not apply to the direction.

Note 3 will direct the reader to clause 14 of the Bill, which will provide the meaning of Australian territory . Note 4 will provide that Division 4 of Part 1 of Chapter 2 of the Bill will set out a number of offences and civil penalty provisions for exporting prescribed goods in contravention of prescribed export conditions.

Subclause 29(2) will provide examples of the kinds of prescribed export conditions that the rules, made under clause 432 of the Bill for the purposes of subclause 29(1), may prescribe. These will be conditions that: 

·          require export operations to be carried out in relation to the goods at an accredited property; or at a registered establishment; or at another kind of premises prescribed by the rules; or in accordance with an approved arrangement; or in accordance with an export licence; or in any other way prescribed by the rules; or

·          require the exporter to hold one or more of the following: an approved arrangement covering the goods; a government certificate in relation to the goods; an export licence covering the goods; an export permit for the goods; another kind of permission, consent or approval, granted as prescribed by the rules, to export the goods; or

·          relate to export operations to be carried out in relation to the goods, including in relation to the following matters: premises, equipment and facilities to be used to produce or prepare the goods; hygiene; loading and transport of the goods; identification, tracing, recall and transfer of the goods; ensuring the integrity of the goods; trade descriptions; and official marks.

Enabling the rules to identify other matters that may form the subject of prescribed export conditions will give the Secretary flexibility to respond to changes in Government and international requirements for the regulation of the export of prescribed goods. The rules made under clause 432 of the Bill may prohibit the export of prescribed goods generally (that is, a kind of prescribed goods may be prohibited from export to all places), or to a specified place, unless conditions (including conditions that relate to the matters that will be listed in subclause 29(2)) are complied with.

Subclause 29(3) will provide a further example of what rules made under clause 432 of the Bill for the purposes of subclause 29(1) may address. The rules may prescribe conditions in respect of matters or things not related to the prescribed goods themselves, which are required to be complied with. Subclause 29(3) will make it clear that the conditions that may be imposed need not relate directly to the goods, but could relate to matters that have an indirect link to the export of goods such as conditions in relation to premises or transport.

The effect of the definition of the point at which goods are exported under clause 20 of the Bill is that the prescribed export conditions imposed under clause 29 can only deal with matters leading up to and including the point that goods are exported. Prescribed export conditions can be distinguished from conditions that may be prescribed under other chapters of the Bill, including conditions on accredited properties (clause 78), registered establishments (clause 111), approved arrangements (clause 150), export licences (clause 190) and export permits (clause 227).  For example, it may be a prescribed export condition on the export of goods that an exporter hold an approved arrangement. This means that the export of the goods would be prohibited unless the exporter holds an approved arrangement. Rules made for the purpose of clause 78 could also prescribe certain conditions on that arrangement dealing with how the exporter will conduct their export operations after the goods are exported (for example, by specifying which abattoirs to which the exporter may send livestock, or the transportation arrangements that must be in place). Such conditions on approved arrangements would be subject to the offence provisions in clause 184 of the Bill, as opposed to the offence provisions in Division 4 of Part 1 of Chapter 2 of the Bill which only apply to prescribed export conditions.

Subclause 29(4) will clarify that rules made under clause 29 may make provision for a matter by applying, adopting or incorporating any matter in a list prepared by the Secretary and published on the Department’s website, as in force or existing from time to time. Subclause 29(4) will apply despite subsection 14(2) of the Legislation Act.

Subsection 14(2) of the Legislation Actprovides that, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time and will need to commence at short notice.

Subclause 29(4) will enable a list prepared by the Secretary and published on the Department’s website to be incorporated into the regulatory framework. A list of this nature may be a necessary part of the regulatory framework if, for example, importing country requirements in relation to a particular kind of goods is required to be updated regularly. This will provide flexibility while also providing certainty and facilitating trade. The power in subclause 29(4) will be specific to lists prepared by the Secretary under rules made for the purposes of clause 29.

A note will be included under subclause 29(4) to assist the reader, providing the address of the Department’s website (http://www.agriculture.gov.au).

Division 4—Offences and civil penalty provisions

Clause 30            Exporting goods that are subject to absolute prohibition on export—basic contravention

Clause 30 will provide that penalties may be imposed in circumstances where goods are subject to an absolute prohibition on export (see clause 23 of the Bill) and the goods are exported in contravention of that prohibition. Clause 31 of the Bill will provide that penalties may be imposed for the same conduct but in the aggravated circumstances where the person intends to obtain a commercial advantage. Clause 32 of the Bill will provide that penalties may be imposed for the same conduct but in the aggravated circumstances where the export has economic consequences for Australia.

Subclause 30(1) will provide that a person will contravene subclause 30(1) if:

·          the person exports goods; and

·          either:

o    the goods are permanently prohibited goods; or

o    the export of the goods is prohibited absolutely by a temporary prohibition determination.

A note will be included at the end of subclause 30(1) that will provide that the physical elements of an offence against subclause 30(2) will be set out in subclause 30(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 30(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 30(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 30(2) will be 2,400 penalty units.

Subclause 30(3) will provide that strict liability will apply to the elements of the offence in paragraph 30(1)(b) (that the goods are permanently prohibited goods, or that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical elements in paragraph 30(1)(b) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraph 30(1)(b) are matters of law. They concern the existence of a permanent or temporary absolute prohibition on the export of the goods. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 30(1)(b) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 30(1)(a)).

Subclause 30(4) will provide that a person will be liable to a civil penalty of 960 penalty units if the person contravenes subclause 30(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 30(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 30(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 30(4) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty will also reflect the consequences that exporting goods that are prohibited (whether permanently or temporarily) may have on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). Conduct that contravenes the prohibition may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances. This will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 31            Exporting goods that are subject to absolute prohibition on export—intention to obtain commercial advantage

Clause 31 will provide that penalties may be imposed in circumstances where goods are subject to an absolute prohibition and the goods are exported in contravention of that prohibition, in circumstances where the exporter intends to obtain a commercial advantage over competitors, or potential competitors, as a result of exporting the goods.

This offence is similar to the basic offence that will be prescribed in clause 30 of the Bill. However, clause 31 will create an aggravated offence where the contravention involves the person intending to obtain a commercial advantage.

Subclause 31(1) will provide that a person will contravene subclause 31(1) if:

·          the person exports goods; and

·          either:

o    the goods are permanently prohibited goods; or

o    the export of the goods is prohibited absolutely by a temporary prohibition determination; and

·          the person intends to gain a commercial advantage in the market by exporting the goods.

A note will be included at the end of subclause 31(1) that will provide that the physical elements of an offence against subclause 31(2) will be set out in subclause 31(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

The offence in clause 31 is intended to capture circumstances where a person exports goods that are either permanently prohibited from being exported or prohibited absolutely by a temporary prohibition determination. In both cases, the offence provides that this conduct is for the purpose of obtaining a commercial advantage, whether or not a commercial advantage is realised. Commercial advantage may include monetary profit or private financial gain. There will be no requirement to prove that the person actually obtained a commercial advantage; proving that, at the time of exporting the goods the person intended to obtain a commercial advantage will be sufficient.

Subclause 31(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 31(1). The fault-based offence will be subject to a penalty of imprisonment for ten years or a fine of 2,000 penalty units (or both) for an individual. The corresponding fine for a body corporate for a contravention of subclause 31(2) will be determined according to the formula at clause 50A.

Subclause 31(3) will provide that strict liability will apply to the elements of the offence in paragraph 31(1)(b) (that the goods are permanently prohibited goods, or that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical elements in paragraph 31(1)(b) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraph 31(1)(b) are matters of law. They concern the existence of a permanent or temporary absolute prohibition on the export of the goods. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 31(1)(b) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 31(1)(a)), and that the person intended to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods (paragraph 31(1)(c)).

Subclause 31(4) will provide for an alternative verdict for conduct that contravenes subclause 31(2). If the prosecution is unable to prove beyond reasonable doubt that the person intended to obtain a commercial advantage over competitors or potential competitors by exporting the goods, the person may still be found guilty of an offence, under subclause 30(2) of the Bill, of exporting goods when those goods are subject to an absolute prohibition on export.

Subclause 31(5) will provide that a person will be subject to a civil penalty of 4,000 penalty units if the person contravenes subclause 31(1). This is twice as high as the penalty available for the criminal offence and will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 31(5). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 31(5) will be determined according to the formula at clause 50A. The formula at clause 50A provides the flexibility for a civil penalty of up to 20,000 penalty units for a corporation. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties in this clause are higher than those outlined in the Guide. This reflects the seriousness of the decision to absolutely prohibit goods from export (whether permanently or temporarily) and the potential consequences that exporting such goods may have on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). For example, goods may be prohibited from export absolutely to prevent or control the spread of a disease or pest to overseas markets. The export of these goods may severely damage Australia’s trading reputation. A person intending to obtain a commercial advantage is an aggravated circumstance that warrants the additional penalty because of the added monetary benefit that may be gained by the person involved in this conduct. Reliance on the basic offence under clause 30 may be insufficient to eliminate dishonest trade in circumstances where there may be a high financial reward.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances. This will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 32            Exporting goods that are subject to absolute prohibition on export—economic consequences for Australia

Clause 32 will provide that penalties may be imposed in circumstances where goods are subject to an absolute prohibition and the goods are exported in contravention of that prohibition, and the export of goods has, or has the potential to have, economic consequences for Australia.

This offence is similar to the basic offence that will be prescribed in clause 30. However, clause 32 will create an aggravated offence and has the additional element that the contravention involves economic consequences for Australia.

Subclause 32(1) will provide that a person will contravene subclause 32(1) if:

·          the person exports goods; and

·          either:

o    the goods are permanently prohibited goods; or

o    the export of the goods is prohibited absolutely by a temporary prohibition determination; and

·          the export of the goods causes, or could cause, economic consequences for Australia.

The term economic consequences for Australia will be defined in clause 12 of the Bill and will include the following:

·          substantial damage to Australia’s trading reputation;

·          a restriction on, or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia.

A note will be included at the end of subclause 32(1) that will provide that the physical elements of an offence against subclause 32(2) will be set out in subclause 32(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

The offence in clause 32 is intended to capture circumstances where a person exports goods that are either permanently prohibited from being exported or prohibited absolutely by a temporary prohibition determination. In both cases, the offence provides that this conduct will occur with the aggravated circumstances that the export of the goods causes, or has the potential to cause, economic consequences for Australia.

Subclause 32(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 32(1). The fault-based offence will be subject to a penalty of imprisonment for ten years or a fine of 2,000 penalty units (or both) for an individual. The corresponding fine for a body corporate will be determined according to the formula at clause 50A.

Subclause 32(3) will provide that strict liability will apply to the elements of the offence in paragraph 32(1)(b) (that the goods are permanently prohibited goods, or that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical elements in paragraph 32(1)(b) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraph 32(1)(b) are matters of law. They concern the existence of a permanent or temporary absolute prohibition on the export of the goods. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 32(1)(b) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 32(1)(a)), and that the person was reckless as to whether the export of the goods would cause, or had the potential to cause, economic consequences for Australia (paragraph 32(1)(c)).

Subclause 32(4) will provide for an alternative verdict against subclause 32(2). If the prosecution is unable to prove beyond reasonable doubt that the export of the goods has had, or has the potential to have, economic consequences for Australia, the person may still be found guilty of an offence under subclause 30(2) of the Bill of exporting goods when those goods are subject to an absolute prohibition on export.

Subclause 32(5) will provide that a person will be liable to a civil penalty of 4,000 penalty units if the person contravenes subclause 32(1). The civil penalty available for individuals will be twice as high as the penalty available for the criminal offence and will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 32(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 32(1) will be determined according to the formula at clause 50A. The formula at clause 50A provides the flexibility for a civil penalty of up to 20,000 penalty units for a corporation. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties in this clause are higher than those outlined in the Guide. This reflects the seriousness of the decision to absolutely prohibit goods from export and the potential consequences that exporting such goods may have on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). The export of absolutely prohibited goods may pose significant risk to Australia’s trading reputation. The economic costs of reputational damage to one or more export industries may be far greater than even the maximum penalties imposed by the Bill. Causing economic consequences for Australia is an aggravated circumstance that warrants the additional penalty due to the risk of negative impact on the export industry and the Australian public.

Clause 33            Conveying or possessing goods that are subject to absolute prohibition on export and are intended to be exported etc.

Clause 33 will provide that penalties may be imposed in circumstances where a person conveys or possesses goods that are prohibited from being exported (either permanently or temporarily) when the person intends to export the goods or knows that the goods are intended to be exported.

Person intends to export goods

Subclause 33(1) will provide that a person will contravene subclause 33(1) if:

·          the person conveys or possesses goods; and

·          the person intends to export those goods; and

·          either:

o    the goods are permanently prohibited goods; or

o    the export of the goods is prohibited absolutely by a temporary prohibition determination.

A note will be included at the end of subclause 33(1) that will provide that the physical elements of an offence against subclause 33(2) will be set out in subclause 33(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 33(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 33(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 31(2) will be 2,400 penalty units.

Subclause 33(3) will provide that strict liability will apply to the element of the offence in paragraph 33(1)(c) (that the goods are permanently prohibited goods, or that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 33(1)(c) beyond reasonable doubt, and will not be required to prove fault for this element. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 33(1)(c) is a matter of law. It concerns the existence of a permanent or temporary absolute prohibition on the export of the goods. It is appropriate for this elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to this element, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making this element strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 33(1)(c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to convey the goods or have them in the person’s possession (paragraph 33(1)(a)), and that the person intended to export the goods (paragraph 33(1)(b)).

Subclause 33(4) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 33(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 33(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 33(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 33(4) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty reflect the seriousness of conveying or possessing goods that the person intends to export and that are subject to absolute prohibition on that export. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances. This will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Person knows that goods are intended to be exported

Subclause 33(5) will provide that a person will contravene 33(5) if:

·          the person conveys or possesses goods; and

·          the person is aware that the goods are intended for export; and

·          either:

o    the goods are permanently prohibited goods; or

o    the export of the goods is prohibited absolutely by a temporary prohibition determination.

A note will be included at the end of subclause 33(5) that will provide that the physical elements of an offence against subclause 33(5) will be set out in subclause 33(4). The note will refer the reader to clause 370 which will provide further explanation of the operation of the physical elements of the offence.

Subclause 33(6) will provide that a person will commit a fault-based offence if the person contravenes subclause 33(5). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 33(5) will be 2,400 penalty units.

Subclause 33(7) will provide that strict liability will apply to the element of the offence in paragraph 33(5)(c) (that the goods are permanently prohibited goods, or that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 33(5)(c) beyond reasonable doubt, and will not be required to prove fault for this element. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 33(5)(c) is a matter of law. It concerns the existence of a permanent or temporary absolute prohibition on the export of the goods. It is appropriate for this element to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to this element, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making this element strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 33(5)(c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to convey the goods or have them in the person’s possession (paragraph 33(5)(a)), and that  the person knew that the goods were intended to be exported (paragraph 33(5)(b)).

Subclause 33(8) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 33(5). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 33(5). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 33(8) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 33(8) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty reflect the seriousness of conveying or possessing goods that the person knows are intended to be exported and that are subject to absolute prohibition on that export. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances. This will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 34            Exporting goods to a temporarily prohibited place—basic contravention

Clause 34 will provide that penalties may be imposed in circumstances where a person exports goods with the intention that they will be imported into a place (irrespective of when that intention is formed) and the export of goods to that place is prohibited by a temporary prohibition determination. Clause 35 of the Bill will provide that penalties may be imposed for the same conduct but in the aggravated circumstances where the person intends to obtain a commercial advantage. Clause 36 of the Bill will provide that penalties may be imposed for the same conduct but in the aggravated circumstances where the export has economic consequences for Australia.

Subclause 34(1) will provide that a person will contravene subclause 34(1) if:

·          the person exports goods; and

·          the person intends that the goods are to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

·          the export of goods to that place is prohibited by a temporary prohibition determination.

The offence in clause 34 will apply when the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time) and there is a prohibition in place for exporting goods to that place. The temporary prohibition determination must be in place at the time the person develops the intention to import the goods to a particular place for the offence to apply. This is intended to capture a person who exported goods from Australia and has the intention to transport those goods to the prohibited place.

A note will be included at the end of subclause 34(1) that will provide that the physical elements of an offence against subclause 34(2) are set out in subclause 34(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 34(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 34(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 34(2) will be 2,400 penalty units.

Subclause 34(3) will provide that strict liability will apply to the element of the offence in paragraph 34(1)(c) (that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 34(1)(c) beyond reasonable doubt, and will not be required to prove fault for this element. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 34(1)(c) is a matter of law. It concerns the existence of a temporary absolute prohibition on the export of the goods. It is appropriate for this element to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to this element, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making this element strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 34(1)(c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 34(1)(a)), and that the person intended them to be imported into a particular place (irrespective of whether that intention existed at the time the goods were exported, or at a later point) (paragraph 34(1)(b)).

Subclause 34(4) will provide that a person will be liable to a civil penalty of 960 penalty units if the person contravenes subclause 34(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 34(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 34(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 34(4) will be twice as high as the penalty available for the criminal offence. This will ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty also reflect the consequences that exporting goods to a temporarily prohibited place may have on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 35            Exporting goods to a temporarily prohibited place—intention to obtain commercial advantage

Clause 35 will provide that penalties may be imposed in circumstances where goods are exported with the intention that they will be imported into a place that is prohibited by a temporary prohibition determination and, as a result, the exporter intends to obtain a commercial advantage over competitors, or potential competitors. This offence is similar to the basic offence that will be prescribed in clause 34 of the Bill. However, clause 35 will create an aggravated offence where the contravention involves the person intending to obtain a commercial advantage from the export.

Subclause 35(1) will provide that a person will contravene subclause 35(1) if:

·          the person exports goods; and

·          the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

·          the export of the goods to that place is prohibited by a temporary prohibition determination; and

·          the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods to that place.

The offence in clause 35 will apply when the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time) and there is a prohibition in place for exporting goods to that place. This is intended to capture a person who has exported goods from Australia and has the intention (whenever formed) to transport those goods to the prohibited place. The offence in clause 33 will apply where a person exports goods to a prohibited place for the purpose of obtaining a commercial advantage, whether or not a commercial advantage is realised. Commercial advantage may include monetary profit or private financial gain.

A note will be included at the end of subclause 35(1) that will provide that the physical elements of an offence against subclause 35(2) are set out in subclause 35(1). The note will refer the reader to clause 370 which will provide further explanation of the operation of the physical elements of the offence. 

Subclause 35(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 35(1). The fault-based offence will be subject to a penalty of imprisonment for ten years or a fine of 2,000 penalty units (or both) for an individual. The corresponding fine for a body corporate will be determined according to the formula at clause 50A.

Subclause 35(3) will provide that strict liability will apply to the element of the offence in paragraph 35(1)(c) (that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 35(1)(c) beyond reasonable doubt, and will not be required to prove fault for this element. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 35(1)(c) is a matter of law. It concerns the existence of a temporary absolute prohibition on the export of the goods. It is appropriate for this element to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to this element, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making this element strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 35(1)(c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 35(1)(a)), that the person intended them to be imported into a particular place (irrespective of whether that intention existed at the time the goods were exported, or at a later point) (paragraph 35(1)(b)), and that the person intended to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods (paragraph 35(1)(d)).

Subclause 35(4) will provide for an alternative verdict against subclause 35(2). If the prosecution is unable to prove beyond reasonable doubt that, as a result of exporting the goods to the temporarily prohibited place, the person intended to gain a commercial advantage over competitors or potential competitors, the person may still be found guilty of an offence under subclause 34(2) of the Bill of exporting goods to a place when those goods are subject to a temporary prohibition determination for that place.

Subclause 35(5) will provide that a person will be subject to a civil penalty of 4,000 penalty units if the person contravenes subclause 35(1). The civil penalty available for individuals will be twice as high as the penalty available for the criminal offence and will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 35(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 35(1) will be determined according to the formula at clause 50A. The formula at clause 50A provides the flexibility for a civil penalty of up to 20,000 penalty units for a corporation. This will ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties in this clause are higher than those outlined in the Guide. This reflects the seriousness of the decision to export goods to a prohibited place with the intention of obtaining an economic advantage . The export of temporarily prohibited goods may pose significant risk to Australia’s trading reputation and may adversely impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill) . The economic costs of reputational damage to a particular export industry may be far greater than even the maximum penalties imposed by the Bill.

A person intending to obtain a commercial advantage is an aggravated circumstance that warrants the additional penalty because of the added monetary benefit that can be gained by a person involved in this behaviour. Reliance on the basic offence under clause 34 of the Bill may be insufficient to eliminate dishonest trade in circumstances where there is a high financial reward.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 36            Exporting goods to a temporarily prohibited place—economic consequences for Australia

Clause 36 will provide that penalties may be imposed in circumstances where goods are exported with the intention that they will be imported into a place that is prohibited by a temporary prohibition determination and the exporting causes, or has the potential to cause, economic consequences for Australia. This offence is similar to the basic offence that will be prescribed in clause 34 of the Bill. However, clause 36 will create an aggravated offence where the contravention involves economic consequences for Australia.

Subclause 36(1) will provide that a person will contravene subclause 36(1) if:

·          the person exports goods; and

·          the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

·          the export of the goods to that place is prohibited by a temporary prohibition determination; and

·          the export of the goods to that place causes, or has the potential to cause, economic consequences for Australia.

The term economic consequences for Australia will be defined in clause 12 of the Bill and will include the following:

·          substantial damage to Australia’s trading reputation;

·          a restriction on, or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia.

The offence in clause 36 will apply when the person exports goods and intends those goods to be imported into a temporarily prohibited place (whether that intention exists at the time the goods are exported or is formed after that time) and the export of the goods causes, or has the potential to cause, economic consequences for Australia. The clause will capture a person who has exported goods from Australia and has the intention (whenever formed) to transport those goods to the prohibited place.

A note will be included at the end of subclause 36(1) that will provide that the physical elements of an offence against subclause 36(2) are set out in subclause 36(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 36(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 36(1). The fault-based offence will be subject to a penalty of imprisonment for ten years or a fine of 2,000 penalty units (or both) for an individual. The corresponding fine for a body corporate will be determined according to the formula at clause 50A.

Subclause 36(3) will provide that strict liability will apply to the element of the offence in paragraph 36(1)(c) (that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 36(1)(c) beyond reasonable doubt, and will not be required to prove fault for this element. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 36(1)(c) is a matter of law. It concerns the existence of a temporary absolute prohibition on the export of the goods. It is appropriate for this element to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to this element, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making this element strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 36(1)(c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 36(1)(a)), that the person intended them to be imported into a particular place (irrespective of whether that intention existed at the time the goods were exported, or at a later point) (paragraph 36(1)(b)), and that the person intended to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods (paragraph 36(1)(d)).

Subclause 36(4) will provide for an alternative verdict against subclause 36(2). If the prosecution is unable to prove beyond reasonable doubt that the export of the goods has had, or has the potential to have, economic consequences for Australia, the person may still be found guilty of an offence under subclause 34(2) of exporting goods to a place when those goods are subject to a temporary prohibition determination for that place.

Subclause 36(5) will provide that a person will be subject to a civil penalty of 4,000 penalty units if the person contravenes subclause 36(1). The civil penalty available for individuals will be twice as high as the penalty available for the criminal offence and will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 36(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 36(1) will be determined according to the formula at clause 50AThe formula at clause 50A provides the flexibility for a civil penalty of up to 20,000 penalty units for a corporation. This will ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties in this clause are higher than those outlined in the Guide. This reflects the seriousness consequence of exporting goods to a temporary prohibited place. Such conduct may pose a significant risk to Australia’s trading reputation and may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). The economic costs of reputational damage to a particular export industry may be far greater than even the maximum penalties imposed by the Bill. Causing economic consequences for Australia is an aggravated circumstance that warrants the additional penalty due to the risk of negative impact on the export industry. Reliance on the basic offence under clause 34 of the Bill may be insufficient to eliminate dishonest trade in circumstances where there may be significant economic consequences for Australia.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 37            Conveying or possessing goods that are intended to be exported to a temporarily prohibited place etc.

Clause 37 will provide that penalties may be imposed in circumstances where a person conveys or possesses goods that are intended to be exported to a temporarily prohibited place, or where the person knows that the goods are intended to be exported to a temporarily prohibited place.

Person intends to export goods to temporarily prohibited place

Subclause 37(1) will provide that a person will contravene subclause 37(1) if:

·          a person conveys or possesses goods; and

·          the person intends to export those goods; and

·          the place to which the person intends to export the goods is prohibited by a temporary prohibition determination.

A note will be included at the end of subclause 37(1) that will provide that the physical elements of an offence against subclause 37(2) are set out in subclause 37(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 37(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 37(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 37(2) will be 2,400 penalty units.

Subclause 37(3) will provide that strict liability will apply to the element of the offence in paragraph 37(1)(c) (that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 37(1)(c) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 37(1)(c) is a matter of law. It concerns the existence of a temporary absolute prohibition on the export of the goods. It is appropriate for this element to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to this element, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making this element strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 37(1)(c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to convey the goods or have them in the person’s possession (paragraph 37(1)(a)), and that the person intended to export the goods to a particular place (paragraph 37(1)(b)).

Subclause 37(4) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 37(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 37(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 37(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 37(4) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty reflect the seriousness of conveying or possessing goods that are intended to be exported to a temporarily prohibited place and this conduct may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Person knows that goods are intended to be exported to temporarily prohibited place

Subclause 37(5) will provide that a person will contravene subclause 37(5) if:

·          a person conveys or possesses goods; and

·          the person knows that those goods are intended to be exported to a particular place; and

·          the place to which the person intends to export the goods is prohibited by a temporary prohibition determination.

A note will be included at the end of subclause 37(5) that will provide that the physical elements of an offence against subclause 37(6) are set out in subclause 37(5). The note will refer the reader to clause 370 of the Bill which will provide further explanation of the operation of the physical elements of the offence.

Subclause 37(6) will provide that a person will commit a fault-based offence if the person contravenes subclause 37(5). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both). The maximum fine for a body corporate for a contravention of subclause 37(6) will be 2,400 penalty units.

Subclause 37(7) will provide that strict liability will apply to the element of the offence in paragraph 37(5)(c) (that the export of the goods is prohibited absolutely by a temporary prohibition determination issued under clause 24). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 37(5)(c) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 37(5)(c) is a matter of law. It concerns the existence of a temporary absolute prohibition on the export of the goods. It is appropriate for this element to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to this element, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making this element strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 37(5)(c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to convey the goods or have them in the person’s possession (paragraph 37(5)(a)), and that the person knew that the goods were intended to be exported to a particular place (paragraph 37(5)(b)).

Subclause 37(8) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 37(5). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 37(5). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 37(4) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 37(8) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty reflect the seriousness of conveying or possessing goods that are intended to be exported to a temporarily prohibited place. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill and may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 38            Exporting prescribed goods—non-compliance with prescribed export conditions—basic contravention

Clause 38 will provide that penalties may be imposed in circumstances where a person exports prescribed goods and prescribed export conditions are contravened. Clause 39 of the Bill will provide a corresponding offence when there are aggravated circumstances of having an intention to obtain a commercial advantage and clause 40 of the Bill will provide a corresponding offence when there are aggravated circumstances of an economic consequence for Australia.

Subclause 38(1) will provide that a person will contravene subclause 38(1) if:

·          the person exports goods; and

·          the goods are prescribed goods; and

·          the export of the goods is prohibited unless prescribed export conditions are complied with; and

·          prescribed export conditions are not complied with.

A note will be included at the end of subclause 38(1) and will provide that the physical elements of an offence against subclause 38(2) will be set out in subclause 38(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 38(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 38(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 38(2) will be 2,400 penalty units.

Subclause 38(3) will provide that strict liability will apply to the elements of the offence in paragraphs 38(1)(b) (that the goods are prescribed goods), 38(1)(c) (that the export of the goods is prohibited unless prescribed export conditions are complied with) and 38(1)(d) (that the prescribed export conditions were not complied with). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 38(1)(b), (c) and (d) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 38(1)(b),(c) and (d) are matters of law. They concern how goods for export are regulated and the conditions that apply to their export. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 38(1)(b),(c) and (d) will not affect the need for the prosecution to prove fault element of the offence, namely that the person intended to export the goods (paragraph 38(1)(a)).

Subclause 38(4) will provide that a person will be liable to a civil penalty of 960 penalty units if the person contravenes subclause 38(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 38(1).The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 38(1) will be 4,800 penalty units as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 38(4) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty will reflect the seriousness of exporting prescribed goods in contravention of a prescribed export condition. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill and may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 39            Exporting prescribed goods—non-compliance with prescribed export conditions—intention to obtain commercial advantage

Clause 39 will provide that penalties may be imposed in circumstances where a person exports prescribed goods in contravention of prescribed export conditions, and the person intends to obtain a commercial advantage as a result of exporting those goods. This offence is similar to the basic offence that will be prescribed in clause 38 of the Bill. Clause 39 will create an aggravated offence and has the additional element that the contravention involves the person intending to obtain a commercial advantage.

Subclause 39(1) will provide that a person will contravene subclause 39(1) if:

·          the person exports goods; and

·          the goods are prescribed goods; and

·          the export of the goods is prohibited unless prescribed export conditions are complied with; and

·          the prescribed export conditions were not complied with; and

·          the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods.

A note will be included at the end of subclause 39(1) which will provide that the physical elements of an offence against subclause 39(2) will be set out in subclause 39(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

This offence is intended to capture circumstances where a person exports prescribed goods in contravention of prescribed export conditions, with the intention of obtaining a commercial advantage, whether or not that commercial advantage is realised. Commercial advantage may include monetary profit or private financial gain.

Subclause 39(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 39(1). The fault-based offence will be subject to a penalty of imprisonment for ten years or a fine of 2,000 penalty units (or both). The corresponding fine for a body corporate will be determined according to the formula at clause 50A.

Subclause 39(3) will provide that strict liability will apply to the elements of the offence in paragraphs 39(1)(b) (that the goods are prescribed goods), 39(1)(c) (that the export of the goods is prohibited unless prescribed export conditions are complied with) and 39(1)(d) (that the prescribed export conditions were not complied with). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 39(1)(b), (c) and (d) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 39(1)(b),(c) and (d) are matters of law. They concern how goods for export are regulated and the conditions that apply to their export. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 39(1)(b)(c) and (d) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 39(1)(a)), and that the person intended to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods (paragraph 39(1)(e)).

Subclause 39(4) will provide for an alternative verdict against subclause 39(2). If the prosecution is unable to prove beyond reasonable doubt that the person intended to obtain a commercial advantage over competitors or potential competitors by exporting the prescribed goods, the person may still be found guilty of an offence under subclause 38(2) of the Bill of exporting goods in contravention of prescribed export conditions.

Subclause 39(5) will provide that a person will be subject to a civil penalty of 4,000 penalty units if the person contravenes subclause 39(1). The civil penalty available for individuals will be twice as high as the penalty available for the criminal offence and will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 39(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 39(1) will be determined according to the formula at clause 50A.  The formula at clause 50A provides the flexibility for a civil penalty of up to 20,000 penalty units for a corporation. This will ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties in this clause are higher than those outlined in the Guide. This reflects the seriousness of the decision to prescribe export conditions and the serious consequences of exporting prescribed goods in contravention of prescribed export conditions, with the intention of obtaining a commercial advantage. For example, a prescribed export condition may be that the goods are prepared in accordance with an approved arrangement that will set out how the person will meet the requirements of the Bill and importing country requirements. The export of these goods in contravention with a prescribed export condition may severely damage Australia’s trading reputation and may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). Obtaining a commercial advantage is an aggravated circumstance that warrants the additional penalty because of the added monetary benefit that may be gained by a person involved in this behaviour. Reliance on the basic offence under subclause 38(2) may be insufficient to eliminate dishonest trade in circumstances where there is a high financial reward.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 40            Exporting prescribed goods—non-compliance with prescribed export conditions—economic consequences for Australia

Clause 40 will provide that penalties may be imposed in circumstances where a person exports prescribed goods in contravention of prescribed export conditions and the export of goods has, or has the potential to have, economic consequences for Australia. This offence is similar to the basic offence that will be prescribed in clause 38 of the Bill. However, clause 40 will create an aggravated offence where the contravention involves economic consequences for Australia. 

Subclause 40(1) will provide that a person will contravene subclause 40(1) if:

·          A person contravenes this subclause if:

o    the person exports goods; and

o    the goods are prescribed goods; and

o    the export of the goods is prohibited unless prescribed export conditions are complied with; and

o    prescribed export conditions were not complied with; and

o    the export of the goods causes, or has the potential to cause, economic consequences for Australia.

The term economic consequences for Australia will be defined in clause 12 of the Bill and will include the following:

·          substantial damage to Australia’s trading reputation;

·          a restriction on, or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia.

A note will be included at the end of subclause 40(1) that will provide that the physical elements of an offence against subclause 40(2) will be set out in subclause 40(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 40(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 40(1). The fault-based offence will be subject to a penalty of imprisonment for ten years or a fine of 2,000 penalty units (or both) for an individual. The corresponding fine for a body corporate will be determined according to the formula at clause 50A.

Subclause 40(3) will provide that strict liability will apply to the elements of the offence in paragraphs 40(1)(b) (that the goods are prescribed goods), 40(1)(c) (that the export of the goods is prohibited unless prescribed export conditions are complied with) and 40(1)(d) (that the prescribed export conditions were not complied with). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 40(1)(b), (c) and (d) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 40(1)(b), (c) and (d) are matters of law. They concern how goods for export are regulated and the conditions that apply to their export. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 40(1)(b), (c) and (d) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 40(1)(a)),and that the person was reckless as to whether the export of the goods would cause, or had the potential to cause, economic consequences for Australia (paragraph 40(1)(e)).

Subclause 40(4) will provide for an alternative verdict against subclause 40(2). If the prosecution is unable to prove beyond reasonable doubt that the export has the potential to have economic consequences for Australia, the person may still be found guilty of an offence under subclause 38(2) of the Bill of exporting goods in contravention of prescribed export conditions.

Subclause 40(5) will provide that a person will be subject to a civil penalty of 4,000 penalty units if the person contravenes subclause 40(1). The civil penalty available for individuals will be twice as high as the penalty available for the criminal offence and will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 40(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 40(1) will be determined according to the formula at clause 50A. The formula at clause 50A provides the flexibility for a civil penalty of up to 20,000 penalty units for a corporation. This will ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties in this clause are higher than those outlined in the Guide. This reflects the serious consequences that may flow from exporting prescribed goods that do not comply with prescribed export conditions where the export of goods has, or has the potential to have, economic consequences for Australia. The export of goods that are subject to prescribed export conditions but which do not comply with those conditions may pose significant risk to Australia’s trading reputation and may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). The economic costs of reputational damage to a particular export industry may be far greater than even the maximum penalties imposed by the Bill. Causing economic consequences or damage to Australia’s trading reputation will be an aggravated circumstance that warrants the additional penalty due to the risk of negative impact on the export industry and the Australian public.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 41            Conveying or possessing prescribed goods that are intended to be exported in contravention of conditions etc.

Clause 41 will prescribe penalties for a person who conveys or possesses prescribed goods in circumstances where the person intends to export the goods, or the person knows that the goods are intended to be exported and the export of the goods is prohibited, unless prescribed export conditions are complied with.

Person intends to export goods in contravention of conditions

Subclause 41(1) will provide that a person will contravene subclause 41(1) if:

  • the person conveys, or has in the person’s possession, goods; and
  • the goods are prescribed goods; and
  • the export of the goods is prohibited unless prescribed export conditions are complied with; and
  • the person intends to export the goods and
  • the export of the goods would contravene the prescribed export conditions.

A note will be included at the end of subclause 41(1) that will provide that the physical elements of an offence against subclause 41(2) will be set out in subclause 41(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 41(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 41(1). The fault-based will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both). The maximum fine for a body corporate for a contravention of subclause 41(2) will be 2,400 penalty units.

Subclause 41(3) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 41(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 41(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 41(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 41(3) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty reflect the seriousness of conveying or possessing prescribed goods that the person intends to export in contravention of a prescribed export condition. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Goods are intended to be exported in contravention of conditions

Subclause 41(4) will provide that a person will contravene subclause 41(4) if:

·          the person conveys, or has in the person’s possession, goods; and

·          the goods are prescribed goods; and

·          the export of the goods is prohibited unless prescribed export conditions are complied with; and

·          the person knows that the goods are intended to be exported  and

·          the export of the goods would contravene the prescribed export conditions.

A note will be included at the end of subclause 41(4) that will provide that the physical elements of an offence against subclause 41(5) will be set out in subclause 41(4). The note will refer the reader to clause 370 of the Bill which will provide further explanation of the operation of the physical elements of the offence.

Subclause 41(5) will provide that a person will commit a fault-based offence if the person contravenes subclause 41(5). The fault-based offence will be subject to a penalty of imprisonment for five years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 41(4) will be 2,400 penalty units.

Subclause 41(6) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 41(4). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 41(4). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 41(4) will be 4,800 penalty units as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 41(6) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty reflect the seriousness of conveying or possessing prescribed goods that the person knows are intended to be exported in contravention of a prescribed export condition. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 42            Exporting prescribed goods to a particular place—non-compliance with prescribed export conditions—basic contravention

Clause 42 will provide that penalties may be imposed in circumstances where a person exports prescribed goods with the intention that they will be imported into a place in contravention of prescribed export conditions. Clause 43 of the Bill will provide a corresponding offence when there are aggravated circumstances of having an intention to obtain a commercial advantage and clause 44 of the Bill will provide a corresponding offence when there are aggravated circumstances of an economic consequence for Australia.

Subclause 42(1) will provide that a person will contravene subclause 42(1) if:

·          the person exports prescribed goods; and

·          the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

·          the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

·          prescribed export conditions were not complied with.

The offence in clause 42 will apply where the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time) and there is a prohibition in place for exporting goods to that place unless prescribed export conditions have been complied with. This is intended to capture a person who has exported goods from Australia and has the intention (whenever formed) to transport those goods to the place in non-compliance of a prescribed export condition.

A note will be included at the end of subclause 42(1) that will provide that the physical elements of an offence against subclause 42(2) will be set out in subclause 42(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 42(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 42(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 42(2) will be 2,400 penalty units.

Subclause 42(3) will provide that strict liability will apply to the elements of the offence in paragraphs 42(1)(b) (that the goods are prescribed goods), 42(1)(d) (that the export of the goods to a place is prohibited unless prescribed export conditions are complied with) and 42(1)(e) (that the prescribed export conditions were not complied with). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 42(1)(b),(d) and (e) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 42(1)(b), (d) and (e) are matters of law. They concern how goods for export to a particular place are regulated and the conditions that apply to their export to that place. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 42(1)(b)(d) and (e) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 42(1)(a)) and that the person intended them to be imported into a particular place (irrespective of whether that intention existed at the time the goods were exported, or at a later point) (paragraph 42(1)(c)) .

Subclause 42(4) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 42(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 42(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 42(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 42(4) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty will also reflect the seriousness of exporting prescribed goods to a particular place in contravention of a prescribed export condition. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill and may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 43            Exporting prescribed goods to a particular place—non-compliance with prescribed export conditions—intention to obtain commercial advantage

Clause 43 will provide that penalties may be imposed in circumstances where a person exports prescribed goods with the intention that they be imported into a particular place in contravention of prescribed export conditions, in circumstances where the person intends to obtain a commercial advantage over competitors or potential competitors. This offence is similar to the basic offence that will be prescribed in clause 42 of the Bill. However, clause 43 of the Bill will create an aggravated offence where the contravention involves the person intending to obtain a commercial advantage.

Subclause 43(1) will provide that a person will contravene subclause 43(1) if:

·          the person exports goods; and

·          the goods are prescribed goods; and

·          the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

·          the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

·          prescribed export conditions are not complied with; and

·          the person intends to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods to that place.

The offence in clause 43 will apply where the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time) and there is a prohibition in place for exporting goods to that place unless prescribed export conditions have been complied with. This is intended to capture a person who has exported goods from Australia and has the intention (whenever formed) to transport those goods to the place in non-compliance of a prescribed export condition. The offence in clause 41 will capture circumstances where a person exports prescribed goods to a particular place in contravention of prescribed export conditions, for the purpose of obtaining a commercial advantage, whether or not a commercial advantage is realised. Commercial advantage may include monetary profit or private financial gain. There will be no requirement to prove that the person actually obtained a commercial advantage; proving that, at the time of exporting the goods, the person intended to obtain a commercial advantage will be sufficient.

A note will be included at the end of subclause 43(1) that will provide that the physical elements of an offence against subclause 43(2) will be set out in subclause 43(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 43(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 43(1). The fault-based offence will be subject to a penalty of imprisonment for ten years or a fine of 2,000 penalty units (or both) for an individual. The corresponding fine for a body corporate will be determined according to the formula at clause 50A.

Subclause 43(3) will provide that strict liability will apply to the elements of the offence in paragraphs 43(1)(b) (that the goods are prescribed goods) 43(1)(d) (that the export of the goods to a place is prohibited unless prescribed export conditions are complied with) and 43(1)(e) (that the prescribed export conditions were not complied with). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 43(1)(b), (d) and (e) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 43(1)(b), (d) and (e) are matters of law. They concern how goods for export to a particular place are regulated and the conditions that apply to their export to that place. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 43(1)(b), (d) and (e) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 43(1)(a)), that the person intended them to be imported into a particular place (irrespective of whether that intention existed at the time the goods were exported, or at a later point) (paragraph 43(1)(c)), and that the person intended to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods (paragraph 43(1)(f)).

Subclause 43(4) will provide for an alternative verdict against subclause 42(2). If the prosecution is unable to prove beyond reasonable doubt that the person intended to obtain a commercial advantage over competitors or potential competitors by exporting goods to a particular place in contravention of prescribed export conditions, the person may still be found guilty of an offence under subclause 42(2) of the Bill of exporting goods to a particular place in contravention of prescribed export conditions.

Subclause 43(5) will provide that a person will be subject to a civil penalty of 4,000 penalty units if the person contravenes subclause 43(1). The civil penalty available for individuals will be twice as high as the penalty available for the criminal offence and will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 43(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 43(1) will be determined according to the formula at clause 50A. The formula at clause 50A provides the flexibility for a civil penalty of up to 20,000 penalty units for a corporation. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties in this clause are higher than those outlined in the Guide. This reflects the serious consequences that may flow from exporting prescribed goods to a particular place in contravention of a prescribed export condition. For example, a prescribed export condition may be that the goods were sourced from an accredited property. The export of goods that were not sourced from an accredited property may damage Australia’s trading reputation. Obtaining a commercial advantage is an aggravated circumstance that warrants the additional penalty because of the added monetary benefit that can be gained by a person involved in this behaviour. Reliance on the basic offence under subclause 42(2) may be insufficient to eliminate dishonest trade in circumstances where there is a high financial reward.

Exporting prescribed goods to a particular place in contravention of prescribed export conditions and in the aggravated circumstances of intending to obtain a commercial advantage may undermine the integrity of the regulatory framework provided for by the Bill and may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 44            Exporting prescribed goods to a particular place—non-compliance with prescribed export conditions—economic consequences for Australia

Clause 44 will provide that penalties may be imposed in circumstances where a person exports prescribed goods with the intention that they be imported into a particular place in contravention of prescribed export conditions, and the export of goods has, or has the potential to have, economic consequences for Australia. This offence is similar to the basic offence that will be prescribed in clause 42 of the Bill. However, clause 44 will create an aggravated offence where the contravention involves economic consequences for Australia or damage to Australia’s trading reputation. 

Subclause 44(1) will provide that a person will contravene 44(1) if:

·          the person exports goods; and

·          the goods are prescribed goods; and

·          the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time); and

·          the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

·          prescribed export conditions are not complied with; and

·          the export of the goods to that place causes, or has the potential to cause, economic consequences for Australia.

The term economic consequences for Australia will be defined in clause 12 of the Bill and will include the following:

·          substantial damage to Australia’s trading reputation;

·          a restriction on, or the closure of, access by Australia to one or more overseas markets for all goods or a kind of goods.

The offence in clause 44 will apply where the person intends the goods to be imported into a particular place (whether that intention exists at the time the goods are exported or is formed after that time) and there is a prohibition in place for exporting goods to that place unless prescribed export conditions are complied with. This is intended to capture a person who has exported goods from Australia and has the intention (whenever formed) to transport those goods to the prohibited place.

The offence in clause 44 of the Bill will capture circumstances where a person exports goods to a particular place without complying with the relevant prescribed export conditions. The offence provides that this conduct will occur with the aggravated circumstances that the export of the goods causes, or has the potential to cause, economic consequences for Australia.

A note will be included at the end of subclause 44(1) that will provide that the physical elements of an offence against subclause 44(2) will be set out in subclause 44(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 44(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 44(1). The fault-based offence will be subject to a penalty of imprisonment for ten years or a fine of 2,000 penalty units (or both) for an individual. The corresponding fine for a body corporate will be determined according to the formula at clause 50A.

Subclause 44(3) will provide that strict liability will apply to the elements of the offence in paragraphs 44(1)(b) (that the goods are prescribed goods), 44(1)(d) (that the export of the goods to a place is prohibited unless prescribed export conditions are complied with) and 44(1)(e) (that the prescribed export conditions were not complied with). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 44(1)(b)(d) and (e) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 44(1)(b), (d) and (e) are matters of law. They concern how goods for export to a particular place are regulated and the conditions that apply to their export to that place. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 44(1)(b), (d) and (e) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to export the goods (paragraph 44(1)(a)), that the person intended them to be imported into a particular place (irrespective of whether that intention existed at the time the goods were exported, or at a later point) (paragraph 44(1)(c)), and that the person intended to obtain a commercial advantage over the person’s competitors, or potential competitors, as a result of exporting the goods (paragraph 44(1)(f)).

Subclause 44(4) will provide for an alternative verdict against subclause 44(2). If the prosecution is unable to prove beyond reasonable doubt that the export of the goods to a place that is subject to prescribed export conditions has had, or has the potential to have, economic consequences for Australia, the person may still be found guilty of an offence under subclause 42(2) of exporting goods to a particular place in contravention of prescribed export conditions.

Subclause 44(5) will provide that a person will be subject to a civil penalty of 4,000 penalty units if the person contravenes subclause 44(1). The civil penalty available for individuals will be twice as high as the penalty available for the criminal offence and will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 44(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 44(1) will be determined according to the formula at clause 50A. The formula at clause 50A provides the flexibility for a civil penalty of up to 20,000 penalty units for a corporation. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties in this clause are higher than those outlined in the Guide. This reflects the serious consequences that may flow from exporting goods to a particular place in contravention of a prescribed export condition in circumstances where there may be economic consequences for Australia, and the adverse impact that this may have on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). The export of goods to a particular place in contravention of a prescribed export conditions may pose significant risk to Australia’s trading reputation. The economic costs of reputational damage to a particular export industry may be far greater than even the maximum penalties imposed by the Bill. Causing economic consequences or damage to Australia’s trading reputation will create an aggravated circumstance that warrants the additional penalty due to the risk of negative impact on the export industry and the Australian public.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 45            Conveying or possessing prescribed goods that are intended to be exported to a particular place in contravention of conditions etc.

Clause 45 will provide that penalties may be imposed in circumstances where a person conveys or possesses prescribed goods when the person intends to export the goods to a particular place or knows that the goods are intended to be exported to that place and the export will be in contravention of prescribed export conditions.

Person intends to export goods to prohibited place in contravention of conditions

Subclause 45(1) will provide that a person will contravene 45(1) if:

·          a person conveys or possesses goods; and

·          the goods are prescribed goods; and

·          the person intends to export those prescribed goods to a particular place that is prohibited unless prescribed export conditions are complied with; and

·          the person intends to export the goods to that place ; and

·          the export of the goods to that place would contravene the prescribed export conditions.

A note will be included at the end of subclause 45(1) that will provide that the physical elements of an offence against subclause 45(2) will be set out in subclause 45(1). The note will refer the reader to clause 370 of the Bill which will provide further explanation of the operation of the physical elements of the offence.

Subclause 45(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 45(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 45(2) will be 2,400 penalty units.

Subclause 45(3) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 45(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 45(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 45(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 45(4) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty is set at a high enough level to act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty reflect the seriousness of conveying or possessing goods that the person intends to export to a particular place in contravention of a prescribed export condition. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill and may have an adverse impact on human, animal or plant life or health, or compliance with an Australian law (other than the Bill). This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Goods are intended to be exported to prohibited place in contravention of conditions

Subclause 45(4) will provide that a person will contravene 45(4) if:

·          a person conveys or possesses goods; and

·          the goods are prescribed goods; and

·          the export of the goods to a particular place is prohibited unless prescribed export conditions are complied with; and

·          the person knows that the goods are intended to be exported to that place; and

·          the export of the goods to that place would contravene the prescribed export conditions.

A note will be included at the end of subclause 45(4) that will provide that the physical elements of an offence against subclause 45(6) will be set out in subclause 45(5). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 45(5) will provide that a person will commit a fault-based offence if the person contravenes subclause 45(4). The fault-based offence will be subject to a penalty of imprisonment for five years or a fine of 480 penalty units (or both for an individual). The maximum fine for a body corporate for a contravention of subclause 45(4) will be 2,400 penalty units.

Subclause 45(6) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 45(4). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 45(4). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 45(5) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 45(6) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty for the fault-based offence and the civil penalty reflect the seriousness of conveying or possessing goods that the person knows are intended to be exported to a particular place in contravention of a prescribed export condition. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may also impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 46            Producing or preparing prescribed goods or other goods at certain premises in contravention of conditions—general

Clause 46 will provide that penalties may be imposed in circumstances where prescribed goods that have been have been produced or prepared at a registered establishment, accredited property or other premises are exported in contravention of prescribed export conditions that relate to a person, the registered establishment, accredited property or other premises. Clause 47 of the Bill will provide a corresponding offence where prescribed goods will be exported to a particular place. There are a number of elements to this offence and civil penalty provision.

Subclause 46(1) will provide that a person will contravene subclause 46(1) if:

·          the person is:

o    the occupier of a registered establishment; or

o    the manager of an accredited property; or

o    the occupier of premises other than a registered establishment or an accredited property; and

·          goods are produced or prepared at the registered establishment, accredited property or other premises; and

·          the goods are prescribed goods; and

·          the goods are exported after being produced or prepared at the registered establishment, accredited property or other premises (with or without further preparation); and

·          the export of the goods is prohibited unless prescribed export conditions are complied with; and

·          one or more of the prescribed export conditions applies in relation to:

o    the person; or

o    the registered establishment, accredited property or other premises; or

o    the production or preparation of the goods at the registered establishment, accredited property or other premises; and

·          one or more of those prescribed export conditions is contravened.

A note will be included at the end of subclause 46(1) that will provide that the physical elements of an offence against subclause 46(2) will be set out in subclause 46(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 46(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 46(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 46(2) will be 2,400 penalty units.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties are significant for the fault-based offence and are designed to deter persons from exporting goods that have been produced or prepared in contravention of a condition, where the export of those goods is prohibited unless the condition has been complied with. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. In these circumstances, the consequence of non-compliant behaviour by one person may impact on the ability of others to export goods.

Subclause 46(3) will provide that strict liability will apply to the elements of the offence in paragraphs 46(1)(c) (that the goods are prescribed goods), 46(1)(e) (that the export of the goods is prohibited unless prescribed export conditions are complied with), 46(1)(f) (one or more of those conditions applies to the person, establishment, property, premises, production or preparation), and 46(1)(g) (that one or more of those prescribed export conditions is contravened). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 46(1)(c), (e), (f) and (g) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 46(1)(c), (e), (f) and (g) are matters of law. They concern how goods for export are regulated and the conditions that apply to their production or preparation for export. It is appropriate for these elements to be strict liability because persons engaged in the production or preparation of goods for export should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 46(1)(c), (e), (f) and (g) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person is reckless as to whether they are the occupier of a registered establishment, the manager of an accredited property or the occupier of other premises (paragraph 46(1)(a)), the person is reckless as to whether goods are produced or prepared at that establishment, property or premises (paragraph 46(1)(b)) and the person is reckless as to whether goods may be exported after being produced or prepared at the establishment, property or premises (paragraph 46(1)(d)).

Subclause 46(4) will provide a strict liability offence for a person who contravenes subclause 46(1). The penalty for this offence will be 60 penalty units and is not punishable by imprisonment.

This offence is a strict liability offence. This means that the prosecution is only required to prove the physical elements of the offence beyond reasonable doubt, and is not required to prove fault elements, in order for the defendant to be found guilty. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ). The use of strict liability in this offence is appropriate because the offence will apply only to persons who choose to be involved in the regulatory scheme that the Bill will set up, and those people can reasonably be expected to be aware of their duties and obligations under the law. Further, the persons to whom this offence will apply should be on notice to guard against any contravention of the provision, and there is a strong public interest in ensuring that the provision is complied with. The offence is also consistent with the Guide in relation to strict liability offences.

The purpose of this strict liability offence is to ensure that occupiers of establishments who produce or prepare goods for export comply with prescribed export conditions. Strict liability will be necessary to ensure the integrity of the regulatory system relating to the production or preparation of goods for export at approved establishments. In these circumstances, it is the conduct that needs to be regulated irrespective of the intention or knowledge of the person who engages in the conduct.

Subclause 46(5) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 46(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 46(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 46(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 46(5) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The level of penalty for the fault-based offence, strict liability offence and the civil penalty reflects the serious consequences that exporting goods in contravention of export conditions may have on human, animal or plant life or health, or compliance with an Australian law (other than the Bill).

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 47            Producing or preparing prescribed goods or other goods at certain premises in contravention of conditions—goods to be exported to a particular place

Subclause 47 will provide that penalties may be imposed in circumstances where prescribed goods that have been produced or prepared at a registered establishment, accredited property or other premises are exported to a particular place in contravention of prescribed export conditions that relate to a person, the registered establishment, accredited property or other premises. There are a number of elements to this offence and civil penalty provision.

Subclause 47(1) will provide that a person will contravene subclause 47(1) if:

·          the person is:

o    the occupier of a registered establishment; or

o    the manager of an accredited property; or

o    the occupier of premises other than a registered establishment or an accredited property; and

·          goods are produced or prepared at the registered establishment, accredited property or other premises; and

·          the goods are prescribed goods; and

·          the goods are exported to a particular place after being produced or prepared at the registered establishment, accredited property or other premises (with or without further preparation); and

·          the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

·          one or more of the prescribed export conditions applies in relation to:

o    the person; or

o    the registered establishment, accredited property or other premises; or

o    the production or preparation of the goods at the registered establishment, accredited property or other premises; and

·          one or more of those prescribed export conditions is contravened.

A note will be included at the end of subclause 47(1) that will provide that the physical elements of an offence against subclause 47(2) will be set out in subclause 47(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 47(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 47(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 47(2) will be 2,400 penalty units.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties are significant for the fault-based offence and are designed to deter persons from exporting goods that have been produced or prepared in contravention of a condition, where the export of those goods is prohibited unless the condition has been complied with. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. In these circumstances, the consequence of non-compliant behaviour by one person may impact on the ability of others to export goods.

Subclause 47(3) will provide that strict liability will apply to the elements of the offence in paragraphs 47(1)(c) (that the goods are prescribed goods), 47(1)(e) (that the export of the goods to a place is prohibited unless prescribed export conditions are complied with),  47(1)(f) (one or more of those conditions applies to the person, establishment, property, premises, production or preparation) and 47(1)(g) (that one or more of those prescribed export conditions is contravened). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 47(1)(c), (e), (f) and (g) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 47(1)(c), (e), (f) and (g) are matters of law. They concern how goods for export to a particular place are regulated and the conditions that apply to their production or preparation for export to that place. It is appropriate for these elements to be strict liability because persons engaged in the production or preparation of goods for export should know their legal obligations before commencing export operations. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who export goods knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 47(1)(c), (e), (f) and (g) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person is reckless as to whether they are the occupier of a registered establishment, the manager of an accredited property or the occupier of other premises (paragraph 47(1)(a)), the person is reckless as to whether goods are produced or prepared at that establishment, property or premises (paragraph 47(1)(b)) and the person is reckless as to whether goods may be exported to a particular place after being produced or prepared at the establishment, property or premises (paragraph 47(1)(d)).

Subclause 47(4) will provide a strict liability offence for a person who contravenes subclause 47(1). The penalty for this offence will be 60 penalty units and is not punishable by imprisonment.

Strict liability means that the prosecution is only required to prove the physical elements of the offence beyond reasonable doubt, and is not required to prove fault elements, in order for the defendant to be found guilty. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ). The use of strict liability in this offence is appropriate because the offence will apply only to persons who choose to be involved in the regulatory scheme that the Bill will set up, and those people can reasonably be expected to be aware of their duties and obligations under the law. Further, the persons to whom this offence will apply should be on notice to guard against any contravention of the provision, and there is a strong public interest in ensuring that the provision is complied with. The offence is also consistent with the Guide in relation to strict liability offences.

The purpose of this strict liability offence is to ensure that occupiers of establishments who produce or prepare goods for export comply with prescribed export conditions. Strict liability will be necessary to ensure the integrity of the regulatory system relating to the production or preparation of goods for export at approved establishments. In these circumstances it is the conduct that needs to be regulated irrespective of the intention or knowledge of the person who engages in the conduct.

Subclause 47(5) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 47(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 47(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 47(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 47(5) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The level of penalty for the fault-based offence, strict liability offence and the civil penalty reflects the serious consequences that exporting goods in contravention of export conditions to a particular place may have on human, animal or plant life or health, or compliance with an Australian law (other than the Bill).

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 48            Making false or misleading representation about prescribed goods that are entered for export—general

Clause 48 will provide that penalties may be imposed in circumstances where a person makes a false or misleading representation about prescribed goods that have been entered for export. Clause 49 of the Bill will provide a corresponding offence where prescribed goods have been entered for export and the goods are to be exported to a particular place. Clause 50 of the Bill will provide a corresponding offence for entering non-prescribed goods for export.

Subclause 48(1) will provide that a person will contravene subclause 48(1) if:

·          goods are entered for export by the person; and

·          the goods are prescribed goods; and

·          the export of the goods is prohibited unless prescribed export conditions are complied with; and

·          at the time the goods are entered for export:

o    the person represents (either expressly or by necessary implication) that the prescribed export conditions applicable, at or before that time, in relation to the export of goods have been complied with; and

o                the person does so knowing that the representation is false or misleading.

A note will be included at the end of subclause 48(1) that will provide that the physical elements of an offence against subclause 48(2) are set out in subclause 48(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 48(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 48(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 48(2) will be 2,400 penalty units.

Subclause 48(3) will provide that strict liability will apply to the elements of the offence in paragraphs 48(1)(b) (that the goods are prescribed goods) and 48(1)(c) (that the export of the goods is prohibited unless prescribed export conditions are complied with). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 48(1)(b) and (c) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 48(1)(b) and (c) are matters of law. They concern how goods for export are regulated and the conditions that apply to their export. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations and entering goods for export. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who enter goods for export knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 48(1)(b) and (c) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to enter the goods for export (paragraph 48(1)(a)), that the person intended to represent that the goods complied with applicable prescribed export conditions and knew that this representation was false or misleading (paragraph 48(1)(d)).

Subclause 48(4) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 48(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 48(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 48(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 48(4) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalty provisions are designed to encourage persons to provide correct information in relation to prescribed goods that are entered for export and not to make representations, either expressly or by necessary implication, that the relevant prescribed export conditions have been complied with when the person knows that the representation is false or misleading. Providing false or misleading information (for example, that the goods were prepared at a registered establishment if they were not so prepared) may result in the goods being exported in circumstances where, had the information not been false or misleading, the prescribed goods would not have been exported. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. In these circumstances, the consequence of non-compliant behaviour by one person may impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 49            Making false or misleading representation about prescribed goods that are entered for export to a particular place

Clause 49 will provide that penalties may be imposed in circumstances where a person makes a false or misleading representation about prescribed goods that are entered for export and the goods will be exported to a particular place. Clause 48 of the Bill will provide a corresponding basic offence where prescribed goods have been entered for export and clause 50 of the Bill will provide a corresponding offence for entering non-prescribed goods for export.

Subclause 49(1) will provide that a person will contravene subclause 49(1) if:

·          goods are entered for export; and

·          the goods are prescribed goods; and

·          the goods are to be exported to a particular place; and

·          the export of the goods to that place is prohibited unless prescribed export conditions are complied with; and

·          at the time the goods are entered for export:

o    the person represents (either expressly or by necessary implication) that the prescribed export conditions applicable, at or before that time, in relation to the export of goods to that place have been complied with; and

o    the person does so knowing that the representation is false or misleading.

A note will be included at the end of subclause 49(1) that will provide that the physical elements of an offence against subclause 49(2) are set out in subclause 49(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 49(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 49(1). The fault-based offence will be subject to a penalty of imprisonment for eight years or a fine of 480 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 49(2) will be 2,400 penalty units.

Subclause 49(3) will provide that strict liability will apply to the elements of the offence in paragraphs 49(1)(b) (that the goods are prescribed goods) and 49(1)(d) (that the export of the goods to a place is prohibited unless prescribed export conditions are complied with). The effect of this is that the prosecution will only be required to prove the physical elements in paragraphs 49(1)(b) and (d) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The elements of the offence in paragraphs 49(1)(b) and (d) are matters of law. They concern how goods for export to a particular place are regulated and the conditions that apply to their export to that place. It is appropriate for these elements to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations and entering goods for export. If the prosecution was required to prove fault in relation to these elements, it would undermine deterrence by requiring proof that persons who enter goods for export to a particular place knew the law. Making these elements strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraphs 49(1)(b) and (d) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to enter the goods for export (paragraph 49(1)(a)), that the person was reckless as to whether the goods were to be exported to a particular place (paragraph 49(1)(c)), that the person intended to represent that the goods complied with applicable prescribed export conditions and knew that this representation was false or misleading (paragraph 49(1)(e)).

Subclause 49(4) will provide that a person will be subject to a civil penalty of 960 penalty units if the person contravenes subclause 49(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 49(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 49(1) will be 4,800 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 49(4) will be twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The penalties are designed to encourage persons to provide correct information in relation to prescribed goods that are entered for export and are to be exported to a particular place, and not to make representations, either expressly or by necessary implication, that the relevant prescribed export conditions have been complied with when the person knows that the representation is false or misleading. Providing false or misleading information (for example, that the goods were prepared at a registered establishment and they were not) may result in the goods being exported in circumstances where, had the information not been false or misleading, the prescribed goods would not have been exported. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. In these circumstances, the consequence of non-compliant behaviour by one person may impact the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 50            Making false or misleading representation about non-prescribed goods that are entered for export

Clause 50 will provide that penalties may be imposed in circumstances where a person makes a false or misleading representation about non-prescribed goods that are entered for export. Clause 48 and 49 of the Bill will provide the corresponding offence and civil penalties for prescribed goods.

Subclause 50(1) will provide that a person will contravene subclause 50(1) if:

·          goods are entered for export by the person; and

·          the goods are non-prescribed goods; and

·          at the time the goods are entered for export:

o    the person makes a representation (either expressly or by necessary implication) in relation to any matters that are to be stated in a government certificate in relation to the goods (for example, that the goods meet an importing country requirement relating to the goods); and

o                the person does so knowing that the representation is false or misleading.

A note will be included at the end of subclause 50(1) that will provide that the physical elements of an offence against subclause 50(2) will be set out in subclause 50(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 50(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 50(1). The fault-based offence will be subject to a penalty of imprisonment for five years or a fine of 300 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 50(2) will be 1,500 penalty units.

Subclause 50(3) will provide that strict liability will apply to the element of the offence in paragraph 50(1)(b) (that the goods are non-prescribed goods). The effect of this is that the prosecution will only be required to prove the physical element in paragraph 50(1)(b) beyond reasonable doubt, and will not be required to prove fault for these elements. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ).

The element of the offence in paragraph 50(1)(b) is a matter of law. It concerns how goods for export are regulated. It is appropriate for this element to be strict liability because persons engaged in the export of goods should know their legal obligations before commencing export operations and entering goods for export. If the prosecution was required to prove fault in relation to this element, it would undermine deterrence by requiring proof that persons who enter goods for export knew the law. Making this element strict liability builds on section 9.4 of the Criminal Code to put beyond doubt that ignorance of the law is not a ground on which a person may escape liability.

The use of strict liability in paragraph 50(1)(b) will not affect the need for the prosecution to prove fault elements for other parts of the offence, namely that the person intended to enter the goods for export (paragraph 50(1)(a)), and that the person intended to make a representation about any matters to be stated in a government certificate in relation to the goods and knew that this representation was false or misleading (paragraph 50(1)(c)).

Subclause 50(4) will provide that a person will be subject to a civil penalty of 600 penalty units if the person contravenes subclause 50(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 50(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 48(1) will be 3,000 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 50(4) will be twice the penalty available for the criminal offence. This is designed to ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide a deterrent to conduct that will be inconsistent with the requirements of, or conditions set out in, the Bill.

The level of penalties for contravening subclause 50(1) (which relate to non-prescribed goods) are less than the penalties for contravening subclauses 48(1) and 49(1) of the Bill because of the different consequences that may flow from false and misleading representations in relation to prescribed and non-prescribed goods.

By their nature (see clause 28 of the Bill), prescribed goods are subject to a greater degree of regulatory control as the risks associated with the export of such goods are higher and the harm that may result is greater for such goods than non-prescribed goods. Accordingly, making false and misleading representations may have a more significant impact on Australia’s trading reputation and access to export markets.

The penalties are designed to encourage persons to provide correct information in relation to non-prescribed goods that are entered for export. Providing false or misleading information (for example, that the goods meet the importing country requirements if they do not) may result in the goods being exported in circumstances where had the information not been false or misleading the non-prescribed goods would not have been exported. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact market access. In these circumstances, the consequence of non-compliant behaviour by one person may impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 50A         Penalties for certain contraventions by bodies corporate

This clause will provide for the method for calculating penalties for bodies corporate and the contraventions under the Bill to which the calculations will apply. This clause will modify the application of the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act to some civil penalty provisions. The clauses to which the calculation will apply are clauses which provide for offence and civil penalty provisions for a contravention by a body corporate, where the conduct involves aggravated circumstances which warrant additional penalties due to the risk of negative impact on the export industry and the Australian public. This will recognise circumstances where a body corporate could have been involved in the contravention and it is desirable that the quantum of the penalty will appropriately reflect this circumstance.

Subclause 50A(1) will refer to the following clauses in the Bill:

·          fault based offence and civil penalty provisions for contraventions for exporting goods that are subject to an absolute prohibition on export where there was an intention to obtain a commercial advantage (subclauses 31(2) and (5));

·          fault based offence and civil penalty provisions for contraventions for exporting goods that are subject to an absolute prohibition on export where the export of the goods has economic consequences for Australia (subclauses 32(2) and (5));

·          fault based offence and civil penalty provisions for contraventions for exporting goods to a temporarily prohibited place where there was an intention to obtain a commercial advantage (subclauses 35(2) and (5));

·          fault based offence and civil penalty provisions for contraventions for exporting goods to a temporarily prohibited place where the export of the goods has economic consequences for Australia (subclauses 36(2) and (5));

·          fault based offence and civil penalty provisions for contraventions for exporting prescribed goods in non-compliance with prescribed export conditions where there was an intention to obtain a commercial advantage (subclauses 39(2) and (5));

·          fault based offence and civil penalty provisions for contraventions for exporting prescribed goods in non-compliance with prescribed export conditions where the export of the goods has economic consequences for Australia (subclauses 40(2) and (5));

·          fault based offence and civil penalty provisions for contraventions for exporting prescribed goods to a particular place, in non-compliance with prescribed export conditions where there was an intention to obtain a commercial advantage (subclauses 43(2) and (5));

·          fault based offence and civil penalty provisions for contraventions for exporting prescribed goods to a particular place, in non-compliance with prescribed export conditions where the export of the goods has economic consequences for Australia (subclauses 44(2) and (5)); and

·          fault based offence and civil penalty provisions for contravention of a condition of an export licence (subclauses 217(2), (4), (6) and (8)).

Subclause 50A(2) will provide the method for determining the penalty amount for a body corporate. The penalty will be an amount not more than the greater of the following:

·          20,000 penalty units (50A(2)(a)); or

·          if the body corporate (defined as the first body )and any related body corporate of the first body has obtained, directly or indirectly, a benefit that is reasonably attributable to the conduct constituting the convention, and the relevant court can determine the value of that benefit - 3 times the value of that benefit (50A(2)(b)); or

·          if the relevant court cannot determine the value of the benefit referred to in paragraph 50A(2)(b), or if no such benefit has been obtained - 10% of the annual turnover of the first body during the period (defined as the turnover period ) of 12 months ending a the month when the first body committed or began committing, the contravention (50A(2)(c)).

The formula in subclause 50A(2) will takes into account the regulatory context of exporting goods. Contravention of civil penalty provisions relating to the export of goods from Australian territory represents a risk to Australia’s export markets, which were worth $53 billion in 2016-17. It may impact the confidence of trading partners in the Government’s regulation of exported goods and adversely impact market access for all types of goods exported from Australia. It may also have significant adverse health or biosecurity consequences in overseas markets, therefore impacting Australia’s international reputation as a reliable source of safe, high-quality goods. Some export industries are valued in multi-billion dollars, and bodies corporate in those industries stand to turnover a significant profit from the export of goods to lucrative overseas markets. A body corporate may view the payment of a low civil penalty as an ordinary cost of business unless the civil penalty is set at a level to deter this conduct. The formula is designed to respond to the potential commercial gain that a body corporate may obtain by exporting goods in contravention of a civil penalty provision of the Bill, and takes into account the relative benefit or turnover of the body corporate.

Subclause 50A(3) will provide for how the annual turnover of the first body is defined. The annual turnover will be the sum of the values of all the supplies that the first body, and any related body corporate of the first body, have made, or are likely to make, during that period, except the following:

·          supplies made from the first body to any related body corporate of the first body;

·          supplies made from any related body corporate of the first body to the first body;

·          supplies that are input taxed;

·          supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services) Tax Act 1999);

·          supplies that are not made in connection with an enterprise that the first body carries on.

Subclause 50A(3) will provide that expressions used in subclause 50A(3) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as they have in that Act.

Subclause 50A(4) will provide that the question of whether two bodies corporate are related to each other under this section is to be determined in the same way as for the purposes of the Corporations Act .

Clause 50A will provide flexibility to enable the appropriate penalty for a contravention to be determined in the circumstances.

PART 2—EXEMPTIONS

Division 1—Introduction

Clause 51            Simplified outline of this Part

Clause 51 will create a simplified outline of Part 2 of Chapter 2 of the Bill, which will enable the Secretary to grant exemptions from one or more provisions of the Bill in relation to prescribed goods (which, in Part 2 of Chapter 2 of the Bill will be referred to as relevant goods ) that are to be exported. This Part will enable the Secretary to grant an exemption in certain circumstances, impose conditions on an exemption, vary the conditions of an exemption, and provide when an exemption may be revoked.

The simplified outline will be included to assist the reader to understand the substantive clauses of Part 2 of Chapter 2 of the Bill; however, it will not be intended to be comprehensive. It is intended that the reader will rely on the substantive clauses of the Bill.

Clause 52            Application of this Part

Subclause 52(1) will be an application provision. It will provide that Part 2 of Chapter 2 of the Bill (which will set out the provisions enabling exemptions from some or all of the provisions of the Bill) will apply in relation to a kind of prescribed goods (which, in this Part will be referred to as relevant goods ) that are to be exported:

·          as a commercial sample; or

·          for experimental purposes; or

·          in exceptional circumstances; or

·          in special commercial circumstances; or

·          in other circumstances as prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe other circumstances in which prescribed goods may be exported (and for which an exemption may then be applied) provides the Secretary with the flexibility to determine when it is appropriate to allow other exemptions. These circumstances may arise for a range of matters relating to the prescribed goods, an importing country requirement or a requirement under the Bill that cannot be complied with. The ability to prescribe these circumstances will be necessary for the purpose of achieving one or more requirements of the Bill and reflects the likelihood that the circumstances prescribed will change from time to time and will need to commence at short notice.

Subclause 52(2) will provide that, for the purposes of subclause 52(1), the rules made under clause 432 of the Bill may prescribe the meaning of the terms commercial sample, experimental purposes, exceptional circumstances and special commercial circumstances.

Subclause 52(3) will be an application provision that will provide that Part 2 of Chapter 2 of the Bill will also apply to a kind of prescribed good that will be exported to a particular country (the importing country ) if the Secretary is satisfied that it is not necessary for one or more of the provisions of the Bill to be complied with for the purpose of ensuring that importing country requirements relating to the goods are met. This will enable a person to apply for an exemption in relation to prescribed goods that are to be exported to a particular country when that particular country does not requires compliance with some or all of the Bill.

Clause 53            Application for exemption

An exemption may only be sought in relation to relevant goods (as set out in clause 52 of the Bill).

Subclause 53(1) will provide that, any of the following people may apply to the Secretary for an exemption from one or more provisions of the Bill:

·          a person who wishes to export relevant goods;

·          the manager of an accredited property where export operations in relation to relevant goods are or will be carried out;

·          the occupier of a registered establishment where export operations in relation to relevant goods are or will be carried out;

·          the holder of an approved arrangement that covers export operations in relation to relevant goods;

·          the holder of an export licence that covers export operations in relation to relevant goods.

A note will be included at the end of subclause 53(1) to refer the reader to the definition of this Act in clause 12 of the Bill, and will clarify that a reference to this Act includes a reference to instruments made under the Bill. Therefore a person may apply for an exemption, in relation to relevant goods, from a requirement of the rules made under clause 432 of the Bill.

An exemption may be granted following an individual application rather than in relation to all goods of a particular kind or all goods exported to a particular importing country. The purpose of this is to enable a reduced level of regulatory oversight in circumstances where the risk posed by exporting the goods to an importing country is minimal and the importing country has accepted this risk.

Subclause 53(2) will provide that an application for an exemption must not be made in relation to goods that are absolutely prohibited from export (see clause 23 of the Bill) or goods that are temporarily prohibited from export (see clause 24 of the Bill). Subclause 53(2) will ensure that exemptions (for example, from a temporary prohibition determination) cannot be sought for these kinds of goods.

Subclause 53(3) will provide that an application for an exemption must:

·          if the Secretary has approved, in writing, a manner for making an application—be made in an approved manner; and

·          if the Secretary has approved a form for making an application—include the information required by the form and be accompanied by any documents required by the form; and

·          set out the basis on which the exemption is sought; and

·          include the information (if any) prescribed by the rules; and

·          be accompanied by any documents prescribed by the rules; and

·          be made within the period prescribed by the rules, or if the Secretary allows a different period—within that period.

A note will be included at the end of subclause 53(3), which will advise the reader that a person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and clauses 367, 368 and 369 of the Bill). The sections specified in the Criminal Code and the Bill are intended to provide an effective deterrent to conduct that is inconsistent with the requirements of the Bill and could result in an exemption being granted in circumstances that are inconsistent with the objects of the Bill.

Subclause 53(4) will enable the Secretary to accept any information or document previously given to the Secretary in connection with any application made under the Bill, or a notice of intention to export previously given under clause 243 of the Bill, as satisfying any requirement to provide that information or document under subclause 53(3) of the Bill. Subclause 53(4) will mean that an applicant will not need to provide the Secretary with the same information multiple times. This will reduce administrative burden on both the applicant and the Secretary.

Subclause 53(5) will provide that if the application does not comply with the requirements in subclause 53(3) of the Bill (including providing the information required by that subclause), the application is taken not to have been made. This clause will clarify that the Secretary will not be required to make a decision on the application if it is incomplete.

Clause 54            Secretary must decide whether to grant exemption

Secretary must decide whether to grant exemption

Subclause 54(1) will provide that on receiving an application for an exemption under clause 53 of the Bill, the Secretary must decide to grant or refuse to grant the exemption. A decision made under this clause is not a reviewable decision as decisions regarding exemptions are essentially about maintaining international confidence in Australia’s food and agricultural exports in the interests of a whole export industry. However, the Bill does not prevent a person from making a new application for an exemption in relation to the same relevant goods. A note will be included at the end of subclause 54(1), which will advise the reader that an application that does not comply with the requirements set out in subclause 53(3) of the Bill for the application, will be taken not to have been made (see notes on subclause 53(5) of the Bill).

Secretary may request further information or documents

Subclause 54(2) will enable the Secretary to make a written request that the applicant give the Secretary further specified information or documents relevant to the application. That is, information that is in addition to that which is required by subclause 53(3) of the Bill. This will ensure that the Secretary will have all the relevant information to consider when deciding whether to grant the exemption.

Grounds for granting exemption

Subclause 54(3) will provide that the Secretary may grant the exemption if satisfied, having regard to any matter prescribed by the rules or any other matter that the Secretary considers relevant, that the requirements prescribed by the rules are met and it is appropriate to grant the exemption. There is a broad range of matters that the Secretary may need to take into account when deciding to grant an exemption.

Enabling the rules to prescribe the requirements that must be met before an exemption is granted will provide the Secretary with the flexibility to determine when it is appropriate to allow exemptions in relation to the relevant goods. These requirements may arise for a range of matters relating to the prescribed goods or importing country requirements. The matters may be detailed and specific to a particular circumstance, importing country or kind of goods. The ability to prescribe these circumstances will be necessary for the purpose of achieving one or more requirements of the Bill and reflects the likelihood that the requirements will change from time to time and will need to commence at short notice. This will not limit, however, the ability to take into account any other matters that the Secretary considers are relevant.

A note after subclause 54(3) clarifies that an exemption must not be varied.

Clause 55            Exemption may be granted subject to conditions

Subclause 55(1) will enable the Secretary to grant an exemption under paragraph 54(1)(a) of the Bill in relation to the relevant goods subject to any conditions that the Secretary considers necessary. Enabling the Secretary to set conditions on an exemption will ensure compliance with the requirements of the Bill.

A note after subclause 55(1) clarifies that conditions of an exemption may be varied.

Subclause 55(2) will provide that in considering whether it will be necessary to impose conditions on an exemption, the Secretary must have regard to the matters prescribed by the rules made under clause 432 of the Bill. Enabling the rules to prescribe the matters that must be taken into account before a condition is imposed will provide the Secretary with the flexibility to determine when it is appropriate to set conditions on an exemption. The requirement for conditions may arise for a range of matters relating to the prescribed goods or importing country requirements. The ability to prescribe these matters will be necessary for the purpose of achieving one or more requirements of the Bill and reflects the likelihood that the requirements will change from time to time and will need to commence at short notice.

Subclause 55(3) will provide that a person will commit a fault-based offence if the person is the holder of an exemption in force under Part 2 of Chapter 2 of the Bill and the person contravenes a condition of the exemption. The penalty for the fault-based offence will be five years imprisonment or a fine of 300 penalty units or both. The maximum fine for a body corporate for a contravention of subclause 55(3) of the Bill will be 1,500 penalty units.

Subclause 55(4) will provide that a person will be subject to a civil penalty of 600 penalty units if the person the person is the holder of an exemption in force under this Part and the person contravenes a condition of the exemption. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 55(4). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 55(4) will be 3,000 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 55(4) will be twice as high as the penalty available for the criminal offence. This will ensure the penalty will be set at a high enough level to act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalty provisions are intended to provide an effective deterrent to conduct that is inconsistent with the requirements of the Bill and which may result in the export of goods that do not comply with requirements or conditions set out in the Bill. The level of the penalties that will be available also reflect the seriousness of conduct that contravenes a condition of an exemption and the impact that this contravention may have on Australia’s trading reputation. Such conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action is commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 56            Notice of decision

Instrument of exemption

Subclause 56(1) will provide that if the Secretary grants an exemption under paragraph 54(1)(a) of the Bill in relation to the relevant goods, the Secretary must give the applicant for the exemption an instrument of exemption stating:

·          the kind of goods covered by the exemption;

·          if applicable, each importing country covered by the exemption;

·          the basis on which the exemption has been granted;

·          the provisions of the Bill covered by the exemption;

·          the date (which must not be retrospective) when the exemption takes effect;

·          that the exemption remains in force indefinitely or the period during which the exemption remains in force as prescribed by the rules made under clause 432 of the Bill for the purposes of paragraph 57(b) of the Bill;

·          any conditions of the exemption;

·          any other information prescribed by the rules.

This instrument of exemption will provide evidence of which provisions the relevant goods are exempt from having to comply with.

Enabling the rules to prescribe what must be included in the instrument of exemption provides the Secretary with the flexibility to determine what information is appropriate for the applicant and the level of detail that may be needed. These circumstances may arise for a range of technical and administrative reasons. The ability to prescribe these circumstances is necessary for the purpose of achieving one or more requirements of the Bill and reflects the likelihood that the circumstances prescribed will change from time to time and will need to commence at short notice.

Paragraph 56(1)(e) will provide that the date that an exemption takes effect cannot be retrospective. This is intended to prevent a person from for example, preparing or exporting goods in contravention of a requirement of the Bill and later attempting to claim an exemption in relation to those goods from that requirement.

Subclause 56(2) will provide that the instrument of exemption under subclause 56(1) is not a legislative instrument for the purposes of the definition of legislative instrument provided for by section 8 of the Legislation Act. Subclause 56(2) will make a statement as to the law (that is, that instruments of approval are not legislative instruments) and will not create an actual exemption to that Act. The instrument of exemption will provide an exemption from the rules in relation to the export of particular goods to a particular place. The exemption will be limited to a person or exporter (that is, the person who applied for the exemption in relation to the relevant goods), rather than to a broad sector of the industry.

Notice of refusal

Subclause 56(3) will provide that if the Secretary decides to refuse to grant an exemption under paragraph 54(1)(b) of the Bill, the Secretary must notify the applicant in writing and provide reasons for the decision to refuse to grant the exemption. A decision made under paragraph 54(1)(b) of the Bill will not be a reviewable decision as decisions regarding exemptions are essentially about maintaining international confidence in Australia’s food and agricultural exports in the interests of a whole export industry. The Bill would not prevent a person from making a new application for an exemption in relation to the same relevant goods.

Clause 57            Period of effect of exemption

Paragraph 57(a) will provide that an exemption granted under paragraph 54(1)(a) of the Bill will take effect on the date specified in the instrument of exemption under paragraph 56(1)(e) of the Bill.

Paragraph 57(b) of the Bill will provide that the exemption will remain in force as prescribed by the rules unless it is revoked under clause 59 of the Bill. Enabling the rules to prescribe the period that an exemption remains in force will provide the Secretary with discretion to determine the appropriate period for a particular kind of relevant goods. It may be appropriate that some exemptions remain in force indefinitely, while others should cease and a new application seeking an exemption be made. Preventing an applicant from having to periodically seek a new exemption in relation to the relevant goods will reduce the administrative burden for those applicants and the Department.

Clause 58            Variation of conditions of exemption

Subclause 58(1) will provide that an exemption that is in force under this Part in relation to the relevant goods must not be varied. The note after this subclause clarifies that if changes to an exemption are needed, an application for a new exemption must be made.

Subclause 58(1) will enable the Secretary to vary the conditions of an exemption that is in force if the Secretary considers it is necessary to do so. The variation may include imposing new conditions on the exemption.

Subclause 58(2) will require the Secretary to have regard to the matters prescribed by the rules when considering whether it is necessary to vary the conditions of an exemption. Enabling the rules made under clause 432 of the Bill to prescribe the matters that must be taken into account before a condition is varied will provide the Secretary with the flexibility to determine when it is appropriate to vary conditions on an exemption. The requirement to vary a condition may arise for a range of matters relating to the prescribed goods or importing country requirements. The ability to prescribe these matters will be necessary for the purpose of achieving one or more requirements of the Bill and reflects the likelihood that the requirements will change from time to time and will need to commence at short notice.

Subclause 58(3) will provide that if the Secretary varies the conditions of an exemption, the Secretary must give the holder of the exemption a written notice stating the varied conditions and any new conditions, the reason for varying the conditions, the date the varied conditions take effect, and any other information prescribed by the rules.

Enabling the rules to prescribe what must be included in the notice of the decision to vary a condition of an exemption provides the Secretary with the flexibility to determine what information is appropriate to inform the applicant and the level of detail that may be needed. These circumstances may arise for a range of technical and administrative reasons. The ability to prescribe these circumstances is necessary for the purpose of achieving one or more requirements of the Bill and reflects the likelihood that the circumstances prescribed will change from time to time and will need to commence at short notice.

Clause 59            Revocation of exemption

Subclause 59(1) will enable the Secretary to revoke an exemption that is in force in relation to the relevant goods and subclause 59(2) will require the Secretary to have regard to the matters prescribed by the rules made under clause 432 of the Bill when considering whether to revoke an exemption. Enabling the rules to prescribe the matters that must be taken into account before an exemption is revoked will provide the Secretary with the flexibility to determine when it is appropriate to revoke an exemption. The circumstances in which it may be necessary to revoke an exemption may arise for a range of matters relating to the prescribed goods or importing country requirements. The ability to prescribe these matters will be necessary for the purpose of achieving one or more requirements of the Bill and reflects the likelihood that the requirements will change from time to time and will need to commence at short notice.

Subclause 59(3) will provide that if the Secretary decides to revoke an exemption, the Secretary must give the holder of the exemption a written notice stating that the exemption is to be revoked, the reasons for the revocation, and the date the revocation takes effect.

The intent of the notice is to advise the holder of the exemption that they must now comply with the requirements of the Bill in relation to the export of goods and the exemption no longer has effect.

Clause 60            Effect of exemption

Clause 60 of the Bill will provide that if an exemption from one or more provisions of the Bill (the exempted provisions ) is in force under Part 2 of Chapter 2 of the Bill in relation to relevant goods, the exempted provisions do not apply in relation to the export of those goods by that applicant. However, any provision that is not an exempted provision will continue to apply. For example, the relevant goods may be exempt from having to be prepared at a registered establishment but all other export controls that relate to the relevant goods would still be required to be complied with.

PART 3—GOVERNMENT CERTIFICATES

Division 1—Introduction

Clause 61            Simplified outline of this Part

Clause 61 will create a simplified outline of Part 3 of Chapter 2 of the Bill, which will provide for matters in relation to government certificates. Part 3 of Chapter 2 will provide that the rules made under clause 432 of the Bill may make provision for and in relation to the issue of government certificates for prescribed goods and non-prescribed goods that are to be, or that have been, exported.

Part 3 of Chapter 2 will provide that in deciding whether to make rules in relation to goods that are not animals, plants or food, the Secretary may have regard to relevant matters, including importing country requirements, sanitary matters, Australian laws and standards, Australia’s international rights and obligations and international standards.

Part 3 of Chapter 2 of the Bill will also provide that a person may apply to an issuing body for the issue of a government certificate in relation to goods that are to be, or that have been, exported. The issuing body will be a person or body prescribed by the rules in relation to the goods or, if no person or body is prescribed in relation to the goods, the issuing body will be the Secretary. The issuing body must decide whether to issue a government certificate. The Secretary may exercise certain powers in relation to an application for a government certificate.

Part 3 of Chapter 2 of the Bill will also provide that certain issuing bodies may charge a fee in relation to things done in the performance of the issuing body’s functions or the exercise of the issuing body’s powers under this Act .

In addition, a government certificate may be issued electronically or in another form that will be acceptable to the relevant importing country. Finally, a government certificate will have effect for a particular period.

The simplified outline is included to assist the reader to understand the substantive clauses of the chapter; however, it is not intended to be comprehensive. It is intended that the reader will rely on the substantive clauses of the Bill.

Division 2—Rule-making powers

Clause 62            Rules may make provision for and in relation to government certificates

Subclause 62(1) will enable the rules made under clause 432 of the Bill to make provision for and in relation to the issue of government certificates for goods that are to be, or that have been, exported. Subclause 62(2) will provide examples of what the rules made for the purposes of subclause 62(1) may address. The rules may:

·          specify:

o    kinds of goods in relation to which a government certificate may be issued; and

o    kinds of goods in relation to which a government certificate must not be issued; and

o    kinds of government certificates that may be issued in relation to specified kinds of goods; and

·          make provision for and in relation to any of the following:

o    applications for a government certificate in relation to a kind of goods; and

o    the matters that may be stated in a government certificate in relation to a kind of goods; and

o    requirements that must be complied with in relation to a kind of goods before a government certificate in relation to goods of that kind may be issued.

Enabling the rules made under clause 432 of the Bill to prescribe matters relating to government certificates will provide the Secretary with the flexibility to determine the kinds of goods that are suitable or, in the case of goods that are not animal, plant or food products (non-prescribed goods referred to in paragraph (d) of the definition of goods in clause 12), unsuitable to certify, and the kinds of certificates that may be issued. In addition, enabling the rules to prescribe matters in relation to applications will ensure that the Secretary has all the relevant information required to make a decision in relation to the issue of a government certificate.

Subparagraph 62(2)(b)(iii) will enable the rules made under clause 432 of the Bill to set out the requirements that must be complied with in relation to a kind of goods before a government certificate for goods of that kind may be issued. Enabling the rules to prescribe the requirements that must be met before a government certificate may be issued will provide the Secretary with the flexibility to determine when it is appropriate to issue a government certificate. These requirements may arise for a range of matters relating to the goods or importing country requirements. The ability to prescribe these circumstances will be necessary for the purpose of achieving the objects of the Bill and reflects the likelihood that the requirements will change from time to time and will need to commence at short notice.

Subclause 62(2) will set out certain matters that the Secretary may take into account before allowing kinds of non-prescribed goods that are not animal, plant or food products to be certified on an ongoing basis.

Subclause 62(2) will provide that, in deciding whether to make rules for the purpose of subparagraph 62(2)(a)(i) specifying the kinds of non-prescribed goods that are not animal, plant or food products for which a government certificate may be issued, the Secretary may have regard to the following matters:

·          any importing country requirements relating to goods of that kind;

·          sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to goods of that kind;

·          any Australian laws and standards relating to goods of that kind;

·          Australia’s rights and obligations relating to goods of that kind under any international agreements to which Australia is a party;

·          any international standards relating to goods of that kind;

·          any other matter the Secretary considers relevant.

This is intended to provide the Secretary with the flexibility to enable the certification of a kind of non-prescribed goods that is not an animal, plant or food product on an ongoing basis, but only when it is necessary and appropriate to do so.

This clause will be used in conjunction with subparagraph 62(1)(a)(ii) (which will allow the rules to specify the kinds of non-prescribed goods that are not animal, plant or food products that must not be certified) to ensure that the Secretary has strict control over kinds of non-prescribed goods that are not animal, plant or food products that the Department may certify, based on its expertise and regulatory remit. The Secretary will not have to consider the matters listed in subclause 62(3) in respect of animal-, plant- and food-based goods (that is, goods within paragraphs (a) to (c) of the definition of goods in clause 12), as they are suitable for certification by default.

The Secretary may have regard to similar matters when considering individual applications for the certification of a kind of non-prescribed goods that is not an animal, plant or food product in accordance with clauses 65 and 69 of the Bill. Allowing the rules to specify the kinds of non-prescribed goods that are not animal, plant or food products that will be certified on an ongoing basis will prevent the Secretary from having to make a decision in relation to these kinds of goods on a case-by-case basis. It will also provide exporters with certainty around the kinds of non-prescribed goods that are not animal, plant or food products that the Department will certify.

Clause 63            Issuing bodies

Subclause 63(1) will provide that an issuing body for a government certificate for a kind of goods that are to be, or have been, exported is:

·          the person or body prescribed by the rules in relation to goods of that kind, or

·          if no issuing body in relation to those kind of goods is prescribed, the issuing body is the Secretary.

Subclause 63(2) will provide that, for the purposes of subclause 63(1) of the Bill, the rules made under clause 432 of the Bill may provide that one or more of the following is an issuing body for a government certificate:

·          the Secretary;

·          a person or body that will be covered by an approved arrangement (see chapter 5 of the Bill in relation to approved arrangements) that provides for the person or body to issue government certificates in relation to goods of that kind;

·          a specified person or body.

Enabling the rules made under clause 432 of the Bill to prescribe the issuing body for a kind of goods will provide the Secretary with the flexibility to determine the appropriate issuing body for a particular kind of goods. A n issuing body may be a person or body covered by an approved arrangement; or a specified person or body. Such third party issuing bodies are necessary in circumstances where a body or person has the specialisation, knowledge and expertise to certify a kind of goods. For example, bodies that have specialised expertise in organics certification that the Secretary may not have, will be authorised to issue certificates in relation to organic goods. The combined effect of subclauses 63(1) and 63(2) will be that the Secretary will be the issuing body for all kinds of goods, unless an issuing body is prescribed in the rules. If an issuing body is prescribed in the rules for a particular kind of goods, the Secretary will not be an issuing body for that kind of goods unless the Secretary is also prescribed in the rules.

Therefore, an application for a government certificate made under clause 65 of the Bill will be made to the issuing body specified under clause 63 of the Bill. However, if no issuing body is specified in the rules made under clause 432 of the Bill for the purposes of subclause 63(1) of the Bill, an application must be made to the Secretary.

In circumstances where an issuing body is a non-Commonwealth officer that is not under an approved arrangement, the Secretary will be able to conduct audits of that issuing body in accordance with clause 267 of the Bill. Clause 267 provides that the Secretary may require an audit to be conducted of the performance of functions and the exercise of power under this Bill by any other person (other than a Commonwealth authorised officer or a State or Territory authorised officer) who performs functions or exercises powers under the Bill (see subparagraph 267(1)(i)). This will include issuing bodies. The Secretary is also able to revoke any certificate issued by any issuing body, and may amend the rules to remove a third party issuing body.

In addition, the rules may prescribe that an issuing body, whether under an approved arrangement or not, may be required to satisfy the fit and proper person test before being able to issue government certificates (see clauses 372 and 373).

Clause 64            Certain issuing bodies may charge fees

Subclause 64(1) will provide that an issuing body for a government certificate may charge a fee under this clause for things done in the performance of the issuing body’s functions or exercise of the issuing body’s powers under the Bill.

Subclause 64(2) will provide that a fee must not be such as to amount to taxation to address the constitutional limitation on the imposition of a tax.

Subclause 64(3) of the Bill will provide that the ability to charge a fee will not apply when the Secretary is the issuing body.

A note will be included at the end of subclause 64 to refer the reader to clause 399 of the Bill, which will provide for fees to be charged in relation to the performance of functions or the exercise of powers by the Secretary as an issuing body. Clause 399 of the Bill will enable fees to be charged for services that are provided and will be in line with the Australian Government Cost Recovery Guidelines.

Division 3—Issue of government certificate

Clause 65            Application for government certificate

Subclause 65(1) will provide that a person may apply to an issuing body for a government certificate in relation to a kind of goods that are to be, or that have been, exported.

Subclause 65(2) will provide that an application for a government certificate must:

·          if the Secretary has approved, in writing, a manner for making an application—be made in an approved manner; and

·          if the Secretary has approved a form for making the application—include the information required by the form and be accompanied by any documents required by the form; and

·          include the information (if any) prescribed by the rules; and

·          be accompanied by any documents prescribed by the rules.

It will be necessary for the Secretary to have all the relevant and available information to make an informed decision about the issue of a government certificate. Enabling rules made under clause 432 of the Bill to prescribe any information or documents that the person should provide to the Secretary in relation to an application for a government certificate will provide the Secretary with the flexibility to determine additional matters which are of importance and may be specific to a particular kind of non-prescribed goods, prescribed goods or export market. The ability to prescribe these changes also reflects the likelihood that they will need to change from time to time and will need to commence at short notice.

Two notes will be included at the end of subclause 65(2). Note 1 will provide that in accordance with subclause 239(4) of the Bill, the Secretary will be able to approve a single form that may be used to apply for an export permit for a kind of prescribed goods and a government certificate in relation to the goods. This will accommodate circumstances where an export permit and government certificate are required for the same consignment and will reduce the regulatory burden caused by requiring two applications.

Note 2 will provide that a person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and clauses 367, 368 and 369 of the Bill). The sections specified in the Criminal Code and the clauses in the Bill are intended to provide an effective deterrent to conduct that is inconsistent with the requirements of the Bill and which could result in a government certificate being issued contrary to a requirement of the Bill.

Subclause 65(3) will enable the Secretary to accept any information or document previously given to the Secretary in connection with any application made under the Bill, or a notice of intention to export previously given under the Bill as satisfying any requirement to provide that information or document under subclause 65(2) of the Bill. This subclause will ensure that an applicant does not need to provide the Secretary with the same information multiple times. This will reduce the administrative burden on both the applicant and the Department.

Subclause 65(4) will provide that if the application does not comply with the requirements in subclause 65(2) (including providing information or documents required by that subclause), the application is taken not to have been made. This clause will clarify that the Secretary will not be required to make a decision on the application if it is incomplete.

Clause 66            Additional or corrected information

Subclause 66(1) will provide that a person who has made an application to an issuing body under clause 65 of the Bill will be required to comply with subclause 66(2) if:

·          the person becomes aware that information included in the application, or information or a document given to the issuing body in relation to the application, was incomplete or incorrect; or

·          a change prescribed by the rules occurs.

This will ensure that the relevant issuing body has access to the most accurate information possible in order to assess whether a government certificate should be issued. (Note that clause 74 of the Bill will deal with providing additional or corrected information in relation to an application for a government certificate after the government certificate has been issued).

Enabling the rules made under clause 432 of the Bill to prescribe a change for which it is necessary for a person to provide additional or corrected information will give the Secretary flexibility to determine the changes that may be relevant to the issuing body’s decision in relation to the application. The ability to prescribe these circumstances in the rules reflects the likelihood that the circumstances prescribed will change from time to time and will need to commence at short notice.

Subclause 66(2) will provide that additional or corrected information, to the extent that it will be relevant to considering the application for a government certificate, must be given to the issuing body as soon as practicable (which will be determined on a case-by-case basis). Additional or corrected information that will not be relevant to that assessment will not need to be provided to the issuing body.

Two notes will be included at the end of subclause 66(2). Note 1 will provide that a person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and clauses 367, 368 and 369 of the Bill). The sections specified in the Criminal Code and the clauses in the Bill are intended to provide an effective deterrent to conduct that is inconsistent with the requirements of the Bill and could result in a government certificate being issued or remaining in force contrary to the Bill.

Note 2 will provide that clause 66 is not subject to the privilege against self-incrimination and will refer the reader to clause 426 of the Bill. Removing the privilege against self-incrimination will ensure that the Secretary will receive relevant information in relation to an application for a certificate and if necessary, can take immediate action. Clause 426 will set out the effect of the provision abrogating the privilege against self-incrimination. This will include immunities on the use and derivative use of self-incriminatory material. This material would only be used to ensure that goods are not exported where they do not comply with importing country requirements and requirements of the Bill and would not result in criminal or civil proceedings against the person who provided the material.

Subclause 66(3) will provide that a person will be liable to a civil penalty if the person is required to give additional or corrected information to the Secretary under subclause 66(2) of the Bill and the person fails to comply with that requirement.

The civil penalty prescribed by subclause 66(3) will be 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 66(2). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 66(2) will be 300 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

This civil penalty provision is intended to provide an effective deterrent to conduct that will be inconsistent with the requirements of this clause. It will be necessary for the Secretary to have relevant and correct information to determine whether a government certificate should remain in force. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export goods.

Clause 67            Issuing body must decide whether to issue government certificate

Subclause 67(1) will provide that, on receiving an application for a government certificate under clause 65, the issuing body will be required to decide to issue the certificate or refuse to issue the certificate.

Two notes will be included at the end of subclause 67(1). Note 1 will provide that an application that does not comply with the requirements referred to in subclause 65(2) of the Bill for the application will be taken not to have been made. The note will refer the reader to subclause 65(4) of the Bill, which will set out the grounds for refusing to issue a government certificate.

Note 2 will advise the reader that a decision in relation to the application for a government certificate may be made by the operation of a computer program. The note will refer the reader to clause 286 of the Bill, which deals with computer generated decisions.

Subclause 67(2) will enable the issuing body to make a written request that the applicant give the issuing body further specified information or documents relevant to the application. This will ensure that an issuing body has all the relevant information on which to make a decision to issue a government certificate.

A note will be included at the end of subclause 67(2), which will provide that if the issuing body is the Secretary, the Secretary will be able to exercise additional powers set out in clause 68 of the Bill.

Grounds for refusing to issue government certificate

Subclause 67(3) will provide the circumstances in which the issuing body will be able to refuse to issue a government certificate in relation to the goods. The issuing body may refuse to issue a certificate if:

·          the issuing body is not satisfied, having regard to any matter that the issuing body considers relevant, that:

o    the requirements of this Act in relation to the export of the goods have been complied with, or will be complied with before the goods are imported into the importing country; or

o    any importing country requirements relating to the goods have been met, or will be met before the goods are imported into the importing country; or

o    the matters to be stated in the government certificate in relation to the goods are true and correct; or

·          the issuing body reasonably believes that the applicant:

o    made a false, misleading or incomplete statement in the application for the certificate; or

o    gave false, misleading or incomplete information or documents to the issuing body or to another person performing functions or exercising powers under the Bill; or

o    gave false, misleading or incomplete information or documents to the Secretary, or the Department, under a prescribed agriculture law; or

·          any information or documents requested under subclause 67(2) are not given to the issuing body within a reasonable period after the request was made; or

·          the applicant refused to consent to a request by a person to enter premises of the applicant:

o    to conduct an audit of export operations carried out in relation to the goods under Part 1 of Chapter 9; or

o    to carry out an assessment of the goods under Part 2 of that Chapter; or

·          the applicant refused to cooperate with a request made by the issuing body, or any other person performing functions or exercising powers under this Act , in relation to the goods; or

·          the issuing body reasonably believes that the applicant has contravened a requirement of the Bill in relation to the goods; or

·          circumstances prescribed by the rules exist.

Enabling the rules to prescribe the circumstances in which government certificates for goods may be refused provides the Secretary with the flexibility to determine when it is appropriate to refuse to issue a certificate in addition to the circumstances provided for by the Bill. These circumstances may arise for a range of technical and administrative reasons. The ability to prescribe these circumstances is necessary for the purpose of achieving one or more objects of the Bill and reflects the likelihood that the circumstances prescribed will change from time to time and will need to commence at short notice.

Notice of refusal

S ubclause 67(4) will provide that if the issuing body decides not to grant a government certificate, the issuing body must notify the applicant in writing. This will ensure an applicant is aware of the outcome of their application. A decision made under clause 67 will not be a reviewable decision. Decisions regarding government certificates represent one of the final decisions to enable goods to be imported into the importing country once all other requirements and conditions have been met. Such decisions are essentially about maintaining international confidence in Australia’s agricultural exports in the interests of a whole export industry, or part of that industry, and ensuring that agricultural exports achieve a consistent standard. Further, government certificates are high-volume decisions and often made in relation to perishable items. Given the specific timeframes that an exporter may be operating under, providing for the review of a decision made under clause 67 would not be practical.

Clause 68            Powers of Secretary in relation to application

S ubclause 68(1) will provide that, if an application for a government certificate is made to the Secretary as the issuing body under clause 65 of the Bill, the Secretary may do anything the Secretary considers necessary in relation to the application, including the following:

·          request, in writing, the applicant, or another person who the Secretary considers may have information or documents relevant to the application, to give the Secretary further specified information or documents relevant to the application;

·          require an audit of export operations carried out in relation to the goods to be conducted under Part 1 of Chapter 9;

·          require an assessment of the goods to be carried out under Part 2 of Chapter 9;

·          request the applicant to give the Secretary a written statement, signed and dated by the applicant, verifying that:

o    the requirements of the Bill in relation to the export of the goods have been complied with, or will be complied with before the goods are imported into the importing country; and

o    any importing country requirements relating to the goods have been met, or will be met before the goods are imported into the importing country, and

o    the matters to be stated in the government certificate are true and correct;

·          take, test or analyse samples of goods, or from equipment or other things that are relevant to the application;

·          arrange for another person with appropriate qualifications or expertise to take, test or analyse samples of goods, or from equipment or other things, that are relevant to the application;

·          any other thing prescribed by the rules.

The ability of the Secretary to do anything the Secretary considers necessary when considering an application may include, for example, seeking consent to enter premises or to see a demonstration of export operations. That is, the indicative list of what the Secretary may do when considering an application as set out in subclause 68(1) does not list all the things the Secretary may be able to do when considering an application and does not, for example, preclude the Secretary from exercising similar powers to those set out in clause 379 (in relation to applications generally) of the Bill.

The list provided for under subclause 68(1) is indicative of what the Secretary may do when deciding whether to issue a certificate. Enabling the rules made under clause 432 of the Bill to prescribe any other thing that the Secretary may do for the purpose of making a decision is intended to ensure that the Secretary has the ability to obtain any other information that is relevant to the application.

Two notes will be included at the end of subclause 68(1). Note 1 will refer the reader to Division 2 of Part 6 of Chapter 11 of the Bill, which will set out provisions relating to taking, testing and analysing samples. Note 2 will provide that an audit of export operations carried out in relation to a kind of non-prescribed goods by a person to whom a government certificate has been issued may be conducted at any time during the period of 18 months after the certificate was issued. Note 2 will also refer the reader to subclause 266(4) of the Bill.

Clause 69            Applications in relation to certain kinds of non-prescribed goods

Subclause 69(1) will be an application provision that will provide that clause 69 will apply in relation to an application to the Secretary for a government certificate that relates to a kind of goods (the relevant goods ) referred to in paragraph (d) of the definition of goods in clause 12 that are:

·          non-prescribed goods; and

·          are not specified by the rules made for the purposes of subparagraphs 62(2)(a)(i) or 62(2)(a)(ii).

Subclause 69(1) will mean that the Secretary will only need to consider the matters listed in subclause 69(2) if the application relates to non-prescribed goods that are not animal, plant or food products and are not listed in rules made for the purpose of subparagraphs 62(2)(a)(i) or 62(2)(a)(ii) of the Bill. Such rules would either allow the ongoing certification of, or prevent the certification of, non-prescribed goods that are not animal, plant or food products. The reason for this is that the Secretary would already have considered whether it is appropriate for the person to issue a government certificate in relation to those goods.

Subclause 69(2) will set out the matters that the Secretary will be able to take into account when considering whether to issue a government certificate in relation to kinds of non-prescribed goods that are not animal, plant or food products to which an application under subclause 65(1) of the Bill has been made. These matters will be in addition to those matters that will be referred to in subclause 67(3) of the Bill and will be:

·          any importing country requirements relating to the relevant goods;

·          sanitary matters (being matters relating to food safety, animal health or human health) and phytosanitary matters (being matters relating to plant health) relating to the relevant goods;

·          Australia’s rights and obligations relating to the relevant goods under any international agreements to which Australia is a party;

·          any international standards relating to the relevant goods;

·          any other matter the Secretary considers relevant.

Subclause 69(3) will provide that the Secretary need not have regard to the matters in subclause 69(2) of the Bill if goods of the same kind as the relevant goods have previously been exported to a country and the Secretary has previously issued a government certificate in relation to goods of that kind that have been exported to that country. The reason for this is that the Secretary would already have considered the matters when deciding to issue a certificate in relation to that kind of non-prescribed goods.

This clause is intended to ensure that the Secretary has the flexibility to certify kinds of non-prescribed goods that are not animal, plant or food products but only when it is necessary and appropriate to do so.

This clause will be used in conjunction with paragraph 62(1)(a)(ii) and subclause 62(3) of the Bill, which will allow the rules to specify kinds of non-prescribed goods that are not animal, plant or food products which the Secretary may certify on an ongoing basis, and subparagraph 62(1)(a)(ii) of the Bill, which will allow the rules to specify kinds of non-prescribed goods that are not animal, plant or food products that the Secretary will not certify. Together, these provisions are intended to ensure that the Secretary has strict control over the kinds of non-prescribed goods that are not animal, plant or food products that the Department may certify, based on its expertise and regulatory remit. The Secretary will not have to consider the matters listed in subclause 69(2) in respect of animal-, plant- and food-based goods (that is, goods within paragraph (a) to (c) of the definition of goods in clause 12), as they are suitable for certification by default.

Clause 70            Government certificate for goods that are to be, or that have been, exported from certain external Territories

Clause 70 will provide that if Part 3 of Chapter 2 of the Bill extends to an external Territory or an area adjacent to that external Territory under subclause 8(2) of the Bill and a government certificate is issued in relation to a kind of goods that are to be, or have been, exported from that Territory or area, the government certificate may state that the goods are from that Territory.

The purpose of this clause is to enable government certificates to identify whether goods come from the Territories or from the rest of Australia. This is because Australia's access to its international markets has been negotiated on the basis of its reputation of freedom from pests and diseases that exist in the rest of the world, including in the Territories. It is important that government certificates issued under the Bill can make a distinction between goods exported from Australia and goods exported from the Territories. However, this clause does not prevent the issue of a government certificate stating that goods being exported from an external Territory are from the ‘Australian territory’.

Clause 71            Manner of issuing government certificate

The primary purpose of a government certificate is to facilitate the import of goods by an importing country. Clause 71 will enable a government certificate in relation to a kind of goods to be issued electronically or in another form that an importing country will accept.

Clause 72            Period of effect of government certificate

Subclause 72(1) will provide that a government certificate will take effect either on the date it is issued, or if a later date is stated in the certificate, on that later date. Subclause 72(2) will clarify that where a government certificate relates to a single consignment, the government certificate will remain in force until the expiry date specified in the certificate, or the date the certificate is accepted or rejected by the importing country, whichever occurs earlier.

Where a government certificate relates to two or more consignments of goods, subclause 72(3) will provide that the government certificate will remain in force until whichever of the following first occurs:

·          the expiry date specified in the certificate;

·          the date on which any of the consignments is rejected by the importing country; or

·          the day on which the last consignments of the goods is accepted by the importing country.

Subclause 72(4) will clarify that despite subclauses 72(2) and 72(3), a government certificate will cease to be in force if:

·          the goods are no longer intended to be exported to the country in relation to which the certificate was issued; or

·          the certificate is revoked; or

·          circumstances prescribed by the rules exist.

Enabling the rules made under clause 432 of the Bill to prescribe the circumstances when a government certificate will cease to be in force is necessary and appropriate to provide the Secretary with the flexibility to specify circumstances that may be relevant to, for example, a particular commodity or market.

Division 4—Other matters

Clause 73            Secretary may require assessment of goods

Clause 73 will provide that the Secretary may require an assessment of goods in certain circumstances.

Subclause 73(1) is an application clause that will provide that clause 73(1) will apply if a government certificate is in force in relation to a kind of non-prescribed goods.

Subclause 73(2) will provide that the Secretary may require an assessment of the goods to be carried out under Part 2 of Chapter 9 of the Bill if the Secretary reasonably believes that:

·          the requirements of the Bill have not been complied with, or are not likely to be complied with before the goods are imported into the importing country; or

·          an importing country requirement relating to the goods will not be, or is not likely to be, met before the goods are imported into the importing country; or

·          the matters stated in the government certificate in relation to the goods are no longer true and correct; or

·          circumstances prescribed by the rules exist.

Enabling the rules made under clause 432 of the Bill to prescribe the circumstances in which the Secretary may require an assessment of non-prescribed goods will provide the Secretary with the flexibility to determine when an assessment may be necessary. This may be on a commodity or market basis. This will enable the Secretary to respond, in a short period of time, to changes in the requirement for the export of non-prescribed goods and the import of those goods into the importing country.

Clause 74            Additional or corrected information in relation to application for government certificate etc.

Clause 74 will create an obligation on a holder of a government certificate (as opposed to the applicant for a government certificate which will be dealt with in clause 66 of the Bill) to provide additional or corrected information to the relevant issuing body if:

·          the person becomes aware that information included in an application for a government certificate was incomplete or incorrect; or

·          a change prescribed by the rule occurs.

Subclause 74(2) will provide that the holder of the government certificate must, as soon as practicable, give the issuing body additional or corrected information, to the extent that it is relevant to assessing whether:

·          the requirements of the Bill in relation to the export of the goods in relation to which the certificate was issued have been complied with, or will be complied with before the goods are imported into the importing country; or

·          the importing country requirements relating to the goods in relation to which the certificate was issued have been met, or will be met before the goods are imported into the importing country; or

·          the matters stated in the government certificate in relation to the goods are true and correct.

Additional or corrected information that will not be relevant to that assessment of these matters will not need to be provided to the issuing body.

Enabling the rules made under clause 432 of the Bill to prescribe a change for which it is necessary for a person to provide additional or corrected information will give the Secretary flexibility to determine whether any action needs to be taken in relation to the government certificate. For example, additional or corrected information may be such that, had the Secretary had the correct and complete information at the time of assessing the application, the government certificate may not have been granted. The ability to prescribe these circumstances in the rules reflects the likelihood that the circumstances prescribed will change from time to time and will need to commence at short notice.

Two notes will be included at the end of subclause 74(2). Note 1 will provide that a person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents (see sections 136.1, 137.1 and 137.2 of the Criminal Code and clauses 367, 368 and 369 of the Bill). The sections specified in the Criminal Code and the clauses in the Bill are intended to provide an effective deterrent to conduct that is inconsistent with the requirements of the Bill and which could result in the a government certificate being issued in non-compliance with the Bill.

Note 2 will provide that clause 74 is not subject to the privilege against self-incrimination and will refer the reader to clause 426 of the Bill. Removing the privilege against self-incrimination will ensure that the Secretary will receive relevant information in relation to a certificate that is in force and if necessary, can take immediate action. Clause 426 will set out the effect of the provision abrogating the privilege against self-incrimination. This will include immunities on the use and derivative use of self-incriminatory material. This material would only be used to ensure that goods are not exported where they do not comply with importing country requirements and requirements of the Bill may not result in criminal or civil proceedings against the person who provided the material.

Subclause 74(3) will provide that a person will be liable to a civil penalty if the person is required to give additional or corrected information to the issuing body under subclause 74(2) of the Bill and they fail to comply with that requirement.

The civil penalty prescribed by subclause 74(3) will be 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 74(2). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 74(2) will be 300 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

This civil penalty provision is intended to provide an effective deterrent to the holder of a government certificate for not providing the corrected or additional information. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact the confidence of trading partners in the Government’s regulation of exported goods and adversely impact market access. The consequence of non-compliant behaviour by one person may therefore impact the ability of others to export goods.

Clause 75            Revocation of government certificate

Subclause 75(1) will enable the issuing body that issued a government certificate in relation to a kind of goods, or the Secretary, to revoke a certificate if the issuing body or Secretary reasonably believes any of the following:

·          information specified in the government certificate is incorrect;

·          the Bill has not been, is not being or will not be complied with in relation to the goods;

·          an importing country requirement relating to the goods will not be or is not likely to be met;

·          the integrity of the goods cannot be ensured;

·          the holder of the government certificate has engaged in conduct that intimidated, hindered or prevented a person performing functions or exercising powers under the Bill;

·          the holder of the government certificate gave false, misleading of incomplete information;

·          the government certificate has not, or is not being, kept securely as required in rules made for the purpose of clause 408 of the Bill;

·          circumstances prescribed by the rules exist.

Enabling the rules made under clause 432 to prescribe the circumstances in which a government certificate for a kind of goods may be revoked provides the Secretary with the flexibility to determine when it is appropriate to do so. These circumstances may arise for a range of technical and administrative reasons related to a prescribed good, an importing country requirement or a requirement under the Bill that cannot be complied with. The ability to prescribe these circumstances is necessary for the purpose of achieving one or more of the requirements of the Bill and reflects the likelihood that the circumstances prescribed will change from time to time and will need to commence at short notice.

A note will be included at the end of subclause 75(1), which will provide that a government certificate that has been issued in relation to a kind of goods will be taken to have been revoked if a temporary prohibition determination applies in relation to the goods. This will apply to government certificates that have been issued for goods that have been, or are to be, exported (see subclause 26(1)).

Subclause 75(2) will provide that if the issuing body or Secretary revokes a government certificate under subclause 75(1), the issuing body or Secretary must notify the applicant in writing.

Clause 76            Return of government certificate

Subclause 76(1) will enable the rules made under clause 432 of the Bill to require a person who is in possession of a government certificate that was issued to the person to return the certificate to the issuing body in circumstances prescribed by the rules and at the time, or within the period, prescribed by the rules.

Enabling the rules to prescribe the circumstances in which a government certificate for a kind of goods must be returned will provide the Secretary with the flexibility to determine when it is appropriate to do so. These circumstances may arise for a range of technical and administrative reasons related to a kind of good, an importing country requirement or a requirement under the Bill that cannot be complied with. The ability to prescribe these circumstances is necessary for the purpose of achieving one or more of the objects of the Bill and reflects the likelihood that the circumstances prescribed will change from time to time and will need to commence at short notice.

Subclause 76(1) will also provide that a government certificate must be returned to the issuing body that issued it.

The requirement to return a government certificate does not apply to government certificates that were issued electronically as they will be revoked by the computer system.

Subclause 76(2) will provide that a person will be liable to a civil penalty if they are required to return a government certificate under the rules made for the purposes of subclause 76(1) and they fail to comply with that requirement. This penalty is intended to provide an effective deterrent to conduct that may impede the effective regulation of exports under the Bill. This penalty is also intended to deter the fraudulent use of a government certificate.

The civil penalty prescribed by subclause 76(2) will be 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of clause 76. The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of clause 76 will be 300 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The penalty is intended to deter persons from retaining certificates that are no longer in force to avoid any fraudulent use of those certificates and to enable the Secretary to effectively monitor the export of goods from Australian territory. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and so adversely impact market access.

Chapter 3—Accredited properties

Part 1—Introduction

Clause 77            Simplified outline of this Chapter

Clause 77 will provide for a simplified outline of Chapter 3 of the Bill. Chapter 3 will provide for matters in relation to an application for the accreditation of a property, as well as the renewal, variation, suspension and revocation of an accreditation. Accredited properties are one of the regulatory controls provided for in the Bill that allow people in the export system to take some responsibility for meeting requirements while enabling the Secretary to have regulatory oversight of their export operations and activities. Provisions in this chapter enable the rules to prescribe requirements that will apply before a property becomes accredited, and conditions in relation to certain matters covered by the accreditation.

The simplified outline is included to assist the reader to understand the substantive clauses of Part 1 of Chapter 3; however, it is not intended to be comprehensive. It is intended that the reader will rely on the substantive clauses of the Bill to which the outline relates.

Part 2—Application for accreditation

Clause 78            Application for accreditation of property

Subclause 78(1) will enable the manager of a property to apply to the Secretary to accredit the property for a kind of export operations in relation to a kind of prescribed goods. For example, a manager could apply to accredit a property to breed or carry out husbandry activities in relation to livestock from which meat for export is derived.

Paragraph 78(2)(a) will provide that the application may relate to more than one kind of export operations and more than one kind of prescribed goods. For example, a property may be accredited to produce apples and oranges, as well as process, pack and store the fruit for export.

Paragraph 78(2)(b) will provide that the application may, but is not required to, specify one or more places to which the goods may be exported. This will enable the particular market or markets to be included in the application for accreditation, but this will not be mandatory.

Two notes will be included at the end of subclause 78(2). Note 1 will advise the reader that the export of a kind of prescribed goods may be prohibited unless export operations in relation to the goods have been carried out at an accredited property. Note 1 will also refer the reader to clause 29 of the Bill, and the rules made under clause 432 of the Bill for the purposes of clause 29 of the Bill. Note 2 will refer the reader to clause 377 of the Bill, which will set out the requirements for applications, including applications to accredit a property.

Clause 79            Secretary must decide whether to accredit property

Subclause 79(1) will provide that, on receiving an application under clause 78 of the Bill to accredit a property, the Secretary must decide either to accredit the property or to refuse to accredit the property.

Four notes will be included at the end of subclause 79(1). Note 1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to applications, including applications for accreditation. Clause 379 of the Bill will set out the Secretary’s powers in dealing with applications and the time within which a decision must be made.

Note 2 will clarify that if the application is to accredit a property for more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to accredit the property for one or more of the export operations, in relation to one or more of those kinds of goods, for export to one or more of those places. This is intended to make it clear that the Secretary will have the discretion to accredit a property for any combination of export operations, prescribed goods or places of export.

Note 3 will refer the reader to subclause 379(2) of the Bill, which will provide that if the Secretary does not make a decision within the consideration period (which will be prescribed by the rules), the Secretary is taken to have refused the application at the end of that period. Prescribing this period in the rules will allow the Secretary to set an appropriate period for the consideration of the application.

Note 4 will advise the reader that a decision to refuse to accredit the property under subclause 79(1) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will also refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 79(2) will provide that the Secretary may accredit the property if the Secretary is satisfied that, having regard to any matter that the Secretary considers relevant, that the following requirements are met:

·          either:

o    all relevant Commonwealth liabilities of the manager of the property, or relating to the property, have been paid or are taken to have been paid; or

o    if one or more relevant Commonwealth liabilities of the manager, or relating to the property, have not been paid or are not taken to have been paid - the non-payment is due to exceptional circumstances;

·           any other requirements prescribed by the rules .

A note will be included at the end of subclause 79(2), which will refer the reader to clause 431, which will assist in relation to whether a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances, relevant to subclause 79(2)(a). 

Subclause 79(3) will provide examples of the kind of matters the rules may prescribe. These include requirements in relation to:

·          the manager of a property;

·          the kind of property;

·          a kind of export operations;

·          a kind of prescribed goods; and

·          importing country requirements.

Enabling the rules made under clause 432 of the Bill to prescribe the requirements that must be met before a property will be accredited will provide the Secretary with the flexibility to ensure that it will be appropriate in all the circumstances to accredit the property and that there are no reasons to refuse the application. This may be specific to a kind of prescribed goods, kind of export operations, or place of export. This also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Subclause 79(4) will enable the Secretary to set an expiry date for an accreditation if appropriate. Two notes will be included at the end of subclause 79(4). Note 1 will advise the reader that if there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked in accordance with subclause 82(1) of the Bill. Note 2 will advise the reader that a decision to set an expiry date for the accreditation of a property under subclause 79(4) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Subclause 79(5) will enable the Secretary to set an expiry date for the accreditation of the property under subclause (4) even if rules made for the purposes of subclause 82(5) apply in relation to the accreditation. For example, rules made for the purposes of subclause 82(5) may provide may provide an expiry date for accreditation of an accredited property as ten years from the date of accreditation. This would not prevent the Secretary from setting a different expiry date for that property, for example, five years from the date of accreditation under subclause 79(5), if the Secretary considers that expiry date more appropriate in the circumstances. This decision will be reviewable (Part 2 of Chapter 11 of the Bill). These clauses operate together to enable the Secretary to exercise discretion about an appropriate expiry date for specific applications, even if rules are made setting an expiry date for accredited properties.

Clause 80            Conditions of accreditation

Subclause 80(1) will provide that, if the Secretary accredits a property in relation to a kind of export operations in relation to a kind of prescribed goods, the accreditation of the property will be subject to the following:

·          the conditions that will be provided by the Bill;

·          the conditions that will be prescribed by the rules (other than those conditions which the Secretary decides are not to apply for a particular accreditation application). The conditions that are not to apply to a particular accreditation will be required to be set out in the notice of decision given to the applicant under clause 81 of the Bill;

·          any additional conditions that the Secretary considers are appropriate for the accreditation under consideration. These additional conditions will be required to be set out in the notice of decision given to the applicant under clause 81 of the Bill.

Four notes will be included at the end of subclause 80(1). Note 1 will refer the reader to clause 106 of the Bill, which will provide that the manager of an accredited property may commit an offence or be liable to a civil penalty if a condition of the accreditation is contravened. Note 2 will refer the reader to clauses 94 and 102 of the Bill, which will provide that the accreditation of a property may be suspended or revoked if a condition of the accreditation is contravened. Note 3 will advise the reader that a decision to accredit a property under subclause 80(1) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will refer the reader to Part 7 of Chapter 3 of the Bill, which will set out additional obligations of the manager of an accredited property.

Subclause 80(2) will provide examples of the kind of conditions that the rules made for the purpose of 80(1) may prescribe. These may be conditions that relate to:

·          the manager of a property;

·          the kind of property;

·          a kind of export operations;

·          a kind of prescribed goods; and

·          importing country requirementsrelating to a kind of export operations or a kind of prescribed goods.

Enabling the rules made under clause 432 of the Bill to prescribe the conditions that must be met will provide the Secretary with the flexibility to determine the conditions that are necessary and appropriate for a certain type of accredited property. This may be relevant to, for example, a particular commodity or market.

Enabling the Secretary to impose any additional conditions that the Secretary considers appropriate for the accreditation under consideration will give the Secretary flexibility to determine additional conditions, relevant to a particular application, on a case-by-case basis. Imposing any additional conditions will also be necessary to ensure that the accreditation will be suitable for the export operations it will cover and that it will meet the requirements of the Bill.

The ability to impose conditions in the rules or by written notice is necessary to ensure that the export operations carried out at the accredited property will meet the requirements of the Bill. This also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Subclause 80(3) will provide that, for the purposes of the Bill, conditions to which the accreditation will be subject under subclause 80(1) or clause 85 of the Bill (conditions of renewed application) are conditions of the accreditation. Contravention of the conditions of an accreditation may be grounds for the suspension of an accreditation under paragraph 94(1)(c) of the Bill or for revocation of an accreditation under paragraph 102(1)(c) of the Bill.

Clause 81            Notice of decision

Clause 81 will provide that if the Secretary approves an application for accreditation, then the Secretary must give the applicant a written notice that sets out the following information:

·          the accreditation number allocated to the property;

·          the kind of export operations and kind of prescribed goods covered by the accreditation;

·          each place the kind of prescribed goods covered by the accreditation may be exported (if applicable);

·          the date the accreditation takes effect;

·          that the accreditation remains in force indefinitely or the expiry date for the accreditation;

·          any conditions that are prescribed by the rules that are not conditions of the accreditation;

·          any additional conditions of the accreditation;

·          the name of the manager of the property; and

·          any other information prescribed by the rules.

The primary intent of the written notice is to inform the applicant of the Secretary’s decision as well as to provide information about the conditions that will apply to their accreditation. The notice will not set out all conditions or requirements that are applicable to the accreditation in the rules made under clause 432 of the Bill, but will identify any conditions in the rules that do not apply, as well any conditions of the accreditation that are particular to this application. Providing this information will enable the applicant to readily identify the conditions of the accreditation that must be complied with.

Enabling the rules made under clause 432 of the Bill to prescribe any other information that must be stated in a written notice in paragraph 81(i) will provide the Secretary with the flexibility to determine additional matters that are of importance to the approval of the property. Such matters may be, for example, specific to a kind of prescribed goods, kind of export operations, or place of export. The ability to prescribe other information also reflects the likelihood that the requirements of a written notice will change from time to time and will need to commence at short notice.

Clause 82            Period of effect of accreditation

Clause 82 will set out the period of effect of accreditation for accredited properties under different scenarios; for accreditations that have no expiry date (see subclause 82(1)), when the accreditations have an expiry date (see subclause 82(2), (3) and 82(4)) and when the rules prescribed a period of effect for accreditation (see subclause 82(5)).

Accreditations that have no expiry date

If no expiry date is set for the accreditation of a property, subclause 82(1) will provide that the accreditation will remain in force unless it is revoked under Part 6 of Chapter 3 of the Bill or is taken to be revoked under subclause 109(3) of the Bill.

Accreditations that have an expiry date

Subclause 82(2) will provide that if there is an expiry date for the accreditation of a property, the accreditation will remain in force until the end of that expiry date, unless the accreditation is renewed under Part 3 of Chapter 3 of the Bill, or revoked under Part 6 of Chapter 3 of the Bill or is taken to be revoked under subclause 109(3) of the Bill, on or before that date.

Subclause 82(3) will provide that there is an expiry date for the accreditation of a property if:

·          rules made for the purposes of subclause 82(5) apply in relation to the accreditation; or

·          an expiry date for the accreditation set under subclause 79(4) or 84(3) or paragraph 90(1)(c) or 90(1)(d) of the Bill is in force in relation to the accreditation.

Subclause 82(4) will provide that the expiry date for the accreditation of a property is:

·          if rules made for the purposes of subclause 82(5) apply in relation to the accreditation and no expiry date set under subclause 79(4) or 84(3) or paragraph 90(1)(c) or 90(1)(d) is in force in relation to the accreditation - the last day of the period prescribed by the rules; or

·          if an expiry date for the accreditation set under subclause 79(4) or 84(3) or paragraph 90(1)(c) or 90(1)(d) is in force in relation to the accreditation - that date.

Rules may prescribe period of effect of accreditation

Subclause 82(5) will provide that the rules may prescribe the period during which the accreditation of a property remains in force. The rules may apply in relation to:

·          accreditations of properties generally; or

·          accreditations of properties for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a place to which the goods may be exported.

This clause will provide certainty to the manager of a property about the period of effect of the accreditation (if any) and the circumstances, such as a revocation or renewal, which may change this period.

P art 3—Renewal of accreditation

Clause 83            Application to renew accreditation of property

Subclause 83(1) will provide that clause 83 will apply in relation to an accredited property (including one that has been suspended) if there is an expiry date for the accreditation.

A note will be included at the end of subclause 83(1) that will advise the reader to refer see subclauses 82(3) and 82(4) of the Bill in relation to the expiry date for the accreditation of a property.

Subclause 83(2) will provide that, if there is an expiry date for an accreditation, the manager of the property may apply to the Secretary to renew the accreditation. A note will be included at the end of subclause 83(2) that will refer the reader to clause 377 of the Bill, which will set out the general requirements for applications under the Bill, including applications to renew the accreditation of a property.

Paragraph 83(3)(a) will provide that the application for renewal may relate to more than one kind of export operations and more than one kind of prescribed goods. Paragraph 83(3)(b) will provide that the application may, but will not be required to, specify one or more places to which the goods are to be exported. The application to renew the accreditation of the property does not necessarily have to relate to the same kind of export operations or prescribed goods, or specify the same places to which the goods are to be exported, for which the property was originally accredited. The application for renewal can cover the same matters or different matters.

Subclause 83(4) will provide that an application for renewal must be made within the period prescribed by the rules or any longer period allowed by the Secretary. Enabling the Secretary to prescribe this period in the rules made under clause 432 of the Bill will ensure the Secretary has the flexibility to set an appropriate period for the consideration of the application.

Subclause 83(5) will provide that if an application for renewal is made after the period that applies under subclause 83(4), then it is taken to be a new application to accredit the property. Subclause 83(5) will also provide that the provisions in Part 2 of Chapter 3 of the Bill (which relate to new applications for accreditation) will apply in relation to the application, and the other provisions in Part 3 of Chapter 3 of the Bill (which relate to applications for renewal of accreditation) will not apply.

Clause 84            Secretary must decide whether to renew accreditation

Subclause 84(1) will provide that, if the Secretary receives an application to renew the accreditation of a property under clause 83 of the Bill, the Secretary must decide either to renew, or to refuse to renew, the accreditation.

Four notes will be included at the end of subclause 84(1). Note 1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to applications for accreditation, including the Secretary’s powers in dealing with an application to renew accreditation and the time within which a decision must be made.

Note 2 will clarify that if the application is made to renew the accreditation for more than one kind of export operations in relation to more than one kind of prescribed goods for export to one or more places, the accreditation may be renewed in relation to one or more of the export operations, in relation to one or more of those kinds of goods, for export to one or more of those places. This is intended to make it clear that the Secretary will have the discretion to renew the accreditation of a property for any combination of export operations, prescribed goods or places of export.

Note 3 will refer the reader to subclause 379(2) of the Bill, which will provide that if the Secretary does not make a decision within the consideration period, the Secretary is taken to have refused the application at the end of that period. Subclause 379(3) of the Bill will provide that the consideration period will be prescribed by the rules. Prescribing this period in the rules will provide the Secretary with the flexibility to set an appropriate period for the consideration of the application.

Note 4 will advise the reader that a decision to refuse to renew the accreditation of the property under subclause 84(1) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will also refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 84(2) will provide that the Secretary may refuse to renew an accreditation if the Secretary is satisfied, having regard to any matter the Secretary considers relevant, of one of more of the following:

·          the requirements prescribed by the rules for the purposes of subparagraph 79(2)(b) are continuing to be met—these will be the requirements that were required to be met before a property could be accredited;

·          all relevant Commonwealth liabilities of the manager of the property, or relating to the property, have been paid or are taken to have been paid, or, if they have not been paid or are not taken to have been paid, the non-payment is due to exceptional circumstances;

·          the manager of the property has complied with the requirements of the Bill—for example, the obligations that will be set out in Part 7 of Chapter 3 of the Bill;

·          the conditions of the accreditation have been, and are being, complied with; and

·          any other requirements prescribed by the rules is being, or has been, met.

Enabling the rules made under clause 432 of the Bill to prescribe any other requirement that must be met before an accreditation will be renewed will provide the Secretary with the flexibility to ensure that it is appropriate in all circumstances to renew the accreditation of a property and that there are no reasons to refuse the renewal. Such grounds may also be specific to a kind of prescribed goods, kind of export operations, or place of export. This also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Unlike approving an initial application for accreditation, which requires the Secretary to be satisfied that all requirements prescribed by the rules for the purposes of subclause 79(3) of the Bill have been met, subclause 84(2) will only require the Secretary to consider whether there is evidence of non-compliance as grounds for refusing the request to renew. This approach will ensure that accreditations will only be renewed in circumstances where there is a history of compliance by the manager, where the requirements and conditions of the accreditation have been complied with, and where there are no outstanding financial liabilities.

A note will be included at the end of subclause 84(2) that will refer the reader to clause 431 of the Bill which will provide that a relevant Commonwealth liability of a person is taken to be have been paid in certain circumstances.

If the Secretary renews the accreditation of the property, subclause 84(3) will provide that the Secretary may set an expiry date for the accreditation if it is appropriate. Two notes will be included at the end of subclause 84(3). Note 1 will advise the reader that, if there is no expiry date for the accreditation of a property, the accreditation remains in force unless it is revoked in accordance with subclause 82(1) of the Bill. Note 2 will advise the reader that a decision to set an expiry date for the accreditation of a property under subclause 84(3) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Subclause 84(4) will provide that the Secretary may set an expiry date for the renewed accreditation of the property under subclause 84(3) even if rules made for the purposes of subclause 82(5) apply in relation to the accreditation. For example, rules made for the purposes of 82(5) may provide an expiry date for accreditation of a property as ten years from the date of registration. This would not prevent the Secretary from setting a different expiry date for the renewed accreditation under subclause 84(4), if the Secretary considers that expiry date appropriate in the circumstances. This decision will be reviewable (Part 2 of Chapter 11 of the Bill). These clauses operate together to enable the Secretary to exercise discretion about an appropriate expiry date for a specific renewal application, even if rules are made setting an expiry date for accredited properties.

Clause 85            Conditions of renewed accreditation

As with the initial approval of an accreditation (see clause 80 of the Bill), clause 85 will provide that, if the Secretary renews the accreditation of a property, the accreditation will be subject to:

·          the conditions that will be provided by the Bill;

·          the conditions that will be prescribed by the rules (other than those conditions that the Secretary decides are not to apply to a particular renewal). The conditions that are not to apply to a particular renewal must be set out in the notice of decision given to the applicant under clause 86 of the Bill; and

·          any additional conditions that the Secretary considers are appropriate for the accreditation under consideration. These additional conditions must be set out in the notice of decision given to the applicant under clause 86 of the Bill.

Enabling the rules made under clause 432 of the Bill to prescribe the conditions that must be complied with after an accreditation is renewed will provide the Secretary with the flexibility to determine the conditions that are necessary and appropriate for a certain type of accredited property. This may be relevant to, for example, a particular commodity or market.

Enabling the Secretary to impose any additional conditions that the Secretary considers appropriate for the accredited property under consideration will give the Secretary flexibility to determine additional conditions on a case-by-case basis. Imposing any additional conditions will also be necessary to ensure that the accreditation will be suitable for the export operations it will cover and that it will meet the requirements of the Bill.

The ability to impose conditions in the rules or by written notice is necessary to ensure that the export operations carried out at the renewed accredited property will meet the requirements of the Bill. This also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Four notes will be included at the end of clause 85. Note 1 will refer the reader to clause 106 of the Bill, which will provide that the manager of an accredited property may commit an offence or be liable to a civil penalty if a condition of the accreditation is contravened. Note 2 will refer the reader to clauses 94 and 102 of the Bill, which will provide that the accreditation of a property may be suspended or revoked if a condition of the accreditation is contravened. Note 3 will advise the reader that a decision to renew the accreditation of a property subject to additional conditions under clause 85 will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will refer the reader to Part 7 of Chapter 3 of the Bill, which will set out additional obligations of the manager of an accredited property.

Clause 86            Notice of decision

Clause 86 will provide that, if the accreditation of a property is renewed, then the Secretary must give the applicant a written notice that sets out the information specified in clause 81 of the Bill. Providing a notice under this clause will inform the manager of the Secretary’s decision to renew the accreditation, as well as the terms under which the renewal will be made.

Part 4—Variation of accreditation

Division 1—Application by manager

Clause 87            Application by manager for variation of accreditation or approval of alteration of property

Clause 87 will allow a manager to apply to the Secretary to vary the accreditation of a property. This will include approval to vary an accreditation so that it covers an alteration to the property, such as an alteration to the physical premises. This will enable the Secretary to respond to the changing needs and requirements of the manager and allow a flexible approach to the regulation of accredited properties.

Subclause 87(1) will provide that the manager of an accredited property may apply to the Secretary to:

·          vary the accreditation of a property in relation to kinds of export operations, kinds of prescribed goods and, if applicable, places to which goods may be exported;

·          approve a variation of the accreditation so that it covers:

o    an alteration to the property (being an alteration prescribed by the rules);

o    the carrying out of export operations on an additional part of the property, or on another property, in circumstances prescribed by the rules;

·          to vary the conditions of the accreditation; 

·          to vary the particulars relating to the accreditation to make a minor change to a matter (including to correct a minor or technical error); or

·          to vary any other aspect of the accreditation.

An example will be included at the end of subclause 87(1) to assist the reader in relation to what kind of matters may fall within ‘any other aspect of the accreditation’. The example will note that a variation may be needed to change the name of a person who manages or controls, or who will manage or control, export operations covered by the accreditation.

Enabling the rules made under clause 432 of the Bill to prescribe the kind of alterations that will require approval, and the circumstances in which the carrying out of export operations on an additional part of the property will require approval, will provide the Secretary with the flexibility to determine when an approval is necessary and appropriate. This may be specific to a kind of prescribed goods, kind of export operations or place of export. Clause 89 of the Bill will set out additional matters in relation to variations that must not be made without approval.

A note will be included at the end of subclause 87(1) that will refer the reader to clause 377 of the Bill, which will set out the general requirements for applications under the Bill, including applications for variation of the accreditation of a property or for approval of an alteration of a property. The note will also provide that a single application may be made to approve a variation of an accredited property under clause 87 as well as to renew the accreditation of a property under clause 83 of the Bill.

Subclause 87(2) will provide that, on receiving an application under subclause 87(1), the Secretary must decide either to make the variation or give the approval, or to refuse to make the variation or give the approval.

Three notes will be included at the end of subclause 87(2). Note 1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to dealing with applications to vary an accreditation.

Note 2 will refer the reader to subclause 379(2) of the Bill, which will provide that, if the Secretary does not make a decision within the consideration period, the Secretary is taken to have refused the application at the end of that period. Subclause 379(3) of the Bill will provide that the consideration period will be prescribed by the rules. Prescribing this period in the rules will allow the Secretary to set an appropriate period for the consideration of the application.

Note 3 will advise the reader that a decision to refuse to make the variation or give approval for the alteration of the property under subclause 87(2) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 3 will also refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 87(3) will provide that the Secretary may make the variation, or give the approval, if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that the requirements of the rules made for the purposes of subclause 79(2)(b) of the Bill, and any other requirements prescribed by the rules would be met if the variation were made or the approval were given.

Enabling the rules made under clause 432 of the Bill to prescribe any additional requirements that must be met before an accreditation may be varied or altered may be necessary and appropriate for the type of variation under consideration and will provide the Secretary with the flexibility to specify matters that may be relevant to, for example, a kind of prescribed goods, kind of export operations or place of export.

Clause 88            Notice of variation or approval of alteration

Subclause 88(1) will provide that if the Secretary makes a variation or gives an approval under paragraph 87(2)(a) of the Bill, then the Secretary must give the manager of the property a written notice of the variation or approval.

Subclause 88(2) will provide that the notice must include the following information:

·          details of the variation or approval;

·          the varied conditions of the accreditation (if the variation will be to the conditions of the accreditation);

·          the date the variation or approval takes effect; and

·          any other information prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe any additional matters that will need to be set out in the written notice will provide the Secretary with the flexibility to ensure that the manager of the accredited property will receive all relevant information in relation to the variation or alteration.

Providing a notice under this clause will inform the manager of the Secretary’s decision to make a variation or give an approval, as well as the terms under which the variation or approval will be given.

A note will be included at the end of clause 88 that will clarify that the period of accreditation, as varied, will remain in force as provided by clause 82 of the Bill.

Clause 89            Certain variations must not be made unless approved

Prescribed alteration of property

Subclause 89(1) will provide that the manager of an accredited property must not make an alteration of the property if it is a kind prescribed by the rules made for the purposes of subparagraph 87(1)(b)(i) unless the alteration has been approved under subclause 87(2) of the Bill and the Secretary has given the manager notice of the approval under clause 88 of the Bill.

A note will be included at the end of subclause 89(1) to refer the reader to paragraphs 94(1)(g) and 102(1)(g) of the Bill, which will respectively provide that the Secretary may suspend or revoke the accreditation of the property if the manager contravenes subclause 89(1).

Carrying out export operations on additional part of property

Subclause 89(2) will provide that the manager of an accredited property must not carry out export operations in relation a kind of prescribed goods on an additional part of the property, or on another property, in the circumstances prescribed by the rules made for the purpose of subparagraph 87(1)(b)(ii), unless the export operations carried out on the additional part of the property, or on the other property, has been approved under subclause 87(2) of the Bill and the Secretary has given the manager notice of the approval under clause 88 of the Bill.

A note will be included at the end of subclause 89(2) that will refer the reader to paragraphs 94(1)(g) and 102(1)(g) of the Bill, which will respectively provide that the Secretary may suspend or revoke the accreditation of the property if the manager contravenes subclause 89(2).

Division 2—Variation by Secretary

Clause 90            Secretary may make variations in relation to accreditation

Clause 90 will enable the Secretary to vary the accreditation, the conditions of the accreditation, or the expiry date of an accreditation on the Secretary’s own initiative—that is, without having received an application to vary the accreditation by the manager under clause 87 of the Bill. This will be an important safeguard if, for example, a matter is brought to the attention of the Secretary that will affect the accreditation and will necessitate a variation initiated by the Secretary.

Subclause 90(1) will provide that the Secretary may do any of the following in relation to the accreditation of a property:

·          vary any aspect of the accreditation, including so that it does not cover a kind of export operations, a kind of prescribed goods, or (if applicable) a place to which goods may be exported;

·          vary the conditions of the accreditation (including by imposing new conditions);

·          if there is no expiry date for the accreditation—vary the accreditation by setting an expiry date for the accreditation;

·          if there is an expiry date for the accreditation (whether under paragraph 82(4)(a) or 82(4)(b)—vary the accreditation by setting a different expiry date for the accreditation;

·          if there is an expiry date for the accreditation under paragraph 82(4)(b)—vary the accreditation revoking that expiry date.

Two notes will be included at the end of subclause 90(1). Note 1 will advise the reader that the if the Secretary revokes the expiry date for the accreditation under paragraph 90(1)(e), the accreditation will remain in force: if rules made for the purposes of subclause 82(5) apply in relation to the accreditation—for the period prescribed by the rules; or if there are no such rules—indefinitely (unless it is revoked). Note 2 will advise the reader that certain decisions made under subclause 90(1) will be reviewable decisions, and will refer the reader to Part 2 of Chapter 11 of the Bill. Clause 381 of the Bill will provide that only decisions made under paragraphs 90(1)(a) (varying an aspect of the accreditation), 90(1)(b) (varying or adding new conditions) and 90(1)(c) (setting an expiry date) and paragraph 90(1)(d) (setting a different expiry date) are reviewable. These decisions are reviewable as they may impact on the interests of the manager.

A decision made under paragraph 90(1)(e) (varying the accreditation by revoking the expiry date) is not a reviewable decision as it will benefit the manager of the accredited property as the accreditation will remain in force, but without an expiry date.

Subclause 90(2) will provide that the Secretary may only make a variation or set an earlier expiry date under subclause 90(1) if the Secretary reasonably believes that:

·          the requirements prescribed by rules made for the purposes of subclause 79(2)(b) of the Bill are no longer being met; or

·          a condition of the accreditation has been, or is being, contravened; or

·          it is necessary to do so to take account of an event notified under clause 108 of the Bill or to correct a minor or technical error; or

·          the accreditation needs to be varied for any other reason prescribed by the rules.

The Secretary will be required to reasonably believe that one or more of the grounds set out in subclause 90(2) exists before taking action under that subclause. This standard will require the Secretary’s belief to be based upon on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than having a reasonable suspicion that the ground exists. This threshold test will generally reflect the standards for making a variation to the accreditation of a property under existing legislation.

Enabling the rules made under clause 432 of the Bill to prescribe other reasons provides the Secretary with the flexibility to determine additional grounds on which it is appropriate or necessary to vary, or set an earlier expiry date on, an accreditation. Such grounds may need to be specific to a kind of prescribed goods, kind of export operations, or place of export. This flexibility also reflects the likelihood that grounds may need to change from time to time and will need to commence at short notice.

Notice of certain proposed variations

Subclause 90(3) will provide that the Secretary must not make a variation or set an earlier expiry date for the accreditation under subclause 90(1) unless the Secretary has given a written notice to the manager of the property in accordance with subclause 90(4).

Clause 90(4) will provide that the written notice must:

·          specify each proposed variation and the grounds for each proposed variation; and

·          subject to subclause 90(5), request the manager of the property to give the Secretary, within 14 days after the day that the notice was given, a written statement setting out why the proposed variation should not be made; and

·          include a statement that the manager has the right to seek review of the decision to make the proposed variation.

Subclause 90(5) will provide that, if the Secretary reasonably believes that the grounds for varying the accreditation are serious and urgent, then the Secretary will not be required to include the request set out in paragraph 90(4)(c) in the notice given under 90(3). However, the notice of proposed variation must still be given. Subclause 90(5) does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent. This will be decided on a case-by-case basis. In addition to the notice of proposed variation, the Secretary must give a notice of variation in accordance with clause 91 of the Bill. A decision to make the variation will remain a reviewable decision.

Clause 91            Notice of variation

Subclause 91(1) will provide that, if the Secretary makes a variation in relation to the accreditation of a property under subclause 90(1) of the Bill, the Secretary must give the manager of the property a written notice of the variation. The purpose of a notice under this clause is to inform the manager of the accredited property of the Secretary’s decision to approve the variation, as well as the terms under which the variation is given.

Subclause 91(2) will provide that the notice must state:

·          details of the variation;

·          if the variation is of the conditions of the accreditation—the varied conditions and any new conditions;

·          if the variation affects the period of effect of the accreditation:

o    the expiry date for the accreditation under paragraph 82(4)(a) or 82(4)(b) (whichever applies) or

o    if there is no expiry date for the accreditation—that the accreditation remains in force unless it is revoked;

·          the date the variation takes effect; and

·          any other information prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe any additional matters that will need to be set out in the notice of variation will provide the Secretary with the flexibility to ensure that the manager of the property will receive all relevant information in relation to the variation.

Subclause 91(3) will provide that, if a notice (a show cause notice ) was given under paragraph 90(3) of the Bill, that included the request referred to in paragraph 90(4)(c) of the Bill the variation must not take effect until the day after any response by the manager is received or the end of the 14 day period after the show cause notice was given, whichever is earlier. The effect of this is that the Secretary will be prevented from taking any action to implement the variation during the 14 day period. If the manager does not respond within the 14 day period, the variation will be able to be made. If the manager responds within the 14 day period, the Secretary will be required to consider the manager’s response when deciding whether to implement the variation.

A note will be included at the end of subclause 91(3) that will advise the reader that the accreditation, as varied, remains in force as provided by clause 82 of the Bill.

Part 5—Suspension of accreditation

Division 1—Suspension requested by manager

Clause 92            Manager may request suspension

Subclause 92(1) will provide that, subject to subclause 92(2), the manager of an accredited property may request the Secretary to suspend the accreditation of a property in relation to a kind of export operations, a kind of prescribed goods and (if applicable) a place to which goods may be exported.

Subclause 92(2) will provide that a request under subclause 92(1) to suspend the accreditation of a property may only be made only in the circumstances prescribed by the rules. Enabling the rules made under clause 432 of the Bill to prescribe when a request may be made provides the Secretary with the flexibility to determine the appropriate circumstances in which the manager of an accredited property may be able to request voluntary suspension of the accreditation. This may be specific to a kind of prescribed goods, kind of export operations or place of export.

Subclause 92(3) will provide that the request to suspend the accreditation under subclause 92(1) may relate to more than one kind of export operation, kind of prescribed goods or places to which goods may be exported. For example, a property could be accredited to carry out export operations in relation to all fruit. If the market changes for the export of summer fruits, the manager may request suspension in relation to export operations carried out in relation to summer fruits.

Subclause 92(4) will require the request under subclause 92(1) to be in writing and to:

·          state each kind of export operations, prescribed goods and (if applicable) each place in relation to which the accreditation is to be suspended;

·          specify the reason for the suspension; and

·          include any other information prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe other information will provide the Secretary with flexibility to determine additional information that is required in order for the Secretary to consider the request to suspend the accreditation.

The written request is intended to inform the Secretary of the basis for the request. This information will also be relevant to the Secretary’s consideration of a request to revoke a suspension under clause 93 of the Bill in that the Secretary will consider whether the reasons for requesting the suspension no longer exist, before agreeing to revoke a suspension.

Subclause 92(5) will provide that if the Secretary receives a request from the manager of an accredited property in accordance with subclause 92(1), the Secretary must, by written notice to the manager, suspend the accreditation as requested, with effect on the day specified in the notice.

Clause 93            Request to revoke suspension

Subclause 93(1) will provide that, if an accreditation is suspended under clause 92 of the Bill, the manager of the property may request, in the manner set out in subclause 93(2), that the suspension be revoked.

Clause 93(2) will provide that the request must be in writing, state the reason for the request and include any other information prescribed by the rules. Enabling the rules made under clause 432 of the Bill to prescribe other information will provide the Secretary with the flexibility to determine the additional information that is required in order to make an informed decision about whether to revoke a suspension. This may be specific to a kind of prescribed goods, kind of export operations, or place of export. This flexibility also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Paragraph 93(3)(a) will provide that, if the Secretary receives a request under subclause 93(1) of the Bill, the Secretary may revoke the suspension by written notice if the Secretary is satisfied that the reason for the suspension no longer exists and there is no reason why the suspension should not be revoked.

Paragraph 93(3)(b) will provide that, if the Secretary does not revoke the suspension under paragraph 93(3)(a), the Secretary may suspend the accreditation under Division 2 of Part 5 of Chapter 3 of the Bill, or revoke the accreditation under Division 2 of Part 6 of Chapter 3 of the Bill.

A notewill be included at the end of subclause 93(3) that will advise the reader that a decision to suspend or revoke the accreditation of a property will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

However, a decision to refuse to revoke a suspension is not a reviewable decision. This is because, if the manager requests the revocation of the suspension, the Secretary will only have three choices:

·          agree to revoke the suspension (in which case there will be no requirement for a review of the decision); or

·          suspend the accreditation; or

·          revoke the accreditation.

Division 2—Suspension by Secretary

Clause 94            Grounds for suspension—general

Clause 94 will set out a number of grounds upon which the Secretary may suspend some or all of the matters covered by an accreditation. This will mean that an accreditation may not be suspended in its entirety if the Secretary is satisfied that some aspects of the accreditation can continue irrespective of the suspension of other aspects. Written notice of the proposed suspension must be given prior to suspension. The ability to suspend the accreditation of a property may be necessary in a range of circumstances.

Subclause 94(1) will provide that the Secretary may suspend the accreditation of a property in relation to one or more kinds of export operations, and one or more kinds of prescribed goods, and (if applicable) one or more places of export, if the Secretary reasonably believes any of the following:

·          the integrity of a kind of prescribed goods covered by the accreditation cannot be ensured;

·          a requirement prescribed by rules made for the purposes of subclause 79(2)(b) of the Bill is no longer met;

·          a condition of the accreditation has been, or is being, contravened;

·          the manager of the property failed to:

o    comply with a direction given by an authorised officer or the Secretary; or

o    comply with a request by an authorised officer to provide information or a document;

o    provide facilities and assistance to an auditor as required under clause 271 of the Bill or failed to comply with a request made by an auditor under clause 272 of the Bill;

·          the manager of the property has engaged in conduct that intimidated a person or hindered or prevented a person from performing functions or exercising powers under the Bill;

·          the manager of the property, or any other person who manages or controls export operations carried out at the property:

o    made a false, misleading or incomplete statement in an application made under Chapter 3 of the Bill; or

o    gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under the Bill; or

o    gave false, misleading or incomplete information or documents to the Secretary, or the Department, under a prescribed agriculture law;

·          the manager of the property has contravened a requirement of the Bill in relation to the accreditation of the property; or

·          a ground prescribed by the rules exists.

The Secretary will be required to reasonably believe that one or more grounds set out in subclause 94(1) exists before taking action under that subclause. This standard will require the Secretary to base the Secretary’s own belief on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than having a reasonable suspicion that the ground exists. This threshold test will generally reflect the standards for suspending the accreditation of a property under existing legislation.

Enabling the rules made under clause 432 of the Bill to prescribe other grounds provides the Secretary with the flexibility to determine additional grounds on which it is appropriate or necessary to suspend an accreditation. Such grounds may need to be specific to a kind of prescribed goods, kind of export operations, or place of export. This flexibility also reflects the likelihood that grounds may need to change from time to time and will need to commence at short notice.

Subparagraph 94(1)(d)(i) will provide that the Secretary may suspend the accreditation of a property if the manager fails to comply with a direction given by an authorised officer or the Secretary. Contravening a direction from an authorised officer or the Secretary is a serious act. It may compromise export operations that are taking place at the accredited property (and therefore the integrity of goods) and on this basis will require an appropriate regulatory response . This subparagraph will be important to ensuring that the effectiveness of the regulatory framework is maintained by providing the Secretary with the ability to suspend export operations on the basis of a contravention of a direction by an authorised officer or the Secretary.

Two notes will be included at the end of subclause 94(1). Note 1 will refer the reader to clause 97 of the Bill, which will provide that a suspension of an accreditation of a property must not be for more than 12 months. Note 2 will advise the reader that a decision to suspend the accreditation of a property under subclause 94(1) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Subparagraph 94(1)(e)(i) will provide that the Secretary may suspend the accreditation of a property if the Secretary reasonably believes that the manager intimidated a person performing functions or exercising powers under the Bill. Intimidation in this context is not merely making the person’s task difficult but it is conduct that deters another person from performing their functions or exercising their powers under the Bill by inducing fear in the person. Engaging in such conduct is a serious act. Such conduct may also amount to an offence under 149.1 of the Criminal Code (obstruction of Commonwealth public officials). Such conduct may also compromise export operations that are taking place at the accredited property (and therefore the integrity of goods) and on this basis will require an appropriate regulatory response.

Notice of proposed suspension

Subclause 94(2) will provide that the Secretary must not suspend an accreditation under subclause 94(1) unless the Secretary has given a written notice to the manager of the property in accordance with subclause 94(3).

Subclause 94(3) will provide that the written notice must:

·          specify each kind of export operations, prescribed goods and (if applicable) each place in relation to which the accreditation is proposed to be suspended, and the grounds for the proposed suspension;

·          subject to subclause 94(4) of the Bill, request the manager of the property to give the Secretary, within 14 days after the day that the notice was given, a written statement setting out why the accreditation should not be suspended; and

·          include a statement that the manager has the right to seek review of the decision to suspend the accreditation as proposed.

Subclause 94(4) will provide that, if the Secretary reasonably believes that the grounds for the suspension are serious and urgent, then the Secretary will not be required to include the request in paragraph 94(3)(c) in the notice issued under subclause 94(2). However, the notice of proposed suspension must still be given. Subclause 94(4) does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent. This will be decided on a case-by-case basis. In addition to the notice of proposed suspension, the Secretary must give a notice of suspension in accordance with clause 96 of the Bill.  A decision to suspend the accreditation will remain a reviewable decision.

For example, if the proposed suspension is because the manager of the property has engaged in conduct that intimidated an authorised officer performing functions or exercising powers under the Bill, or hindered or prevented an authorised officer from performing functions or exercising powers under the Bill, the suspension may be made without the provision of a show cause notice.

Clause 95            Grounds for suspension—overdue relevant Commonwealth liability

Clause 95 will provide that an overdue liability to the Commonwealth will be a ground for suspending an accreditation. This clause is intended to ensure timely payment of liabilities that are due and to prevent further debts to the Commonwealth from being incurred.

Notice of proposed suspension

Subclause 95(1) will provide that the Secretary may suspend an accreditation if:

·          a relevant Commonwealth liability of the manager of the property, or relating to the property, is more than 30 days overdue; and

·          the Secretary has given a written notice (in accordance with subclause 95(2)) to the person (the debtor ) who is liable to pay the relevant Commonwealth liability; and

·          within eight days after the notice is given:

o    the relevant Commonwealth liability has not been paid; or

o    the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.

Paragraph 95(1)(b) will refer to the debtor, and not the manager of the property, as the debt may be the responsibility of someone else but nevertheless relate to the property (see paragraph 95(1)(a)).

Unlike a suspension of an accreditation under clause 94 of the Bill, a suspension of an accreditation under clause 95 will be a full suspension of the accreditation and cannot be in relation to only some of the matters covered by the accreditation (see clause 94(1) of the Bill). This will be necessary as the overdue relevant Commonwealth liability impacts on the whole accreditation and not just parts thereof.

Three notes will be included at the end of subclause 95(1). Note 1 will refer the reader to clause 97 of the Bill, which will provide that a suspension of an accreditation of a property must not be for more than 12 months. Note 2 will advise the reader that a decision to suspend the accreditation of a property under clause 95(1) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 3 will refer to the reader to clause 103 of the Bill, and clarify that if the Secretary suspends the accreditation of a property under clause 95, the Secretary may revoke the accreditation of the property in certain circumstances, including in relation to an overdue Commonwealth liability.

Subclause 95(2) will provide that the written notice under subclause 95(1) must:

·          state that a relevant Commonwealth liability of the debtor in relation to an accredited property is more than 30 days overdue; and

·          state that the Secretary may suspend the accreditation of the property in relation to all kinds of export operations and all kinds of prescribed goods if, within eight days after the notice was given, the relevant Commonwealth liability is not paid or the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability; and

·          include a statement that the debtor has the right to seek review of the decision to suspend the accreditation.

Secretary may direct that activities not be carried out

Subclause 95(3) will provide that, if the Secretary suspends the accreditation under subclause 95(1), the Secretary may also refuse to carry out, or direct a person (for example, an authorised officer) not to carry out, specified activities or kind of activities in relation to the debtor under the Bill until the relevant Commonwealth liability has been paid. This will have the effect of encouraging the debtor to pay the relevant Commonwealth liability so that they will be able to continue exporting goods.

A note will be included at the end of subclause 95(3) that will direct the reader to clause 309 of the Bill, which will deal with general provisions that relate to directions.

Action under this section does not affect liability to pay relevant Commonwealth liability

Subclause 95(4) will provide that any action taken by the Secretary under clause 95 does not remove the liability of the debtor to pay the relevant Commonwealth liability. This will mean that, for example, if the Secretary suspends an accreditation under clause 95(1) because a manager had an overdue relevant Commonwealth liability, the manager would still be liable to pay the overdue amount to the Commonwealth. The overdue amount will be recoverable as a debt due to the Commonwealth under clause 404 of the Bill.

Clause 96            Notice of suspension

Subclause 96(1) will provide that, if the Secretary decides to suspend an accreditation under Division 2 of Part 5 of Chapter 3 of the Bill (see clauses 94 and 95 of the Bill), the Secretary must give the manager of the property a written notice of the suspension.

Subclause 96(1) will provide that the written notice must include:

·          a statement that the accreditation is to be suspended for the period specified in the notice in relation to all or specified kind of export operations, prescribed goods and, if applicable, places to which goods may be exported;

·          the reasons for the suspension;

·          the date the suspension will start; 

·          the period of the suspension.

Subclause 96(2) will provide that, if a notice (a show cause notice ) was given under subclause 94(2) of the Bill, that included the request referred to in paragraph 94(3)(c) of the Bill, the suspension must not start until the date after any response by the manager is received or the end of the 14 day period after the show cause notice was given, whichever will be earlier. The effect of this is that the Secretary will be prevented from taking any action to suspend the accreditation during the 14 day period. If the manager does not respond within the 14 day period, then the suspension will be able to be implemented. If the manager responds within the 14 day period, the Secretary will be required to consider the manager’s response when deciding whether to implement the suspension.

Clause 97            Period of suspension

Subclause 97(1) will provide that the suspension of the accreditation under Division 2 of Part 5 of Chapter 3 of the Bill (see clauses 94, 95 and 96 of the Bill) must not be for more than 12 months. This will provide certainty to the manager of the accreditation about the period of suspension and prevent an accreditation from being suspended indefinitely. It is intended that the matters that necessitated the suspension will be resolved in 12 months or less. Otherwise, the Secretary will have the option of revoking the accreditation.

Subclause 97(2) will provide that the Secretary may vary the period of a suspension by written notice to the manager of a property. However, the total period of suspension must not be for more than 12 months. A note will be included at the end of clause 97 that will advise the reader that a decision to extend the period of a suspension property under subclause 97(2) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

If the reason for the suspension warrants a longer period of suspension, then the Secretary may revoke the accreditation under Division 2 of Part 6 of Chapter 3 of the Bill instead, provided that the relevant provisions in the Bill are satisfied (see Division 2 of Part 6 of Chapter 3 of the Bill).

Clause 98            Revocation of suspension

A suspension need not remain in place for the entire period set out under paragraph 96(1)(d) of the Bill. Clause 98 will provide that the Secretary may revoke a suspension made under Division 2 of Part 5 of Chapter 3 of the Bill (see clauses 94 and 95 of the Bill) by written notice to the manager of a property. Revocation of a suspension may occur, for example, in circumstances where the Secretary will be satisfied that the grounds for the suspension no longer exist or have been rectified.

Division 3—Other provisions

Clause 99            Effect of suspension

Clause 99 will provide that the effect of a suspension is that the accreditation will remain in force and the requirements of the Bill in relation to that accreditation will continue to apply (unless the rules made under clause 432 of the Bill say otherwise). This will allow, for example, activities such as an audit to be undertaken while the suspension is in place for the purpose of determining compliance with requirements of the Bill.

Subclause 99(1) will provide that if the accreditation of a property is suspended wholly or in part under Division 1 or 2 of Part 5 of Chapter 3 of the Bill, or under rules made for the purposes of subclause 109(3), the accreditation of the property remains in force while it is suspended, and the requirements of the Bill in relation to the accreditation (including the conditions of the accreditation) must be complied with while the accreditation is suspended.

Subclause 99(2) will provide that the rules may prescribe requirements of the Bill (including conditions of the accreditation) that will not apply during the period of suspension. The effect of this will be that the default position is that all requirements of the Bill, such as the requirement to be audited or to comply with a direction of an authorised officer and conditions of the accreditation, will continue to apply unless the rules provide otherwise.

Enabling the rules made under clause 432 of the Bill to prescribe the requirements of the Bill, including conditions of the accreditation, that will not apply during the period of suspension will provide the Secretary with the flexibility to reduce the regulatory burden on the manager of an accredited property. This will also allow the requirements that do not apply during a period of suspension to be specific to a kind of prescribed goods, kind of export operations, or places of export.

Clause 100          Export operations must not be carried out while accreditation suspended

Clause 100 will provide that penalties may be imposed in circumstances where export operations are carried out while an accreditation is suspended.

Subclause 100(1) will provide that a manager of an accredited property will contravene subclause 100(1) if:

·          the manager was given a notice of suspension in relation to the accreditation of the property under subclauses 92(5) or 96(1) of the Bill; and

·          export operations in relation to which the accreditation was suspended were carried out at the property while the accreditation was suspended.

A note will be included at the end of subclause 100(1) that will advise the reader that the physical elements of the offence against subclause 100(2) are set out in subclause 100(1). The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 100(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 100(1). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 100(2) will be 600 penalty units.

Subclause 100(3) will provide that a person will be liable to a civil penalty if the person contravenes subclause 100(1). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 100(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 100(1) will be 1,200 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 100(3) is twice as high as the penalty available for the criminal offence. This is to ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offence and the civil penalty provision also reflect the seriousness of conducting export operations after an accreditation has been suspended. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods. The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Part 6—Revocation of accreditation

Division 1—Revocation requested by manager

Clause 101          Manager may request revocation

Subclause 101(1) will provide that the manager of an accredited property may request the Secretary to revoke the accreditation of the property. This includes the accreditation of a property that is suspended under Part 5 of Chapter 3 of the Bill.

A note will be included at the end of subclause 101(1) that will clarify that if the manager does not wish to revoke the accreditation in relation to all kinds of export operations and prescribed goods, the manager may apply to vary the accreditation under Division 1 of Part 4 of Chapter 3 of the Bill. This will allow the manager of the property to apply to vary aspects of the accreditation including the kinds of export operations, the kinds of prescribed goods and the places to which goods are to be exported.

Subclause 101(2) will require the request under subclause 101(1) to be in writing, and include the information (if any) prescribed by the rules made under clause 432 of the Bill. Enabling the rules to set out any other information that must be included in a request for revocation will provide the Secretary with the flexibility to ensure that all relevant information is included in the application so that the Secretary will be able to make an informed decision about the requested revocation.

Subclause 101(3) will provide that if the Secretary receives a request under subclause 101(1), the Secretary must, by written notice to the manager, revoke the accreditation with effect on the day specified in the notice.

However, subclause 101(4) will provide that the Secretary does not have to revoke the accreditation if, before the manager made the request under subclause 101(1), the Secretary had given the manager a notice under subclause 102(2) of the Bill proposing to revoke the accreditation and the Secretary had not decided whether to revoke the accreditation.

In these circumstances, the Secretary will not be required to agree to a request to revoke the accreditation under subclause 101(1). This is intended to ensure that the Secretary considers the matters as set out in subclause 102(1) of the Bill before accepting the request to revoke the accreditation. Consideration of these matters may for example, establish whether the manager has committed an offence or is liable for a civil penalty for contravening a condition of the accreditation or determine the required action after the accreditation has been revoked (see clause 105 of the Bill).

Division 2— Revocation by Secretary

Clause 102          Grounds for revocation—general

The ability to revoke an accreditation may be necessary in a range of circumstances, including where the Secretary reasonably believes that the integrity of the prescribed goods cannot be ensured, that prescribed requirements or conditions will not be met, or in relation to certain conduct by the manager of the property, such as a failure to comply with a direction.  

The revocation of an accreditation will be of the whole accreditation and cannot be in relation to only some of the matters covered by the accreditation. This reflects the likely seriousness of the circumstances necessitating a revocation by the Secretary, which cannot be dealt with by other means such as a varying or suspending the accreditation.

There are a number of grounds upon which the Secretary may revoke an accreditation (including an accreditation that is suspended under Part 5 of Chapter 3 of the Bill).These grounds will be set out in subclause 102(1). These are the same grounds as the grounds for suspension in subclause 95(1) of the Bill.

Subclause 102(1) will provide that the Secretary may revoke an accreditation if the Secretary reasonably believes that:

·          the integrity of a kind of prescribed goods covered by the accreditation cannot be ensured;

·          a requirement prescribed by rules for the purposes of subclause 79(2)(b) of the Bill is no longer met;

·          a condition of the accreditation has been, or will be contravened;

·          the manager of the property:

o    failed to comply with a direction given by an authorised officer or the Secretary; or

o    failed to comply with a request by an authorised officer to provide information or documents; or

o    failed to provide facilities and assistance to an auditor as required under clause 271 of the Bill or failed to comply with a request made by an auditor under clause 272 of the Bill;

·          the manager of the property or any other person who manages or controls export operations carried out at the property:

o    made a false, misleading or incomplete statement in an application under Chapter 3 of the Bill; or

o    gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under the Bill; or

o    gave false or misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;

·          the manager of the property has contravened a requirement of the Bill in relation to the accreditation of the property;

·          a ground prescribed by the rules exists.

The Secretary will be required to reasonably believe that one or more grounds set out in subclause 102(1) exists before taking action under that subclause. This standard will require the Secretary to base the Secretary’s own belief on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than having a reasonable suspicion that the ground exists. This threshold test will generally reflect the existing standards for revoking the accreditation of a property under existing legislation.

Enabling the rules made under clause 432 of the Bill to prescribe any additional grounds on which the accreditation may be revoked will provide the Secretary with the flexibility to address the wide range of matters that relate to an accreditation and that might impact on the suitability of the accreditation, thereby necessitating the revocation of the accreditation. It will also enable the basis for a revocation to be specific to a kind of prescribed goods, kind of export operations, or place of export. It also reflects the likelihood that grounds may need to change from time to time and will need to commence at short notice.

A note will be included at the end of subclause 102(1) that will advise the reader that a decision to revoke the accreditation of a property will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Subparagraph 102(1)(e)(i) will provide that the Secretary may revoke the accreditation of a property if the Secretary reasonably believes that the manager intimidated a person performing functions or exercising powers under the Bill. Intimidation in this context is not merely making the person’s task difficult but it is conduct that deters another person from performing their functions or exercising their powers under the Bill by inducing fear in the person. Engaging in such conduct is a serious act. It may compromise export operations that are taking place at the accredited property (and therefore the integrity of goods) and on this basis will require an appropriate regulatory response .

Notice of proposed revocation

Subclause 102(2) will provide that the Secretary must not revoke an accreditation under clause 102(1) unless the Secretary has given a written notice to the manager of the property in accordance with subclause 102(3). 

Subclause 102(3) will provide that the written notice must:

·          specify the grounds for the proposed revocation; and

·          subject to subclause 102(4), request the manager of the property to give the Secretary, within 14 days after the day that the notice was given, a written statement setting out why the accreditation should not be revoked; and

·          include a statement that the manager has the right to seek review of the decision to revoke the accreditation.

Subclause 102(4) will provide that, if the Secretary reasonably believes that the grounds for the revocation are serious and urgent, then the Secretary will not be required to include the request in paragraph 102(3)(b) in the notice given under subclause 102(2). Subclause 102(4) does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent. This will be decided on a case-by-case basis. However, the notice of proposed revocation must still be given. In addition to the notice of proposed revocation, the Secretary must give a notice of revocation in accordance with clause 104 of the Bill. A decision to revoke the accreditation will be a reviewable decision.

Clause 103          Grounds for revocation—overdue relevant Commonwealth liability

Clause 103 will provide that an overdue liability to the Commonwealth will be grounds for revoking an accreditation. This clause is intended to ensure timely payment of liabilities that are due and to prevent further debts to the Commonwealth from being incurred.

Subclause 103(1) will provide that the Secretary may revoke an accreditation if:

·          the accreditation was suspended under clause 95(1) of the Bill for non-payment of a relevant Commonwealth liability; and

·          within 90 days after the start of the suspension, the relevant Commonwealth liability has not been paid or the person (the debtor ) has not entered into an arrangement with the Secretary to pay the relevant commonwealth liability. 

Subparagraph 103(1)(b)(ii) will refer to the debtor, and not the manager of the property, as the debt may be the responsibility of someone else but nevertheless relate to the property.

As with a revocation under clause 102 of the Bill, a revocation under clause 103 will be a full revocation of the accreditation and cannot be in relation to only some of the matters covered by the accreditation (see subclause 103(1)).

A note will be included at the end of subclause 103(1) that will advise the reader that a decision to revoke the accreditation of a property will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Secretary may direct that activities not be carried out

Subclause 103(2) will provide that, if the Secretary revokes the accreditation under subclause 103(1), the Secretary may also refuse to carry out or direct a person (for example, an authorised officer) not to carry out, specified activities or kinds of activities in relation to the debtor under the Bill until the relevant Commonwealth liability has been paid.

A note will be included at the end of subclause 103(2) that will refer the reader to clause 309 of the Bill, which deals with general provisions that relate to directions.

Action under this section does not affect liability to pay relevant Commonwealth liability

Subclause 103(3) will provide that any action taken by the Secretary under clause 103 does not affect the liability of the debtor to pay the relevant Commonwealth liability. This will mean that, for example, if the Secretary revokes an accreditation under subclause 103(1) because a manager has an overdue relevant Commonwealth liability, the manager will still be liable to pay the overdue amount to the Commonwealth. The overdue amount will be recoverable as a debt due to the Commonwealth under clause 404 of the Bill.

Clause 104          Notice of revocation

Subclause 104(1) will provide that, if the Secretary revokes an accreditation under Division 2 of Part 6 of Chapter 3 of the Bill (see clauses 102 and 103 of the Bill), the Secretary must give the manager of the property a written notice of the revocation. Subclause 104(1) will provide that the notice must state that the accreditation of the property will be revoked, the reasons for the revocation, and the date the revocation will take effect.

A note will be included at the end of subclause 104(1) that will provide that the notice must also state the matters referred to in clause 382 of the Bill.

Subclause 104(2) will provide that, if a notice (a show cause notice ) was given under subclause 102(2) that included the information set out in paragraph 102(3)(b) of the Bill, the revocation must not take effect until the date after any response by the manager is received or the end of the 14 day period after the show cause notice was given, whichever will be earlier. The effect of this is that the Secretary will be prevented from taking any action to revoke the accreditation during the 14 day period. If the manager does not respond within the 14 day period, then the revocation will be able to be implemented. If the manager responds within the 14 day period, the Secretary will be required to consider the manager’s response when deciding whether to implement the revocation.

Division 3—Other provisions

Clause 105          Secretary may require action to be taken after accreditation revoked

Clause 105 will provide that penalties may be imposed in circumstances where export operations are carried out after an accreditation is revoked.

Subclause 105(1) will provide that clause 105 will apply if a person is given a notice of revocation under subclauses 101(3) or 104(1) of the Bill or the accreditation has been revoked under Division 1 or 2 of Part 6 of Chapter 3 of the Bill.

Subclause 105(2) will provide that the Secretary may, in writing, direct the person to take specified action, within a specified period after the accreditation is revoked, in relation to export operations and goods that were covered by the accreditation. The action must be action that is necessary for the purpose of achieving one or more requirements of the Bill.

Subclause 105(3) will provide that a direction under subclause 105(2) must state that, if the person does not comply with the direction, the person may commit an offence or be liable to a civil penalty. A note will be included at the end of subclause 105(3) to refer the reader to the general provision relating to directions that will be set out in clause 309 of the Bill.

Subclause 105(4) will provide that a person who is given a direction under subclause 105(2) must comply with that direction.

Subclause 105(5) will provide that a person will commit a fault-based offence if the person is given a direction under 105(2) and the person engages in conduct that contravenes the direction. The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention will be 600 penalty units

Subclause 105(6) will provide that a person will be liable to a civil penalty if the person contravenes subclause 105(4). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 105(4). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 105(4) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

The civil penalty provided for in subclause 105(6) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offence and the civil penalty provision reflect the seriousness of failing to comply with a direction of the Secretary in relation to export operations and goods that were covered by an accreditation that has been revoked. Conduct that contravenes the requirements that will be set out in this clause may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Part 7—Obligations of managers of accredited properties etc.

Clause 106          Conditions of accreditation must not be contravened

Clause 106 will provide that penalties will be able to be imposed on the manager of an accredited property in certain circumstances where a condition of the accreditation is contravened, both when the accreditation is not suspended (see subclauses 106(1), (2) and (3)) and when the accreditation is suspended (see subclauses 106(4), (5) and (6)).

Accreditation that is not suspended

Subclause 106(1) will provide that a person will contravene subclause 106(1) if:

·          the person is the manager of an accredited property; and

·          the accreditation of the property is not suspended wholly or in part under Part 5 of Chapter 3 of the Bill; and

·          the accreditation covers a kind of prescribed goods (the relevant goods ) that may be exported:

o    generally; or

o    to one or more places; and

·          the relevant goods are:

o    in the case of an accreditation referred to in subclause 106(1)(c)(i)—exported to any place; or

o    in the case of an accreditation referred to in subclause 106(1)(c)(ii)—exported to a place covered by the accreditation; and

·          a condition of the accreditation relating to the relevant goods, or to export operations carried out in relation to the relevant goods, is contravened.

A note will be included at the end of subclause 106(1) that will provide that the physical elements of an offence against subclause 106(2) will be set out in subclause 106(1). The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 106(2) will provide that the person will commit a fault-based offence if the person contravenes subclause 106(1). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 106(2) will be 600 penalty units

Subclause 106(3) will provide that a person will be liable to a civil penalty if the person contravenes subclause 106(1). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 106(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 106(1) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

Accreditation that is suspended

Subclause 106(4) will provide that a manager of an accredited property will contravene subclause 106(4) if:

·          the accreditation of the property is suspended wholly or in part under Part 5 of Chapter 3 of the Bill; and

·          the accreditation covers a kind of prescribed goods (the relevant goods ) that may be exported:

o    generally; or

o    to one or more places; and

·          the relevant goods are exported:

o                in the case of an accreditation referred to in subclause 106(4)(c)(i)—exported to any place; or

o    in the case of an accreditation referred to in subclause 106(4)(c)(ii)—exported to a place covered by the accreditation; and

·          a condition of the accreditation relating to the relevant goods, or to export operations carried out in relation to the relevant goods, is contravened; and

·          the condition is required to be complied with during the period of the suspension.

A note will be included at the end of subclause 106(4) that will provide that the physical elements of an offence under subclause 106(5) will be set out in subclause 106(4). The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 106(5) will provide that a person will commit a fault-based offence if the person contravenes subclause 106(4). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 106(4) will be 600 penalty units.

Subclause 106(6) will provide that a person will be liable to a civil penalty if the person contravenes subclause 106(4). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 106(4). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 106(4) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

The civil penalties provided for in subclauses 106(3) and 106(6) will be twice as high as the penalties available for the criminal offences provided for in subclauses 106(2) and 106(5). The penalties are intended to act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offences and the civil penalty provisions in these clauses reflect the seriousness of failing to comply with the conditions of the accreditation, irrespective of whether the accreditation is, or is not, suspended. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill and may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods. The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 107          Additional or corrected information in relation to application for accreditation etc.

Clause 107 will set out the circumstances in which a manager must provide the Secretary with additional or corrected information in relation to an application for accreditation.

Subclause 107(1) will require the manager of an accredited property to give the Secretary additional or corrected information in accordance with subclause 107(2) if:

·          the manager becomes aware that information included in an application made by the manager under Chapter 3 of the Bill, or information or a document given to the Secretary in relation to such an application, was incomplete or incorrect; or

·          a change prescribed by the rules made under clause 432 of the Bill occurs.

However, subclause 107(2) only creates an obligation on the manager of the property to give the Secretary the additional or corrected information required under subclause 107(1) to the extent that it is relevant to the Secretary assessing whether:

·          the requirements of the Bill in relation to a matter covered by the accreditation of the property have been, are being, or will be complied with; or

·          the importing country requirements relating to a matter covered by the accreditation of the property have been, are being, or will be met.

Subclause 107(2) will also require the manager to give the Secretary the additional or corrected information as soon as practicable. Whether the information is provided ‘as soon as practicable’ will be determined on a case-by-case basis. It may be that a property was accredited in circumstances where, had the Secretary had the correct information, the property may not have been accredited.

Additional or corrected information that will not be relevant to that assessment will not need to be provided to the Secretary. 

It is necessary for the Secretary to have the most up-to-date information to determine whether, for example, an accreditation should remain in place. Enabling the rules made under clause 432 of the Bill to prescribe circumstances that will necessitate the manager of an accredited property to provide additional or corrected information will provide the Secretary with the flexibility to accommodate the range of changes in relation to the accreditation. This will enable a proactive response by the Secretary to changes that will require additional or corrected information to be provided by the manager of the accredited property.

Three notes will be included at the end of subclause 107(2). Note 1 will provide that a person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents and will refer the reader to sections 136.1, 137.1 and 137.2 of the Criminal Code and sections 367, 368 and 369 of the Bill).The sections specified in the Criminal Code and the clauses in the Bill are intended to provide an effective deterrent to conduct that is inconsistent with the requirements of the Bill and could result in the export of goods that do not comply with requirements or conditions set out in the Bill.

Note 2 will clarify that the Secretary may suspend or revoke the accreditation of the property if the manager fails to comply with subclause 107(2). It is intended that the Secretary could suspend or revoke the accreditation under paragraphs 94(1)(g) and 102(1)(g) of the Bill, in addition to any civil penalty imposed under subclause 107(3).

Note 3 will provide that clause 107 is not subject to the privilege against self-incrimination and will refer the reader to clause 426 of the Bill. Clause 426 will set out the effect of the provision abrogating the privilege against self-incrimination. Removing the privilege against self-incrimination will ensure that the Secretary will receive relevant information in relation to a permit and if necessary, can take immediate action. This will include immunities on the use and derivative use of self-incriminatory material. This material would only be used to ensure that goods are not exported where they do not comply with importing country requirements and requirements of the Bill, and would not result in criminal or civil proceedings against the person who provided the material.

Subclause 107(3) will provide that a person will contravene subclause 107(3) if:

·          the person is required to give information to the Secretary under subclause 107(2); and

·          the person fails to comply with the requirement.

Subclause 107(3) will provide that a person will be liable to a civil penalty if the person is required to give the Secretary information under subclause 107(2) and they fail to comply with that requirement. The civil penalty provision will be subject to a penalty of 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth. The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth will be 300 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

This civil penalty provision is intended to provide an effective deterrent to a person not providing the correct or additional information and to conduct that may impede the effective regulation of exports under the Bill. It will be necessary for the Secretary to have relevant and correct information to determine whether any action needs to be taken in relation to the accredited property. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Clause 108          Notice of event or change in circumstances

Subclause 108(1) will require the manager of an accredited property to notify the Secretary in writing as soon as practicable after an event or circumstance prescribed by the rules occurs.

It is necessary for the Secretary to be notified of changes so the Secretary can determine whether, for example, it is appropriate to allow the accreditation of the property to continue. The provision of information may lead the Secretary to take certain action, such as suspension or revocation of an accreditation. Enabling the rules made under clause 432 of the Bill to prescribe the circumstances or events that would require the manager of an accredited property to provide notification will provide the Secretary with the flexibility to identify the circumstance or events that may, for example, change a decision to accredit a property, or require a change to the conditions of the accreditation. Such changes may be specific to a kind of prescribed goods, kind of export operations or kind of prescribed goods. The ability to prescribe these changes also reflects the likelihood that they may need to change from time to time and will need to commence at short notice.

Subclause 108(2) will provide that a person will be liable to a civil penalty if:

·          the person was required to notify the Secretary of an event or circumstance in accordance with subclause 108(1); and

·          the person fails to comply with the requirement.

The civil penalty provision will be subject to a penalty of 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth. The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth will be 300 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

This civil penalty provision is intended to provide an effective deterrent to the manager not providing the necessary information to the Secretary. It will be necessary for the Secretary to be aware of events or changes to determine whether any action needs to be taken in relation to the accredited property. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill and may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Clause 109          Notice of person ceasing to be manager of accredited property

Clause 109 will deal with the requirement to notify the Secretary in circumstances where a person ceases to be the manager of an accredited property and sets a penalty for failing to do so.

Notice by former manager

Subclause 109(1) will provide that if the manager (the former manager ) of an accredited property ceases to be the manager of the property, the former manager (or another person who will be legally authorised to act on behalf of the former manager) must, as soon as practicable after the cessation, notify the Secretary in writing of that fact. Subclause 109(1) will also provide that the notice must include contact details for the person giving the notice.

A note will be included at the end of subclause 109(1) that will advise the reader that if the manager of an accredited property ceases to be the manager of the property, the accreditation of the property may be taken to have been suspended under rules made for the purposes of subclause 109(3).

Enabling a person who will be legally authorised to act on behalf of the former manager to notify the Secretary of the cessation of the former manager as the manager of the accredited property is intended to cover the situation where the former manager is unable to provide the notification. This may be because of incapacity or death. In such circumstances, it is still necessary for the Secretary to be aware that the former manager is no longer the manager so that the necessary action, such as the action that is set out in subclause 109(4) may be taken in relation to the property.

Subclause 109(2) will provide that a person will be liable to a civil penalty if the person is required to notify the Secretary under subclause 109(1) that the manager of an accredited property has ceased to be the manager and they fail to comply with that requirement. The civil penalty provision will be subject to a penalty of 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth. The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth will be 300 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

This civil penalty provision is intended to provide an effective deterrent to a person not advising of the change in the manager of an accredited property. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Rules may make provision in relation to accredited property that no longer has a manager or in relation to which manager has changed

Subclause 109(3) will provide that the rules may make provision for and in relation to the accreditation of a property that no longer has a manager or in relation to which there has been a change of manager. 

Subclause 109(4) will provide examples of what the rules made for the purposes of subclause 109(3) may address. The rules may:

·          provide that the accreditation of a property referred to in subclause 109(3) is suspended or revoked;

·          prescribe requirements that must be complied with by any new manager of the property;

·          make provision in relation to any other matters relating to the accreditation or any new manager.

Enabling the rules made under clause 432 of the Bill to prescribe provisions in relation to an accredited property that no longer has a manager will provide the Secretary with the flexibility to determine when it is appropriate to do so. This may be specific to a kind of prescribed goods, kind of export operations, or place of export. This also reflects the likelihood that the information required may need to change from time to time and will need to commence at short notice.

Chapter 4—Registered establishments

PART 1—INTRODUCTION

Clause 110          Simplified outline of this Chapter

Clause 110 will provide a simplified outline of Chapter 4 of the Bill. Chapter 4 of the Bill will provide for matters in relation to an application for the registration of an establishment, as well as the renewal, variation, suspension and revocation of a registration. Registered establishments are one of the regulatory controls provided for in the Bill that allow people in the export system to take some responsibility for meeting requirements while enabling the Secretary to have regulatory oversight of their export operations and activities. Provisions in this chapter will enable the Secretary to set requirements that must be met before an establishment becomes a registered establishment, and conditions in relation to certain matters covered by the registration. Chapter 4 will also enable the Secretary to direct the occupier of a registered establishment to cease carrying out a kind of export operations in relation to a kind of prescribed goods in certain circumstances. In addition, the occupier of a registered establishment must comply with certain obligations.

Other regulatory controls, such as accredited properties (Chapter 3), approved arrangements (Chapter 5) and export licences (Chapter 6), will be able to be used in conjunction with an approved arrangement to regulate other matters related to export operations in relation to prescribed goods.

The simplified outline is included to assist the reader to understand the substantive clauses of Chapter 4 of the Bill; however, it is not intended to be comprehensive. It is intended that the reader will rely on the substantive clauses of the Bill to which the outline relates.

PART 2—APPLICATION FOR REGISTRATION

Clause 111          Application for registration of establishment

Subclause 111(1) will enable the occupier of an establishment to apply to the Secretary to register the establishment for a kind of export operations in relation to a kind of prescribed goods.

Paragraph 111(2)(a) will provide that the application may relate to more than one kind of export operations and more than one kind of prescribed goods. For example, an establishment may be registered to produce all apples and oranges, as well as process, pack and store the fruit for export.

Paragraph 111(2)(b) will provide that the application may, but is not required to, specify one or more places to which the goods are to be exported. It will enable a particular market or markets to be included in the application for registration, but this will not be mandatory.

Two notes will be included at the end of subclause 111(2). Note 1 will advise the reader that the export of a kind of prescribed goods may be prohibited unless export operations in relation to the goods have been carried out at a registered establishment. Note 1 will also refer the reader to clause 29 of the Bill, and the rules made under clause 432 of the Bill for the purposes of clause 29 of the Bill. Note 2 will refer the reader to clause 377 of the Bill, which will set out the requirements for applications, including applications to register an establishment.

Clause 112          Secretary must decide whether to register establishment

Subclause 112(1) will provide that, on receiving an application under clause 111 of the Bill to register an establishment, the Secretary must decide either to register the establishment or to refuse to register the establishment.

Four notes will be included at the end of subclause 112(1). Note 1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to dealing with applications, including applications for the registration of an establishment. Clause 379 of the Bill will set out the Secretary’s powers in dealing with applications and the time within which a decision must be made.

Note 2 will clarify that if the application is to register an establishment to carry out more than one kind of export operations in relation to more than one kind of prescribed goods for export to more than one place, the Secretary may decide to register the establishment for one or more of those kinds of export operations, in relation to one or more of those kinds of goods, for export to one or more of those places. This is intended to make it clear that the Secretary will have discretion to register an establishment for any combination of export operations, prescribed goods or places of export.

Note 3 will refer the reader to subclause 379(2) of the Bill, which will provide that if the Secretary does not make a decision within the consideration period (which will be prescribed by the rules), the Secretary will be taken to have refused the application at the end of that period. Prescribing this period in the rules will allow the Secretary to set an appropriate period for the consideration of the application.

Note 4 will advise the reader that a decision to refuse to register an establishment under subclause 112(1) will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will also refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 112(2) will provide that the Secretary may register the establishment if the Secretary is satisfied that, having regard to any matter that the Secretary considers relevant, the following requirements are met:

·          the occupier of the establishment is a fit and proper person (having regard to the matters referred to in clause 372 of the Bill);

·          all relevant Commonwealth liabilities of the occupier of the establishment or relating to the establishment itself have been paid, or are taken to have been paid, or if they have not been paid, the non-payment is due to exceptional circumstances;

·          the construction of the establishment and its equipment and facilities are suitable for carrying out export operations that would be covered by the registration (having regard to the matters prescribed by the rules);

·          if the rules require export operations of that kind to be carried out in relation to goods of that kind in accordance with an approved arrangement—an approved arrangement covering that kind of export operations and that kind of goods is in force;

·          if export operations, or other operations, are to be carried out in relation to different kinds of goods at the establishment—the operations are compatible with each other and will not have a detrimental effect on export operations to be carried out at the establishment; and

·          any other requirement prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe any additional requirements that must be met before an establishment will be registered will provide the Secretary with the flexibility to determine additional requirements that may be necessary to ensure that it is appropriate in all the circumstances to register the establishment and that there are no reasons to refuse the application. This may be specific to a kind of prescribed goods, kind of export operations, or place of export. This also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

A note will be included at the end of subclause 112(2) of the Bill that will refer the reader to clause 431 of the Bill, which will provide that a relevant Commonwealth liability of a person will be taken to have been paid in certain circumstances.

Subclause 112(3) will enable the Secretary to set an expiry date for the registration if it is appropriate. Two notes will be included at the end of subclause 112(3). Note 1 will advise the reader that if an expiry date is not set under subclause 112(3), the registration remains in force unless it is revoked in accordance with subclause 115(1) of the Bill. Note 2 will advise the reader that a decision to set an expiry date for the registration of an establishment will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Subclause 112(4) will enable the Secretary to set an expiry date for the registration of an establishment under subclause 112(3) even if rules made for the purposes of subclause 115(5) apply in relation to the registration. For example, rules made for the purposes of subclause 115(5) may provide an expiry date for establishments for a particular kind of export operations, as ten years from the date of registration. This would not prevent the Secretary from setting a different expiry date for that establishment under subclause 112(3), for example five years from the date of registration), if the Secretary considers that expiry date appropriate in the circumstances. This decision will be reviewable (Part 2 of Chapter 11 of the Bill). These clauses operate together to enable the Secretary to exercise discretion about an appropriate expiry date for specific applications, even if rules are made setting an expiry date for applications for a particular kind of export operations.

Clause 113          Conditions of registration

Subclause 113(1) will provide that, if the Secretary registers an establishment in relation to a kind of export operations in relation to a kind of prescribed goods, the registration of the establishment will be subject to the following:

·          conditions that will be provided by the Bill;

·          conditions that will be prescribed by the rules (other than those conditions that the Secretary decides are not to be conditions of the particular registration). The conditions that are not to apply to a particular registration of an establishment must be set out in the notice of decision given to the applicant under clause 114 of the Bill; and

·          any additional conditions that the Secretary considers are appropriate for the registration under consideration. These additional conditions must be set out in the notice of decision given to the applicant under clause 114 of the Bill.

Four notes will be included at the end of subclause 113(1). Note 1 will refer the reader to clause 144 of the Bill, which will provide that the occupier of a registered establishment may commit an offence or be liable to a civil penalty if a condition of the registration is contravened.

Note 2 will refer the reader to clauses 127 and 138 of the Bill, which will provide that the registration of the establishment may be suspended or revoked if a condition of the registration is contravened.

Note 3 will advise the reader that a decision to register the establishment subject to additional conditions will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will refer the reader to Part 7 of Chapter 4 of the Bill, which will set out additional obligations of the occupier of a registered establishment.

Subclause 113(2) will provide examples of the kind of conditions that the rules made for the purpose of subclause 113(1) may prescribe. These may be conditions that relate to:

·          the occupier of an establishment;

·          the kind of establishment;

·          a kind of export operations;

·          a kind of prescribed goods;

·          importing country requirements relating to a kind of export operations or a kind of prescribed goods.

Enabling the rules made under clause 432 of the Bill to prescribe the conditions that must be met will provide the Secretary with the flexibility to determine the conditions that are necessary and appropriate for a certain type of establishment being considered for registration. This may be relevant to, for example, a particular commodity or market.

Enabling the Secretary to impose any additional conditions that the Secretary considers are appropriate for the specific registered establishment under consideration will give the Secretary the flexibility to determine additional conditions, relevant to a particular application, on a case-by-case basis. Imposing any additional conditions will also be necessary to ensure that the registration will be suitable for the export operations it will cover and that it will meet the requirements of the Bill.

The ability to impose conditions in the rules or by written notice is necessary to ensure that the export operations carried out at the registered establishment will meet the requirements of the Bill. This also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Subclause 113(3) will provide that, for the purposes of the Bill, conditions to which the registration will be subject under subclause 113(1) or clause 118 of the Bill (conditions of renewed registration) are conditions of the registration. Contravention of the conditions of a registration may be grounds for suspending the registration of an establishment under paragraph 127(1)(d) of the Bill or for revoking the registration of an establishment under paragraph 138(1)(d) of the Bill.

Clause 114          Notice of decision and certificate of registration

Clause 114 will provide that if the Secretary registers an establishment, then the Secretary must give the applicant a certificate of registration and a written notice that sets out the information specified in paragraphs 114(1)(a) and 114(1)(b) respectively.

Paragraph 114(1)(a) will provide that the certificate of registration must state:

·          the registration number allocated to the establishment;

·          the kind of export operations and kind of prescribed goods covered by the registration;

·          each place the kind of prescribed goods covered by the registration may be exported (if applicable);

·          the date the registration takes effect;

·          that the registration will remain in force indefinitely or the expiry date for the registration; and

·          any other information prescribed by the rules.

The intent of the certificate of registration is to provide the occupier with a document that shows that the establishment is registered for certain export operations.

Paragraph 114(1)(b) will provide that the written notice must state:

·          any conditions prescribed by the rules that the Secretary has decided are not to be conditions of the registration;

·          any additional conditions of the registration;

·          any other information prescribed by the rules.

The primary intent of the written notice is to provide the occupier with information about the conditions that will apply to their registration. The notice will not set out all conditions or requirements that are applicable to the registration in the rules made under clause 432 of the Bill, but will identify any conditions in the rules that do not apply, as well any conditions of the registration that are particular to this application. Providing this information will enable the applicant to readily identify the conditions of the registration that must be complied with.

Enabling the rules made under clause 432 of the Bill to prescribe any other information that must be stated on a certificate of registration or written notice in paragraphs 114(1)(a) and 114(1)(b) respectively, will provide the Secretary with the flexibility to determine additional matters that are of importance to the registration of establishments. Such matters may be, for example, specific to a kind of prescribed goods, kind of export operations, or place of export. The ability to prescribe other information also reflects the likelihood that the requirements of a certificate of registration and written notice will change from time to time and will need to commence at short notice.

Clause 115          Period of effect of registration

Clause 115 will provide certainty to the holder of a registered establishment about the period of effect of the registration and the circumstances, such as a revocation or renewal, which may change this period.

Registrations that have no expiry date

If no expiry date is set for the registered establishment, subclause 115(1) will provide that the registration of the establishment will remain in force unless it is revoked under Part 6 of Chapter 4 of the Bill, or it is taken to be revoked under clause 147 of the Bill.

Registrations that have an expiry date

Subclause 115(2) will provide that if there is an expiry date for the registered establishment, the registration will remain in force until the end of that date unless the registration is renewed under Part 3 of Chapter 4 of the Bill, revoked under Part 6 of Chapter 4 of the Bill or is taken to have been revoked under clause 147 of the Bill, on or before that date.

Subclause 115(3) will provide that there is an expiry date for the registration of an establishment if rules made for the purposes of subclause 115(5) apply in relation to the registration (paragraph 115(3)(a)) or an expiry date for the registration set under subclauses 112(3) or 117(3) or paragraphs 123(1)(c) or (d) is in force in relation to the registration (paragraph 115(3)(b)).

Subclause 115(4) will provide that the expiry date for the registration of an establishment is either:

·          the last day of the period prescribed by the rules, if rules made for the purposes of subclause 115(5) apply in relation to the registration and no expiry date set under subclause 112(3) or 117(3) or paragraph 123(1)(c) or (d) is in force (paragraph 115(4)(a)); or

·          the expiry date set under subclause 112(3) or 117(3) or paragraph 123(1)(c) or (d) is in force in relation to the registered establishment (paragraph 115(4)(b)).

Rules may prescribe period of effect of registration

Subclause 115(5) will provide that the rules may prescribe the period during which the registration of an establishment remains in force. The rules may apply in relation to the registration of establishments in general (paragraph 115(5)(a)) or registration of establishments for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a place to which the goods may be exported (paragraph 115(5)(b)).

Part 3—Renewal of registration

Clause 116          Application to renew registration of establishment

Subclause 116(1) will provide that clause 116 will apply in relation to a registered establishment (including one that has been suspended) if there is an expiry date for the registration.

A notewill be included at the end of subclause 116(1) that will advise the reader that they should see subclause 115(3) and 115(4) for when there is an expiry date for the registration of an establishment.

Subclause 116(2) will provide that, if there is an expiry date for a registered establishment, the occupier of the registered establishment may apply to the Secretary to renew the registration. A note will be included at the end of subclause 116(2) that will refer the reader to clause 377, which will set out the general requirements for applications under the Bill, including applications to renew the registration of an establishment.

Paragraph 116(3)(a) will provide that an application for renewal may cover more than one kind of export operations and more than one kind of prescribed goods. Paragraph 116(3)(b) will provide that the application may, but is not required to, specify one or more places to which the goods are to be exported. The application to renew the registration of the establishment does not necessarily have to relate to the same kind of export operations or prescribed goods, or specify the same places to which the goods are to be exported, for which the establishment was originally registered. The application for renewal can cover the same matters or different matters.

Subclause 116(4) will provide that an application for renewal must be made within the period prescribed by the rules or any longer period allowed by the Secretary. Enabling the Secretary to prescribe this period in the rules made under clause 432 of the Bill will ensure the Secretary has the flexibility to set an appropriate period for the consideration of the application.

Subclause 116(5) will provide that if an application for renewal is made after the period that applies under subclause 116(4), then it is taken to be a new application to register the establishment. Subclause 116(5) will also provide that the provisions in Part 2 of Chapter 4 of the Bill (which relate to new applications to register an establishment) will apply in relation to the application, and the other provisions in Part 3 of Chapter 4 of the Bill (which relate to applications for renewal of the registration) will not apply.

Clause 117          Secretary must decide whether to renew registration

Subclause 117(1) will provide that, if the Secretary receives an application to renew the registration of an establishment under clause 116 of the Bill, the Secretary must decide either to renew, or to refuse to renew, the registration.

Four notes will be included at the end of subclause 117(1). Note 1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to dealing with applications to renew a registration, including the Secretary’s powers in dealing with applications and the time within which a decision must be made.

Note 2 will clarify that if an application is made to renew the registration for more than one kind of export operations in relation to more than one kind of prescribed goods for export to one or more places, the registration may be renewed in relation to one or more of the export operations, in relation to one or more of those kinds of goods, for export to one or more of those places. This is intended to make it clear that the Secretary will have the discretion to renew the registration of an establishment for any combination of export operations, prescribed goods or places of export.

Note 3 will refer the reader to subclause 379(2) of the Bill, which will provide that if the Secretary does not make a decision within the consideration period, the Secretary is taken to have refused the application at the end of that period. Subclause 379(3) of the Bill will provide that the consideration period will be prescribed by the rules. Prescribing this period in the rules will provide the Secretary with the flexibility to set an appropriate period for the consideration of the application.

Note 4 will advise the reader that a decision to refuse to renew the registration of an establishment will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will also refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 117(2) will provide that the Secretary may refuse to renew a registration if the Secretary is not satisfied, having regard to any matter the Secretary considers relevant, of one or more of the following:

·          the occupier of the establishment is a fit and proper person (having regard to the matters referred to in clause 372 of the Bill);

·          all relevant Commonwealth liabilities of the occupier of the establishment or relating to the establishment itself have been paid or are taken to have been paid, or, if they have not been paid or are not taken to have been paid, the non-payment is due to exceptional circumstances;

·          the occupier of the establishment has complied with the requirements of the Bill in relation to the export operations and prescribed goods covered by the registration (whether at the establishment or not);

·          the conditions of the registration have been, and are being, complied with;

·          the construction of the establishment and its equipment and facilities are suitable for carrying out export operations that would be covered by the registration (having regard to the matters prescribed by the rules);

·          if the rules require export operations of that kind to be carried in relation to goods of that kind in accordance with an approved arrangement—an approved arrangement covering that kind of export operations and that kind of goods is in force; or

·          any other requirement prescribed by the rules is met.

Enabling the rules made under clause 432 of the Bill to prescribe any other requirement that must be met before an establishment will be renewed will provide the Secretary with the flexibility to ensure that it is appropriate in all circumstances to renew an establishment and that there are no reasons to refuse the renewal. Such grounds may also be specific to a kind of prescribed goods, kind of export operations, or place of export. This also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Unlike approving an initial application for registration of an establishment, which requires the Secretary to be satisfied that all requirements prescribed by the rules for the purposes of subclause 112(2) of the Bill have been met, subclause 117(2) will only require the Secretary to consider whether there is evidence of non-compliance and hence grounds for refusing the request to renew. This approach will ensure that registrations will only be renewed in circumstances where there is a history of compliance by the occupier, where the requirements and conditions of the registration have been complied with, and where there are no outstanding financial liabilities.

A note will be included at the end of subclause 117(2) that will refer the reader to clause 431 of the Bill, which will provide that a relevant Commonwealth liability of a person is taken to have been paid in certain circumstances.

If the Secretary renews the registration of the establishment, subclause 117(3) will enable the Secretary to set an expiry date for the registration if the Secretary considers that this is appropriate. Two notes will be included at the end of subclause 117(3). Note 1 will advise the reader that, if there is no expiry date set, the registration remains in force unless it is revoked in accordance with subclause 115(1) of the Bill. Note 2 will advise the reader that a decision to set an expiry date for the renewed registration will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Subclause 117(4) will enable the Secretary to set an expiry date for the renewed registration of an establishment under 117(3) even if rules made for the purposes of subclause 115(5) apply in relation to the registration. For example, rules made for the purposes of subclause 115(5) may provide an expiry date for registration of establishments for a particular kind of export operations, as ten years from the date of registration. This would not prevent the Secretary from setting a different expiry date for that establishment under subclause 112(3), for example five years from the date of registration, if the Secretary considers that expiry date appropriate in the circumstances. This decision will be reviewable (Part 2 of Chapter 11 of the Bill). These clauses operate together to enable the Secretary to exercise discretion about an appropriate expiry date for specific renewal applications, even if rules are made setting an expiry date for applications for a particular kind of export operations.

Clause 118          Conditions of renewed registration

As with the initial approval of a registration (see clause 113 of the Bill), clause 118 will provide that, if the Secretary renews the registration of an establishment, the registration will be subject to:

·          the conditions that will be provided by the Bill;

·          the conditions that will be prescribed by the rules (other than those conditions that the Secretary decides are not to apply to a particular renewal). The conditions that are not to apply to a particular renewal must be set out in the notice of decision given to the applicant under clause 119 of the Bill; and

·          any additional conditions that the Secretary considers are appropriate for the renewal application under consideration. These additional conditions must be set out in the notice of decision given to the applicant under clause 119 of the Bill.

Enabling the rules made under clause 432 of the Bill to prescribe the conditions that must be met will provide the Secretary with the flexibility to determine the conditions that are necessary and appropriate for a certain type of establishment that is subject to an application for renewal. This may be relevant to, for example, a particular commodity or market.

Enabling the Secretary to impose any additional conditions that the Secretary considers appropriate for the specific registered establishment under consideration for renewal will give the Secretary the flexibility to determine additional conditions on a case-by-case basis. Imposing any additional conditions may also be necessary to ensure that the renewed registration will continue to be suitable for the export operations it will cover and that it will continue to meet the requirements of the Bill.

The ability to impose additional conditions in the rules or by written notice is necessary to ensure that the export operations carried out at the renewed registered establishment will meet the requirements of the Bill. This also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Four notes will be included at the end of clause 118. Note 1 will refer the reader to clause 144 of the Bill, which will provide that the occupier of a registered establishment may commit an offence or be liable to a civil penalty if a condition of the registration is contravened. Note 2 will refer the reader to clauses 127 and 138 of the Bill which will provide that the registration of an establishment may be suspended or revoked if a condition of the registered establishment is contravened. Note 3 will advise the reader that a decision to suspend the registration of an establishment subject to additional conditions under clause 118 will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will refer the reader to Part 7 of Chapter 4 of the Bill, which will set out additional obligations of the occupier of a registered establishment.

Clause 119          Notice of decision and certificate of registration

Clause 119 will provide that, if the registration of an establishment is renewed, then the Secretary must give the applicant a certificate of registration and a written notice that sets out the relevant information specified in clause 114 of the Bill. This will ensure that the occupier of the registered establishment is aware of all matters in relation to the renewed registration, including any conditions to which the registration is subject.

PART 4—Variation of registration

Division 1—Application by occupier

Clause 120          Application by occupier for variation of registration or approval of alteration of establishment

Clause 120 will allow an occupier to apply to the Secretary to vary the registration of an establishment. It will also allow an occupier to apply for approval of an alteration to the establishment, such as an alteration to the physical premises. This will enable the Secretary to respond to the changing needs and requirements of the occupier and allow a flexible approach to the regulation of registered establishments.

Subclause 120(1) will provide that the occupier of a registered establishment may apply to the Secretary to:

·          vary the registration of an establishment in relation to kinds of export operations, kinds of prescribed goods and, if applicable, places to which goods may be exported;

·          approve an alteration of the establishment (including an addition to the establishment);

·          vary the conditions of the registration;

·          vary the particulars relating to the registration to make a minor change to a matter (including to correct a minor or technical error); or

·          to vary any other aspect of the registration.

An example will be included at the end of subclause 120(1) to assist the reader in relation to what kind of matters may fall within ‘any other aspect of the registration’. The example will note that a variation may be needed to change the name of a person who manages or controls, or who will manage or control, export operations covered by the registration.

A note will be included at the end of subclause 120(1) that will refer the reader to clause 377 of the Bill, which will set out the general requirements for applications under the Bill, including applications for variation of the registration of an establishment or for approval of an alteration of an establishment.

Subclause 120(2) will provide that, on receiving an application made under subclause 120(1), the Secretary must decide either to make the variation or approve the alteration, or to refuse to make the variation or approve the alteration.

Three notes will be included at the end of subclause 120(2). Note   1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to dealing with applications.

Note 2 will refer the reader to subclause 379(2) of the Bill, which will provide that, if the Secretary does not make a decision within the consideration period, the Secretary is taken to have refused the application at the end of that period. Subclause 379(3) of the Bill will provide that the consideration period will be prescribed by the rules. Prescribing this period in the rules will allow the Secretary to set an appropriate period for the consideration of the application.

Note 3 will advise the reader that a decision to refuse to make the variation or approve the alteration of the establishment will be a reviewable decision, and will refer to the reader to Part 2 of Chapter 11 of the Bill. Note 3 will also refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 120(3) will provide that the Secretary may make the variation, or give the approval, if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that, if the variation were made or the alteration were approved, the requirements of paragraphs 112(2) of the Bill would continue to be met, and any other requirements prescribed by the rules would be met.

Paragraph 120(3)(a) will enable the Secretary, in considering the variation or alteration, to take into account the same scope of matters as an application for an establishment to be registered. The intention of paragraph 120(3)(a) is that the Secretary may take into account any of the matters in subclause 112(2) according to the specific circumstances of the application.

Not all variations or alterations will necessarily relate to all of the factors in subclause 112(2). For example, not all variations or alterations will require a reconsideration of whether the occupier is a fit and proper person under paragraph 112(2)(a). The Secretary must take into account those matters relevant to the specific application for variation or alteration and then determine if he or she is satisfied that the requirements will continue to be met. Enabling the rules made under clause 432 of the Bill to prescribe any additional requirements that must be met before a registration may be varied or altered may be necessary and appropriate for the type of variation under consideration and will provide the Secretary with the flexibility to specify matters that may be relevant to, for example, a kind of prescribed goods, kind of export operations or place of export.

A note will be included at the end of subclause 120(3) that will refer the reader to clause 122 of the Bill, which will provide that the occupier of a registered establishment may commit an offence or be liable to a civil penalty if the establishment is altered (including by way of addition) and the alteration has not been approved, or the occupier has not been given notice of the approval, under clause 122 of the Bill.

Clause 121          Notice of variation or approval of alteration

Subclause 121(1) will provide that, if the Secretary makes a variation or approves an alteration under paragraph 120(2)(a) of the Bill, then the Secretary must give the occupier of the establishment a written notice of the variation or approval.

Subclause 121(2) will provide that the notice must include the following information:

·          details of the variation or approval;

·          the varied conditions of the registration (if the variation is of the conditions of the registration);

·          the date the variation or approval takes effect; 

·          any other information prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe any additional matters that will need to be set out in the written notice will provide the Secretary with the flexibility to ensure that the occupier of the establishment will receive all relevant information in relation to the variation or alteration.

The purpose of a notice under this clause is to inform the occupier of the establishment of the Secretary’s decision to make a variation or give an approval, as well as the terms under which the variation or approval is given.

Subclause 121(3) will provide that if the certificate of registration for the establishment needs to be changed to take into account the variation or approval, the Secretary must give the occupier of the establishment a new certificate of registration that includes the variation or alteration that has been approved. This must be given within seven days after making the variation or giving the approval.

A note will be included at the end of subclause 121(3) that will clarify that the registration, as varied, remains in force as provided by clause 115 of the Bill.

Clause 122          Certain alterations of registered establishment must not be made unless approved etc.

Clause 122 will provide that an occupier will commit an offence and be liable to a civil penalty if an alteration is made to a registered establishment in certain circumstances. Alterations may include, for example, changes to the physical premises that is registered and the addition of new buildings.

Subclause 122(1) will provide that the occupier of a registered establishment will contravene this subclause if:

·          the registered establishment is altered (including by way of addition to the establishment); and

·          either:

o    the alteration has not been approved; or

o    the alteration has been approved under subclause 120(2) of the Bill, but the Secretary has not given the occupier the required notice of approval under clause 121 of the Bill.

Two notes will be included at the end of subclause 122(1). Note 1 will provide that the physical elements of an offence against subclause 122(3) will be set out in subclause 122(1) of the Bill. The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence. Note 2 will refer the reader to paragraphs 127(1)(j) and 138(1)(j) of the Bill, which will provide that the Secretary may suspend or revoke the registration of the establishment, respectively, if the occupier contravenes subclause 122(1).

Subclause 122(2) will provide that subclause 122(1) will not apply to an alteration of a kind prescribed by the rules. Enabling the rules made under clause 432 of the Bill to prescribe the kinds of alterations that will not be subject to the penalties under this clause will provide the Secretary with the flexibility to determine the kinds of minor alterations that do not necessarily need to be approved. Such alterations may be specific to a kind of prescribed goods, kind of export operations, or place of export.

A note will be included at the end of subclause 122(2) that will clarify that a defendant bears an evidential burden in relation to the matter in this subclause. The note will also refer the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

Subclause 122(3) will provide that a person will commit a fault-based offence if the person contravenes subclause 122(1) of the Bill. The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 122(1) will be 600 penalty units.

Subclause 122(4) will provide that a person will be liable to a civil penalty if the person contravenes subclause 122(1). The civil penalty provision will be subject to a penalty of 240 penalty units if the person contravenes subclause 122(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 122(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 122(1) will be 1,200 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 122(4) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offence and the civil penalty provision reflect the seriousness of implementing an alteration to a registered establishment without approval. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Division 2—Variation by Secretary

Clause 123          Secretary may make variations in relation to registration

Clause 123 will enable the Secretary to vary the registration, the conditions of the registration, or the expiry date of a registration on the Secretary’s own initiative—that is, without having received an application to vary the registration from the occupier under clause 120 of the Bill. This will be an important safeguard if, for example, a matter is brought to the attention of the Secretary that will affect the registration and will need to be brought to the occupier’s attention.

Subclause 123(1) will provide that the Secretary may do any of the following in relation to the registration of an establishment:

·          vary any aspect of the registration, including so that it does not cover a kind of export operations, kind of prescribed goods, or (if applicable) a place to which goods may be exported;

·          vary the conditions of the registration (including by imposing new conditions);

·          if there is no expiry date for the registration—set an expiry date;

·          if there is an expiry date for the registration—vary the expiry date; or

·          if there is an expiry date for the registration - vary the registration by revoking the expiry date.

Two notes will be included at the end of subclause 123(1). Note 1 will provide that if the Secretary revokes the expiry date for the registration under paragraph 123(e), the registration will remain in force for the period prescribed by the rules, if rules made for the purposes of subclause 115(5) apply or indefinitely (unless revoked) if no such rules exist. Note 2 will advise the reader that certain decisions made under subclause 123(1) will be reviewable decisions, and will refer the reader to Part 2 of Chapter 11 of the Bill. Clause 381 of the Bill will provide that only decisions made under paragraphs 123(1)(a) (varying an aspect of the registration), 123(1)(b) (varying or adding new conditions), 123(1)(c) (setting an expiry date) and paragraph 123(1)(d) (varying the expiry date) are reviewable. These decisions are reviewable as they may impact on the interests of the occupier of the registered establishment. A decision made under paragraph 123(1)(e) (varying the registration so that it remains in force indefinitely) will not be a reviewable decision as it will be benefit the occupier of the registered establishment.

Subclause 123(2) will provide that the Secretary may only make a variation or set an earlier expiry date under subclause 123(1) if the Secretary reasonably believes that:

·          the integrity of the goods covered by the registration cannot be ensured; or

·          it is necessary to ensure:

o    compliance with the requirements of the Bill in relation to the export operations and prescribed goods covered by the registration;

o    that importing country requirements relating to the export operations and prescribed goods covered by the registration are, or will be, met;

·          the occupier of the establishment is not a fit and proper person (having regard to matters in clause 372 of the Bill);

·          a condition of the registration has been, or is being, contravened;

·          a condition of, or the equipment or facilities in, the establishment has changed;

·          there has been a change to the suitability of the establishment for the export operations covered by the registration;

·          it is necessary to do so to take account of an event notified under clause 146 of the Bill or to correct a minor or technical error; or

·          the registration needs to be varied for any other reason prescribed by the rules.

Paragraph 123(2)(f) will enable the Secretary to vary the registration of an establishment if the Secretary reasonably believes that there has been a change in the suitability of the establishment for the export operations covered by the registration. The decision about whether there has been a change in the suitability of the establishment will take into account the matters that were considered when the establishment was initially assessed as being suitable for registration under paragraph 112(2)(c). Under that paragraph, the suitability of the establishment, its equipment or facilities, will be determined by the matters prescribed by the rules made under clause 432 of the Bill for the purposes of paragraph 112(2)(c) of the Bill.

The Secretary will be required to reasonably believe that one or more of grounds set out in subclause 123(2) exists before taking action under that subclause. This standard will require the Secretary to base the Secretary’s own belief on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than having a reasonable suspicion that the ground exists. This threshold test will generally reflect the existing standards for making a variation to the registration of an establishment under existing legislation.

E nabling the rules made under clause 432 of the Bill to prescribe other reasons why a registration may be varied will provide the Secretary with the flexibility to accommodate a range of circumstances under which the registration may need to be varied. This may be specific to a kind of prescribed goods, kind of export operations, or place of export.

Notice of certain proposed variations

Subclause 123(3) will provide that the Secretary must not make a variation listed in paragraphs 123(1)(a), (b) or (c) or set an earlier expiry date under paragraph 123(1)(d) unless the Secretary has given a written notice to the occupier of the establishment in accordance with subclause 123(4).

Subclause 123(4) will provide that the written notice under subclause 123(3) must:

·          specify each proposed variation and the grounds for each proposed variation;

·          subject to subclause 123(5), request the occupier of the establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed variation should not be made; and

·          include a statement setting out the occupier’s right to seek review of a decision to make the proposed variation.

Subclause 123(5) will provide that, if the Secretary reasonably believes that the grounds for varying the registration are serious and urgent, then the Secretary is not required to include the request set out in paragraph 123(4)(c) in the notice issued under subclause 123(3). However, the notice of proposed variation must still be given. Subclause 123(5) does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent. This will be decided on a case-by-case basis. In addition to the notice of proposed variation, the Secretary must give a notice of variation in accordance with clause 124 of the Bill. A decision to make the variation will remain a reviewable decision.

Clause 124          Notice of variation

Subclause 124(1) will provide that, if the Secretary makes a variation in relation to the registration of an establishment under subclause 123(1) of the Bill, the Secretary must give the occupier of the establishment a written notice of the variation. The purpose of this notice is to inform the occupier of the establishment of the Secretary’s decision to make a variation, as well as the terms under which the variation is made.

Subclause 124(2) of the Bill will provide that the notice must state:

·          details of the variation;

·          if the variation is of the conditions of the registration—the varied conditions and any new conditions;

·          if the variation affects the period of effect of the registration:

o    the expiry date for the registration under paragraph 115(4)(a) or (b) (whichever applies); or

o    if there is no expiry date, for the registration, that the registration remains in force unless it is revoked;

·          the date the variation takes effect;

·          any other information prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe any additional matters that will need to be set out in the notice of variation will provide the Secretary with the flexibility to ensure that the occupier of the establishment will receive all relevant information in relation to the variation.

Subclause 124(3) will provide that, if a notice (a show cause notice ) was given under subclause 123(3) of the Bill that included the request referred to in paragraph 123(4)(c) of the Bill, the variation must not take effect until the day after any response by the occupier is received or the end of the 14 day period after the show cause notice was given, whichever is earlier. The effect of this is that the Secretary will be prevented from taking any action to implement the variation during the 14 day period. If the occupier does not respond within the 14 day period, the variation will be able to be made. If the occupier responds within the 14 day period, the Secretary will be required to consider the occupier’s response when deciding whether to implement the variation.

In circumstances where the certificate of registration needs to be changed to take account of the variation, subclause 124(4) will provide that the Secretary must, within 7 days after making the variation, give the occupier of the establishment a new certificate of registration which includes the variation.

A note will be included at the end of subclause 124(4) that will advise the reader that the registration, as varied, remains in force as provided for by clause 115 of the Bill.

PART 5—SUSPENSION OF REGISTRATION

Division 1—Suspension requested by occupier

Clause 125          Occupier may request suspension

Subclause 125(1) will provide that, subject to subclause 125(2), the occupier of a registered establishment may request the Secretary to suspend the registration in relation to a kind of export operations, a kind of prescribed goods and (if applicable) a place to which goods may be exported.

Subclause 125(2) will provide that a request under subclause 125(1) may only be made in the circumstances prescribed by the rules. Enabling the rules made under clause 432 of the Bill to prescribe when a request may be made provides the Secretary with the flexibility to determine the appropriate circumstances in which the occupier of a registered establishment may be able to request voluntary suspension. This may be specific to a kind of prescribed goods, kind of export operations or place of export.

Subclause 125(3) will provide that the request to suspend the registration under subclause 125(1) may relate to more than one kind of export operations, kind of prescribed goods or place to which goods may be exported. For example, an establishment could be registered to carry out export operations in relation to all fruit. If the market changes for the export of summer fruits, the occupier may request suspension in relation to export operations carried out in relation to summer fruits.

Subclause 125(4) will require the request under subclause 125(1) to be in writing and to:

·          state each kind of export operations, prescribed goods and (if applicable) each place in relation to which the registration is to be suspended;

·          specify the reason for the suspension; and

·          include any other information prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe other information will provide the Secretary with flexibility to determine additional information that is required in order for the Secretary to consider the request to suspend the registration.

The written request is intended to inform the Secretary of the basis for the request. This information will also be relevant to the Secretary’s consideration of a request to revoke a suspension under clause 126 of the Bill in that the Secretary will consider whether the reasons for requesting the suspension no longer exist, before agreeing to revoke a suspension.

Subclause 125(5) will provide that if the Secretary receives a request from the occupier in accordance with subclause 125(1), the Secretary must, by written notice to the occupier, suspend the registration as requested, with effect on the day specified in the notice.

Clause 126          Request to revoke suspension

Subclause 126(1) will provide that, if a registration is suspended under clause 125 of the Bill, the occupier of the establishment may request, in the manner set out in subclause 126(2), that the suspension be revoked.

Clause 126(2) will provide that the request must be in writing, state the reason for the request and include any other information prescribed by the rules. Enabling the rules made under clause 432 of the Bill to prescribe other information will provide the Secretary with the flexibility to determine the additional information that is required in order to make an informed decision about whether to revoke a suspension. This may be specific to a kind of prescribed goods, kind of export operations, or place of export. This flexibility also reflects the likelihood that requirements may need to change from time to time and will need to commence at short notice.

Paragraph 126(3)(a) will provide that, if the Secretary receives a request under subclause 126(1), the Secretary may revoke the suspension by written notice if the Secretary is satisfied that the reason for the suspension no longer exists and there is no reason why the suspension should not be revoked.

Paragraph 126(3)(b) will provide that, if the Secretary does not revoke the suspension under paragraph 126(3)(a), the Secretary may suspend the registration of the establishment under Division 2 of Part 5 of Chapter 4 of the Bill, or revoke the registration under Division 2 of Part 6 of Chapter 4 of the Bill.

For example, if the registration of an establishment that is registered to produce meat for export to the European Union is suspended, there may be reasons not to revoke the suspension until the Secretary is satisfied that the establishment is suitable to be registered again.

A decision to refuse to revoke a suspension will not be a reviewable decision. This is because if the occupier of the establishment requests the revocation of the suspension, the Secretary will only have three choices: to agree to revoke the suspension (in which case there is no requirement to seek review of the decision); to suspend the registration; or to revoke the registration. A note will be included at the end of subclause 126(3) that will advise the reader that a decision to suspend or revoke the registration of the establishment will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Division 2—Suspension by Secretary

Clause 127          Grounds for suspension—general

Clause 127 will set out a number of grounds upon which the Secretary may suspend some or all of the matters covered by a registration. This will mean that a registration may not be suspended in its entirety if the Secretary is satisfied that some aspects of the registration can continue irrespective of the suspension of other aspects. Written notice of the proposed suspension must be given prior to suspension. The ability to suspend a registration of an establishment may be necessary in a range of circumstances.

Subclause 127(1) will provide that the Secretary may suspend the registration of an establishment in relation to one or more kinds of export operations, and one or more kinds of prescribed goods, and (if applicable) one or more places of export, if the Secretary reasonably believes any of the following:

·          the integrity of a kind of prescribed goods covered by the registration cannot be ensured;

·          the occupier of the establishment is not a fit and proper person (having regard to the matters referred to in clause 372 of the Bill);

·          a requirement referred to in subclause 112(2) of the Bill is no longer met;

·          a condition of the registration has been, or is being, contravened;

·          the condition of, or the equipment or facilities in, the establishment has changed;

·          there has been a change to the suitability of the establishment for the export operations covered by the registration;

·          the occupier of the establishment has failed to:

o    comply with a direction given to the occupier by an authorised officer or the Secretary;

o    comply with a request by an authorised officer to provide information or a document;

o    failed to provide facilities and assistance to an auditor as required by clause 271 of the Bill; or

o    failed to comply with a request made by an auditor under clause 272 of the Bill;

·          the occupier of the establishment has engaged in conduct that either intimidated a person or hindered or prevented a person performing functions or exercising powers under the Bill, or prevents a person from performing functions or exercising powers under the Bill;

·          the occupier of the establishment or any other person who manages or controls export operations at the establishment:

o    made a false, misleading or incomplete statement in an application under Chapter 4 of the Bill; or

o    gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under the Bill; or

o    gave false, misleading or incomplete information or documents to the Secretary, or the Department, under a prescribed agriculture law;

·          the occupier of the establishment has contravened a requirement of the Bill in relation to the registration of the establishment;

·          a ground prescribed by the rules exists.

Enabling the rules made under clause 432 of the Bill to prescribe other grounds provides the Secretary with the flexibility to determine additional grounds on which it is appropriate or necessary to suspend a registration. Such grounds may be, for example, specific to a kind of prescribed goods, kind of export operations, or place of export. This flexibility also reflects the likelihood that grounds may need to change from time to time and will need to commence at short notice.

Paragraph 127(1)(f) will enable the Secretary to suspend the registration of an establishment if the Secretary reasonably believes that there has been a change in the suitability of the establishment for the export operations covered by the registration. The decision about whether there has been a change in the suitability of the establishment will take into account the matters that were considered when the establishment was initially assessed as being suitable for registration under paragraph 112(2)(c). Under that paragraph, the suitability of the establishment, its equipment or facilities, will be determined by the matters prescribed by the rules made under clause 432 of the Bill for the purposes of paragraph 112(2)(c) of the Bill.

Subparagraph 127(1)(g)(i) will provide that the Secretary may suspend the registration of an establishment if the occupier fails to comply with a direction given by an authorised officer or the Secretary. Contravening a direction from an authorised officer or the Secretary is a serious act. It may compromise export operations that are taking place at the registered establishment (and therefore the integrity of goods) and on this basis will require an appropriate regulatory response . This subparagraph will be important to ensuring that the effectiveness of the regulatory framework is maintained by providing the Secretary with the ability to suspend export operations on the basis of a contravention of a direction by an authorised officer or the Secretary.

Subparagraph 127(1)(h)(i) will provide that the Secretary may suspend the registration of an establishment if the Secretary reasonably believes that the occupier intimidated a person performing functions or exercising powers under the Bill. Intimidation in this context is not merely making the person’s task difficult but it is conduct that deters another person from performing their functions or exercising their powers under the Bill by inducing fear in the person. Engaging in such conduct is a serious act. Such conduct may also amount to an offence under 149.1 of the Criminal Code (obstruction of Commonwealth public officials). Such conduct may also compromise export operations that are taking place at the registered establishment (and therefore the integrity of goods) and on this basis will require an appropriate regulatory response.

The Secretary will be required to reasonably believe that the one or more grounds set out in subclause 127(1) exists, before taking action under that subclause. This standard will require the Secretary to base the Secretary’s own belief on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than having a reasonable suspicion that the ground exists. This threshold test will generally reflect the existing standards for suspending the registration of an establishment under existing legislation.

Two notes will be included at the end of subclause 127(1). Note 1 will refer the reader to clause 130 of the Bill, which will provide that a suspension of a registered establishment must not be greater than 12 months. Note 2 will advise the reader that a decision to suspend the registration of an establishment under clause 127 will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Notice of proposed suspension

Subclause 127(2) will provide that the Secretary must not suspend a registration under subclause 127(1) unless the Secretary has given a written notice to the occupier of the establishment in accordance with subclause 127(3).

Subclause 127(3) will provide that the written notice must:

·          specify each kind of export operations and each kind of prescribed goods and (if applicable) each place in relation to which the registration is proposed to be suspended, and the grounds for the proposed suspension; and

·          subject to subclause 127(4), request the occupier of the registered establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the registration should not be suspended; and

·          include a statement setting out the occupier’s right to seek review of a decision to suspend the registration as proposed.

Subclause 127(4) will provide that, if the Secretary reasonably believes that the grounds for the suspension are serious and urgent, then the Secretary is not required to include the request in paragraph 127(3)(c) in the notice issued under subclause 127(2). However, the notice of proposed suspension must still be given. Subclause 127(4) does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent. This will be decided on a case-by-case basis. In addition to the notice of proposed suspension, the Secretary must give a notice of suspension in accordance with clause 129 of the Bill. A decision to suspend the registration will remain a reviewable decision.

Clause 128          Grounds for suspension—overdue relevant Commonwealth liability

Clause 128 will provide that an overdue relevant Commonwealth liability will be a ground for suspending a registration. This clause is intended to ensure timely payment of liabilities that are due and to prevent further debts to the Commonwealth from being incurred.

Notice of proposed suspension

Subclause 128(1) will provide that the Secretary may suspend the registration of an establishment in relation to all kinds of export operations and all kinds of prescribed goods if:

·          a relevant Commonwealth liability of the occupier of a registered establishment, or relating to the establishment, is more than 30 days overdue; and

·          the Secretary has given a written notice (in accordance with subclause 128(2)) to the person (the debtor ) who is liable to pay the relevant Commonwealth liability; and

·          within eight days after the notice is given:

o    the relevant Commonwealth liability has not been paid; or

o    the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.

Subclause 128(1) will refer to the debtor, and not the occupier of the establishment, as the debt may be the responsibility of someone else but nevertheless relate to the establishment (see paragraph 128(1)(b)).

Unlike suspension under clause 127 of the Bill, the suspension of the registration under clause 128 will be a full suspension of the registration of the establishment and cannot be in relation to only some of the matters covered by the registration. This will be necessary as the overdue Commonwealth liability impacts the whole registration and not just parts thereof.

Three notes will be included at the end of subclause 128(1). Note 1 will refer the reader to clause 130 of the Bill, which will provide that a suspension of a registration must not be for more than 12 months. Note 2 will advise the reader that a decision to suspend the registration of an establishment under clause 128 will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 3 will refer the reader to clause 139 of the Bill and clarify that if the Secretary suspends the registration of the establishment under clause 128, the Secretary may revoke the registration of the establishment in certain circumstances, including in relation to an overdue Commonwealth liability.

Subclause 128(2) will provide that the written notice under subclause 128(1) must:

·          state that a relevant Commonwealth liability of the debtor in relation to a registered establishment is more than 30 days overdue; and

·          state that the Secretary may suspend the registration of the establishment in relation to all kinds of export operations and all kinds of prescribed goods if, within eight days after the notice is given, the relevant Commonwealth liability is not paid or the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability; and

·          include a statement setting out the debtor’s right to seek review of a decision to suspend the registration of the establishment.

Secretary may direct that activities not be carried out

Subclause 128(3) will provide that, if the Secretary suspends the registration under subclause 128(1), the Secretary may also refuse to carry out, or direct a person (for example, an authorised officer) not to carry out, specified activities or kinds of activities in relation to the debtor under the Bill until the relevant Commonwealth liability has been paid. This will have the effect of encouraging the debtor to pay the relevant Commonwealth liability so that they will be able to continue exporting goods.

A note will be included at the end of subclause 128(3) that will direct the reader to clause 309 of the Bill, which deals with general provisions that relate to directions.

Action under this section does not affect liability to pay relevant Commonwealth liability

Subclause 128(4) will provide that any action taken by the Secretary under clause 128 does not remove the liability of the debtor to pay the relevant Commonwealth liability. This will mean that, for example, if the Secretary suspends the registration under clause 128(1) because an occupier has an overdue relevant Commonwealth liability, the occupier will still be liable to pay the overdue amount to the Commonwealth. The overdue amount will be recoverable as a debt due to the Commonwealth under clause 404 of the Bill.

Clause 129          Notice of suspension

Clause 129 will provide that, if the Secretary decides to suspend the registration under Division 2 of Part 5 of Chapter 4 of the Bill (see clauses 127 or 128 of the Bill) the Secretary must give the occupier of the establishment a written notice of the suspension.

Subclause 129(1) will provide that the written notice must include:

·          a statement that the registration is to be suspended for the period specified in the notice in relation to all or specified kind of export operations, prescribed goods and, if applicable, places to which goods may be exported;

·          the reasons for the suspension;

·          the date the suspension is to start; 

·          the period of the suspension.

A note will be included at the end of subclause 129(1) clarifying that the notice must also state the matters referred to in clause 382 of the Bill.

Subclause 129(2) will provide that, if a notice (a show cause notice ) was given under paragraph 127(2) that included the request referred to in paragraph 127(3)(c) of the Bill, the suspension must not start until the date after any response by the occupier is received by the Secretary or 14 days after the show cause notice was given, whichever is earlier. The effect of this is that the Secretary will be prevented from taking any action to suspend the registration during the 14 day period. If the occupier does not respond within the 14 day period, the suspension will be able to be implemented. If the occupier responds within the 14 day period, the Secretary will be required to consider the occupier’s response when deciding whether to implement the suspension.

Clause 130          Period of suspension

Subclause 130(1) will provide that the suspension of the registration under Division 2 of Part 5 of Chapter 4 of the Bill (see clauses 127 and 128 of the Bill) must not be for more than 12 months. This will provide certainty to the holder of the registration about the period of the suspension and prevent a registration from being suspended indefinitely. It is intended that the matters that necessitated the suspension must be resolved in 12 months or less, otherwise the Secretary will have the option of revoking the registration.

Subclause 130(2) will provide that the Secretary may vary the period of a suspension by written notice to the occupier of the registered establishment but the total period of suspension must not be for more than 12 months. A note will be included at the end of subclause 130(2) that will advise the reader that a decision to extend the period of suspension will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

If the reason for the suspension warrants a longer period of suspension, then the Secretary may revoke the registration under Division 2 of Part 6 of Chapter 4 of the Bill instead, provided that the relevant grounds for revocation exist (see Division 2 of Part 6 of Chapter 4 of the Bill).

Clause 131          Revocation of suspension

The suspension of a registration need not remain in place for the entire period set out under paragraph 129(1)(d) of the Bill. Clause 131 will provide that the Secretary may revoke a suspension made under Division 2 of Part 5 of Chapter 4 of the Bill by written notice to the occupier of the registered establishment. Revocation of a suspension may occur, for example, in circumstances where the Secretary is satisfied that the grounds for the suspension no longer exist or have been rectified.

Division 3—Direction to cease carrying out export operations

Clause 132          Direction to cease carrying out export operations—failure to comply with conditions or requirements of this Act etc

S ubclause 132(1) will enable the Secretary to give the occupier of a registered establishment a written direction to cease carrying out one or more kinds of export operations in relation to particular prescribed goods, or a kind of prescribed goods, covered by the registration, if the Secretary reasonably suspects that:

·          a condition of the registration of the establishment has been contravened, or it is likely that such a condition will be contravened; or

·          the occupier has not complied, or is likely not to comply, with a requirement of the Bill; or

·          the integrity of the particular goods, or the kind of prescribed goods, covered by the registration cannot be ensured, or it is likely that the integrity of the particular prescribed goods, or a kind of prescribed goods, covered by the registration will not be able to be ensured; or

·          the particular prescribed goods, or the kind of prescribed goods, covered by the registration:

o    do not comply, or are not likely to comply, with a requirement of the Bill that relates to those goods; or

o    do not meet, or are not likely to meet, an importing country requirement relating to those goods.

The Secretary will be required to reasonably suspect that one or more grounds set out in subclause 132(1) exists, before taking action under that subclause. This standard will require the Secretary to base the Secretary’s own belief on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than a reason to consider or look into the possibility of its existence. This threshold is lower than reasonable belief and is appropriate where the Secretary has to issue a direction to the occupier of a registered establishment to cease export operations in serious circumstances. The circumstances in which the Secretary can direct the occupier of a registered establishment to cease export operations are limited and reflect conduct that could compromise the integrity of the Australian export control regime. Given the urgent requirement to give such a direction, it is not subject to merits review, as this could compromise market access and importing countries’ reliance on a robust regulatory framework.

Two notes will be included at the end of subclause 132. Note 1 will provide that an authorised officer may also give a direction to the occupier of the registered establishment, and will refer the reader to clause 305 of the Bill. Note 2 will refer the reader to clause 309 of the Bill, which contains general provisions relating to directions.

Subclause 132(2) will provide that a direction under subclause 132(1) must state:

·          the reasons for giving the direction; and

·          the date that the occupier is to cease carrying out the relevant export operations in relation to the particular prescribed goods or kind of prescribed goods (as the case may be); and

·          that the person may commit an offence or be liable to a civil penalty if the person fails to comply with the direction.

Registration taken to have been suspended

Subclause 132(3) will provide that if a direction is given to the occupier of a registered establishment under subclause 132(1) to cease export operations in relation to one or more kinds of export operations in relation to one or more kinds of prescribed goods covered by the registration, the registration of the establishment is taken to have been suspended in relation to those kinds of export operations and those kinds of goods until the direction is revoked.

Clause 133          Occupier must comply with direction

Subclause 133(1) will provide that, if the occupier of a registered establishment is given a direction under subclause 133(1) to cease carrying out one or more kinds of export operations, the occupier must comply with the direction.

Subclause 133(2) will provide that a person will commit a fault-based offence if the person is given a direction under subclause 133(1) of the Bill, and the occupier engages in conduct that contravenes the direction. The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 133(1) will be 600 penalty units.

Subclause 133(3) will provide that a person will be liable to a civil penalty of 240 penalty units if the person contravenes subclause 133(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 133(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 133(1) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

The civil penalty provided for in subclause 133(3) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offence and the civil penalty provision reflect the seriousness of contravening a direction from an authorised officer or the Secretary. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods. The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 134          Revocation of direction

A direction to an occupier need not remain in place for the entire period set out under clause 132 of the Bill. Subclauses 134(1) and 134(2) will provide that the Secretary may revoke a direction made under Division 3 of Part 5 of Chapter 4 of the Bill by written notice to the occupier of the registered establishment. Revocation of a direction may occur in circumstances where, for example, the Secretary is satisfied that the grounds for the direction no longer exist or have been rectified.

Division 4—Other provisions

Clause 135          Effect of suspension

Clause 135 will provide that the effect of a suspension of a registration is that the registration will remain in force and the requirements of the Bill in relation to that registration will continue to apply (unless the rules made under clause 432 of the Bill say otherwise). This will allow, for example, activities such as an audit to be undertaken while the suspension is in place, for the purpose of determining compliance with requirements of the Bill.

Subclause 135(1) will provide that if the registration of an establishment is suspended wholly or in part under Division 1 or 2 of Part 5 of Chapter 4, or is taken to have been suspended under subclause 132(3) of the Bill, the registration of the establishment remains in force while it is suspended, and the requirements of the Bill in relation to the registration (including the conditions of the registration) must be complied with while the registration is suspended.

Subclause 135(2) will provide that the rules may prescribe requirements of the Bill (including conditions of the registration) that will not apply during the period of suspension. The effect of this is that the default position is that all requirements of the Bill, such as the requirement to be audited or to comply with a direction of an authorised officer and conditions of the registration, will continue to apply unless the rules provide otherwise.

Enabling the rules made under clause 432 of the Bill to prescribe the requirements of the Bill, including conditions of the registration, that will not apply during the period of suspension will provide the Secretary with the flexibility to reduce the regulatory burden on the occupier of a registered establishment. This will also allow the requirements that do not apply during a period of suspension to be specific to a kind of prescribed goods, kind of export operations, or place of export.

Clause 136          Export operations must not be carried out while registration suspended

Clause 136 will provide that penalties may be imposed in circumstances where export operations are carried out while a registration was suspended.

Subclause 136(1) will provide that the occupier of a registered establishment contravenes subclause 136(1) if:

·          the occupier was given a notice of suspension under subclauses 125(5) or 129(1) of the Bill; and

·          export operations in relation to which the registration was suspended were carried out at the establishment while the registration was suspended.

A note will be included at the end of subclause 136(1) that will advise the reader that the physical elements of an offence against subclause 136(2) will be set out in subclause 136(1). The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 136(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 136(1). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 136(1) will be 600 penalty units.

Subclause 136(3) will provide that a person will be liable to a civil penalty if the person contravenes subclause 136(1). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 136(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 136(1) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

The civil penalty provided for in subclause 136(3) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offence and the civil penalty provision reflect the seriousness of conducting export operations while the registration of an establishment is suspended. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods. The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

PART 6—REVOCATION OF REGISTRATION

Division 1—Revocation requested by occupier

Clause 137          Occupier may request revocation

Subclause 137(1) will provide that the occupier of a registered establishment may request the Secretary to revoke the registration of the establishment. This includes the registration of an establishment that is suspended under Part 5 of Chapter 4 of the Bill.

A note will be included at the end of subclause 137(1) that will clarify that if the occupier does not wish to revoke the registration in relation to all kinds of export operations and prescribed goods, the occupier may apply to vary the registration under Division 1 of Part 4 of the Bill. This will allow the occupier of the establishment to apply to vary aspects of the registration including the kinds of export operations, the kinds of prescribed goods and the places to which goods are to be exported.

Subclause 137(2) will require the request under subclause 137(1) to be in writing, and include the information (if any) prescribed by the rules made under clause 432 of the Bill. Enabling the rules to set out any other information that must be included in a request for revocation will provide the Secretary with the flexibility to ensure that all relevant information is included in the application so that the Secretary will be able to make an informed decision about the voluntary request for a revocation.

Subclause 137(3) will provide that if the Secretary receives a request under subclause 137(1), the Secretary must, by written notice to the occupier, revoke the registration with effect on the day specified in the notice.  

Subclause 137(4) will provide that the Secretary does not have to revoke the registration if, before the occupier made the request under clause 137(1), the Secretary had given the occupier a notice under clause 138(2) of the Bill proposing to revoke the registration and the Secretary had not decided whether to revoke the registration.

In these circumstances, the Secretary will not be required to agree to a request to revoke the registration under subclause 137(1). This is intended to ensure that the Secretary considers the matters set out in subclause 138(1) of the Bill before accepting the request to revoke the registration. Consideration of these matters may, for example, establish whether the occupier has committed an offence or is liable for a civil penalty for contravening a condition of the registration or determine the required action after the registration has been revoked (see clause 142 of the Bill).

Division 2—Revocation by Secretary

Clause 138          Grounds for revocation—general

The ability to revoke a registration may be necessary in a range of circumstances, including where the Secretary reasonably believes that the integrity of the prescribed goods cannot be ensured or that prescribed requirements will not be met, where conditions of the registration have been contravened, or in relation to certain conduct by the occupier of the establishment, such as a failure to comply with a direction.

The revocation of a registration is of the whole registration and cannot be in relation to only some of the matters covered by the registration. This reflects the likely seriousness of the circumstances necessitating a revocation by the Secretary, which cannot be dealt with by other means such as a varying or suspending the registration.

There are a number of grounds upon which the Secretary may revoke a registration (including a registration that is suspended under Part 5 of Chapter 4 of the Bill).These grounds will be set out in subclause 138(1). These are the same grounds as the grounds for suspension in subclause 127(1) of the Bill.

Subclause 138(1) will provide that the Secretary may revoke a registration if the Secretary reasonably believes that:

·          the integrity of a kind of prescribed goods covered by the registration cannot be ensured;

·          if the occupier of the establishment is not a fit and proper person having regard to the matters referred to in clause 372 of the Bill;

·          a requirement referred to in subclause 112(2) of the Bill is no longer met;

·          a condition of the registration has been, or is being, contravened;

·          the condition of, or the equipment or facilities in, the establishment has changed;

·          there has been a change to the suitability of the establishment for the export operations covered by the registration;

·          the occupier of the establishment has failed to:

o    comply with a direction given to the occupier by an authorised officer or the Secretary; or

o    comply with a request by an authorised officer to provide information or a document;

o    provide facilities and assistance to an auditor as required by clause 271 of the Bill; or

o    comply with a request made by an auditor under clause 272 of the Bill;

·          the occupier of the establishment has engaged in conduct that either intimidates or hinders or prevents a person from performing functions or exercising powers under the Bill, or prevents a person from performing functions or exercising powers under the Bill;

·          the occupier of the establishment or any other person who manages or controls export operations at the establishment:

o    made a false, misleading or incomplete statement in an application under Chapter 4 of the Bill;

o    gave false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under the Bill; or

o    gave false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;

·          the occupier of the establishment has contravened a requirement of the Bill in relation to the registration of the establishment;

·          a ground prescribed by the rules exists.

The Secretary will be required to reasonably believe that the one or more grounds set out in subclause 138(1) exists, before taking action under that subclause. This standard will require the Secretary to base the Secretary’s own belief on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than having a reasonable suspicion that the ground exists. This threshold test will generally reflect the existing standards for revoking the registration of an establishment under existing legislation.

Paragraph 138(1)(h) will provide that the Secretary may revoke the registration if the Secretary reasonably believes that the occupier intimidated a person or hindered or prevented them from performing functions or exercising powers under the Bill. Intimidation in this context is not merely making the person’s task difficult but it is conduct that deters another person from performing their functions or exercising their powers under the Bill by inducing fear in the person.

Engaging in such conduct is a serious act. It may compromise export operations carried out in relation to a registration (and therefore the integrity of goods) and on this basis will require an appropriate regulatory response.

Enabling the rules made under clause 432 of the Bill to prescribe any additional grounds on which the registration may be revoked will provide the Secretary with the flexibility to address the wide range of matters that relate to a registration and that might impact on the suitability of the registration, thereby necessitating the revocation of the registration. It will also enable the basis for a revocation to be specific to a kind of prescribed goods, kind of export operations, or place of export. It also reflects the likelihood that grounds may need to change from time to time and the changes will need to commence at short notice.

A note will be included at the end subclause 138(1) that will advise the reader that a decision to revoke the registration of an establishment will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Notice of proposed revocation

Subclause 138(2) will provide that the Secretary must not revoke the registration under subclause 138(1) unless the Secretary has given a written notice to the occupier of the establishment in accordance with subclause 138(3).

Subclause 138(3) will provide that the written notice must:

·          specify the grounds for the proposed revocation; and

·          subject to subclause 138(4), request the occupier of the registered establishment to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the registration should not be revoked; and

·          include a statement setting out the occupier’s right to seek review of a decision to revoke the registration.

Subclause 138(4) will provide that, if the Secretary reasonably believes that the grounds for the revocation are serious and urgent, then the Secretary is not required to include the request in paragraph 138(3)(b) in the notice given under subclause 138(2). Subclause 138(4) does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent. This will be decided on a case-by-case basis. However, the notice of proposed revocation must still be given. In addition to the notice of proposed revocation, the Secretary must give a notice of variation in accordance with clause 140 of the Bill.  A decision to revoke the registration will remain a reviewable decision.

Clause 139          Grounds for revocation—overdue relevant Commonwealth liability

Clause 139 will provide that an overdue relevant Commonwealth liability will be grounds for revoking a registration. This clause is intended to ensure timely payment of liabilities that are due and to prevent further debts to the Commonwealth from being incurred.

Subclause 139(1) will provide that the Secretary may revoke a registration if:

·          the registration is suspended under subclause 128(1) for non-payment of a relevant Commonwealth liability; and

·          within 90 days after the start of the suspension, the relevant Commonwealth liability has not been paid, or the person (the debtor ) who is liable to pay the debt has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.

Subparagraph 139(1)(b)(ii) will refer to the debtor , and not the occupier of the establishment, as the debt may be the responsibility of someone else but nevertheless relate to the establishment.

As with a revocation under clause 138 of the Bill, a revocation under clause 139 is a full revocation of the registration and cannot be in relation to only some of the matters covered by the registration.

A note will be included at the end of subclause 139(1) that will advise the reader that a decision to revoke the registration of an establishment will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Secretary may direct that activities not be carried out

Subclause 139(2) will provide that, if the Secretary revokes the registration under subclause 139(1), the Secretary may also refuse to carry out, or direct a person (for example, an authorised officer) not to carry out, specified activities or kinds of activities in relation to the debtor under the Bill until the relevant Commonwealth liability has been paid.

A note will be included at the end of subclause 139(2) that will refer the reader to clause 309 of the Bill, which deals with general provisions that relate to directions.

Action under this section does not affect liability to pay relevant Commonwealth liability

Subclause 139(3) will provide that any action taken by the Secretary under clause 139 does not affect the liability of the debtor to pay the relevant Commonwealth liability. This will mean that if, for example, the Secretary revokes the registration under clause 139(1) because an occupier has an overdue relevant Commonwealth liability, the occupier will still be liable to pay the overdue amount to the Commonwealth. The overdue amount will be recoverable as a debt due to the Commonwealth under clause 404 of the Bill.

Clause 140          Notice of revocation

Subclause 140(1) will provide that, if the Secretary revokes a registration under Division 2 of Part 6 of Chapter 4 of the Bill (see clauses 138 and 139 of the Bill), the Secretary must give the occupier a written notice of the revocation. Subclause 140(1) will provide that the notice must state that the registration of the establishment is revoked, the reasons for the revocation, and the date the revocation is to take effect.

A note will be included at the end of subclause 140(1) that will provide that the notice must also state the matters referred to in clause 382 of the Bill.

Subclause 140(2) will provide that, if a notice (a show cause notice ) was given under subclause 138(2) of the Bill, that included the request referred to in paragraph 138(3)(b) of the Bill, the revocation must not take effect until the date after any response by the occupier is received or 14 days after the show cause notice was given, whichever is earlier. The effect of this is that the Secretary will be prevented from taking any action to revoke the registration during the 14 day period. If the occupier does not respond within the 14 day period, the revocation will be able to be implemented. If the occupier responds within the 14 day period, the Secretary will be required to consider the occupier’s response when deciding whether to implement the revocation.

Division 3—Other provisions

Clause 141          Export operations must not be carried out after registration of establishment revoked

Clause 141 will provide that penalties may be imposed in circumstances where export operations are carried out after a registration is revoked.

Subclause 141(1) will provide that the occupier of a registered establishment will contravene this subclause if the occupier was given a notice of revocation under subclauses 137(3) or 140(1) of the Bill, and export operations that were covered by the registration of the establishment were carried out at the establishment after the revocation took effect.

A note will be included at the end of subclause 141(1) that will refer the reader to subclause 141(2), which will provide that the physical elements of an offence against subclause 141(2) will be set out in subclause 141(1). The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 141(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 141(1) of the Bill. The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 141(1) will be 600 penalty units.

Subclause 141(3) will provide that a person will be liable to a civil penalty of 240 penalty units if the person contravenes subclause 141(1). This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 141(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 141(1) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

The civil penalty provided for in subclause 141(3) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offence and the civil penalty provision reflect the seriousness of conducting export operations after the registration of an establishment has been revoked. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 142          Secretary may require action to be taken after registration revoked

Clause 142(1) will provide that penalties may be imposed in circumstances where a person contravenes a direction that required the person to take specified action after an export licence was revoked.  

Subclause 142(1) will provide that clause 142 will apply if a person was given a notice of revocation under subclauses 137(3) or 140(1) of the Bill (for example, if a notice has been given but the registration has not, as yet, been revoked) or the registration has been revoked under Division 1 or 2 of Part 6 of Chapter 4 of the Bill.

Subclause 142(2) will provide that the Secretary may, in writing, direct the occupier of the establishment to take specified action, within a specified period, in relation to export operations and goods that were covered by the registration. The action must be an action that is necessary for the purpose of achieving one or more objects of the Bill.

Subclause 142(3) will provide that a direction under subclause 142(2) must state that the person could commit an offence or be liable to a civil penalty if the person fails to comply with the direction. A note will be inserted at the end of subclause 142(3) that will refer the reader to clause 309 of the Bill, which is the general provision relating to directions.

Subclause 142(4) will provide that a person who is given a direction under subclause 142(2) must comply with that direction.

Subclause 142(5) will provide that a person will commit a fault-based offence if the person is given a direction under 142(2) and the person engages in conduct that contravenes the direction. The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention will be 600 penalty units.

Subclause 142(6) will provide that a person will be liable to a civil penalty if the person contravenes subclause 142(4). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 142(4). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 142(4) will be 1,200 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 142(6) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offence and the civil penalty provision reflect the seriousness of failing to comply with a direction of the Secretary in relation to export operations and goods that were covered by a registration that has been revoked. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Part 7—Obligations of occupiers of registered establishments

Clause 143          Export operations not covered by registration must not be carried out

Clause 143 will provide that penalties will be able to be imposed on the occupier of a registered establishment in circumstances where export operations are carried out at the establishment and the registration of the establishment does not cover those export operations in relation to that kind of goods.

For example, if the establishment is registered to process, pack and store goods for export, the occupier will commit an offence or be liable to a civil penalty if the establishment applies treatment to goods for export.

Subclause 143(1) will provide that the occupier of a registered establishment will contravene this subclause if:

·          a kind of export operations is carried out in relation to a kind of prescribed goods at the establishment; and

·          the registration of the establishment does not cover that kind of export operations in relation to that kind of goods.

Subclause 143(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 143(1). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention will be 600 penalty units.

Subclause 143(3) will provide that a person will be liable to a civil penalty if the person contravenes subclause 143(1). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 143(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 143(1) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

The civil penalty provided for in subclause 143(3) will be twice as high as the penalty available for the criminal offence. This will ensure that the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offence and the civil penalty provision reflect the seriousness of carrying out export operations at a registered establishment that is not registered for those export operations. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods. The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 144          Conditions of registration must not be contravened

Clause 144 will provide that penalties will be able to be imposed on the occupier of a registered establishment in circumstances where a condition of the registration is contravened, both when the registration is not suspended (see subclauses 144(1), (2) and (4)) and when the registration is suspended (see subclauses 144(4), (5) and (6)).

Registration that is not suspended

Subclause 144(1) will provide that a person will contravene subclause 144(1) if:

·          the person is the occupier of a registered establishment;

·          the registration is not suspended (wholly or in part) under Part 5; 

·          a condition of the registration is contravened; and

·          the condition is required to be complied with during the period of suspension.

A note will be included at the end of subclause 144(1) that will provide that the physical elements of an offence against subclause 144(2) will be set out in subclause 144(1). The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 144(2) will provide that a person will commit a fault-based offence if the person contravenes subclause 144(1). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 144(1) will be 600 penalty units.

Subclause 144(3) will provide that a person will be liable to a civil penalty if the person contravenes subclause 144(1). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 144(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 144(1) will be 1,200 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

Registration that is suspended

Subclause 144(4) will provide that a person will contravene subclause 144(4) if:

·          the person is the occupier of a registered establishment;

·          the registration is suspended (wholly or in part) under Part 5; and

·          a condition of the registration is contravened.

A note will be included at the end of subclause 144(4) that will provide that the physical elements of an offence against subclause 144(5) will be set out in subclause 144(4). The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

Subclause 144(5) will provide that a person will commit a fault-based offence if the person contravenes subclause 144(4). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention will be 600 penalty units.

Subclause 144(6) will provide that a person will be liable to a civil penalty if the person contravenes subclause 144(4). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 144(4). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 144(4) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

The civil penalties prescribed in subclauses 144(3) and 144(6) will be twice as high as the penalties available for the criminal offences in subclauses 144(2) and 144(5). The penalties are intended to act as a deterrent, particularly for corporations, and recognise that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The penalties for both the fault-based offences and the civil penalty provisions in these clauses reflect the seriousness of failing to comply with the conditions of the registration, irrespective of whether the registration is, or is not, suspended. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Clause 145          Additional or corrected information in relation to application for registration etc.

Clause 145 will set out the circumstances in which an occupier must provide the Secretary with additional or corrected information in relation to an application for registration.

Subclause 145(1) will require the occupier of an establishment to give the Secretary additional or corrected information in accordance with subclause 145(2) if:

·          the occupier becomes aware that information included in an application made by the occupier under Chapter 4 of the Bill, or information or a document given to the Secretary in relation to such an application, was incomplete or incorrect; or

·          a change prescribed by the rules made under clause 432 of the Bill occurs.

However, subclause 145(2) will only create an obligation on the occupier of the establishment to give the Secretary the additional or corrected information required under subclause 145(1) to the extent that it is relevant to the Secretary assessing whether:

·          the requirements of the Bill in relation to a matter covered by the registration of the establishment have been, are being, or will be complied with; or

·          the importing country requirements in relation to a matter covered by the registration of the establishment have been, are being, or will be met.

Subclause 145(2) will also require the occupier to give the Secretary the additional or corrected information as soon as practicable. Whether the information is provided ‘as soon as practicable’ will be determined on a case-by-case basis. Additional or corrected information that will not be relevant to that assessment will not need to be provided to the Secretary. 

It is necessary for the Secretary to have the most up-to-date information to determine whether anything needs to be done in relation to the registered establishment. It may be that an establishment was registered in circumstances where, had the Secretary had the correct information, the establishment may not have been registered.

Enabling the rules made under clause 432 of the Bill to prescribe circumstances that will necessitate the occupier of a registered establishment to provide additional or corrected information will provide the Secretary with the flexibility to accommodate the range of changes in relation to the registration. This will enable a proactive response by the Secretary to changes that will necessitate the occupier of a registered establishment giving additional or corrected information to the Secretary. The ability to prescribe these changes also reflects the likelihood that they will need to change from time to time and will need to commence at short notice.

Three notes will be included at the end of subclause 145(2). Note 1 will provide that a person may commit an offence or be liable to a civil penalty if the person makes a false or misleading statement in an application or provides false or misleading information or documents and will refer the reader to sections 136.1, 137.1 and 137.2 of the Criminal Code and clauses 367, 368 and 369 of the Bill. The sections specified in the Criminal Code and the clauses in the Bill are intended to provide an effective deterrent to conduct that is inconsistent with the requirements of the Bill and could result in the export of goods that do not comply with requirements or conditions set out in the Bill.

Note 2 will refer the reader to paragraphs 127(1)(j) and 138(1)(j) of the Bill. The note will clarify that the Secretary may suspend or revoke the registration of the establishment if the occupier fails to comply with subclause 145(2) of the Bill. It is intended that the Secretary could suspend or revoke the registration under paragraphs 127(1)(j) and 138(1)(j) of the Bill, in addition to any civil penalty imposed under subclause 145(3).

Note 3 will provide that clause 145 is not subject to the privilege against self-incrimination and will refer the reader to clause 426 of the Bill. Removing the privilege against self-incrimination will ensure that the Secretary will receive additional or corrected information in relation to an application for a registered establishment and, if necessary, can take immediate action. Clause 426 will set out the effect of the provision abrogating the privilege against self-incrimination. This will include immunities on the use and derivative use of self-incriminatory material. This information would only be used to ensure that goods are not exported where they do not comply with importing country requirements and requirements of the Bill, and would not result in criminal or civil proceedings against the person who provided the information.

Subclause 145(3) will provide that a person will be liable to a civil penalty if the person is required to give the Secretary information under subclause 145(2) and the person fails to comply with that requirement. The civil penalty provision will be subject to a penalty of 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth. The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth will be 300 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

This civil penalty provision is intended to provide an effective deterrent to an occupier not providing corrected or additional information to the Secretary. Such conduct may impede the effective regulation of exports under the Bill. It will be necessary for the Secretary to have relevant and correct information to determine whether a registration should remain in place. Failure to provide this information may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Clause 146          Notice of changes to occupier of registered establishment

Subclause 146(1) will require the occupier of a registered establishment to notify the Secretary in writing as soon as practicable after any of the following events occurs:

·          there is a change in the occupier’s business structure;

·          if the occupier is an individual—the individual enters into a personal insolvency agreement under Part X of the Bankruptcy Act;

·          if the occupier is a corporation—the corporation enters into administration (within the meaning of section 435C of the Corporations Act) or is to be wound up;

·          there is a change in the trading name, business address or contact details of the occupier;

·          any other event prescribed by the rules.

It is necessary for the Secretary to be notified of changes to the occupier so the Secretary can determine whether the ongoing registration of an establishment is appropriate. The provision of information may lead the Secretary to take certain action, such as suspension or revocation of a registration.

Enabling rules made under clause 432 of the Bill to prescribe other events for which the occupier will be required to notify the Secretary will give the Secretary the flexibility to respond to changes that may impact on the suitability of the occupier to carry out export operations that are not otherwise covered by subclause 146(1). The ability to prescribe these changes also reflects the likelihood that they may be specific to a kind of prescribed goods, export operations, or place of export, and will need to change from time to time and will need to commence at short notice.

The following two examples will be included at the end of subclause 146(1), to indicate what may be a change to the occupier’s business structure for the purpose of paragraph 146(1)(a):

·          a change in a person who manages or controls export operations carried out at the establishment; and

·          if the occupier is a partnership—a change in the membership of the partnership.

A note will be included at the end of subclause 146(1) that will provide that the Secretary may suspend or revoke the registration of an establishment if:

·          the occupier of the establishment, or a person who manages or controls export operations carried out at the establishment, is not a fit and proper person (see paragraphs 127(1)(b) and 138(1)(b) of the Bill); or

·          the occupier fails to comply with this clause (see paragraphs 127(1)(j) and 138(1)(j)) of the Bill.

Subclause 146(2) will provide that a person will be liable to a civil penalty if the person is required to notify the Secretary of an event or circumstances under subclause 146(1) and fails to comply with that requirement. The civil penalty provision will be subject to a penalty of 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth. The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth will be 300 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

This civil penalty provision is intended to provide an effective deterrent to an occupier not providing the information on the changes. It will be necessary for the Secretary to be aware of events or changes to determine whether any action needs to be taken in relation to the registered establishment. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Clause 147          Notice of person ceasing to be occupier of registered establishment

Clause 147 will deal with the requirement to notify the Secretary in circumstances where a person ceases to be an occupier of a registered establishment and sets a penalty for failing to do so.

Subclause 147(1) will provide that if a person in whose name an establishment is registered ( former occupier ) ceases to operate the business or manage or control export operations carried out at the establishment, the former occupier must, as soon as practicable after ceasing, notify the Secretary, in writing, of that fact. Subclause 147(1) will also provide that the notice must also include contact details for the former occupier.

Subclause 147(2) will provide that if a former occupier ceases to operate the business or manage or control export operations, the registration will be taken to have been revoked at the earlier of:

·          the end of the day a notice under subclause 147(1) advising of the cessation is received by the Secretary; or

·          the end of the seventh day after the day the former occupier ceased to operate the business or manage or control export operations carried out at the establishment.

The reason for revoking the registration of an establishment in circumstances where the former occupier ceases to operate the business or manage or control export operations carried out at the establishment is that the registration is assessed on the basis of the person who applied for the registration. If another person wants to take over as the occupier of the registered establishment, they will have to make a new application for registration of the establishment (see Part 2 of Chapter 4 of the Bill).

Subclause 147(3) will provide that a person will be liable to a civil penalty if the person is required to notify the Secretary that they have ceased to be the occupier of a registered establishment under subclause 147(1) and they fail to comply with that requirement. The civil penalty provision will be subject to a penalty of 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth. The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth will be 300 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

This civil penalty provision is intended to provide an effective deterrent to the former occupier for not notifying the Secretary of the change in occupier. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Part 8—Other matters

Clause 148          Register of registered establishments

Subclause 148(1) will require the Secretary to keep a register of information about establishments that are registered under Chapter 4. Subclauses 148(2) and 148(3) will provide that the register may be kept at a place and in a form that the Secretary determines and the register may be kept by electronic means. The register must also include the information in relation to a registered establishment prescribed by the rules made under clause 432 of the Bill for the purposes of clause 148.

Enabling the rules made under clause 432 of the Bill to prescribe the information required in a register will provide the Secretary with the flexibility to determine the kind of information that is appropriate. This may be specific to a kind of prescribed goods, kind of export operations, or place of export. This also reflects the likelihood that the information required may need to change from time to time and will need to commence at short notice.

The purpose of the register is to ensure that exported goods are traceable back to the establishment where they were prepared or produced.

Chapter 5—Approved arrangements

Part 1—Introduction

Clause 149          Simplified outline of this Chapter

Clause 149 will provide a simplified outline of Chapter 5 of the Bill. Chapter 5 will provide for a range of matters that will relate to approved arrangements, including applications for the approval of arrangements, conditions of the arrangements, renewal, suspension and obligations of the holder of arrangements. Approved arrangements are one of the regulatory controls provided for in the Bill that allow people in the export system to take some responsibility for meeting requirements while enabling the Secretary to have regulatory oversight of their export operations and activities. Provisions in Chapter 5 will enable the rules made under clause 432 of the Bill to prescribe requirements that will apply before an arrangement will be approved and conditions in relation to certain matters covered by the arrangement.

The simplified outline is included to assist the reader to understand the substantive clauses of Chapter 5; however, it is not intended to be comprehensive. It is intended that the reader will rely on the substantive clauses of the Bill to which the outline relates.

Part 2—Approval of proposed arrangement

Clause 150          Application for approval of proposed arrangement

Subclause 150(1) will enable a person to apply to the Secretary to approve a proposed arrangement for a kind of export operations in relation to a kind of prescribed goods.

Paragraph 150(2)(a) will provide that the application must be recorded in writing in one or more documents. Paragraph 150(2)(b) will provide that the application may cover more than one kind of export operation and more than one kind of prescribed goods. For example, an arrangement may cover how the holder will comply with the requirements of the Bill in relation to preparing meat for export as well as packing and storing the meat for export.

Paragraph 150(2)(c) will provide that the arrangement may, but is not be required to, specify one or more places to which the goods may be exported. This will enable a particular market to be included in the application for the arrangement, but this will not be mandatory.

Two notes will be included at the end of subclause 150 of the Bill. Note 1 will advise that the export of a kind of prescribed goods may be prohibited unless the exporter holds an approved arrangement in relation to the goods. Note 1 will also refer the reader to clause 29 of the Bill and rules made under clause 432 of the Bill for the purposes of clause 29. Note 2 will refer the reader to clause 377 of the Bill, which will set out the general requirements for applications in the Bill, including applications for approval of arrangements.

Clause 151          Secretary must decide whether to approve proposed arrangement

Subclause 151(1) will provide that, on receiving an application under clause 150 of the Bill to approve a proposed arrangement, the Secretary must decide to approve the arrangement or refuse to approve the arrangement.

Four notes will be included at the end of subclause 151(1). Note 1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to applications, including applications to approve a proposed arrangement.

Note 2 will clarify that, if the application will be for more than one kind of export operations in relation to more than one kind of prescribed goods for export to one or more places, the proposed arrangement may cover one or more of the export operations, in relation to one or more of those kinds of goods, for export to one or more of those places.

Note 3 will refer the reader to subclause 379(2) of the Bill, which will provide that if the Secretary does not make a decision within the consideration period (which will be prescribed by the rules), the Secretary will be taken to have refused the application at the end of that period. Enabling the rules to prescribe this period will allow the Secretary to set an appropriate period for the consideration of the application.

Note 4 will advise the reader that a decision to refuse to approve a proposed arrangement will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will also refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 151(2) will provide that the Secretary may approve an arrangement if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that the following matters are met:

·          if the applicant is a kind of person who will be required by rules made for the purposes of clause 373 of the Bill to be a fit and proper person for the purposes of Chapter 5—the applicant is a fit and proper person;

·          either:

o    all relevant Commonwealth liabilities of the applicant have been paid, or are taken to have been paid; or

o    if one or more relevant Commonwealth liabilities of the applicant have not been paid, the non-payment is due to exceptional circumstances;

·          carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the arrangement, the arrangement will ensure compliance with the Bill in relation to the export operations and goods and that importing country requirements will be met;

·          any other requirement prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe any additional requirements that must be met before a proposed arrangement will be approved will provide the Secretary with the flexibility to determine what other requirements may be necessary. This may, for example, be on a commodity or market-specific basis.

A note will be included at the end of subclause 151(2) that will refer the reader to clause 431 of the Bill, which will provide that a relevant Commonwealth liability of a person will be taken to be have been paid in certain circumstances.

Subclause 151(3) will enable the Secretary to set an expiry date for an approved arrangement if the Secretary considers it is appropriate to do so. Two notes will be included at the end of subclause 151(3). Note 1 will refer the reader to subclause 154(1) of the Bill. The note will provide that if there is no expiry date, the approved arrangement will remain in force unless it is revoked. Note 2 will advise the reader that a decision to set an expiry date for the arrangement will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Subclause 151(4) will enable the Secretary to set an expiry date for the approved arrangement under subclause 151(3) even if rules made for the purposes of subclause 154(5) apply in relation to the approved arrangement.

For example, rules made for the purposes of subclause 154(5) may provide for an expiry date for approved arrangements for a particular kind of export operations, as ten years from the date of approval. This would not prevent the Secretary from setting a different expiry date for that arrangement under subclause 151(4), for example five years from the date of approval, if the Secretary considers that expiry date appropriate in the circumstances. This decision will be reviewable (Part 2 of Chapter 11 of the Bill).These clauses operate together to enable the Secretary to exercise discretion about an appropriate expiry date for specific applications, even if rules are made setting an expiry date for approved arrangements for a particular kind of export operations.

Clause 152          Conditions of an approved arrangement

Subclause 152(1) will provide that, if the Secretary approves a proposed arrangement in relation to a kind of export operations in relation to a kind of prescribed goods, the arrangement will be subject to the following:

·          the conditions that will be provided by the Bill;

·          the conditions that will be prescribed by the rules (other than those conditions which, for a particular arrangement, the Secretary decides are not to apply). The conditions that are not to apply to a particular arrangement will be required to be set out in the notice of decision given to the applicant under clause 153 of the Bill;

·          any additional conditions that the Secretary considers are appropriate for the arrangement under consideration. These additional conditions will be required to be set out in the notice of decision given to the applicant under clause 153 of the Bill.

Four notes will be included at the end of subclause 152(1). Note 1 will refer the reader to clause 184 of the Bill, which will provide that the holder of an approved arrangement may commit an offence or be liable to a civil penalty if a condition of the approved arrangement is contravened. Note 2 will refer the reader to paragraphs 171(1)(d) and 179(1)(d) of the Bill, which will provide that the approved arrangement may be suspended or revoked if a condition of the approved arrangement is contravened. Note 3 will advise the reader that a decision to approve a proposed arrangement subject to additional conditions will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will refer the reader to Part 7 of Chapter 5 of the Bill, which will set out additional obligations of the holder of an approved arrangement.

Subclause 152(2) will provide examples of what the rules may prescribe. These examples will be conditions in relation to:

·          the holder of an approved arrangement;

·          a kind of export operations;

·          a kind of prescribed goods;

·          importing country requirements relating to a kind of export operations or a kind of prescribed goods.

Subclause 152(3) will provide that, without limiting paragraphs 152(1)(b) or (c), the rules may prescribe conditions, and the Secretary may impose conditions, that will be required to be complied with before or after the export of the goods to which the conditions relate, including conditions that apply up until the delivery of the goods to their final overseas destination.

Enabling the rules made under clause 432 of the Bill to prescribe any conditions that the Secretary considers are necessary and appropriate for the type of arrangements under consideration, will provide the Secretary with the flexibility to specify matters that may be relevant to, for example, a particular commodity or market.

Enabling the Secretary to impose any additional conditions that the Secretary considers are appropriate for the particular approved arrangement under consideration will give the Secretary the flexibility to determine additional conditions, relevant to a particular approved arrangement, on a case-by-case basis.

Subclause 152(4) will provide that, for the purposes of the Bill, conditions to which the arrangement will be subject under clause 152 or clause 157 of the Bill (conditions of renewed approved arrangement) are conditions of the arrangement. Contravention of the conditions of an approved arrangement may be grounds for suspending an approved arrangement under paragraph 171(1)(d) of the Bill or revoking the approved arrangement under paragraph 179(1)(d) of the Bill.

Clause 153          Notice of decision

Clause 153 will provide that if the Secretary approves a proposed arrangement, then the Secretary must give the applicant a written notice that sets out the information specified in clause 153. The information that will be required to be included in the written notice is the following:

·          the date the approved arrangement takes effect;

·          that the approved arrangement will remain in force indefinitely, or the expiry date for the approved arrangement;

·          any conditions that are prescribed by the rules that are not conditions of the approved arrangement;

·          any additional conditions on the approved arrangement; and

·          any other information prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe any additional matters that will need to be set out in the notice of the decision made under clause 151 of the Bill will provide the Secretary with the flexibility to ensure that the holder of the approved arrangement will be provided with all relevant information in relation to the arrangement. This may be relevant to, for example, a specific commodity or market.

Providing a notice under clause 153 will inform the applicant of the Secretary’s decision as well as the terms under which the arrangement will be approved. The notice will not set out all conditions or requirements that are applicable to the approved arrangement, but will identify any conditions in the rules that do not apply, as well any additional conditions of the arrangement that will be applicable to the application and that are not specified in the rules. Providing this information will enable the applicant to identify the conditions of the approved arrangement that they will be require to comply with.

Clause 154          Period of effect of approved arrangement

Clause 154 will provide certainty to the holder of an approved arrangement about the period of effect of the arrangement and the circumstances, such as a revocation or renewal, which may change this period.

Approved arrangements that have no expiry date

Subclause 154(1) will provide that if there is no expiry date set for the approved arrangement, the approved arrangement will remain in force unless it is revoked under Part 6 of Chapter 5 of the Bill, or is taken to be revoked under clause 188 of the Bill.

Approved arrangements that have an expiry date

Subclause 154(2) will provide that if there is an expiry date for the approved arrangement, the approved arrangement will remain in force until the end of that date unless the approved arrangement is renewed under Part 3 of Chapter 5 of the Bill, revoked under Part 6 of Chapter 5 of the Bill or is taken to have been revoked under clause 188 of the Bill, on or before that date.

Subclause 154(3) will provide that there is  an expiry date for an approved arrangement if rules made for the purposes of subclause 154(5) apply in relation to the approved arrangement or an expiry date for the approved arrangement set under subclauses 151(3) or 156(3) or paragraph 165(1)(c) or (d) of the Bill is in force in relation to the approved arrangement.

Subclause 154(4) will provide the expiry date for the approved arrangement is either:

·          the last day of the period prescribed by the rules, if rules made for the purposes of subclause 154(5) apply in relation to the approved arrangement and no expiry date set under subclause 151(3) or 156(3) or paragraph 165(1)(c) or (d) is in force in relation to the approved arrangement; or

·           the expiry date set under subclause 151(3) or 156(3) or paragraph 165(1)(c) or (d) is in force in relation to the approved arrangement.

Rules may prescribe period of effect of approved arrangement

Subclause 154(5) will provide that the rules may prescribe the period during which the approved arrangement remains in force. The rules may apply in relation to the approved arrangements generally or approved arrangements for a kind of export operations in relation to a kind of prescribed goods and, if applicable, a place to which the goods may be exported.

Part 3—Renewal of approved arrangement

Clause 155          Application to renew approved arrangement

Subclause 155(1) will be an application provision that will provide that clause 155 will apply in relation to an approved arrangement, including one that has been suspended, if there is an expiry date for the approved arrangement.

A note will be included at the end of subclause 155(1) that will refer the reader to subclauses 154(3) or 154(4) in relation to the expiry date for an approved arrangement.

Subclause 155(2) will provide that, if there is an expiry date for an approved arrangement, the holder of the approved arrangement may apply to the Secretary to renew the arrangement. A note will be included at the end of subclause 155(2) that will refer the reader to clause 377 of the Bill, which will set out the general requirements for applications in the Bill, including applications to renew an approved arrangement.

Subclause 155(3) will provide that the application for renewal may relate to more than one approved arrangement.

Subclause 155(4) will provide that the application for renewal must be made within the period prescribed by the rules made under clause 432 of the Bill or any longer period allowed by the Secretary. Enabling the rules to prescribe this period will provide the Secretary with the flexibility to set an appropriate period for the consideration of the application.

Subclause 155(5) will provide that if the application for renewal is made after the period applying under subclause 155(4), then it will be taken to be a new application to approve an arrangement and the provisions in Part 2 of Chapter 5 of the Bill (which relate to new applications for proposed arrangements) will apply in relation to the application, and the other provisions in Part 3 of Chapter 5 of the Bill (which relate to applications for renewal of the approved arrangements) will not apply.

Clause 156          Secretary must decide whether to renew approved arrangement

Subclause 156(1) will provide that, if the Secretary receives an application to renew an approved arrangement under clause 155 of the Bill, the Secretary must decide either to renew, or to refuse to renew, the approved arrangement.

Four notes will be included at the end of subclause 156(1). Note 1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to dealing with applications to renew an approved arrangement. Clause 379 of the Bill will set out the Secretary’s powers in dealing with applications and the time within which a decision must be made.

Note 2 will clarify that if the application is made to renew more than one approved arrangement, the Secretary may renew some or all of the approved arrangements.

Note 3 will refer the reader to subclause 379(2) of the Bill, which will provide that if the Secretary does not make a decision within the consideration period, the Secretary will be taken to have refused the application at the end of that period. Prescribing this period in the rules will allow the Secretary to set an appropriate period for the consideration of the application.

Note 4 will advise that a decision to refuse to renew the approved arrangement will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 156(2) will provide that the Secretary may refuse to renew an approved arrangement if the Secretary is not satisfied, having regard to any matter the Secretary considers relevant, of one of more of the following:

·          if the holder of the approved arrangement is a kind of person who will be required by rules made for the purposes of clause 373 of the Bill to be a fit and proper person for the purposes of this Chapter—the holder is a fit and proper person;

·          all relevant Commonwealth liabilities of the holder have been paid or, if they have not been paid, the non-payment is due to exceptional circumstances;

·          the holder of the approved arrangement has complied with the requirements of the Bill in relation to the export operations and prescribed goods covered by the approved arrangement;

·          the conditions of the approved arrangement have been, and are being, complied with;

·          carrying out a kind of export operations in relation to a kind of goods in accordance with the approved arrangement will ensure compliance with the requirements of the Bill in relation to those export operations and goods and that importing country requirements will be met;

·          any other requirement prescribed by the rules is met.

Enabling the rules made under clause 432 of the Bill to prescribe any additional grounds that must be met before an approved arrangement will be renewed will provide the Secretary with the flexibility to ensure that the approved arrangement will continue to be appropriate for the matters covered by the approved arrangement and that it will meet the requirements of the Bill before it will be renewed.

Unlike approving an initial application for a proposed arrangement, which requires the Secretary to be satisfied that all requirements prescribed by the rules for the purposes of subclause 151(2) of the Bill have been met, subclause 156(2) will only require the Secretary to consider whether there is evidence of non-compliance and hence grounds for refusing the request to renew. This approach will ensure that approved arrangements will only be renewed in circumstances where there is a history of compliance by the holder of the arrangement; the requirements and conditions of the approved arrangement have been complied with; and there are no outstanding financial liabilities.

A note will be included at the end of subclause 156(2) to refer the reader to clause 431 of the Bill, which will provide that a relevant Commonwealth liability of a person will be taken to be have been paid in certain circumstances.

If the Secretary renews the approved arrangement, subclause 156(3) will enable the Secretary to set an expiry date for the approved arrangement, if the Secretary considers it appropriate. Two notes will be included at the end of subclause 156(3). Note 1 will refer the reader to subclause 154(1) of the Bill, and will clarify that if there is no expiry date  for the approved arrangement, the approved arrangement will remain in force unless it is revoked. Note 2 will advise the reader that a decision to set an expiry date for the renewed arrangement will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Subclause 156(4) will enable the Secretary to set an expiry date for the renewed approved arrangement under subclause 156(3) even if rules made for the purposes of subclause 154(5) apply in relation to the approved arrangement. For example, rules made for the purposes of subclause 154(5) may provide for an expiry date for approved arrangements, as ten years from the date of approval. This would not prevent the Secretary from setting a different expiry date for that arrangement under subclause 156(4), for example five years from the date of approval, if the Secretary considers that expiry date appropriate in the circumstances. This decision will be reviewable (Part 2 of Chapter 11 of the Bill). These clauses operate together to enable the Secretary to exercise discretion about an appropriate expiry date for specific renewal applications, even if rules are made setting an expiry date for applications for approved arrangements.

Clause 157          Conditions of renewed approved arrangement

As with the initial approval of the proposed arrangement (see clause 152 of the Bill), subclause 157(1) will provide that, if the Secretary renews the approved arrangement, the arrangement will be subject to:

·          the conditions that will be provided by the Bill;

·          the conditions that will be prescribed by the rules (other than those conditions which the Secretary decides are not to apply to a particular renewal). The conditions that are not to apply to a particular renewal will be required to be set out in the notice of decision given to the applicant under clause 158 of the Bill; and

·          any additional conditions that the Secretary considers are appropriate for the renewal application under consideration. These additional conditions will be required to be set out in the notice of decision given to the applicant under clause 158 of the Bill.

Enabling the rules made under clause 432 of the Bill to prescribe any conditions that the Secretary considers are necessary and appropriate for the type of arrangements under consideration for renewal, and will provide the Secretary with the flexibility to specify matters that may be relevant to, for example, the renewal of an arrangement for a particular commodity or market.

Enabling the Secretary to impose any additional conditions that the Secretary considers are appropriate for the particular approved arrangement under consideration for renewal will give the Secretary the flexibility to determine additional conditions, relevant to a particular approved arrangement, on a case-by-case basis.

Four notes will be included at the end of subclause 157(1). Note 1 will refer the reader to clause 184 of the Bill, which will provide that the holder of an approved arrangement may commit an offence or be liable to a civil penalty if a condition of the approved arrangement is contravened. Note 2 will refer the reader to paragraphs 171(1)(d) and 179(1)(d) of the Bill, which will provide that the approved arrangement may be suspended or revoked if a condition of the approved arrangement is contravened. Note 3 will advise the reader that a decision to renew an approved arrangement will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 4 will refer the reader to Part 7 of Chapter 5 of the Bill, which will set out additional obligations of the holder of an approved arrangement.

Subclause 157(2) will provide that, without limiting paragraph 157(1)(c), the Secretary may impose conditions that are required to be complied with before or after the export of the goods to which the conditions relate, including conditions that apply up until the delivery of the goods to their final overseas destination.

Clause 158          Notice of decision

Subclause 158 will provide that if the approved arrangement is renewed, the Secretary will be required to give the holder of the approved arrangement a written notice that sets out the relevant information specified in clause 153 of the Bill. This will ensure that the holder of the approved arrangement will be aware of all matters in relation to the renewed arrangement, including any conditions that may be imposed.

Part 4—Variation of approved arrangement

Division 1—Variations by holder

Subdivision A—Non-significant variations

Clause 159          Holder may make non-significant variations of approved arrangement

Subclause 159(1) will enable the holder of an approved arrangement to implement a variation, or two or more variations, of the approved arrangement if:

·          the variation is, or the variations are, not an alternative regulatory arrangement to within the meaning of subclause 379B(1); and

·          the holder and the Secretary consider that the variation, or the combined effect of the variations, will be not significant (having regard to the matters referred to in clause 164 of the Bill).

It will be necessary to exclude variations that would give effect to an alternative regulatory arrangement referred to in paragraph 161(1)(a) of the Bill (such as alternative standards and procedures that relate to export operations or kinds of goods) because such variations may be considered to be insignificant, having regard to the matters listed in clause 164 of the Bill. Without excluding them from clause 159, there would be a risk that they may be implemented without approval. As this will not be appropriate, it will be best practice for variations to alternative regulatory arrangements to be approved by the Secretary before they are implemented. This will provide assurance that importing country requirements and other requirements under the Bill will continue to be met.

Subclause 159(2) will provide that if the holder of an approved arrangement implements one or more variations under subclause 159(1), the holder must, as soon as practicable after doing so, make a written record of each variation, and the reasons for the variation. This will ensure that there are accurate records of the variations made to an approved arrangement which are essential to maintaining the integrity of the export supply chain.

A note will be included at the end of subclause 159(2) that will refer the reader to paragraphs 171(1)(k) and 179(1)(k) of the Bill, which will enable the Secretary to suspend or revoke the approved arrangement if the holder contravenes subclause 159(2).

Subclause 159(3) will provide that if the holder of an approved arrangement implements a variation of the approved arrangement and makes a written record of the variation as required by subclause 159(2), then, despite any other provision of the Bill, a person does not commit an offence, and will be not liable to a civil penalty, only because the variation was implemented before the written record was made.

Subclause 159(4) will provide that the holder of an approved arrangement will be liable to a civil penalty if the holder fails to make a written record of each variation as required by subclause 159(2). The civil penalty provision will be subject to a penalty of 60 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of clause 159. The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of clause 159 will be 300 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

This civil penalty provision is intended to provide an effective deterrent to failing to make a written record of the variation. Conduct that contravenes this requirement may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Clause 160          Date of effect of varied approved arrangement

Clause 160 will provide that if the holder of an approved arrangement implements a variation of the approved arrangement and the holder makes a written record of the variation, the approved arrangement will be taken to have been varied on the date the record of the variation was made under subclause 159(2) of the Bill.

A note will be included at the end of clause 160 that will clarify that the approved arrangement, as varied, will remain in force as provided by clause 154 of the Bill.

Subdivision B—Significant variations and variation of conditions

Clause 161          Application by holder for approval of approved alternative regulatory arrangement or other significant variation or to vary conditions

Subclause 161(1) will provide that the holder of an approved arrangement may apply to the Secretary to approve a variation of certain matters covered by the approved arrangement, including to:

·          approve a variation of the approved arrangement to implement an alternative regulatory arrangement approved under paragraph 379C(1)(a); or

·          approve any other variation or variations of the approved arrangement if the holder and the Secretary consider that the variation, or the combined effect of the variations, is significant (having regard to clause 164 of the Bill); or

·          vary the conditions of the approved arrangement.

Allowing the holder of an approved arrangement to apply to vary the arrangement will enable the Secretary to respond to the changing needs and requirements of the holder, allowing a flexible approach to the regulation of approved arrangements.

A note will be included at the end of subclause 161(1) that will refer the reader to clause 377 of the Bill, which will set out the requirements for applications, including an application to vary an approved arrangement. It will also clarify that a single application may be made to approve a variation of an approved arrangement and to renew the approved arrangement.

Subclause 161(2) will provide that, on receiving an application, the Secretary must decide either to make the variation or to refuse to make the variation.

Three notes will be included at the end of subclause 161(2). Note 1 will refer the reader to clause 379 of the Bill, which will provide for matters relating to dealing with applications. 

Note 2 will refer the reader to subclause 379(2) of the Bill, which will provide that if the Secretary does not make a decision within the consideration period, the Secretary will be taken to have refused the application at the end of that period. Prescribing this period in the rules will allow the Secretary to set an appropriate period for the consideration of the application.

Note 3 will advise the reader that a decision to refuse to make a variation will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 3 will also refer the reader to clause 382 of the Bill, which will provide that the Secretary must give the applicant written notice of the decision.

Subclause 161(3) will provide that the Secretary may refuse to approve the variation, or vary the conditions, if the Secretary is not satisfied, having regard to any matter that the Secretary considers relevant, of one or more of the following:

·          all relevant Commonwealth liabilities of the holder of the approved arrangement have been paid or, if they have not been paid, the non-payment is due to exceptional circumstances;

·          carrying out a kind of export operations in relation to a kind of goods in accordance with the approved arrangement will ensure compliance with the requirements of the Bill,  goods and will ensure importing country requirements will be met, and the integrity of the goods;

·          any other requirements prescribed by the rules will be met.

Enabling the rules made under clause 432 of the Bill to prescribe any additional requirements that must be met before an approved arrangement may be varied may be necessary and appropriate for the type of variation under consideration and will provide the Secretary with the flexibility to specify matters that may be relevant to, for example, changes in a particular commodity or market.

Two notes will be included at the end of subclause 161(3). Note 1 will refer the reader to clause 431 of the Bill, which will provide that a relevant Commonwealth liability of a person will be taken to be have been paid in certain circumstances.

Note 2 will refer the reader to subclause 161(1) and clause 163 of the Bill, which will provide that the holder of an approved arrangement may commit an offence or be liable to a civil penalty if a variation of the approved arrangement or the conditions referred to in subclause 161(1) is implemented, and the variation has not been approved or the holder has not been given notice of the approval.

Clause 162          Notice of variation

Subclause 162(1) will provide that if the Secretary approves a variation of an approved arrangement or varies the conditions of the approved arrangement under paragraph 161(2)(a) of the Bill, then the Secretary must give the holder of the approved arrangement written notice of the variation or approval.

Subclause 162(2) will provide that the notice must include the following information:

·          details of the variation that has been approved;

·          if the variation is of the conditions of the approved arrangement—the varied conditions;

·          the date the variation takes effect; and

·          any other information prescribed by the rules made under clause 432 of the Bill for the purposes of clause 162.

Providing a notice under this clause will inform the holder of the approved arrangement of the Secretary’s decision to approve the variation, as well as the terms under which the variation or approval will be given. Enabling the rules made under clause 432 of the Bill to prescribe any additional matters that will need to be set out in the notice of the decision made under clause 162 of the Bill will provide the Secretary with the flexibility to ensure that the holder of the approved arrangement will be provided with all relevant information in relation to the variation of the arrangement. This may be relevant to, for example, a specific commodity or market.

A note will be included at the end of subclause 162(2) that will advise the reader that the approved arrangement, as varied, will remain in force as provided for by clause 154 of the Bill.

Clause 163          Varied approved arrangement must not be implemented unless variation approved etc.

Clause 163 will provide that penalties may be imposed in circumstances where a variation to an approved arrangement that has not been approved under clause 162 of the Bill is implemented.

Subclause 163(1) will provide that the holder of an approved arrangement will contravene subclause 163(1) if a variation of the approved arrangement or the conditions of approved arrangement referred to in subclause 161(1) of the Bill is implemented and:

·          that variation has not been approved under paragraph 161(2)(a) of the Bill; or

·          the variation has been approved under paragraph 161(2)(a) of the Bill but the Secretary has not given the holder of the approved arrangement notice of the approval under clause 162 of the Bill.

Two notes will be included at the end of subclause 163(1). Note 1 will provide that the physical elements of an offence against subclause 163(2) will be set out in subclause 163(1). The note will also refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence. Note 2 will provide that the Secretary may suspend or revoke the approved arrangement if the holder contravenes subclause 163(1), and will refer the reader to paragraphs 171(1)(k) and 179(1)(k) of the Bill, which give the Secretary the power to suspend or revoke approved arrangements.

The penalties for both the fault-based offence and the civil penalty provision in these clauses reflect the seriousness of implementing a variation to an approved arrangement without approval. Conduct that contravenes the requirements that will be set out in this clause may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods. The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Subclause 163(2) will provide that the holder of an approved arrangement will commit a fault-based offence if the holder contravenes subclause 163(2). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both) for an individual. The maximum fine for a body corporate for a contravention of subclause 163(1) will be 600 penalty units.

Subclause 163(3) will provide that the holder of the approved arrangement will be liable to a civil penalty if the holder contravenes subclause 163(1). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 163(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 163(1) will be 1,200 penalty units, as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.

The civil penalty provided for in subclause 163(3) of 240 penalty units will be twice as high as the penalty available for the criminal offence. The penalty is intended to act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

Subdivision C—Matters relating to whether proposed variation of approved arrangement is significant

Clause 164          Matters to which regard must be had in considering whether proposed variation of approved arrangement is significant

Clause 164 will provide the matters to which the Secretary will be required to have regard to when considering whether proposed variations to approved arrangements made under paragraphs 159(1)(b) and 161(1)(b) of the Bill are significant.

Subclause 164(1) is an application provision, and provides that clause 164 has effect for the purposes of paragraphs 159(1)(b) and 161(1)(b).

Subclause 164(2) will provide that the matters to which the holder of an approved arrangement and the Secretary must have regard in considering whether a variation, or the combined effect of two or more variations, of the approved arrangement will be significant include:

·          whether the variation, or the variations, may have the effect that carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement will no longer ensure:

o    compliance with the requirements of the Bill in relation to those export operations and goods; or

o    that importing country requirements relating to those export operations and goods will be met;

·          whether the variation, or the variations, may adversely affect the Secretary’s ability to accurately assess:

o    whether carrying out a kind of export operations in relation to a kind of prescribed goods in accordance with the arrangement will ensure the matters referred to in subparagraphs 164(2)(a)(i) and 164(2)(a)(ii); or

o    whether the integrity of a kind of prescribed goods covered by the approved arrangement can be ensured;

  • whether the variation, or any of the variations, is of a kind of export operations or a kind of prescribed goods covered by the arrangement, or is of a kind prescribed by the rules.

If the variation, or combination of variations, affects one or more of the matters prescribed in clause 164, the variation will be significant and must not be implemented without approval.

Enabling the rules made under clause 432 of the Bill to prescribe other types of variations to an approved arrangement that will be significant will provide the Secretary with the flexibility that will be necessary to adapt to changing issues, such as in relation to technology.

Clause 164 will enable the Secretary to maintain oversight of significant variations to ensure the variations to the approved arrangements will comply with the requirements under the Bill.

Division 2—Variation required or made by Secretary

Clause 165          Secretary may require approved arrangement to be varied or make certain variations of approved arrangement

Clause 165 will enable the Secretary to require the holder to do certain things or to vary matters, such as conditions, that are within the control of the Secretary. This clause will allow the Secretary to require the holder to do certain things, instead of allowing the Secretary to do things themselves, because the holder, and not the Secretary, owns the arrangement.

Subclause 165(1) will provide that the Secretary may do any of the following in relation to an approved arrangement:

·          require the holder of the approved arrangement to vary any aspect of the approved arrangement, including so that it does not cover:

o    a kind of export operations; or

o    a kind of prescribed goods; or

o    if applicable, a place to which goods may be exported;

·          vary the conditions of the approved arrangement (including by imposing new conditions);

·          if there is no expiry date for the approved arrangement—set an expiry date;

·          if there is an expiry date for the approved arrangement:

o    vary the expiry date; or

o    vary the arrangement by revoking the expiry date.

Two notes will be included at the end of subclause 165(1). Note 1 will provide that if the Secretary revokes the expiry date for the approved arrangement under paragraph 165(e), the approved arrangement will remain in force for the period prescribed by the rules, if rules made for the purposes of subclause 154(5) apply or indefinitely (unless revoked) if no such rules exist. Note 2 will advise the reader that certain decisions made under subclause 165(1) will be reviewable decisions, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Clause 381 of the Bill will provide that only decisions made under paragraphs 165(1)(a) (varying an aspect of the approved arrangement), 165(1)(b) (varying or adding new conditions), 165(1)(c) (setting an expiry date) and 165(1)(d) (setting an earlier expiry date) are reviewable decisions. These decisions are reviewable as they may impact on the interests of the holder of the approved arrangement. A decision made under paragraph 165(1)(e) (varying the approved arrangement by revoking the expiry date) is not a reviewable decision as it will benefit the holder of the approved arrangement.

Subclause 165(2) will provide that the Secretary may only:

·          require the holder of the approved arrangement to vary any aspect of the approved arrangement;

·          vary the conditions of the approved arrangement (including by imposing new conditions);

·          set an expiry date (if there is no expiry date); or

·          vary an expiry date;

if the Secretary reasonably believes that:

·          the integrity of a kind of prescribed goods covered by the approved arrangement cannot be ensured; or

·          if the holder is a kind of person who will be required by rules made for the purposes of clause 373 of the Bill to be a fit and proper person for the purposes of Chapter 5—the holder is not a fit and proper person; or

·          export operations covered by the approved arrangement have not been, or are not being, carried out in accordance with the approved arrangement, or a condition of the approved arrangement has been, or is being, contravened; or

·          circumstances relating to a kind of export operations carried out in relation to a kind of prescribed goods covered by the approved arrangement have changed; or

·          it is necessary to do so to ensure:

o    compliance with the requirements of the Bill in relation to the export operations and goods covered by the arrangement; and

o    that importing country requirements relating to the export operations and goods covered by the arrangement will be met; or

·          an importing country requirement relating to a kind of prescribed goods covered by the approved arrangement has changed; or

·          it is necessary to do so to take account of an event notified under clause 186 of the Bill or to correct a minor or technical error; or

·          the arrangement needs to be varied for any other reason prescribed by the rules for the purposes of subclause 165(2).

The Secretary will be required to reasonably believe that one or more of grounds set out in 165(2) exists, before taking action under that subclause. This standard will require the Secretary to base the Secretary’s own belief on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than having a reasonable suspicion that the ground exists. This threshold test will generally reflect the existing standard for making a variation to an approved arrangement under the existing legislation.

Enabling the rules made under clause 432 of the Bill to prescribe any other reasons why an approved arrangement may need to be varied will provide the Secretary with the flexibility to accommodate the range of export operations, prescribed goods and places to which goods may be exported to which the arrangement may relate and will enable the Secretary to respond to changing export conditions.

Notice of certain proposed variations

Subclause 165(3) will provide that the Secretary must not require the holder to vary the approved arrangement unless the Secretary has given a written notice to the holder of the approved arrangement in accordance with subclause 165(4).

Subclause 165(4) will provide that the written notice must:

·          specify each proposed variation; and

·          specify the grounds for each proposed variation; and

·          subject to subclause 165(5), request the holder of the approved arrangement to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the proposed variation should not be made; and

·          include a statement setting out the holder’s right to seek review of a decision to make the proposed variation.

Subclause 165(5) will provide that if the Secretary reasonably believes that the grounds for varying the approved arrangement are serious and urgent, then the Secretary will not be required to include the request in paragraph 165(4)(c) in the notice issued under subclause 165(3). However, the notice of proposed suspension must still be given. Subclause 165(4) does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent. This will be decided on a case-by-case basis. In addition to the notice of proposed variation, the Secretary must give a notice of the required variations in accordance with clause 166 of the Bill. A decision to make the variation will remain a reviewable decision.

Clause 166          Variations required by the Secretary

Clause 166 will provide the circumstances in which variations of the approved arrangement will be required by the Secretary. This can be contrasted from clause 168 of the Bill, which will provide the circumstances in which variations of the approved arrangement will be made by the Secretary.

Subclause 166(1) will provide that, if the Secretary requires the holder of an approved arrangement to make a variation, the Secretary must give the holder of the approved arrangement a written notice (a variation notice ) requiring the holder to vary the approved arrangement as specified in the variation notice and to give, or make available, the varied arrangement to the Secretary for evaluation by the date specified in the variation notice.

A note will be included at the end of subclause 166(1) that will provide that, if the holder of an approved arrangement does not comply with the variation notice, the Secretary may suspend or revoke the approved arrangement, and will refer the reader to paragraphs 171(1)(k) and 179(1)(k) of the Bill.

Subclause 166(2) will provide that if the holder of the approved arrangement complies with the variation notice, the holder will be taken to have applied to the Secretary to approve the varied approved arrangement. That is, while the Secretary may require a variation, it is up to the holder to implement the variation and this will be taken to be an application to approve the variation to the arrangement.

Secretary must decide whether to approve varied approved arrangement

Subclause 166(3) will provide that, if the varied approved arrangement is either given to or made available to the Secretary, the Secretary must decide either to approve the varied approved arrangement or to refuse to approve the varied approved arrangement.

Subclause 166(4) will enable the Secretary to approve the varied approved arrangement if the Secretary is satisfied, having regard to any matter that the Secretary considers relevant, that all the variations specified in the variation notice have been made. For example, the Secretary would take into consideration whether the variations have been made to achieve the required outcome.

Three notes will be included at the end of subclause 166(4). Note 1 will refer the reader to clause 379 of the Bill for matters relating to dealing with applications. Note 2 will provide that, if the Secretary does not make a decision in relation to the application within the consideration period for the application, the Secretary will be taken to have refused the application at the end of that period, and will refer the reader to subclause 379(2) of the Bill. Note 3 will advise the reader that a decision to refuse to approve a varied approved arrangement will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. The note will also clarify that the Secretary must give the holder of the varied approved arrangement written notice of the decision, and will refer the reader to clause 382 of the Bill.

Subclause 166(5) will enable the Secretary to approve the varied approved arrangement subject to any conditions the Secretary considers appropriate. A note will be included at the end of subclause 166(5) that will advise the reader that a decision to approve a varied approved arrangement subject to conditions will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Notice of approval of varied approved arrangement

Subclause 166(6) will provide that if the Secretary approves the varied approved arrangement, the Secretary must give the holder of the varied approved arrangement a written notice stating the date the varied arrangement takes effect and any other information prescribed by the rules made under clause 432 of the Bill for the purposes of subclause 166(6).

A note will be included at the end of the subclause 166(6) that will advise the reader that the varied approved arrangement will remain in force as provided by clause 154 of the Bill.

Enabling the rules to set out what matters must be set out in the notice of approval of a varied approved arrangement will give the Secretary the flexibility to identify all matters that may be relevant to that particular type of variation under consideration. This may be on a commodity or market specific basis.

When varied approved arrangement takes effect

Subclause 166(7) will provide that if the holder of an approved arrangement was given a notice (a show cause notice ) under subclause 165(3) of the Bill as to why the variation should not be made under subclause 165(3) of the Bill that included the request referred to in paragraph 165(4)(c) of the Bill, the varied approved arrangement must not take effect before the earlier of:

·          the day after any response to the request is received by the Secretary;

·          the end of 14 days after the show cause notice was given.

The effect of this is that the Secretary will be prevented from taking any action to implement the variation during the 14 day period. If the holder of the approved arrangement does not respond within the 14 day period, the variation will be able to be implemented. If the holder responds within the 14 day period, the Secretary will only be able to make a variation that is within the Secretary’s control (such as to vary a condition of the arrangement). The Secretary will not be able to implement a variation to the arrangement itself, as this is within the control of the holder of the approved arrangement.

The consequence is that the holder is no longer operating under an arrangement that has been approved by the Secretary and this may lead to suspension or revocation of that arrangement because the integrity of the prescribed goods covered by the arrangement cannot be ensured (see paragraphs 171(1)(a) and 179(1)(a) of the Bill). The holder of the approved arrangement may also commit an offence if exporting the goods in accordance with an approved arrangement that is no longer approved contravenes an approved export condition.

A note will be included at the end of subclause 166(7) that will advise the reader that the varied approved arrangement will remain in force as provided by clause 154 of the Bill.

Clause 167          Varied approved arrangement must not be implemented unless approved etc.

Clause 167 will provide that if the holder of an approved arrangement has been given a variation notice in relation to the approved arrangement under subclause 166(1) of the Bill, the holder must not implement a variation specified in the variation notice unless the varied approved arrangement has been approved under paragraph 166(3)(a) of the Bill and the Secretary has given the holder written notice of the approval under subclause 166(6) of the Bill.

A note will be included at the end of clause 167 that will provide that, if the holder contravenes clause 167, the Secretary may either:

·          suspend or revoke the approved arrangement, referring the reader to paragraph 171(1)(k) and 179(1)(k) of the Bill; or

·          refuse to issue a government certificate in relation to a kind of goods covered by the approved arrangement, referring the reader to clause 64 of the Bill, or refuse to issue an export permit for the goods, referring the reader to clause 225 of the Bill.

Clause 168          Notice of variations made by the Secretary

Clause 168 will provide the circumstances in which variations of the approved arrangement will be made by the Secretary. This can be contrasted from clause 166 of the Bill, which will provide the circumstances when variations of the approved arrangement will be required by the Secretary.

Subclause 168(1) will provide that if the Secretary makes a variation in relation to an approved arrangement under paragraphs 165(1)(b), 165(1)(c), 165(1)(d) or 165(1)(e) of the Bill, the Secretary must give the holder of the approved arrangement written notice of the variation.

Subclause 168(2) will provide that the notice must include the following information:

·          if the variation is of the conditions of the approved arrangement—the varied conditions of the arrangement;

·          if the variation affects the period of effect of the approved arrangement—the expiry date for the approved arrangement under paragraph 154(4)(a) or 154(4)(b), or if there is no expiry date for the approved arrangement—that the approved arrangement remains in force unless it is revoked;

·          the date the variation takes effect;

·          any other information prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe any additional matters that will need to be set out in the notice of the variation made under clause 168 will provide the Secretary with the flexibility to ensure that the holder of the approved arrangement will be provided with all relevant information in relation to the variation.

Providing a notice under this clause will inform the holder of the approved arrangement of the Secretary’s decision to make a variation, as well as the terms under which the variation will be given.

Subclause 168(3) will provide that, if the Secretary has given a notice (a show cause notice ) to the holder of the approved arrangement under subclause 165(3) of the Bill that included the request referred to in paragraph 165(4)(c), the variation must not take effect until the earlier of the following:

·          the day after any response by the holder of the arrangement is received by the Secretary;

·          the end of the 14 day period after the show cause notice was given.

The effect of this will be that the Secretary will be prevented from taking any action to vary the approved arrangement during the 14 day period. If the holder of the arrangement does not respond within the 14 day period, then the variation will be able to be made. If the holder responds within the 14 day period, the Secretary will be required to consider the holder’s response when deciding whether to vary the approved arrangement as proposed.

A note will be included after the end of subclause 168(3) that will advise the reader that the varied approved arrangement will remain in force as provided by clause 154 of the Bill.

Part 5—Suspension of approved arrangement

Division 1—Suspension requested by holder

Clause 169          Holder may request suspension

Subclause 169(1) will provide that, subject to subclause 169(2), the holder of an approved arrangement may request the Secretary to suspend the approved arrangement, or part of the approved arrangement, in relation to a matter covered by the approved arrangement.

A note will be included at the end of subclause 169(1) that will provide an example of situations in which a holder of an approved arrangement might make a request under the subclause. The note will provide that a request might be made under the subclause if, for example, the holder does not have personnel with appropriate qualifications or expertise to carry out a particular kind of export operations in relation to a kind of prescribed goods in accordance with the approved arrangement.

Subclause 169(2) will provide that a request may be made under subclause 169(1) only in the circumstances prescribed by the rules.

Enabling the rules made under clause 432 of the Bill to prescribe the appropriate circumstances in which the holder of an approved arrangement may be able to request voluntary suspension of the arrangement will provide the Secretary with flexibility to determine matters on, for example, a market or commodity-specific basis.

Subclause 169(3) will provide that a request to suspend an arrangement under subclause 169(1) may relate to more than one kind of export operations, kind of prescribed goods or, if applicable, place to which goods may be exported under the arrangement.

Subclause 169(4) will require the request under subclause 169(1) to be in writing and to:

·          specify whether the whole or a specified part of the approved arrangement will be suspended;

·          state each kind of export operations and each kind of prescribed goods and, if applicable, each place in relation to which the approved arrangement is to be suspended;

·          specifying the reason for the suspension; and

·          include any other information prescribed by the rules.

Enabling the rules to set out any other information that must be included in a voluntary request for suspension will provide the Secretary with the flexibility to ensure that all relevant information will be included in the application so that the Secretary can make an informed decision.

Subclause 169(5) will provide that the Secretary must, by written notice to the holder, suspend the whole or part of the approved arrangement if requested to do so by the holder of the approved arrangement with effect on the day specified in the notice.

Clause 170          Request to revoke suspension

Subclause 170(1) will provide that if an approved arrangement, or a part of an approved arrangement, is suspended under clause 169 of the Bill, the holder of the approved arrangement may request the Secretary to revoke the suspension.

Subclause 170(2) will provide that the request must be in writing, state the reason for the request and include any other information prescribed by the rules made under clause 432 of the Bill. Enabling the rules to set out what additional information must be included in a request to revoke a suspension of an approved arrangement will give the Secretary the flexibility to identify matters that may relate to particular arrangements, particular prescribed goods or particular markets.

Subclause 170(3) will provide that, if the Secretary receives a request under subclause 170(1), the Secretary may:

·          revoke the suspension if the Secretary is satisfied that the reason for the suspension no longer exists and there is no reason why the suspension should not be revoked;

·          suspend the approved arrangement or part of the approved arrangement; or

·          revoke the approved arrangement.

Paragraph 170(3)(b) will provide that if the Secretary does not revoke the suspension under paragraph 170(3)(a), the Secretary may suspend the approved arrangement under Division 2 of Part 5 of Chapter 5 of the Bill, or revoke the approved arrangement under Division 2 of Part 6 of Chapter 5 of the Bill.

Clause 170(3) means that if the holder of the arrangement requests the revocation of the suspension, the Secretary will only have three choices:

·          to agree to revoke the suspension;

·          to suspend the arrangement or part of the approved arrangement; or

·          to revoke the approved arrangement.

In these circumstances, the decision to refuse to revoke the suspension itself will not be a reviewable decision. If the Secretary makes the first choice, there is no need to be able to review the decision as it is in the holder’s favour. If the Secretary makes the second or third choice, these decisions in themselves are reviewable.

A note will be included at the end of subclause 170(3) that will advise the reader that a decision to suspend or revoke the approved arrangement will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Division 2—Suspension by Secretary

Clause 171          Grounds for suspension—general

There are a number of grounds upon which the Secretary may suspend all or some of the matters covered by an approved arrangement. The ability to suspend an approved arrangement will be necessary in a range of circumstances to ensure that the approved arrangement remains effective to achieve the requirements of the Bill.

Subclause 171(1) will provide that the Secretary may suspend all or part of an approved arrangement if the Secretary reasonably believes that:

·          the integrity of a kind of prescribed goods covered by an approved arrangement cannot be ensured;

·          if the holder of the approved arrangement is a kind of person who will be required by rules made for the purposes of clause 373 of the Bill to be a fit and proper person for the purposes of Chapter 5—the holder is not a fit and proper person;

·          a requirement referred to in subclause 151(2) of the Bill is no longer met;

·          export operations covered by the approved arrangement have not been, or are not being, carried out in accordance with the approved arrangement, or a condition of the approved arrangement has been, or is being contravened;

·          circumstances relating to any of the export operations or goods covered by the approved arrangement have changed;

·          carrying out the export operations in relation to a kind of goods under the approved arrangement will no longer ensure compliance with the requirements of the Bill or meet importing country requirements;

·          the holder of the approved arrangement has failed to comply with a direction or a request made under the Bill, or has engaged in conduct that either intimidated a person, or hindered or prevented a person performing their functions or exercising powers under the Bill;

·          the holder of the approved arrangement, or a person who manages or controls or carries out export operations covered by the approved arrangement has:

o    made a false, misleading or incomplete statement in an application under Chapter 5 of the Bill; or

o    given false, misleading or incomplete information or documents to the Secretary or to another person performing functions or exercising powers under the Bill; or

o    given false, misleading or incomplete information or documents to the Secretary or the Department under a prescribed agriculture law;

·          the holder of the approved arrangement has contravened a requirement of the Bill in relation to an approved arrangement; or

·          a ground prescribed by the rules made for the purposes of clause 171 of the Bill exists.

Subparagraph 171(1)(h)(i) will provide that the Secretary may suspend the approved arrangement or part of an approved arrangement (with a written notice, see subclause 171(2)) when the holder of the arrangement fails to comply with a direction given by an authorised officer or the Secretary. Contravening a direction from an authorised officer or the Secretary will be a serious act. It potentially compromises export operations that are taking place under the approved arrangement and on this basis requires an appropriate regulatory response.

This provision will be important in ensuring that the effectiveness of the regulatory framework will be maintained by providing the Secretary with the ability to suspend export operations on the basis of a contravention of a direction by an authorised officer or the Secretary.

Subparagraph 171(1)(i)(i) will provide that the Secretary may suspend the approval of an arrangement if the Secretary reasonably believes that the holder intimidated a person performing functions or exercising powers under the Bill. Intimidation in this context is not merely making the person’s task difficult but it is conduct that deters another person from performing their functions or exercising their powers under the Bill by inducing fear in the person. Engaging in such conduct is a serious act. Such conduct may also amount to an offence under 149.1 of the Criminal Code (obstruction of Commonwealth public officials). Such conduct may also compromise export operations that are taking place in accordance with an approved arrangement (and therefore the integrity of goods) and on this basis will require an appropriate regulatory response.

The Secretary will be required to reasonably believe that the one or more grounds set out in subclause 171(1) exists, before taking action under that subclause. This standard will require the Secretary to base the Secretary’s own belief on objective circumstances but does not go so far as to require that the ground be established on the balance of probabilities. The requirement is, however, more than having a reasonable suspicion that the ground exists. This threshold test will generally reflect the existing standard for suspending an approved arrangement under existing legislation.

Enabling the rules made under clause 432 of the Bill to prescribe any additional grounds on which the approved arrangement may be suspended will provide the Secretary with the flexibility to address the wide range of matters that relate to an approved arrangement and which might impact on the arrangement thereby necessitating the suspension of the arrangement.

Two notes will be included at the end of subclause 171(1). Note 1 will refer the reader to clause 174 of the Bill, which will provide that if export operations are suspended, the period of suspension must not be greater than 12 months. Note 2 will advise the reader that a decision to suspend the approved arrangement under clause 171 will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

Notice of proposed suspension

Subclause 171(2) will provide that the Secretary must not suspend an approved arrangement, or part of an approved arrangement, under subclause 171(1) unless the Secretary has given a written notice to the holder of the approved arrangement in accordance with subclause 171(3).

Subclause 171(3) will provide that the written notice must:

·          specify whether the whole of the approved arrangement is proposed to be suspended, or whether a part of the approved arrangement is proposed to be suspended and, if so, which part; and

·          specify the grounds for the proposed suspension; and

·          subject to subclause 171(4), request the holder of the approved arrangement to give the Secretary, within 14 days after the day the notice is given, a written statement showing cause why the approved arrangement, or the part of the approved arrangement, should not be suspended as proposed; and

·          include a statement setting out the holder’s right to seek review of a decision to suspend the approved arrangement, or the part of the approved arrangement, as proposed.

Subclause 171(4) will provide that, if the Secretary reasonably believes that the grounds for the suspension are serious and urgent, then the Secretary will not be required to include the request in paragraph 171(3)(c) in the notice given under subclause 171(2). However, the notice of proposed suspension must still be given. Subclause 171(4) does not limit the factors the Secretary may take into account when determining if the grounds are serious or urgent. This will be decided on a case-by-case basis. In addition to the notice of proposed suspension, the Secretary must give a notice of suspension in accordance with clause 173 of the Bill. A decision to suspend the approved arrangement will remain a reviewable decision.

Clause 172          Grounds for suspension—overdue relevant Commonwealth liability

Clause 172 will provide that an overdue liability to the Commonwealth will be grounds for suspending an approved arrangement. This clause is intended to ensure timely payment of liabilities that are due and to prevent further debts to the Commonwealth from being incurred.

Notice of proposed suspension

Subclause 172(1) will provide that the Secretary may suspend an approved arrangement if a relevant Commonwealth liability (which will be defined in clause 12 of the Bill) of the holder of the arrangement, is more than 30 days overdue. Subclause 172(1) will also provide that the Secretary may only suspend the approved arrangement if:

·          the Secretary has given a written notice (in accordance with subclause 172(2)) to the holder of the approved arrangement (the debtor ) who will be liable to pay the relevant Commonwealth liability; and

·          within eight days after the notice is given, the relevant Commonwealth liability has not been paid or the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability.

Unlike suspension under clause 171 of the Bill, the suspension of the approved arrangement under clause 172 will be a full suspension of the arrangement and cannot be in relation to only some of the matters covered by the approved arrangement. This will be necessary as the overdue Commonwealth liability impacts on the whole arrangement and not just parts thereof.

Three notes will be included at the end of subclause 172(1). Note 1 will refer the reader to clause 174 of the Bill, which will provide that a suspension must not be for more than 12 months. Note 2 will advise the reader that a decision to suspend an approved arrangement under clause 172 will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill. Note 3 will refer the reader to clause 180 of the Bill and clarify that if the Secretary suspends the approved arrangement under clause 172, the Secretary may revoke the approved arrangement in certain circumstances, including in relation to an overdue Commonwealth liability.

Subclause 172(2) will provide that a notice given under subclause 172(1) must:

·          state that the relevant Commonwealth liability of the debtor in relation to an export licence is more than 30 days overdue;

·          state that the Secretary may suspend the export licence in relation to all kinds of export operations and all kinds of prescribed goods if, within eight days after the notice is given:

o    the relevant Commonwealth liability is not paid; or

o    the debtor has not entered into an arrangement with the Secretary to pay the relevant Commonwealth liability;

·          include a statement setting out the debtor’s right to seek a review of the decision to suspend the export licence.

Secretary may direct that activities not be carried out

Subclause 172(3) will provide that, if the Secretary suspends the approved arrangement under subclause 172(1), the Secretary may also refuse to carry out, or direct a person (for example, an authorised officer) not to carry out, specified activities or kinds of activities in relation to the debtor under the Bill until the relevant Commonwealth liability has been paid. This will have the effect of encouraging the debtor to pay the relevant Commonwealth liability so that they will be able to continue exporting goods.

A note will be included at the end of subclause 172(3) that will refer the reader to clause 309 of the Bill, which contains general provisions that relate to directions under the Bill.

Action under this section does not affect liability to pay relevant Commonwealth liability

Subclause 172(4) will provide that any action taken by the Secretary under clause 172 does not remove the liability of the debtor to pay the relevant Commonwealth liability. This will mean that, for example, if the Secretary suspends the approved arrangement under subclause 172(1) because the holder of the arrangement has an overdue relevant Commonwealth liability, the holder will still be liable to pay the overdue amount to the Commonwealth. The overdue amount will be recoverable as a debt due to the Commonwealth under clause 404 of the Bill.

Clause 173          Notice of suspension

Subclause 173(1) will provide that, if the Secretary decides to suspend an approved arrangement, or part of an approved arrangement, under either clause 171 or clause 172 of the Bill, the Secretary must give the holder of the approved arrangement a written notice of the suspension stating:

·          that the notice must include that the approved arrangement, or the part of the approved arrangement is to be suspended;

·          the reasons for the suspension;

·          the date the suspension will start;

·          the period of the suspension.

A note will be included after the end of subclause 173(1) that will clarify that the notice will also be required to state the matters referred to in clause 377 of the Bill.

Subclause 173(2) will provide that, if a notice (a show cause notice ) was given under subclause 172(2) of the Bill that included the request referred to in paragraph 171(3)(c) of the Bill, the suspension must not start until the earlier of the day after any response by the holder is received or the end of the 14 day period after the show cause notice was given.

The effect of this is that the Secretary will be prevented from taking any action to suspend the approved arrangement during the 14 day period. If the holder of the arrangement does not respond within the 14 day period, the suspension will be able to be implemented. If the holder responds within the 14 day period, the Secretary will be required to consider the holder’s response when deciding whether to implement the suspension.

Clause 174          Period of suspension

Subclause 174(1) will provide that the suspension of the approved arrangement under Division 2 of Part 5 of Chapter 5 of the Bill must not be for more than 12 months. This will provide certainty to the holder of the approved arrangement about the period of the suspension and will prevent an approved arrangement from being suspended indefinitely. It is intended that the matters that necessitated the suspension will be required to be resolved in 12 months or less; otherwise, the Secretary will have the option of revoking the arrangement.

Subclause 174(2) will provide that the Secretary may vary the period of a suspension by written notice to the holder of the approved arrangement. However, subclause 174(2) will also provide that the total period of suspension must not be for more than 12 months.

A note will be included at the end of subclause 174(2) that will advise the reader that a decision to extend the period of a suspension will be a reviewable decision, and will refer the reader to Part 2 of Chapter 11 of the Bill.

If the reason for the suspension warrants a longer period of suspension, the Secretary will be able to revoke the approved arrangement under Division 2 of Part 6 of Chapter 5 of the Bill instead, provided that the relevant provisions in the Bill are satisfied (see Division   2 of Part 6 of Chapter 5 of the Bill).

Clause 175          Revocation of suspension

A suspension of an approved arrangement need not remain in place for the entire period set out under paragraph 173(1)(d) of the Bill.

Clause 175 will provide that the Secretary may revoke a suspension made under Division 2 of Part 5 of Chapter 5 of the Bill by written notice to the holder of the approved arrangement. Revocation of a suspension may occur, for example, in circumstances where the Secretary is satisfied that the grounds for the suspension no longer exist or have been rectified.

Division 3—Other provisions

Clause 176          Effect of suspension

Clause 176 will provide that the effect of a suspension of an approved arrangement will be that the arrangement will remain in force and the requirements of the Bill in relation to that arrangement will continue to apply, unless the rules made under clause 432 of the Bill say otherwise. This will allow, for example, activities such as an audit to be undertaken while the suspension is in place for the purpose of determining compliance with requirements of the Bill. Clause 177 of the Bill will make it clear that carrying out export operations while suspended will be an offence.

Subclause 176(1) will provide that if the approved arrangement is suspended wholly or in part under Divisions 1 or 2 of Part 5 of Chapter 5 of the Bill, the approved arrangement will remain in force while it is suspended, and, subject to the rules made for the purposes of subclause 176(2), the requirements of the Bill in relation to the arrangement (including the conditions of the approved arrangement) must be complied with during the period of the suspension.

Subclause 176(2) will provide that the rules may prescribe requirements of the Bill (including conditions of the approved arrangement) that will not apply during the period of suspension. The effect of this will be that the default position is that all requirements of the Bill, such as the requirement to be audited or to comply with a direction of an authorised officer and conditions of the approved arrangement, will continue to apply unless the rules provide otherwise.

Enabling the rules made under clause 432 of the Bill to prescribe the requirements of the Bill or conditions of the arrangement that will not apply during the period of suspension will provide the Secretary with the flexibility to reduce the regulatory burden on the holder of an approved arrangement. These requirements are likely to vary depending on the kind of export operations, kind of prescribed goods and places to which goods may be exported.

Clause 177          Export operations must not be carried out while approved arrangement suspended

Clause 177 will provide that penalties may be imposed in circumstances where export operations are carried out while an approved arrangement is suspended.

Subclause 177(1) will provide that a holder of an approved arrangement will contravene subclause 177(1) if the holder was given a notice of suspension of the whole or a part of the approved arrangement under subclauses 169(5), or 173(1) of the Bill, and export operations in relation to which the approved arrangement was suspended were carried out under the approved arrangement while it was suspended.

A note will be included at the end of subclause 177(1) that will provide that the physical elements of an offence against subclause 177(2) of the Bill will be set out in subclause 177(1). The note will refer the reader to clause 370 of the Bill, which will provide further explanation of the operation of the physical elements of the offence.

The penalties for both the fault-based offence and the civil penalty provision in these clauses reflect the seriousness of conducting export operations while an approved arrangement is suspended. Such conduct may undermine the integrity of the regulatory framework provided for by the Bill. This conduct may impact on the confidence of trading partners in the Government’s regulation of exported goods and adversely impact on market access. The consequence of non-compliant behaviour by one person may therefore impact on the ability of others to export goods.

Subclause 177(2) will provide that the holder of an approved arrangement will commit a fault-based offence if the holder contravenes subclause 177(1). The fault-based offence will be subject to a penalty of imprisonment for two years or a fine of 120 penalty units (or both). The maximum fine for a body corporate for a contravention of subclause 177(1) will be 600 penalty units.

Subclause 177(3) will provide that the holder of an approved arrangement will be liable to a civil penalty if the holder contravenes subclause 177(1). The civil penalty provision will be subject to a penalty of 240 penalty units. This will be the maximum civil penalty that a relevant court will be able to order an individual to pay the Commonwealth for a contravention of subclause 177(1). The maximum civil penalty that a relevant court will be able to order a body corporate to pay the Commonwealth for a contravention of subclause 177(1) will be 1,200 penalty units , as the corporate multiplier provision in subsection 82(5) of the Regulatory Powers Act will apply.  

The civil penalty provided for in subclause 177(3) of 240 penalty units will be twice as high as the penalty available for the criminal offence. This will ensure the penalty will act as a deterrent, particularly for corporations, and recognises that being found liable to pay a civil penalty does not attract imprisonment or a criminal conviction.

The Secretary will have the ability to choose the most appropriate enforcement action based on the circumstances, which will ensure that enforcement action will be commensurate to the contravening conduct and the corresponding consequences of that contravention.

Part 6—Revocation of approved arrangement

Division 1— Revocation requested by holder

Clause 178          Holder may request revocation

Subclause 178(1) will provide that the holder of an approved arrangement may request the Secretary to revoke the arrangement. This can include an approved arrangement where a suspension is in effect under Part 5 of Chapter 5 of the Bill.

A note will be included at the end of subclause 178(1) that will clarify that, if the holder does not wish to revoke the approved arrangement for all purposes, the holder may apply to vary the approved arrangement under Subdivision B of Division 1 of Part 4 of the Bill. This will allow the holder of an approved arrangement to apply to vary aspects of the approved arrangement including the kinds of export operations, the kinds of prescribed goods and the places to which goods are to be exported.

Subclause 178(2) will require the request under subclause 178(1) to be in writing and include the information (if any) prescribed by the rules made under clause 432 of the Bill. This is intended to give the Secretary sufficient information of the nature of the revocation.

Subclause 178(3) will provide that if the Secretary receives a request under subclause 178(1), the Secretary must, by written notice to the holder of the approved arrangement, revoke the approved arrangement with effect on the day specified in the notice.

However, subclause 178(4) will provide that the Secretary does not have to revoke the approved arrangement if, before the holder of the approved arrangement made the request under clause 178(1), the Secretary had given the holder of the approved arrangement a notice under clause 179(2) of the Bill proposing to revoke the approved arrangement and the Secretary had not decided whether to revoke the approved arrangement.

In these circumstances, the Secretary will not be required to agree to revoke the approved arrangement. This is intended to ensure that the Secretary considers the matters as set out in subclause 179(1) of the Bill. Consideration of these matters may, for example, establish whether the holder has committed an offence or will be liable for a civil penalty for contravening a condition of the approved arrangement or determine the required action after the approved arrangement has been revoked (see clause 183 of the Bill).

Division 2—Revocation by Secretary

Clause 179          Grounds for revocation—general

There are a number of grounds upon which the Secretary will be able to revoke an approved arrangement (including an approved arrangement in relation to which a suspension is in effect under Part 5 of Chapter 5 of the Bill). These will be the same as the grounds for suspending an approved arrangement under subclause 171(1) of the Bill. The ability to revoke an approved arrangement may be necessary in a range of circumstances, including where the Secretary reasonably believes that the integrity of the prescribed goods cannot be ensured, that prescribed requirements will not be met, where conditions of the arrangement have been contravened, or in relation to certain conduct by the holder of the approved arrangement, such as failure to comply with a direction.

The revocation of an approved arrangement will be of the whole arrangement and cannot be in relation to only some of the matters covered by the arrangement. This reflects the likely seriousness of the circumstances necessitating the revocation by the Secretary, which cannot be dealt with by other means such as varying or suspending the approved arrangement.

There are a nu